The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MICHAEL JONES,
Plaintiff,
v. Case No. 16 C 10258
BOARD OF TRUSTEES OF THE Judge Harry D. Leinenweber
UNIVERSITY OF ILLINOIS and
MARK DONOVAN, Individually,
Defendants.
MEMORANDUM OPINION AND ORDER
I. BACKGROUND FACTS
In December 2015, the Chief Operating Engineer for the West Campus
of the University of Illinois at Chicago (“UIC”) retired. The school
posted the opening, which was a civil service position, and the State
Civil Service System identified eleven candidates that were qualified
and thus eligible for interviews. Nine of those were Caucasian and two
were African-American. Plaintiff was one of the two African-American
candidates. The Defendant, Mark Donovan (“Donovan”), Vice-Chancellor
of Administrative Services to whom the Chief Operating Engineer would
report, interviewed all eleven candidates. In March 2016, Donovan
selected Anthony Civito, one of the Caucasian applicants, to fill the
vacancy.
The selection process was a subjective one and consisted of
Donovan’s review of the applications and the materials the candidates
brought to the interview, and an in-person interview of the candidates.
Neither the Civil Service statutes or rules nor UIC establish any
required procedures and rules for the conduct of interviews for the
position. Donovan asked each candidate the same three questions: why
they were interested in the position, what relevant experience they had,
and what they envisioned doing as chief engineer. Donovan neither relied
on nor reviewed any previous performance evaluations of the candidates.
Mr. Donovan testified that he selected Anthony Civito (“Civito”)
for the position based on his interview and the materials he brought to
the interview which disclosed his experience. Mr. Donovan justified his
selection of Civito on his conviction that Civito was more prepared for
the interview than the other candidates, he exhibited initiative,
provided thoughtful responses, and articulated concrete plans for
improving the department by reducing costs and supervising employees.
Also, according to Donovan, Civito was prepared and brought what Donovan
considered to be relevant materials to the interview.
On the other hand, Plaintiff brought only his application and his
resume to the interview. While he discussed his experiences on campus
and what he would do such as improving the personal appearances of the
engineers and holding them accountable, in Donovan’s opinion, he did not
put forth any specific plans he would introduce as Chief Engineer.
Plaintiff testified at his deposition that he was comfortable
during the interview and was not asked any questions that he thought
were inappropriate. In fact, Plaintiff himself brought up the issue of
race in his interview when he suggested to Donovan that he would be the
first African-American Chief Engineer and promoting him would be a legacy
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for both of them. Plaintiff further testified that he was aware of no
facts to suggest that Donovan did not believe Mr. Civito to be the most
qualified candidate. (Later in an affidavit he suggested that he
discovered facts during discovery that suggested that he was more
qualified than Civito. Specifically, he learned that he had a higher
performance review than Civito.) Plaintiff’s resume showed that he had
been promoted on three separate occasions while employed at UIC. He
started out as a Transportation Clerk, was promoted to Utility Laborer,
then to Boiler Room Fireman, then to Plant Operating Engineer, and
finally to Assistant Chief Engineer. He graduated from Chicago
Vocational High School and took classes at UIC and Triton College but
had taken no classes since 1996. His resume listed the following
certificates and licenses: Fundamentals of Supervisory Performance,
Skills for Employee Retention, Stationary Engineering, Swimming Pool
Operator Fundamentals of HVAC, Basic Electricity, Refrigeration & AC 1,
Direct Digital Controls, Generator Operator, and City of Chicago license
as a Stationary Engineer. He also told Donovan that he volunteered at
inner city school programs where he suggested that young people should
look at the trades as career options. He kept full records and had
customer service skills. He was concerned about a non-caring staff,
that there was no maintenance program, and that the staff lacked
professional appearance. He discussed increased accountability and
better purchasing procedures. He had worked in both the East and West
plants and he had commissioned a building known as 630. He advised
that after 30 years on the job he had never been disciplined.
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In contrast Civito brought to the interview his application, his
resume, his certificates, a synopsis of career accomplishments, a
description of repairs he put in place to keep Building 940 running when
funding was pulled, a training program he created to train his staff as
well as a self-evaluation report from one of the classes he took at UIC.
He also brought a letter from the Village Engineer of the Village of
Downers Grove to show that had donated time to his community. His resume
showed that he had graduated from Prosser Vocational High School, where
he had studied HVAC and various trade classes. He also attended classes
and received certificates in building operations, electrical, plumbing,
and HVAC from Triton College and from the College of DuPage, some as
late as 2008. He continued taking classes through Local 399 until 2010
and since that time he has taken classes in Peerless boilers and
management. He started at UIC as Plant Operating Engineer in 2000.
Prior to that he had been Senior Head Engineer for Professional Business
Providers at Midway Airport. In 2012 he was promoted to Assistant Chief
Engineer at UIC at the East Campus. He had volunteered to work at the
West Campus when a vacancy occurred. Further he discussed operations
and what he would do as Chief Engineer and how his experience was
important in reviewing blueprints, following orders and making sure
contractors were handling projects properly.
II. THE EEOC COMPLAINT
Plaintiff filed a Complaint with the EEOC in April 2016 charging
race discrimination based on the appointment of Civito. In response to
the question of why he believed it to be race discrimination, he stated
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that “[a] minority has never been promoted to the position of Steam &
Power Plant V (formerly called Chief Plant Operating Engineer).” He
also stated that Civito had been transferred from the East Side Heat
Light & Power Department where he and Plaintiff worked, to the West Side
which was the location of new position. He claims that the reason stated
by Defendants was to provide cross-training. This cross-training was
provided to Civito but not to Plaintiff. He further claimed that Civito
was less senior to him as an UIC employee.
The University’s response was that seniority is not a factor under
the rules and for Civil Service promotions. The response further stated
that Civito had been much better prepared for the interview. It further
noted that while both Plaintiff and Civito were Assistant Chief
Engineers, Plaintiff had chosen to work the midnight shift which is
basically a caretaker role, involving supervision of a small crew and
he had little experience with the West Campus where a key part of the
West Campus, the UIC Hospital was located. It then noted that, in
contrast to Plaintiff, Civito had daytime experience on the East Side
supervising larger crews and conducting training, and two years prior,
he had requested the opportunity to take a vacated position on the West
Side, a lateral move which enabled him to learn the operations of the
West Campus.
UIC also acknowledged to the EEOC that it had promulgated a
Statement of Reaffirmation, Affirmative Action in Employment, which
provided that “UIC adheres to the principles of equal employment
opportunity and nondiscrimination in all aspects of employment,
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recruitment, hiring, promotions and development of our employees. Our
hiring and employment policies are devised to promote this commitment.”
III. THE COMPLAINT AND SUMMARY JUDGMENT MOTION
The Plaintiff filed a Complaint in this Court against The Board
of Trustees and against Mark Donovan alleging discrimination in
employment, based on failure to promote because of his race. The suit
against the Board alleges violations of Title VII and Section 1981 and
Section 1983, and the suit against Donovan alleges violation of
Section 1981. The Defendants have moved for summary judgment. “Because
the elements and methods of proof are the same regardless of whether a
discrimination claim is brought under Title VII or Section 1983, the
summary judgment analysis is also the same for claims under both
statutes.” Figueroa v. Village of Melrose Park, 127 F. Supp. 3d 905,
907 (N.D. Ill. 2009).
In Ortiz v. Werner Enterprises, Inc., 834 F. 3d. 762, the Seventh
Circuit changed the nomenclature involved in employment discrimination
cases, eliminating the sorting of evidence into the separate categories
of indirect and direct evidence. From that case forward, the district
courts were instructed to place all pieces of evidence into a single
pile which must be evaluated as a whole. The correct legal standard is
“whether the evidence would permit a reasonable factfinder to conclude
that the plaintiff’s race, ethnicity, sex, religion or other proscribed
factor caused the discharge or other adverse employment action.” Id.
at 765. The so-called direct and indirect evidence are terms that in
reality are other names for direct and circumstantial evidence and are
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to be weighed as stated in the Seventh Circuit pattern instruction that
requires the fact finder to consider both direct and circumstantial
evidence in evaluating whether plaintiff has made a case of
discrimination. The question is whether the plaintiff has put forth
sufficient evidence, direct and circumstantial, to preclude summary
judgment. Sylvester v. SOS Children’s Villages Illinois, Inc., 453 F.3d
900, 903 (7th Cir. 2006).
Since Donovan was the Board’s actor, the evidence is the same for
the Plaintiff’s two cases with the exception that Plaintiff cites an
early 1990’s case brought against the UIC by a group of African-Americans
for failure to promote within the Heat and Power Division based on race.
He also cites an incident that occurred in 2014 that involved the hanging
of a noose in a Transportation Department Garage, which led to racial
sensitivity training for the affected department. Because neither of
these involved Donovan, they are only cited with respect to the Board.
The evidence that applies to both Defendants is the so-called
cross-training that Civito received, which, according to Plaintiff,
demonstrates that Civito was the beneficiary of favoritism because he
had been given the opportunity to participate in the cross-training
program on the West Campus, which Plaintiff had not been told was
available. He also argues that Defendants’ reason for promoting Civito,
a decision based in part on the cross-training, was inconsistent with
Donovan’s deposition in which he testified that his reason for selecting
Civito was his interview in addition to his West Campus experience.
Plaintiff also argues the subjective promotion practice used by Donovan
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in which he alone interviews the candidates lacks safeguards and checks
and balances to prevent discrimination. He also argues that Plaintiff’s
performance evaluation for his previous position of Assistant Chief
Operating Engineer was higher than the performance evaluation for Civito
for the same position of Assistant Chief Engineer.
Defendants respond by arguing that Plaintiff has not come up with
any evidence that he was more qualified than Civito or that Donovan’s
(and the Board’s) decision to hire Civito over Plaintiff was based on
racial animus. The Defendants point out that Donovan was not aware of
the performance evaluations and did not consider them because he
questioned their reliability and because Civito and Plaintiff were
applying for a completely different position, with significant
administrative, supervisory and planning responsibilities.
Nevertheless, both received the same summary grade of “meets
expectations.” The Defendants further argue that there was no so-called
cross-training program. Civito received cross-training because he
requested the opportunity when he heard of the temporary vacancy at the
West Campus. Donovan felt it was relevant because requesting to work
in the West Campus (where the University Hospital is) showed initiative
as well as valuable experience. Finally, Defendants take issue with
Plaintiff’s interpretation of Donovan’s interview notes. They note that
Donovan was not asked a single question about them during his deposition.
IV. DISCUSSION
The key question in this employment discrimination lawsuit is
whether Donovan, the decision maker, legitimately considered Civito to
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be more qualified than Plaintiff for the position of Chief Engineer.
As has been stated repeatedly, courts do not sit as super personnel
departments to second guess employers’ business decisions: The only
question is whether the reason given for the employment decision is
pretext. Stewart v. Henderson, 207 F.3d 374, 378 (7th Cir. 2000).
Plaintiff basically rests his case on his contention that he scored
higher than Civito on the performance reviews for their previous
positions, and therefore he was more qualified, and that Donovan used
the cross-training matter as a subterfuge to justify his discriminatory
choice. However, a review of the interviews of Plaintiff and Civito
leads to the conclusion that Donovan was entitled to find that Civito
was the more qualified of the two. He brought more evidence of his
prior experience to the interview than Plaintiff brought. He also had
the previous experience of cross-training that Plaintiff lacked. This
alone would make Civito on paper more qualified than Plaintiff. In
response to Civito’s cross-training, Plaintiff contends unconvincingly
that this was a “program” which was hidden from Plaintiff to give Civito
a leg up. However, there was no evidence that this was a “program” much
less one that was hidden away. The evidence instead shows that Civito
took it upon himself, when he found out that there was a temporary
opening on the West Campus, to apply for it. In contrast, Plaintiff did
not make any effort to see if there might be any such opportunity
available. Donovan stated in contrast to Civito’s initiative, Plaintiff
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was happy as Assistant Plant Operator Engineer to work nights which was
a less demanding job than the day shift.
In addition, Civito had held several positions, both within the
University and without, that were considered by Donovan to be very
relevant to the Chief Engineer’s job. In response to a direct question
at Plaintiff’s deposition, whether he had any evidence of racial animus
or that race had anything to do with the decision to appoint Civito,
Plaintiff responded that he did not have any such evidence. He later
sought to back off from this conclusion in his affidavit stating that
he later learned of evidence that Donovan did discriminate against him
when he found out that he had a more favorable performance review than
Civito, and that Defendants had changed their position on the importance
of the so-called cross-training issue. With respect to the performance
reviews the evidence was undisputed that Donovan did not consider them,
did not know of them, and gave as his reason that he did not find them
helpful. It is also a fact that there was minimal difference between
the two as both were found to be “meeting expectations.” It might have
been different if one was clearly superior to the other, such as an
“exceeds expectations” versus “fails to meet expectations,” but that was
not the case.
Plaintiff also argues that the failure in the past to promote an
African-American to the position as Chief Engineer at UIC proves
discriminatory intent. However, Plaintiff has failed to provide any
details regarding past promotions, such as the number of African-
Americans in the candidate pool at the time of the previous promotions,
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who the decision makers were and when the decisions were made. Thus,
to conclude that UIC, contrary to its stated policy, had a policy of not
promoting African-Americans to the Chief Engineer position is pure
speculation which does not produce a genuine issue of fact for trial.
Jordan v. Summers, 205 F.3d 337, 344 (7th Cir. 2000).
Finally, the so-called “noose” incident, while reprehensible, has
no relation to Donovan or his department. Nor does a lawsuit against
the University that occurred more than twenty-five (25) years ago have
any relation to the current situation at UIC.
While Plaintiff was clearly qualified for the position (as were
the nine other applicants), it was, under the evidence put forth in these
Motions, not an unreasonable decision for Donovan to promote Civito over
Plaintiff.
V. CONCLUSION
In summary, the only evidence Plaintiff put forth in opposition to
the Motions for Summary Judgment is the subjective nature of Donovan’s
decision-making process and Plaintiff’s arguably higher performance
evaluation. Against this the Defendants have shown that Civito gave a
superior interview and demonstrated greater relevant experience, which
included the stint at the West Campus. Subjective promotion practices
while susceptible to abuse are nonetheless legal. EEOC v. Sears, Roebuck
& Co., 839 F.2d 302, 332 (7th Cir. 1988). Plaintiff sought to make this
asset into an accusation of discrimination but the evidence does not
support this. For the reasons stated herein, Defendant’s Motions for
Summary Judgment are granted.
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IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
Dated: 8/22/2018
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