Outley v. City of Chi.

Decision Date09 September 2019
Docket Number17 C 8633
Citation407 F.Supp.3d 752
Parties Michael OUTLEY, Plaintiff, v. The CITY OF CHICAGO, Alan Stark, in his individual and official capacity as Deputy Commissioner of the Department of Water Management, Randy Conner, in his individual and official capacity as Commissioner of the Department of Water Management, and Robert Mussen, in his individual and official capacity as Chief Operating Engineer, Defendants.
CourtU.S. District Court — Northern District of Illinois

Calvita J. Frederick, Calvita J. Frederick & Associates, Chicago, IL, for Plaintiff.

C. Ester Choi, Rebecca Miriam Gest, Rena M. Honorow, City of Chicago, Department of Law, Chicago, IL, for Defendants.

Susan Margaret O'Keefe, City of Chicago Law Department, Chicago, IL, for Defendant City Of Chicago


Gary Feinerman, United States District Judge

Michael Outley sued his employer, the City of Chicago, and three officials of the City's Department of Water Management ("DWM")—Commissioner Randy Conner, Deputy Commissioner Alan Stark, and Chief Operating Engineer Robert Mussen—alleging violations of Titles VI and VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d - 2000e et seq. , the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. , his union's Collective Bargaining Agreement, the Shakman Accord, and 42 U.S.C. §§ 1981 and 1983. Doc. 55. Defendants move under Civil Rule 12(b)(6) to dismiss most, but not all, of Outley's claims. Doc. 91. The motion is granted in part and denied in part.


In resolving a Rule 12(b)(6) motion, the court assumes the truth of the operative complaint's well-pleaded factual allegations, though not its legal conclusions. See Zahn v. N. Am. Power & Gas, LLC , 815 F.3d 1082, 1087 (7th Cir. 2016). The court must also consider "documents attached to the complaint, documents that are critical to the complaint and referred to in it, and information that is subject to proper judicial notice," along with additional facts set forth in Outley's brief opposing dismissal, so long as those additional facts "are consistent with the pleadings." Phillips v. Prudential Ins. Co. of Am. , 714 F.3d 1017, 1020 (7th Cir. 2013) (internal quotation marks omitted). The facts are set forth as favorably to Outley as those materials allow. See Pierce v. Zoetis, Inc. , 818 F.3d 274, 277 (7th Cir. 2016). In setting forth the facts at the pleading stage, the court does not vouch for their accuracy. See Goldberg v. United States , 881 F.3d 529, 531 (7th Cir. 2018).

A. Alleged Failure to Promote to COE

DWM operates eleven pumping stations, some unmanned and others manned. Doc. 55 at ¶ 20. DWM designates a Chief Operating Engineer ("COE") to oversee each manned pumping station, while one COE located at the Chicago Avenue Pumping Station supervises all unmanned stations. Id. at ¶¶ 23, 26. Harvey "Skip" Hunker occupied the latter position at all relevant times. Id. at ¶ 27. From 1989 to 2015, all men promoted to COE were white, even though many African-Americans working as Assistant Chief Operating Engineers ("ACOE") took the test to become COE and/or applied for the position. Id. at ¶ 28.

Around 1985, the City contracted with DuPage County to build the Lexington Pumping Station and agreed that it would be a manned station. Id. at ¶¶ 21-22. Outley, an African-American man who is now sixty-three or sixty-four years old, began working at Lexington in 1993. Doc. 55 at ¶¶ 8, 18. He started as an operating engineer but soon became an ACOE. Id. at ¶¶ 18-19. At all relevant times, Outley was a member of the International Union of Operating Engineers, Local 399, and was covered by the Local's Collective Bargaining Agreement ("CBA"). Id. at ¶¶ 42-43.

Around 2010, the COE position at Lexington became open. Id. at ¶ 29. Outley had the most seniority of all ACOEs, and he and other African-American employees had sufficient seniority, experience, and other credentials to qualify for the open position. Id. at ¶¶ 30, 32. But DWM deliberately left the position open until it handpicked a white candidate to fill it. Id. at ¶ 33. Although DWM budgeted for a COE at Lexington, it did not post a bid announcement for the position until 2014 and did not fill it until 2015. Id. at ¶¶ 29, 32, 34.

When DWM interviews for an open COE position, it permits only those candidates deemed qualified by the City's Department of Human Resources ("DHR") to advance in the hiring process. Id. at ¶ 41. "Qualified" candidates take a three-part test. Ibid. The City exercised exclusive control of the test through DHR and certain other employees, particularly DWM Deputy Commissioner Alan Stark, which subjected the test to the risk of manipulation. Id. at ¶¶ 35-37. One part of the test was a subjective, in-person panel interview that allowed the interviewers to "elicit certain predetermined catch phrase answers rather than a correct answer to the technical question." Id. at ¶¶ 38, 40. From 2014 to 2017, the interview panel for open COE positions at Lexington and elsewhere included: (1) Outley's former coworkers who had been promoted over him; (2) persons who were the source of discriminatory communications towards Outley; (3) persons who were named defendants in Outley's then-pending discrimination suit, including Stark; (4) other upper level management; and (5) "other people who may or may not have technical knowledge of the skills necessary for the position of COE." Id. at ¶ 39. Outley applied for a promotion to COE each year from 2014 to 2017. Id. at ¶ 46. In 2015, DHR denied him the opportunity to sit for the COE examination. Id. at ¶ 50. In 2014, 2016, and 2017, Outley was deemed qualified by DHR, passed each component of the application process, and satisfied all requirements for the promotion, but was not promoted. Id. at ¶¶ 46-47. Instead, DWM manipulated the process to ensure that its pre-selected candidates were promoted, denying Outley the promotion on the basis of his race and/or his age in accordance with the City's "deliberate and pervasive pattern and practice of systemic and continuing employment discrimination against Black employees." Id. at ¶¶ 45, 48-49, 160.

Specifically, the City promoted several white employees, including Mark Henmuellen and Joseph Lynch, to COE in 2014. Id. at ¶ 53. In 2015, the City promoted Robert Mussen to the COE position at Lexington. ¶ 54. Mussen, a white man, had test scores that were substantially the same as Outley's, but had less seniority. Id. at ¶¶ 54, 91. The City also promoted Andre Holland and Kathleen Ealey to COE in 2015 and 2017, respectively. Id. at ¶¶ 55, 58. Both were "much younger" and less senior, experienced, and educated than Outley. Id. at ¶¶ 55, 58, 201. Stark and DWM Commissioner Randy Conner exercised ultimate policy making authority over the promotions. Id. at ¶¶ 122, 126.

B. Alleged Denial of Overtime and "Working Up in Grade" Opportunities and Related Retaliation

DWM employees are given overtime opportunities based on seniority. Id. at ¶ 84. Although Mussen had less seniority in both time and grade than Outley, he made over $100,000 in overtime pay while Outley was denied overtime. Id. at ¶¶ 85-88. After Outley complained to DHR, DHR denied him the opportunity to work up in grade, including when Hunker (the COE responsible for overseeing all unmanned stations) was absent due to illness. Id. at ¶ 89. DHR allowed Mussen to work up in grade. Id. at ¶ 91. A Commissioner or Deputy Commissioner must approve opportunities to work overtime or up in grade. Id. at ¶ 96. As COE, Mussen had "ultimate policy making authority over overtime and working up in grade opportunities at Lexington." Id. at ¶ 97. To support his Monell claim against the City based on this conduct, Outley alleges that "the City has a deliberate and pervasive pattern and practice of systemic and continuing employment discrimination against Black employees, including [Outley] with respect to opportunities for overtime and working up in grade," and that the City "deliberately overlooked the seniority of Plaintiff by failing to offer overtime to him at the same rate and under the same conditions that the City provides overtime opportunities to non-Black employees," thereby violating its Personnel Rules and Regulations. Id. at ¶¶ 83, 90, 93-94.

C. Alleged Hostile Work Environment and Related Retaliation

While at DWM, Outley was: (1) assigned less desirable shifts, days off, and work assignments; (2) denied promotions, transfers, overtime, opportunities to work up in grade, training opportunities, and fair compensation; (3) bullied and intimidated; (4) harassed based on race; (5) subjected to "unwelcomed racially-charged conduct," workplace violence, and harsh and undue discipline; and (6) constructively discharged. Id. at ¶ 61. Among other incidents, Outley was "humiliated, harassed, and threatened daily by co-workers, supervisors, and DWM leadership, including ... Mussen and Stark." Id. at ¶ 69. The City, Mussen, Stark, and Conner were aware of "racially insensitive emails, screen savers, posters, cartoons, intimidating items, and graffiti, in various locations within the City's DWM pumping stations," which Outley found painful. Id. at ¶ 63. Many African-American DWM employees faced "racial slurs; conduct of a racial nature; racially motivated jokes; racially insensitive communications [like] e-mail, screen savers, posters, cartoons, intimidating items, and graffiti; and unwanted verbal and physical contact based on race." Id. at ¶ 64.

Outley questioned his treatment and complained to the City, but in response he was "physically intimidated, threatened, verbally abused, mocked and/or ignored," and DWM instituted a "policy of retaliation," denying him "promotional, overtime and/or training opportunities." Id. at ¶¶ 62, 72-74. After Outley was cleared of wrongdoing for a 2013 incident, DHR told him in 2017 that the investigation remained open and held an investigative hearing. Id. at ¶ 66. Despite lacking...

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