Jackson v. Illinois Department of Commerce & Economic Opportunity

IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF ILLINOIS

SPRINGFIELD DIVISION

KENDALYNN JACKSON, )

)

Plaintiff, )

)

v. ) Case No. 17-3106

)

ILLINOIS DEPARTMENT OF )

COMMERCE & ECONOMIC )

OPPORTUNITY, VICTOR NARUSIS )

and BEN DENNEY, )

)

Defendants. )

OPINION

RICHARD MILLS, United States District Judge:

The Defendants seek summary judgment.

Plaintiff Kendalynn Jackson filed a civil rights Complaint under 42 U.S.C. §

1983, alleging Defendants Victor Narusis and Ben Denney discriminated against her

based on her gender in violation of the Equal Protection Clause of the Fourteenth

Amendment (Count I).

Jackson also alleges Narusis and Denney have discriminated against her on

the basis of her race in violation of the Equal Protection Clause of the Fourteenth

Amendment (Count II).

Jackson also alleges that Defendant Illinois Department of Commerce &

Economic Opportunity (“DCEO”) and the individual Defendants violated her rights

under the anti-retaliation provisions of the State Officials and Employees Ethics Act,

5 ILCS 430/15 (the “Ethics Act”) (Count III).

I. FACTUAL BACKGROUND

(A)

From September 2014 to May 2017, Jackson was employed by DCEO, and

since May 2017 has been employed by the Illinois Department of Transportation

(“IDOT”) as a Technical Manager IV.

From May 2015 through March 2019, Defendant Victor Narusis was

employed by DCEO as the Deputy Director for the Office of Business Development

(“Business Development”), which oversees economic development incentive

programs. As the Deputy Director, Defendant Narusis managed the program

managers and their teams and also assisted program users.

Defendant Ben Denney was employed by DCEO from December 2004 to

early 2019. Initially, he worked in Business Development as a marketing

representative. In August 2016, Defendant Denney was promoted to be the Assistant

Deputy Director of Business Development and served in that position until he left

DCEO. As Assistant Deputy Director, he oversaw program managers and any staff

subordinate to the managers.

Jackson initially reported to Narusis as her direct supervisor. She then

reported directly to Denney after he was promoted in August 2016.

The Defendants allege Business Development oversees several tax incentive

programs: EDGE; Enterprise Zone; ETIP; Rivers EDGE Redevelopment and High

Impact Business (“HIB”). Jackson states that Business Development also dealt with

Tax Increment Financing (“TIF”). Jackson was responsible for dealing with TIF.

The Defendants allege the EDGE program was the most active, receiving 20

to 80 applications and processing 250 to 300 tax certificates each year. The

Enterprise Zone program typically received five to 15 applications and processed 50

to 75 tax certificates each year. Jackson disputes the statement in part, claiming that

the Enterprise Zone program received approximately 67 applications in 2015, 40

applications in 2016 and 30 applications in 2017.

Rivers EDGE was limited to five communities in Illinois. HIB typically

received less than one application each year. A subset of that program, HIB Wind,

received about two to five applications each year. The ETIP program did not have

funding during the vast majority of Narusis’s employment with DCEO.

Jackson was the program manager for Enterprise Zone, Rivers EDGE, HIB

and HIB Wind. During the relevant time period, John Glazier was the program

manager for ETIP. Matt Jennings was the program manager for the EDGE program.

Business Development also included a business financial division managed by Mark

Gauss.

During the relevant time period, DCEO was under a hiring freeze and utilized

temporary workers to fill a full-time position that supported Jackson’s position.

Jackson notes that although there was a freeze in place, DCEO still hired employees.

After Jackson left DCEO, Business Development lost the temporary workers as well

because Human Resources did not want to create union issues by using workers to

fill a union position. The Defendants did not have any involvement in issuing

bonuses or salary increases.

(B)

The Plaintiff notes that at DCEO, there are rules that govern performance

evaluations for employees. Evaluations are intended to evaluate an employee based

upon objectives that are provided to an employee at the beginning of the evaluation

period. Under Illinois law, evaluations are used to determine eligibility for

promotion.

In September 2016, Defendant Narusis completed three performance

evaluations for Jackson that covered the following time periods: a first probationary

evaluation for September 16, 2014 through November 15, 2014; a final probationary

evaluation for September 16, 2014, through December 31, 2014 and an annual

evaluation for September 16, 2014 through August 31, 2015 (“2015 evaluation”).

The evaluations were considered delinquent because they had not been timely

completed after the time periods in question had passed. Narusis was not Jackson’s

supervisor during the time period covered by her probationary evaluations. By the

time Jackson’s 2015 evaluation was due, Narusis was Jackson’s supervisor but had

served in that role only since May 2015. (Narusis had either not supervised Jackson

during the relevant time periods or had not supervised her long enough to become

familiar with her work to complete the evaluations.)

In consultation with Human Resources, Narusis rated Jackson as “Met” or

“Acceptable” in all categories for all three delinquent evaluations. Similarly, in

consultation with Human Resources, Narusis also rated the other Business

Development employees as “Met” or “Acceptable” in all categories for all their

delinquent evaluations. Jackson disputed the ratings and challenged her three

evaluations as untimely. Her grievance was initially submitted on September 29,

2016. In her objection, Jackson stated the evaluations were untimely, not accurate

and created objectives that were unrealistic and that Narusis had not worked with

her to establish. (Defendant Denney did not sign Jackson’s first three evaluations

and did not participate in that evaluation process.)

The Defendants allege Part VII of the 2015 evaluation included 16 objectives

for the next year taken from Jackson’s job description. Jackson disputes this

statement on the basis that she received these “objectives for next year” when she

received her performance evaluation in September of 2016. Less than one month

later, Jackson received her evaluation for the time period of September 1, 2015

through August 31, 2016. Accordingly, the objectives were developed at the end of

evaluation period in violation of State of Illinois policy.

In October of 2016, Narusis completed Jackson’s annual evaluation for the

time period covering September 1, 2015 through August 31, 2016 (“2016

evaluation”). In Part II, which was the appraisal of the 16 objectives from Part VII

of the 2015 evaluation, Narusis rated Jackson as “Unacceptable” for eight objectives

and “Acceptable” for five objectives. He provided only comments for the remaining

objectives without specifying a rating. In Part III, the appraisal of Plaintiff’s

performance characteristics, Narusis rated Jackson as “Unacceptable” for eight out

of nine characteristics—Planning, Initiative, Quality, Knowledge, Judgment,

Teamwork, Leadership and Human Relations. Narusis rated Jackson as

“Acceptable” for Productivity. Jackson alleges her October 2016 evaluation was

premised upon performance objectives that had not been given to her during the

period of the evaluation. The Defendants claim, however, that Jackson knew what

was expected of her in terms of performance.

The Defendants allege the mere fact that Jackson was not completing tasks

did not result in “Unacceptable” ratings. Narusis compiled documentation to support

the ratings in the second annual evaluation, including emails and examples of

Jackson’s work. Jackson disputes the contention that she was unacceptable in any

category.

The Defendants allege Narusis began discussing Jackson’s demeanor with her

in 2015 in a meeting with Human Resources. Narusis had begun documenting

Jackson’s performance at the direction of Human Resources, the Director’s Office

and the General Counsel. The Defendants received multiple complaints from

Jackson’s coworkers about their safety and multiple statements from coworkers that

showed an ongoing pattern of issues with professionalism and courtesy. Jackson

disputes these statements.

The Defendants allege the head of DCEO IT expressly asked that Jackson no

longer be involved with a Business Development project IT was running because of

her demeanor. Narusis then met with Jackson to discuss IT’s concerns. Jackson

disputes these allegations.

The Director’s Office and General Counsel informed Narusis that she was not

permitted to speak directly with other DCEO employees and outside individuals

because of the way in which she interacted with people. Jackson disputes that she

had difficulties interacting with individuals outside of the agency.

Before finalizing the evaluation, Narusis worked closely with Human

Resources to review the objectives. Although Narusis believed Jackson worked very

hard, she countered those efforts with her challenging managerial style. Jackson

claims that the suggestion she had a poor management style is made up by Narusis

and Denney. The evaluation contained comments by Narusis explaining the reasons

for each rating. Generally, it noted Jackson’s inability to work with others, provide

timely, complete and accurate information to others and display the knowledge and

judgment expected of someone who had held the position for nearly two years.

Jackson claims she has thoroughly disputed each of those negative statements. The

evaluation also set forth objectives for Jackson for the next year in Part VII.

Defendant Denney did not sign this evaluation and did not participate in the

evaluation process. Jackson disputed the content of the 2016 evaluation.

In 2016, Narusis and Human Resources met with Jackson to discuss her goals

and objectives for the next year. The Human Resources representative ended the

meeting early because she believed the meeting was not productive. Jackson agrees

these meetings occurred and she documented what happened. When Jackson

attempted to speak in the meeting with HR and Narusis, she was not allowed to

comment.

On January 31, 2017, the Defendants sent Jackson a list of revised objectives

for the period of January 30, 2017 through August 31, 2017, in preparation for a

meeting to discuss those objectives. Jackson was offered the chance to respond in

writing before the meeting. The objectives the Defendants drafted were similar to

the objectives in Jackson’s evaluation.

The Defendants allege that on February 2, 2017, Narusis and Denney met with

Jackson to review the revised objectives but Jackson could not provide specific

recommendations for changes that she wanted. Jackson disputes this assertion and

claims she provided detailed disagreements.

(C)

The Plaintiff received a seven-day suspension, effective November 17, 2016

through November 25, 2016, for two incidents regarding her conduct with customers

and supervisors. Jackson disputes that she acted unprofessionally with her

supervisors or with anyone else. The first incident occurred on October 13, 2016,

and involved a phone call with Mark Rothart, an enterprise zone administrator. The

Defendants allege that during the call, Jackson raised her voice at Rothart and was

rude, unprofessional and abusive. Denney stepped in to diffuse the situation and

took over the call. Jackson disputes these statements and that this incident occurred

the way that Denney and Narusis suggest that it did. Denney later received an email

from Rothart explaining what had occurred during the call with Jackson.

The Defendants allege the second incident involved Jackson’s reaction over

an internal memo she had originally written regarding a 2017 enterprise zone for

Bloomington-Normal. Jackson disputes the suggestion that there was any type of

an “incident” that was problematic in any way. She simply objected because a

document was sent out suggesting her authorship without her approval.

General Counsel Justin Heather reviewed various memos and other

documents submitted by all program managers. He also reviewed all Enterprise

Zone designations and certificates and all EDGE agreements and annual tax

certificates before any certificates were sent to the DCEO Director for his signature.

Heather asked Denney to send documentation for the Bloomington-Normal

Enterprise Zone because the Director’s Office wanted the certificate signed with

urgency. Documentation for Enterprise Zones typically consisted of a certificate to

be signed by the Director, along with an in-house memo from the program manager

to the Director explaining what the certificate covered. Denney sent Heather the

memo Jackson had drafted and the certificate. Jackson disputes the allegation to the

extent it relates to her authorship of the document.

The Defendants allege that when reviewing Jackson’s Bloomington-Normal

memo, Heather revised Jackson’s statement of the law because of recent statutory

amendments and made several stylistic changes and grammatical edits. The

incorrect statement of the law was not held against Jackson because it was a unique

piece of legislation and an obscure reference to a specific enterprise zone. Jackson

does not dispute that Heather reviews these documents. The disputes that she has

relates to her authorship of the documents. The final Bloomington-Normal memo

sent to the Director still had Jackson’s name on it. On September 30, 2016, the

Director signed the certificate.

When Jackson discovered the documents had been altered before they were

sent to the Director, she became upset and requested that her name be removed from

that memo. The Defendants allege Jackson confronted Denney multiple times about

the changes to the memo, stating the memo had her name on it and she did not

approve the changes. Jackson was agitated, yelling and aggressive during the

encounters. Denney explained that Heather had made the changes. Jackson disputes

these statements.

The Defendants allege that because of her conduct on the phone with Rothart

and in person with Denney, Jackson was suspended for seven days. Jackson disputes

the suggestion that she engaged in any misconduct. The Director’s Office initially

suggested a 30-day suspension. However, after discussions between the Director’s

Office, Human Resources and Narusis, Jackson was issued a 7-day suspension.

Jackson states that Narusis suggested a 7-day suspension and issued the 7-day

suspension. The Defendants claim Narusis did not have a recommendation or the

final say on the amount or type of discipline Jackson received. Jackson states

Narusis did make the recommendation on November 15, 2016. Jackson served a

seven-day suspension without pay from November 17, 2016, through November 26,

2016.

The Defendants claim Narusis noticed improvement in Jackson’s conduct

after she served her suspension. Jackson disputes the statement on the basis that

there were no deficiencies in her conduct before she was suspended.

II. DISCUSSION

The Defendants allege Jackson cannot make out a prima facie case of equal

protection discrimination under § 1983. Defendant Denney is entitled to summary

judgment for lack of personal involvement. Moreover, the Defendants claim

Jackson was not meeting her employer’s legitimate expectations and her

performance evaluations do not constitute adverse actions. The Defendants further

contend that Jackson cannot show that similarly situated employees were treated

more favorably.

The Defendants also allege that summary judgment is warranted because they

have legitimate nondiscriminatory reasons for their actions and Jackson cannot

establish any discriminatory pretext behind those actions.

The Defendants allege that Jackson cannot prove she was subjected to a

hostile work environment. They claim Jackson has not established damages.

Moreover, the Defendants assert they are entitled to qualified immunity.

Jackson alleges a jury could properly conclude that she was subjected to

gender and race discrimination by Narusis and Denney, thereby precluding summary

judgment. Under § 1983, moreover, Jackson need not establish the “adverse

employment action” standard that is necessary for liability under Title VII. Jackson

contends that when all of the evidence is considered, a reasonable jury could

conclude that discrimination occurred. Additionally, neither Defendant is entitled

to qualified immunity because it has been clear that an employee cannot be

discriminated against on the basis of either race or gender. Finally, Jackson alleges

she has sustained damages.

Legal standard

Summary judgment is appropriate if the motion is properly supported and

“there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” See Fed. R. Civ. P. 56(a). The Court views the

evidence and construes all reasonable inferences in favor of the non-movant. See

Driveline Systems, LLC v. Arctic Cat, Inc., 936 F.3d 576, 579 (7th Cir. 2019). To

create a genuine factual dispute, however, any such inference must be based on

something more than “speculation or conjecture.” See Harper v. C.R. England, Inc.,

687 F.3d 297, 306 (7th Cir. 2012) (citation omitted). “The court does not assess the

credibility of witnesses, choose between competing reasonable inferences, or

balance the relative weight of conflicting evidence.” Driveline Systems, 36 F.3d at

579 (internal quotation marks omitted). Ultimately, there must be enough evidence

in favor of the non-movant to permit a jury to return a verdict in its favor. See

Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir. 2008).

Equal protection claims

A plaintiff’s § 1983 Fourteenth Amendment equal protection claim is

evaluated using the same standard as is used in considering Title VII claims. See

Silva v. Washington, 917 F.3d 546, 559 (7th Cir. 2019). Under Title VII, it is

unlawful to “discriminate against any individual . . . because of such individual’s

race . . . [or] sex.” “The equal protection clause of the Fourteenth Amendment

protects individuals against intentional, arbitrary discrimination by government

officials.” Hayden ex rel. A.H. v. Greensburg Cmty. Sch. Corp., 743 F.3d 569, 577

(7th Cir. 2014). An individual who is unconstitutionally discriminated against can

seek relief from her employer under 42 U.S.C. § 1983. Id. at 575 n.3; See

Lauderdale v. Illinois Dep’t of Human Servs., 876 F.3d 904, 910 (7th Cir. 2017).

A plaintiff need not rely on the burden-shifting framework set out in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) in alleging discrimination

under Title VII or § 1983. Purtue v. Wisc. Dep’t of Corr., 963 F.3d 598, 601 (7th

Cir. 2020). That is simply one way to seek to create a genuine issue of material fact.

See id. at 602. “Discrimination claims may survive summary judgment when a

plaintiff presents evidence that permits a reasonable factfinder to conclude that the

employer took an adverse action against the employee because of the employee’s

race” or sex. De Lima Silva v. Wisc. Dep’t of Corr., 917 F.3d 546, 559 (7th Cir.

2019). The Seventh Circuit explained:

Evidence must be considered as a whole, rather than asking whether

any particular piece of evidence proves the case by itself—or whether just

the “direct” evidence does so, or the “indirect” evidence. Evidence is

evidence. Relevant evidence must be considered and irrelevant evidence

disregarded, but no evidence should be treated differently from other

evidence because it can be labeled “direct” or “indirect.”

Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 765 (7th Cir. 2016).

A plaintiff may have “direct or circumstantial evidence that supports an

inference of intentional discrimination” that would not fit in to the McDonnell

Douglas framework. Purtue, 963 F.3d at 602. Plaintiffs often rely on “ambiguous

or suggestive comments or conduct; better treatment of people similarly situated but

for the protected characteristic; and dishonest employer justifications for disparate

treatment.” Id.

The Defendants first allege that while Jackson is a member of a protected

class, she cannot satisfy all of the required elements of a prima facie case. Jackson

states that she is not proceeding under the McDonnell Douglas burden-shifting

method. Accordingly, Jackson need not meet each of those elements.

The Defendants assert Jackson was not meeting her employer’s legitimate

expectations and her performance evaluations do not constitute adverse employment

actions. Jackson contends the Defendants are conflating the “adverse employment

action” standard of Title VII with a claim under 42 U.S.C. § 1983. Jackson notes

that her complaint identifies the following alleged acts of discrimination: (1) the

creation of a hostile work environment; (2) fabricating three performance

evaluations; (3) suspending her for a period of seven days in November of 2016; and

(4) fabrication of a performance evaluation on October 4, 2016.

Jackson points out that a § 1983 claim does not always require an adverse

employment action in the same sense as other anti-discrimination statutes. See

Hutchins v. Clarke, 661 F.3d 947, 956 (7th Cir. 2011). The Seventh Circuit has

described an adverse employment action under § 1983 as of the type “that the action

of which the employee is complaining must be sufficiently adverse to deter the

exercise of the individual’s right to free speech.” Id. The analysis in Hutchins

concerned First Amendment retaliation. See id.; see also Power v. Summers, 226

F.3d 815, 820 (7th Cir. 2000) (noting that an adverse employment action is not

required in order for plaintiff to assert a viable § 1983 First Amendment retaliation

claim). However, a § 1983 claim based on discrimination in violation of the Equal

Protection Clause does require a “materially adverse employment action.” See

Lavalais v. Village of Melrose Park, 734 F.3d 629, 635 (7th Cir. 2013).

Jackson alleges that the first three evaluations are not intended to stand on

their own as discrete acts of discrimination. However, the October 14, 2016

evaluation is its own act of discrimination because an evaluation of that nature can

be used for promotion.

Jackson further asserts there were problems with the three evaluations. They

were provided to her in a tardy fashion by an individual who did not understand her

work. The evaluation covering September 1, 2015 to August 31, 2016 included

performance objectives for that time period that had already passed. Jackson was

evaluated based on objectives that had not been given to her before the evaluation

period. Jackson contends there cannot be a meaningful evaluation when an

employee is given no notice of its grounds.

When viewed in a light most favorable to the Plaintiff, the record does show

that the evaluations were untimely and thus included objectives that would have been

impossible to meet. To the extent Jackson is relying on these evaluations in support

of her race and gender discrimination claims, however, the Court concludes that her

claims fail. Negative performance evaluations do not alone constitute adverse

employment actions. See Sublett v. John Wiley & Sons, Inc., 463 F.3d 731, 739 (7th

Cir. 2006).

Jackson next points to her seven-day suspension from employment which

Defendants allege was due to two incidents regarding her conduct with customers

and supervisors. According to DCEO’s Predisciplinary Notice, on October 13,

2016, Ben Denney heard Jackson on the phone speaking in a “discourteous and

unprofessional manner” to Department customer Mark Rothart, an enterprise zone

administrator. The Notice also claims Jackson “acted in a discourteous and

unprofessional manner when discussing an agency memo with her supervisor”

Denney. Jackson disputes that she acted unprofessionally with her supervisors or

with anyone else.

Jackson relies on her affidavit in disputing the Defendants’ reasons for the

suspension. However, her own opinion regarding whether the suspension was

warranted is irrelevant. See Luks v. Baxter Healthcare Corp., 467 F.3d 1049, 1056

(7th Cir. 2006) (noting that employee’s own opinion she was doing a good job is

“beside the point”). While an employee’s assertions might establish a factual dispute

on certain points, the critical inquiry is “not whether the criticisms of his

performance were right or wrong but whether his supervisor honestly believed

them.” Id. Here, Denney heard Jackson on the phone with Rothart and believed she

was being “rude, unprofessional and abusive.” Denney testified he also received an

email from Rothart about the phone call. Accordingly, the record establishes he had

an honest belief Jackson was rude and unprofessional.

The second alleged incident concerns Jackson’s reaction over an internal

memo she had originally written regarding a 2017 enterprise zone for Bloomington-

Normal. Justin Heather made various substantive and stylistic changes to Jackson’s

memo. On September 30, 2016, the Director signed the certificate documenting the

enterprise zone. Jackson acknowledges that upon discovering the documents were

altered, she became upset and requested her name be removed from the memo.

Denney claims Jackson was “agitated, yelling and aggressive during these

encounters,” an assertion she disputes. Jackson states she expressed her concerns to

Denney but those concerns were ignored. It appears Denney and Jackson had

different perceptions of their encounters after Jackson discovered the documents had

been altered. There is nothing to suggest Denney did not honestly believe that

Jackson was being unprofessional when she expressed her concerns regarding the

changes made to her memo.

The November 15, 2016 memo from Vic Narusis provides that after a pre-

disciplinary meeting and upon considering Jackson’s written response, Jackson

would be suspended for seven days. Denney was not involved in the decision about

the amount or type of discipline. As with Denney, there is no basis to doubt that

Narusis’s honest belief is reflected in the memo recommending suspension. The

record shows the decision was based on the information presented to Narusis.

The record does not contain any evidence that race or gender discrimination

played any role in Jackson’s suspension. There is no evidence that Defendants lied

about the reason for the suspension. The explanation offered for the suspension was

consistent. At most, the Parties had different interpretations of the same events.

Denney had an honest belief Jackson was unprofessional on both occasions. While

Jackson disputes the statements of Denney and Narusis, that does not create a

genuine issue of material fact according to Luks.

Based on the foregoing, the Court concludes that Defendants are entitled to

summary judgment on Jackson’s gender and race discrimination claims.

Other claims

In her Complaint, the Plaintiff alleges she was subject to a “hostile work

environment.” In order to survive summary judgment on a hostile work environment

claim, a plaintiff must demonstrate “(1) the work environment was both objectively

and subjectively offensive; (2) the harassment was based on membership in a

protected class or in retaliation for protected behavior; (3) the conduct was severe or

pervasive; and (4) there is a basis for employer liability.” Boss v. Castro, 816 F.3d

910, 920 (7th Cir. 2016).

Jackson’s response to the Defendants’ summary judgment motion does not

address a hostile work environment claim. Therefore, it appears any hostile work

environment claims have been abandoned. To the extent Jackson continues to assert

a hostile work environment claim, the Court finds that the record in this case does

not contain any evidence of the type of severe or pervasive harassment that is

required to maintain a hostile work environment claim.

Based on the foregoing, the Court concludes that Defendants are entitled to

summary judgment on the federal claims asserted in Counts I and II.

In Count III, the Plaintiff asserts an Illinois Ethics Act claim as to DCEO,

Narusis and Denney. Because all of the federal claims are being dismissed, the Court

will decline to exercise supplemental jurisdiction as to the remaining state law

claims. See 28 U.S.C. § 1367(c)(3).

Ergo, the Motion for Summary Judgment of Defendants Victor Narusis and

Ben Denney [d/e 20] is GRANTED.

Counts I and II are Dismissed with prejudice.

Pursuant to 28 U.S.C. § 1367(c)(3), the Court declines to exercise

supplemental jurisdiction as to the remaining state law claim.

Count III is Dismissed without prejudice.

The Clerk will enter Judgment and terminate this case.

ENTER: January 7, 2021

FOR THE COURT:

/s/ Richard Mills

Richard Mills

United States District Judge