864 F.3d 541 (7th Cir. 2017), 15-2849, Alamo v. Bliss

Docket Nº:15-2849
Citation:864 F.3d 541
Opinion Judge:Ripple, Circuit Judge.
Party Name:ROBERTO G. ALAMO, Plaintiff-Appellant, v. CHARLIE BLISS, et al., Defendants-Appellees
Attorney:For ROBERTO G. ALAMO, Plaintiff - Appellant: Douglas B. Harper, Attorney, LAW OFFICES OF DOUGLAS B. HARPER, Chicago, IL. For CHARLIE BLISS, CITY OF CHICAGO, PATRICK STEFAN, in their Individual Capacities, Defendants - Appellees: Irina Y. Dmitrieva, Attorney, OFFICE OF THE CORPORATION COUNSEL, App...
Judge Panel:Before RIPPLE, MANION, and ROVNER, Circuit Judges.
Case Date:July 20, 2017
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
SUMMARY

Alamo worked for the Chicago Fire Department. He alleges that in 2009, after a transfer, other firefighters began harassing him, calling him “spic” and “f--king Puerto Rican,” and stealing Alamo’s food. Alamo also alleges that the number of times he was assigned to work at different locations was excessive when compared to assignments given to non-Latino colleagues. His supervisor, Lieutenant... (see full summary)

 
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Page 541

864 F.3d 541 (7th Cir. 2017)

ROBERTO G. ALAMO, Plaintiff-Appellant,

v.

CHARLIE BLISS, et al., Defendants-Appellees

No. 15-2849

United States Court of Appeals, Seventh Circuit

July 20, 2017

Argued: November 10, 2016.

Page 542

[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

Page 544

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:12-cv-04327 -- Sharon Johnson Coleman, Judge.

For ROBERTO G. ALAMO, Plaintiff - Appellant: Douglas B. Harper, Attorney, LAW OFFICES OF DOUGLAS B. HARPER, Chicago, IL.

For CHARLIE BLISS, CITY OF CHICAGO, PATRICK STEFAN, in their Individual Capacities, Defendants - Appellees: Irina Y. Dmitrieva, Attorney, OFFICE OF THE CORPORATION COUNSEL, Appeals Division, Chicago, IL.

Before RIPPLE, MANION, and ROVNER, Circuit Judges.

OPINION

Page 545

Ripple, Circuit Judge.

This case arises from a series of incidents that occurred while Roberto Alamo, the plaintiff, was a Chicago firefighter. The operative complaint contains claims against the City of Chicago, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and against Lieutenant Charlie Bliss, under 42 U.S.C. § 1983, for various forms of discrimination on the basis of national origin; a failure to accommodate claim against the City, under the Americans with Disabilities Act (" ADA" ); and two state tort claims against the City and Captain Stefan. The City of Chicago, Lieutenant Bliss, and Captain Stefan moved to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). The district court granted the motion, dismissing all of Mr. Alamo's federal claims with prejudice and declining to exercise supplemental jurisdiction over his state law claims.

Mr. Alamo asks us to reverse the district court's dismissal of his complaint. He contends that he sufficiently pleaded a hostile work environment claim, a disparate treatment claim, and a retaliation claim against the City under Title VII, and a hostile work environment claim against Lieutenant Bliss under 42 U.S.C. § 1983. We agree, and, for the reasons set forth in this opinion, we reverse the district court's dismissal and remand this case for further proceedings.1

I

BACKGROUND

A

.

Mr. Alamo began his service as a firefighter in the Chicago Fire Department in 2006. According to the allegations of his complaint, in 2009, shortly after his transfer to Engine Company 55, other firefighters began verbally and physically harassing him. The complaint asserts that firefighters called him " spic" and " f--king

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Puerto Rican." 2 It also describes incidents involving firefighters stealing Mr. Alamo's food or throwing his food away. This treatment began in 2009 and " continu[ed] throughout 2010 and 2011." [3] Mr. Alamo also alleges that the number of times on which he was " detailed," or assigned to work at different locations, was excessive when compared to the assignments given to his non-Latino colleagues during the same time.[4]

Mr. Alamo complained to his immediate supervisor, Lieutenant Bliss, about this treatment. According to the complaint, Mr. Alamo brought these concerns to Lieutenant Bliss's attention in July, August, and November of 2010, and again in April, July, and August of 2011. Lieutenant Bliss did not remedy the behavior. The complaint details a handful of specific incidents that occurred after Mr. Alamo initially complained to Lieutenant Bliss. For example, in March 2011, fellow firefighter Dan Sheahan made derogatory comments to Mr. Alamo about his Puerto Rican national origin and then physically assaulted him. Mr. Alamo alleges that he again complained to Lieutenant Bliss following the incident. He also alerted Battalion Chief Curt Annis, but asserts that nothing was done to remedy the discrimination.

The complaint also details a September 13, 2011 incident. On that day, Mr. Alamo reported to work but was not feeling well due to allergies and informed Lieutenant Bliss and a colleague that he would be in the television room and might be sleeping. About an hour later, Captain Stefan, a captain on a different truck from Mr. Alamo's, woke Mr. Alamo up, yelled profanities at him, and stated, " I don't like your kind, you better put in a transfer and get out of this firehouse because I don't want you here." 5 Captain Stefan then chest bumped Mr. Alamo, used more profanity, and threatened further physical violence.

Later that day, Captain Stefan again pushed Mr. Alamo against a wall, an incident witnessed by Lieutenant Bliss. Mr. Alamo called 911 for assistance and spoke to police officers when they arrived, but he did not press charges. Mr. Alamo alleges that he did not take the matter further because he received a call from Chief Chickorotis, the Fire Chief assigned to Engine 42 Headquarters, who " pleaded with Alamo" to wait for him to arrive before doing anything.6 When Chief Chickorotis arrived, he repeatedly asked Mr. Alamo not to bring charges and to let him resolve the incident without involving the police. Chief Chickorotis also said that he would help Mr. Alamo with the harassment at the firehouse if Mr. Alamo did not press charges. Mr. Alamo agreed, but asked the police to document the incident with Captain Stefan.

Later that evening, Chief Chickorotis brought Mr. Alamo to a different firehouse and they met privately. Chief Chickorotis asked Mr. Alamo, " What can we do to make this all go away?" 7 Mr. Alamo said he wanted the Fire Department to " do the right thing." [8] Chief Chickorotis became angry and said he was done talking to him. Mr. Alamo later learned that the responding police officers had a private meeting with Captain Stefan, Chief Chickorotis,

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and others, and that the police report was inaccurate.

On the next day, September 14, 2011, at 6:00 a.m., Mr. Alamo ended his shift and took the bus home. Mr. Alamo exited the bus after a few blocks because he was experiencing chest pain, dizziness, and a migraine. He called a friend to pick him up and take him to the hospital where he explained to an emergency room physician that he had been chest bumped and pushed at work the day before. The physician diagnosed him with a work-related chest contusion, work-related stress, and possibly post-traumatic stress disorder. Mr. Alamo met with his primary care physician the next day; he referred Mr. Alamo to a psychologist and a psychiatrist and ordered medical leave due to the incident with Captain Stefan.

That same day, Mr. Alamo reported to the Chicago Fire Department that he was beginning medical leave. At that time, Sylvia Tienda was the Medical Section Chief and had authority to decide whether firefighters could return to work after medical leave. Ms. Tienda told Mr. Alamo she would not consider his injury work-related, and the Chicago Fire Department would not pay for any hospital or medical treatment because he did not report the incident while on duty.

On March 13, 2012, after Mr. Alamo had been on medical leave for six months, Ms. Tienda informed Mr. Alamo that his medical leave was expiring and that he would need to get a release from his treating physician to return to duty.[9] The next day, Mr. Alamo met with his treating physician, who gave him written authorization to return to work without restrictions. On March 16, when Mr. Alamo gave Ms. Tienda this authorization, she requested new information, including a prescription for a functional capacity evaluation. Mr. Alamo obtained the prescription and delivered it to Ms. Tienda on March 19. A few days later, on March 21, another employee in the Medical Section, Dr. Issac Morcos, told Mr. Alamo that he needed progress notes from all of his treating physicians before clearing him to return to work. Mr. Alamo's treating physicians forwarded their progress notes on March 22 and March 26, 2012.

On March 26, Ms. Tienda confirmed receipt of these documents. The same day, Mr. Alamo met with his union representative " regarding why the [Chicago Fire Department] would not allow him to return to work when he had been cleared by his treating physicians." 10 On March 30, 2012, Mr. Alamo filed an inquiry with Ms. Tienda about his work status and received a response from her on April 3, 2012. That day, Mr. Alamo learned, for the first time, of another requirement: he needed to provide medical records dating back to 2009 and undergo further medical evaluation, including two days of psychological tests, before he could be cleared for work. The next day, April 4, 2012, Mr. Alamo filed a charge against the Chicago Fire Department with the U.S. Equal Employment Opportunity Commission.

After that filing, on April 19, 2012, Ms. Tienda scheduled Mr. Alamo for a two-part psychological test on May 1 and 24, 2012. Mr. Alamo attended the May 1...

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