Titus v. Illinois Dep't of Transp.

• Decision Date: 05 January 2012
• Docket Number: No. 11 C 00944.,11 C 00944.
• Citation: 828 F.Supp.2d 957
• Parties: Darrell W. TITUS, Plaintiff, v. ILLINOIS DEPARTMENT OF TRANSPORTATION (“IDOT”), Bob Duda, individually and as an IDOT employee, Giovanni Fulgenzi, individually and as an IDOT employee, Diane M. O'Keefe, individually and as an IDOT employee, Christi G. Means, individually and as an IDOT employee, Defendants.
• Court: U.S. District Court — Northern District of Illinois

828 F.Supp.2d 957

Darrell W. TITUS, Plaintiff,

v.ILLINOIS DEPARTMENT OF TRANSPORTATION (“IDOT”), Bob Duda, individually and as an IDOT employee, Giovanni Fulgenzi, individually and as an IDOT employee, Diane M. O'Keefe, individually and as an IDOT employee, Christi G. Means, individually and as an IDOT employee, Defendants.

No. 11 C 00944.

United States District Court, N.D. Illinois,Eastern Division.

Dec. 14, 2011.Opinion Granting Motion for Clarification Jan. 5, 2012.

Darrell W. Titus, South Holland, IL, pro se.

Sylvia Rios, Office of the Illinois Attorney General, General Law, Deborah Joyce Allen, Illinois Attorney General's Office, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

RUBEN CASTILLO, District Judge.

Darrell W. Titus (“Plaintiff”) brings this pro se action against the Illinois Department of Transportation (“IDOT”), and IDOT employees Bob Duda, Diane M. O'Keefe, Christi G. Means, and Giovanni Fulgenzi (“IDOT Employees”), (collectively, “Defendants”) pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), 42 U.S.C. § 1981 (“Section 1981”), and 42 U.S.C. § 1983 (“Section 1983”). (R. 30, Am. Compl. at 1.) Presently before the Court are two motions to dismiss, one by IDOT, Duda, O'Keefe, and Means pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6), and one by Fulgenzi pursuant to Rule 12(b)(6). (R. 31, IDOT's Second Mot.; R. 34, Fulgenzi's Second Mot.) For the reasons stated below, the motions are granted in part and denied in part.

RELEVANT FACTS

Plaintiff is a black resident of South Holland, Illinois.¹ (R. 1, Compl. at 6–7.) Plaintiff is employed by IDOT as an ETP Driver or Highway Maintainer. ( Id. ¶¶ 3, 5; id. at 7, 45) This dispute stems from at least 2009, when Plaintiff was written up by Duda. (R. 30, Am. Compl. ¶ 4.) According to a June 8, 2009 statement of charges, Plaintiff's supervisor gave Plaintiff a radio order to assist another ETP driver. (R. 1, Compl. at 53.) Rather than follow the order, Plaintiff responded, “No, I'm not going over there I'm going home.” ( Id.) Upon returning to the garage, Plaintiff became disruptive. ( Id.) On August 10, 2009, Plaintiff was suspended without pay for this incident for 15 days effective August 16, 2009, through August, 31, 2009. ( Id. at 9–10, 19.) Plaintiff was suspended “for inefficient performance of duties, insubordination and disruptive conduct.” ( Id. at 19.) The suspension letter was authored by O'Keefe and signed by Fulgenzi. ( Id.) Prior to Plaintiff's suspension, Plaintiff had filed charges of discrimination and/or retaliation with the EEOC in 2004, 2005, and 2006, and one civil suit. ( Id. at 9, 39.)

Plaintiff alleges that other “similarly situated employees with similar charges or worse who were disciplined by [IDOT],” Fulgenzi, and O'Keefe received suspension times of shorter durations than Plaintiff received on August 10, 2009. ( Id. at 10.) In support, Plaintiff points to the discipline that four white highway maintainers received between 2003 and 2006 for disorderly conduct, safety code violations, and/or insubordination. ( Id. at 10–12.) According to Plaintiff, three of the highway maintainers received suspension times of one day, while one highway maintainer received a suspension time of ten days. ( Id.)

Additionally, Plaintiff alleges that on November 23, 2009, a C Shift Emergency Meeting was held. (R. 30, Am. Compl. ¶ 5; R. 1, Compl. at 9.) Duda informed the meeting participants that ETP drivers had been disconnecting tracking locater systems, known as “EAV systems,” from their trucks. (R. 1, Compl. at 9.) Duda further informed the meeting participants that IDOT Schaumburg knew who the miscreant drivers were and that IDOT Schaumburg wanted to discipline those drivers. ( Id.) At this meeting, Duda also stated that he and Anthony Dilacoua did not want to discipline the drivers so they talked IDOT Schaumburg out of disciplining the miscreant drivers. ( Id.) According to Plaintiff, IDOT Schaumburg then decided to give all ETP drivers a warning and the purpose of the November 23, 2009 meeting was to convey this warning. ( Id.) Plaintiff asked Duda why he had been written up and disciplined for rule infractions when other drivers had not been written up and disciplined. (R. 30, Am. Compl. ¶ 5; R. 1, Compl. at 9.) In response, Duda told Plaintiff, “That's the way it is!” (R. 30, Am. Compl. ¶ 5.) In support of Plaintiff's allegations that Duda informed the November 23, 2009 meeting participants that drivers had disconnected the tracking locators on trucks, Plaintiff provides the unsworn statements of two ETP Drivers supporting his version of events. (R. 1, Compl. at 28–29.)

On December 2, 2009, Plaintiff filed an internal complaint with IDOT, alleging that he had been discriminated against on the basis of race. (R. 1, Compl. at 22.) Plaintiff charged Duda, the Schaumburg Personnel Office, and Fulgenzi with discriminatory employment practices. ( Id.) Specifically, Plaintiff identified the “Date of alleged discriminatory/harassment practice [,]” as “Fifteen Days suspended[,] August 16, 2009 to August 31, 2009[.] Told of other Drivers not being Discipline[d] in Emergency meeting on 23 Nov 09 by Bob Duda[.]” ( Id.) On December 10, 2009, IDOT's Bureau of Civil Rights (“Bureau”) acknowledged receipt of Plaintiff's charge of discrimination and notified him that a staff member would “be assigned to investigate the merits of [Plaintiff's] charge.” ( Id. at 23.) According to a March 11, 2010 letter to Plaintiff from IDOT, Means was assigned to investigate the merits of Plaintiff's charge. ( Id. at 24.) Means and Edgardo A. Sobenes, both Civil Rights Specialists from the Bureau, interviewed Plaintiff twice and a number of ETP drivers at the IDOT ETP offices. ( Id. at 12.)

On November 29, 2010, Plaintiff filed a charge of discrimination with IDHR (“IDHR Charges”) and requested that the charge also be filed with the EEOC. ( Id. at 7.) The EEOC received the IDHR Charges on January 25, 2010. ( Id. at 38–39.) In the IDHR Charges, Plaintiff indicated that he was discriminated against on the basis of race and retaliated against for engaging in protected activity. ( Id.) Plaintiff identified the date of the discrimination as “11–23–2009.” ( Id.) With respect to the particulars of the discrimination, Plaintiff stated:

I have been employed by Respondent since October, 1994, most recently as an ETP Driver. I have filed EEOC charge numbers 210–2004–06727, 210–2005–09065, 440–2006–01507 alleging discrimination and/or retaliation by Respondent. Subsequently, I have been disciplined and suspended for rule infractions while non-Black ETP Drivers who commit rule infractions have not been disciplined or suspended.

I believe I have been discriminated against because of my race, Black and retaliated against for engaging in protected activity, in violation of Title VII of the Civil Rights Act of 1964, as amended.

( Id.)

On January 20, 2010, Plaintiff filed a charge of discrimination with the EEOC (“EEOC Charges”). ( Id. at 45–48.) Plaintiff identified two discriminatory actions. ( Id. at 46.) First, in “June or July 2009” Plaintiff stated that he had been “[w]ritten up for IDOT Rule Infractions by Bob Duda ETP Manager.” ( Id.) Second, on August 10, 2009, Plaintiff stated that he was “suspended for 15 days ... by Giovanni Fulgenzi, Personnel Services Manager[,] and Diane M. O'Keefe, P.E. Deputy Director of Highway.” ( Id.) Plaintiff stated that he believed these actions were discriminatory because he had been “[t]old in C Shift Emergency meeting on 23 Nov 09 by Bob Duda ETP Manager that there were ETP Drivers disconnecting [EAV systems.]” ( Id. at 46, 50.) In support of his EEOC Charges, Plaintiff attached a statement describing what occurred at the November 23, 2009 meeting. ( Id. at 50.)

On August 18, 2010,² the EEOC sent a letter to Elbert Simon, the Bureau Chief, requesting “information and records relevant to the subject charges of discrimination.” ( Id. at 25, 63.) The EEOC requested the following from IDOT:

1. Provide all documents related to the investigation into [Plaintiff's] December 10, 2009 internal complaint of discrimination.

2. Identify by name and race each ETP Driver accused of disconnecting the EAV (tracking) System as stated during the emergency meeting held November 23, 2009 at the 3501 S. Normal, Chicago, Illinois facility.

3. Provide copies of all disciplinary actions issued to ETP Drivers at the 3501 S. Normal, Chicago, Illinois facility during the period January 1, 2009 to August 1, 2010.

( Id. at 26, 63–64.) Plaintiff notes that in response to the EEOC's requests for information, Simon responded as follows:

1. No investigation was accomplished on [Plaintiff's] internal complaint of discrimination.

2. According to our investigative findings—there were no employees accused or named as having disconnected the Automatic Vehicle Location (AVL) tracking system during a meeting which was held of [sic] November 23, 2009. The district office stated that the AVL systems had not been checked in over a year and Meade Electric Company as one of the major electrical contractors in the Chicago land area had contracted with IDOT for the installation and maintenance of the devices in IDOT's trucks.

3. Disciplinary actions issued to ETP Drivers are enclosed....

( Id. at 27, 60.) Additionally, Plaintiff alleges that IDOT failed to provide the EEOC with Plaintiff's interview statements and the other ETP drivers' interview statements. ( Id.) In short, Plaintiff avers that the Bureau failed to provide the EEOC with all the facts of the Bureau's internal investigation and that the withholding of this information is both discriminatory and retaliatory. ( Id. at 13.) On November 18, 2010, the EEOC issued a Notice of Right to Sue letter. ( Id. at 8.)

PROCEDURAL HISTORY

On February 20, 2011, Plaintiff filed a pro se complaint of employment discrimination (“Original Complaint”) alleging...