Smith v. Ill. Dep't of Transp.

TERRY SMITH, Plaintiff, v. ILLINOIS DEPARTMENT OF TRANSPORTATION, Defendant.

No. 15 C 2061

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

August 8, 2018

Judge Edmond E. Chang

MEMORANDUM OPINION AND ORDER

In August 2013, Terry Smith started a six-month probationary period as an Emergency Traffic Patrol Minuteman with the Illinois Department of Transportation (IDOT). R. 55, DSOF ¶ 4.¹ But Smith never became a permanent employee, see DSOF ¶ 6—IDOT fired him in January 2014, after Smith accumulated several poor performance evaluations and engendered complaints from coworkers and supervisors. Id. ¶ 95. Smith alleges that IDOT engaged in racial discrimination, retaliation, and harassment under Title VII of the Civil Rights Act and 42 U.S.C. § 1981. DSOF ¶¶ 2-3; DSOF Exh. 1, Compl.; see 42 U.S.C. § 2000 et seq.² IDOT moves for summary judgment against all of Smith's claims. R. 53, Def. Mot. for Summ. J. For the reasons discussed below, the motion is granted.

I. Background

In deciding IDOT's motion for summary judgment, the Court views the evidence in the light most favorable to Smith. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In August 2013, Terry Smith, an African-American man, joined the Illinois Department of Transportation as an Emergency Traffic Patrol "Minuteman" (also called ETPs). DSOF ¶¶ 1, 4. Minutemen are responsible for removing disabled cars from the roadway, responding to assistance calls, ensuring departmental compliance with safety rules, and operating Large CDL Class A vehicles. Id. Smith started on a six-month probation period along with another new hire, Jamie Lopez. DSOF ¶¶ 5-6. To become a permanent IDOT employee, probationers must satisfactorily complete training and meet performance expectations. Id. ¶ 6. Throughout the training period, the probationary ETPs rotated among three shifts (A-, B-, and C-Shift) and worked alongside "Lead Workers," reported to "Lead Lead Workers,"³ and were shadowed by Field Training Officers. Id. ¶¶ 8-11, 14.⁴ The job itself is "very dangerous," and employees must be able to perform arduous labor, follow instructions carefully, and work together seamlessly, because the ETPs rely on each other for assistance and protection. DSOF ¶ 7. When the highways comprise the workplace, mistakes can be fatal. Id.

At the start of probation, Smith and Lopez each received two initial weeks of classroom instruction from a Lead Worker, Angel Ramirez, who also taught them the basics, like how to navigate the highways, how to use the equipment, and how to use the radio. DSOF ¶ 13. Next, Smith started field training, which involved driving highway routes in an emergency patrol vehicle, a truck used to tow cars and upright rollover vehicles. Id. ¶ 14. During this time, Smith was shadowed by various Field Training Officers (FTO), who observed his progress, taught him new skills, and corrected him when he erred. Id. It was these FTOs who provided the formal written evaluations of each trainee's performance. Id.

A. Time on A-Shift

Smith's problems began soon after he started work. LW Ramirez assisted in Smith's training on his first shift, the A-Shift. DSOF ¶ 16.⁵ Soon, Ramirez received several complaints from the shadowing FTOs that Smith would "debate his instructions" and question the directives he was given, which hindered the training process for both Smith and his training partner, Lopez. DSOF ¶ 16. When LW Ramirez eventually evaluated Smith as part of the training process, Ramirezcommented that Smith could not accept critiques or use criticism to improve his performance, and Ramirez went so far as to say that Smith was not taking the job seriously. Id. Smith also had trouble identifying the major highway patrol routes and had trouble using the two radios that all Minutemen carry. Id. ¶¶ 17-18.

When working on the A-Shift, Smith was also trained by FTO Marcello Valle, LW Lloyd Colbert, FTO Cliff Thomas, and FTO Gerald Washington. DSOF ¶¶ 20-22, 26. Valle shadowed Smith on three occasions. During one of those times, Smith was driving Valle on express lanes. Id. ¶ 20. They approached a part of the express lanes where the lanes split—divided by a concrete pillar—into express to the left and locals to the right; Valle told Smith to take either one. Id. ¶ 20; id. Exh. 9, Valle Dep. 42:20-43:23. But Smith did not decide to go one way or the other—instead, he stopped 30 feet from the concrete pillar. DSOF ¶ 20; id. Exh. 9, Valle Dep. 43:13-23. After Valle "found it hazardous to my health when someone can't make a decision and decides to go forward into a concrete pillar," id. Exh. 9, Valle Dep. 43:21-23, he asked to be removed from Smith's training regimen due to Smith's "unsafe conduct and lack of following basic instruction." Id. ¶ 20; id. Exh. 56, 9/4/13 Valle Memo.

LW Colbert also had driving scares while training Smith. DSOF ¶ 21. According to Colbert, Smith would slam on the Emergency Patrol Vehicle's brakes, turn poorly, and one time even drove away from a gas pump with the pump's nozzle still inserted into the truck. Id. Colbert was concerned enough that he wrote an email to other employees, including Lead Lead Worker Zen McHugh, alerting them to Smith's lack of driving skills (colorfully comparing Smith to a 16-year-old new driver),and warning that if Smith worked on the road, "someone else will pay the ultimate price." Id.; Exh. 19, 9/4/13 Colbert to Eaves Email.

In addition to Valle and Colbert, FTO Thomas expressed similar red flags, memorialized in a memo to Patrol Manager (PM) John Gonzalez. See DSOF Exh. 20, 9/2/13 Thomas Memo. In the memo, Thomas detailed seven instances of Smith's deficient performance. In the most disturbing, Smith ignored instructions to put the truck in neutral and pull the brake. Id. ¶ 23.⁶ As a result, Thomas almost became pinned between the tow truck and another vehicle while investigating a rollover. Id. Based on his interactions with Smith, Thomas reported that Smith was "untrainable and unsafe." Id. ¶ 24; id. Exh. 20, 9/2/13 Thomas Memo.

Another FTO, Gerald Washington, wrote a memo about Smith's performance, remarking that Smith was not picking up the functions of the job and had engaged in dangerous behaviors, like slowing down to answer the radio in the middle of traffic. DSOF ¶ 27. Washington expressed hope that maybe Smith would catch up, but said he could not "risk taking him out with me anymore." Id.; id. Exh. 21, 9/4/13 Washington Memo.

To try to get Smith up to speed, the Patrol Manager, Gonzalez, put corrective action programs into place, which included giving Smith repetitive assignments to help him become more familiar with the geography; extra radio operations lessons sohe could become more comfortable with using the radio; and additional driving instructions so he could correct his poor driving habits. DSOF ¶¶ 28-30.

Smith's supervisors began documenting his problems on the job as early as August 18, 2013, when LW Ramirez wrote in an email to PM Gonzalez, Operations Manager (OM) Mike Schivarelli, and LLW McHugh that Smith "debate[s] his instructions from his FTOs," and his defiance was "becoming a serious issue with his training." DSOF ¶ 36. The very next day, LW Ramirez and LLW McHugh counseled Smith (apparently for the third time) about this behavior and his "failure to understand basic instructions." Id. ¶ 37. On August 22, PM Gonzalez followed up with Smith to counsel him on "not taking orders" and the "disrespect" he showed to his trainers and FTOs. Id. ¶ 38. On that same day, however, Smith wrote a memo to Gonzalez—titled "Discrimination/harassment at the workplace,"—that detailed an August 19 meeting with LLW McHugh. Id. ¶ 39; id. Exh. 26, 8/22/13 Smith Internal Compl. 4. Smith contended that McHugh said, "[I]f one more person claims you[']r[e] confrontational, you will be terminated," and that all Smith should be saying is "yes sir or no sir." Id.

Smith's formal evaluations during this period reflected similar issues with his work performance. His August to September review rated him "Unsatisfactory" in myriad skills rankings. DSOF ¶ 43; id. Exh. 27, August Personnel Eval. In the remarks section, LW Ramirez wrote that Smith took too long to write up assist sheets and consistently failed to follow instructions, which was a safety issue. Id. According to Smith, the poor evaluation was itself an act of retaliation for Smith complainingabout FTO Valle's profanity. DSOF ¶ 45; see also id. Exh. 23, 8/22/13 Smith Int. Compl. 2. An October progress report that Ramirez wrote remarked that Smith was showing improvement, but that he still needed to work on his "basic driving skills," "highway geography," "multi-tasking," and "over confidence." Id. ¶ 46; Exh. 28, 10/13/13 Smith Progress Report.

For his part, Smith contends that, during the time that he spent on the A-Shift, he suffered harassment, particularly at the hands of FTO Valle. Their run-ins began on August 18, 2013, when Valle allegedly yelled foul language at Smith and refused to allow Smith enough time to complete an equipment check on Valle's vehicle before leaving the garage. DSOF ¶ 31. Smith asserts that he was later blamed for damage to the vehicle. Id. That same day, Smith contends that LW Ramirez accused him of being late, docked him 15 minutes of pay, and made him fill sandbags instead of sending him on the road. DSOF ¶ 48. On August 22, Smith wrote another memo, addressed to Patrol Manager Gonzalez, titled "Abusive language, rude to motorist discrimination/harassment," in which he complained about Valle's "abusive language, swearing, and hollering." Id. ¶¶ 33-35; PSOF Exh. 6, 8/22/13 Smith Internal Compl. 1. Gonzalez did investigate this complaint, but could not confirm that Valle used abusive language toward Smith. DSOF ¶ 42; Pl. Resp. to DSOF ¶ 42.

B. Time on B-Shift

If Smith and IDOT hoped that a change to the B-Shift would help, their hopes were misplaced. For instance, on October 13, 2013, LW...