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IN THE UNITED STATES DISTRICT COURT

f'

FOR THE NORTHERN DISTRICT OF ILLINOIS

c..r..:,

EASTERN DIVISION

JOHN MCGEE and THOMAS MALONE,
v.

Plaintiffs,

ILLINOIS DEPARTMENT OF TRANSPORTATION, KENNETH CHLEBICKI, DENNIS MAHONEY, JOHN KOS, and
Defendants,

) DOCKETED

) )

JAN 1 4 2002

) )

02C 027'7

)

No.

)

)

)

)

JURY TRIAL DEMANDED

)

)

)

MAGISTRATE JUDGE BOBRIC~

)

COMPLAINT

Plaintiffs Jolm McGee and Thomas Malone, by their attorneys, bring this action for violation

of Title VII of the Civil Rights Act of 1964,42 U.S.C. §§2000e et seq., as amended; 42 U.S.c.

§1981; and 42 U.S.C. §1983 against the above-named defendants and allege as follows:

BACKGROUND

1. In 1996, defendant Illinois Department of Transportation ("IDOT") was sued by a

group ofAfrican-American workers (including both plaintiffs in this action) for race discrimination

in violation of Title VII and Sections 1981 and 1983 on behalf of a class of similarly-situated

individuals. This lawsuit, Massie, et al. v. IDOT, et al., No. 96 C 4830 (N.D.Ill.), was settled in

2000, and a consent decree was entered by Magistrate Judge Schenkier on June 12, 2000.

2. After the entry of the consent decree, the two plaintiffs in this action, both of whom

were class representatives in the Massie case, were promoted to higher positions under the decree

and took part in implementing other aspects of the decree. They immediately began to experience

1 r

race discrimination, harassment, and retaliation as a result oftheir promotions, their participation in the consent decree, and their opposition to the discrimination, harassment and retaliation that commenced by mOT officials who were not parties to the Massie lawsuit.
3. The plaintiffs bring this action seeking injunctive, compensatory, punitive and other relief.
PARTIES 4. PlaintiffJohn McGee is an African-American male who resides in Chicago, Illinois. He is employed by the Illinois Department of Transportation as a Lead Worker in the Stevenson yard. He filed an EEOC charge on April 20, 2001 and received his right to sue letter on October 17, 2001. Mr. McGee is an "employee" for the purposes of 42 U.S.C. §2000e(f). 5. Plaintiff Thomas Malone is an African-American male who resides in Chicago, Illinois. He is employed by the Illinois Department of Transportation as a Heavy Construction Equipment Operator ("HCEO") in the Kennedy yard. He filed an EEOC charge on December 13, 2001. Mr. Malone is an "employee" for the purposes of 42 U.S.C. §2000e(f). 6. Defendant Illinois Department of Transportation ("mOT") is a department of the State of Illinois that was created in 1972 to administer the State of Illinois' transportation systems and activities. IDOT is an umbrella organization containing several divisions, including the Division of Highways, which oversees nine highway districts throughout the state of Illinois. District 1 contains Cook County and several other counties. The administrative office for District 1 is located at 201 West Center Court, Schaumburg, IL 60196. Both plaintiffs work in yards located in District 1. mOT is an "employer" for the purposes of 42 U.S.C. §2000e(b). 7. District 1 is divided into several maintenance yards, including the Stevenson yard, where Mr. McGee is employed, and the Kennedy yard, where Mr. Malone is employed. Each yard
2

is supervised by a Yard Technician. The Yard Technician oversees all operations and personnel in the yard. The hierarchy of positions reporting to the Yard Technician each yard is as follows:
Lead Lead Worker Lead Worker Heavy Construction Equipment Operator Highway Maintainer 8. Defendant Kenneth Chlebicki is a white male who resides in Illinois and is employed by IDOT as a Yard Technician in the Stevenson yard. He occupies a salaried management position. 9. Defendant Dennis Mahoney is a white male who resides in Illinois and is employed by IDOT as a Yard Technician in the Kennedy yard. He occupies a salaried management position. 10. Defendant John Kos is the District Engineer for District 1. He oversees all the activities of District 1, including the Department of EEO and Labor Compliance, Development, Implementation, Operations (which includes the Bureau of Maintenance), and Administrative Services. He supervises the Yard Technicians in each District 1 maintenance yard, including defendants Chlebicki and Mahoney. 11. Each ofthe defendants had actual notice ofthe Massie Consent Decree (including its anti-retaliation provisions).
JURISDICTION AND VENUE 12. This courthasjurisdictionpursuantto 42 U.S.C. §2000e-5(f)(3); 28 U.S.C. §1343(4); and 42 U.S.C. §§1981 and 1983. 13. Venue properly lies in the Northern District of Illinois, Eastern Division, pursuant to 42 U.S.C. §2000e-5(f)(3), because mOT does business in this judicial district; the plaintiffs work in this district; the unlawful acts alleged in this complaint took place in this district; and the
3

employment records of the plaintiffs are maintained in this district. Venue also lies pursuant to 28 U.S.C. §1391(b), in that plaintiffs' claims arose in this district.
FACTS A. John McGee 14. John McGee was promoted to the Lead Worker position on October 5,2000 pursuant to the Massie consent decree. He is one of only two African-American permanent employees in the yard, and he is the only African-American in a supervisory position in the yard. From the first day of his new position as Lead Worker, Mr. McGee experienced hostility, harassment, and retaliation from defendants mOT and Kenneth Chlebicki (the Yard Technician). The discrimination, harassment and retaliation continue to this date. 15. Mr. McGee has been treated differently than other Lead Workers and has been prevented from performing the duties ofhis position because of his race and his participation in the Massie decree. This differential treatment is severe and pervasive and has materially altered the terms and conditions of his employment. 16. In its 2001 Affirmative Action Plan, mOT's Equal Employment Office documented the fact that African-American males employed in the Service Maintenance category (which includes the two plaintiffs) "are suspended at a rate much greater than their representation in the workforce." Mr. McGee is a casualty of this practice of disparate disciplinary treatment. 17. Mr. McGee has suffered both physically and emotionally from the effects of the retaliation and harassment. The daily stress is exacerbating his diabetes. Furthermore, he suffers from depression and anxiety and is currently seeking psychiatric treatment for the stress caused by his experiences at mOT. His daily experience at mOT since the promotion has been one of humiliation, belittlement, intimidation and threats.
4

('\
18. Mr. McGee reported the above-described harassment, discrimination and retaliation to the defendants. His first written complaint was in March 2000, and he has reported several other incidents since that date. After he complained, the level of hostility in the yard escalated. Mr. McGee has experienced further incidents of retaliation as a result of opposing the defendants' discriminatory and retaliatory practices.
19. The defendants have thus been on notice that there is an atmosphere of racism and hostility in the Stevenson yard since at least March 2000, yet no steps have been taken to mitigate the problem, and, on information and belief, the defendants have never disciplined anyone in the yard for the incidents detailed in this complaint.
20. The harassment and retaliation have caused Mr. McGee to seek a lateral transfer to another yard. To date, mOT has not granted his transfer request.
B. Thomas Malone 21. Mr. Malone was promoted to the position ofHCEO on September 16,2000 pursuant to the Massie consent decree. From the first day of his new position as HCEO, Mr. Malone experienced hostility, harassment, and retaliation from defendants IDOT and Dennis Mahoney (the Yard Technician). The discrimination, harassment and retaliation continue to this date. 22. Mr. Malone has been treated differently than other HCEOs and has been prevented from performing the duties of his position because of his race and his participation in the Massie decree. This differential treatment is severe and pervasive and has materially altered the terms and conditions of his employment. 23. Mr. Mahoney personally makes most of the crew assignments in the yard; he is therefore personally responsible for the discrepancy between the duties of Mr. Malone and Mr. Gabor.
5

24. Mr. Mahoney treats Mr. Malone with disdain and disrespect on a daily basis and has stated openly that he does not like members of minority groups.
25. Mr. Mahoney frequently uses racial slurs toward African-American and Hispanic workers in the yard. Witnesses in the yard have reported hearing Mr. Mahoney call Mr. Malone "that black motherfucker." Other workers in the yard have reported hearing Mr. Mahoney use the phrases like "that dumb Mexican," "one Puerto Rican is as good as another," and "with blacks you have to work them and work them until they can't think, because they hate Whitey at the helm."
26. Mr. Malone has suffered from the effects ofthe; retaliation and harassment. His daily experience at IDOT since the promotion has been one ofhumiliation, belittlement, intimidation and threats.
27. Mr. Malone reported the above-described harassment, discrimination and retaliation to the defendants. His first written complaint was in May 2000, and he has reported several other incidents since that date. After he complained, the level of hostility in the yard escalated. Mr. Malone experienced further incidents of retaliation, as detailed above, as a result of opposing the defendants' discriminatory and retaliatory practices.
28. The defendants have thus been on notice that there is an atmosphere of racism and hostility in the Kennedy yard since at least May 2000, yet no steps have been taken to mitigate the problem, and, on information and belief, the defendants have never disciplined anyone in the yard for the incidents detailed in this complaint.
29. In November 2001, mOT's Civil Rights Committee met and heard live testimony concerning Mr. Malone's complaint. The very next day, he was retaliated against when Mr. Mahoney accused him ofcausing equipment damage and told him he would face disciplinary action.
6

30. Other workers in the Kennedy yard who befriended Mr. Malone or cooperated with the investigation ofMr. Malone's complaints have reported retaliation and harassment. At least one other worker experienced harassment so severe that he sought, and obtained, a transfer to another yard.
31. The harassment and retaliation have caused Mr. Malone to seek a lateral transfer to another yard. To date, mOT has not granted his transfer request.
COUNT I against all defendants Violation of Section 1981
32. Count I incorporates by reference all the allegations in this complaint. 33. Plaintiffs demand a jury trial. 34. Section 1981 mandates that "[a]ll persons within the jurisdiction ofthe United States shall have the same right ... to the full and equal benefit of all laws ... as is enjoyed by white citizens." 42 U.S.C. §1981(a). 35. The defendants have willfully and intentionally violated Section 1981 by discriminating against, harassing, and retaliating against the plaintiffs for participating in the Massie consent decree and for opposing the acts alleged above. This behavior is part of a pattern and practice ofdiscriminatory, harassing and retaliatory treatment and constitutes a continuing violation. 36. The defendants knew or should have known ofthis conduct, yet they participated in or tolerated the behavior and failed to take remedial action. The defendants have been on notice since the implementation of the Consent Decree in June 2000 that they was under an obligation to make sure that no retaliation occurred. Furthermore, they have been on notice since least March 2001 with respect to Mr. McGee's specific allegations and at least May 2001 with respect to Mr.
7

Malone's specific allegations, yet they took no meaningful action to prevent or eJ,iminate the retaliation, discrimination and harassment, which continues to this date.
37. As a result of the discrimination, harassment. and retaliation alleged above, the plaintiffs suffered financial, emotional, and other damages. The willful nature of the practices alleged above, committed with malice or reckless indifference to the federally protected rights ofthe plaintiffs, warrants punitive damages against the defendants.
WHEREFORE, the plaintiffs respectfully request the following relief: a. An order finding and declaring that the defendants retaliated against the plaintiffs in violation of Section 1981; b. An order enjoining the defendants from their pattern and practice of retaliation and enjoining continuing violations; c. All appropriate damages in an amount to be determined by jury, including: 1. Pre- and post-judgment interest; H. Compensatory damages for past, current and future pecuniary losses; HI. Compensatory damages for nonpecuniary losses, including emotional and physical pain and suffering, inconvenience, humiliation, mental distress, and loss of enjoyment of life; and lll. Punitive damages. d. Costs and attorneys' fees, including expert witness fees; and e. All other relief that the Court deems just and proper.
8

COUNT II aeainst all defendants Violation of Section 1983
38. Count II incorporates by reference aH the aHegations in this complaint. 39. Plaintiffs demand a jury trial. 40. Section 1983 mandates that "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory '" subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shaH be liable to the party injured ...." 42 U.S.C. §1983. 41. The defendants have wilfully and intentionally violated Section 1983 by the discrimination and retaliation alleged above, which deprived the plaintiffs oftheir rights under state and federal civil rights laws and the U.S. Constitution. The individual defendants, as supervisory employees of the State of Illinois, acted under color of state law. The defendants, who are the plaintiffs' direct supervisors or the supervisor ofother defendants, either participated in directly or knew of the discriminatory and retaliatory conduct alleged above. The defendants knew of this conduct for several months, yet they failed to act to prevent future harm, and, indeed, continued to engage in or tolerate the discriminatory and retaliatory behavior after the plaintiffs began to pursue their complaints and failed to take remedial action. 42. The defendants have been on notice since the implementation ofthe Consent Decree in June 2000 that they were under an obligation to make sure that no retaliation occurred. Furthermore, they have been on notice since least March 2001 with respect to Mr. McGee's specific allegations and at least May 2001 with respect to Mr. Malone's specific allegations, yet they took
9

no meaningful action to prevent or eliminate the retaliation, discrimination and harassment, which

continues to this date.

43. As a result ofthe discrimination and retaliation alleged above, the plaintiffs suffered

financial, emotional, and other damages. The willful nature of the practices alleged above,

committed with malice or reckless indifference to the federally protected rights of the plaintiffs,

warrants punitive damages against the defendants.

WHEREFORE, the plaintiffs respectfully request the following relief:

a. An order· finding and declaring that the defendants retaliated against the

plaintiffs in violation of Section 1983;

b.

An order ~njoining the defendants from their pattern and practice of

retaliation and enjoining continuing violations;

c. All appropriate damages in an amount to be determined by jury, including:

1. Pre- and post-judgment interest;

11. Compensatory damages for past, current and future pecuniary

losses;

111. Compensatory damages for nonpecuniary losses, including

emotional and physical pain and suffering, inconvenience,

humiliation, mental distress, and loss of enjoyment of life;

and

111. Punitive damages.

d. Costs and attorneys' fees, including expert witness fees; and

e. All other relief that the Court deems just and proper.

10

COUNT III against lOOT Violation of Title VII for race discrimination 44. Count III incorporates by reference all the allegations in this complaint. 45. Plaintiffs demand a jury {rial. 46. Title VII proscribes "discriminat[ionl against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex or national origin." 42 U.S.C. §2000e-2(a). 47. mOT willfully violated Title VII through the discriminatory practices described above, to the detriment of the plaintiffs. These discriminatory practices are part of a pattern and practice of discrimination and constitute a continuing violation. 48. Furthermore, IDOT created and/or allowed to exist a continuing hostile work environment for the plaintiffs. Racial slurs and other discriminatory behavior as alleged above had the purpose and effect ofcreating an intimidating, hostile and offensive work environment and had an adverse effect on the plaintiffs' ability to do their jobs. 49. IDOT knew or should have known of this conduct, yet it tolerated the behavior and failed to take remedial action. IDOT has been on notice since the implementation of the Consent Decree in June 2000 that it was under an obligation to make sure that no retaliation occurred. Furthermore, mOT has been on notice since least March 2001 with respect to Mr. McGee's specific allegations and at least May 2001 with respect to Mr. Malone's specific allegations, yet it took no meaningful action to prevent or eliminate the retaliation, discrimination and harassment, which continues to this date. 50. As a result ofthe discrimination and harassment alleged above, the plaintiffs suffered financial, emotional, and other damages. The willful nature of the practices alleged above,
11

committed with malice or reckless indifference to the federally protected rights of the plaintiffs, warrants punitive damages.
WHEREFORE, the plaintiffs respectfully request the following relief: a. An order finding and declaring that !DOT discriminated against the plaintiffs in violation of Title VII; b. An order enjoining !DOT from its pattern and practice of discrimination and enjoining continuing violations; c. All appropriate damages in an amount to be determined by jury, including: 1. Pre- and post-judgment interest; 11. Compensatory damages for past, current and future pecuniary losses; Ill. Compensatory damages for nonpecuniary losses, including emotional and physical pain and suffering, inconvenience, humiliation, mental distress, and loss of enjoyment of life; and iii. Punitive damages. d. Costs and attorneys' fees, including expert witness fees; and e. All other relief that the Court deems just and proper. COUNT IV against mOT Violation of Title VII for retaliation
51. Count IV incorporates by reference all the allegations in this complaint. 52. Plaintiffs demand a jury trial.
12

53. Title VII proscribes "discriminat[ion] against any individual ... because he has

opposed any practice made an unlawful employment practice by [Title VII], or because he has made

a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing

under [Title VII]. 42 U.S.C. §2000e-3(a).

54. mOT has willfully violated Title VII by retaliating against the plaintiffs for

participating in the Massie consent decree and for opposing the discriminatory and retaliatory acts

alleged above. This retaliation is part of a pattern and practice of retaliatory treatment and

constitutes a continuing violation.

55. mOT knew or should have known ofthis conduct, yet it tolerated the behavior and

failed to take remedial action. mOT has been on notice since the implementation of the Consent

Decree in June 2000 that it was under an obligation to make sure that no retaliation occurred.

Furthermore, it has been on notice since least March 2001 with respect to Mr. McGee's specific

allegations and at least May 2001 with respect to Mr. Malone's specific allegations, yet it took no

meaningful action to prevent or eliminate the retaliation, discrimination and harassment.

56. As a result ofthe retaliation alleged above, the plaintiffs suffered financial, emotional,

and other damages. The willful nature of the practices alleged above, committed with malice or

reckless indifference to the federally protected rights of the plaintiffs, warrants punitive damages.

WHEREFORE, the plaintiffs respectfully request the following relief:

a. An order finding and declaring that mOT retaliated against the plaintiffs in

violation of Title VII;

b. An order enjoining mOT from their pattern and practice of retaliation and

enjoining continuing violations;

c.

All appropriate damages in an amount to be determined by jury, including:

13

1. Pre- and post-judgment interest; 11. Compensatory damages for past, current and future pecuniary
losses; 111. Compensatory damages for nonpecuniary losses, including
emotional and physical pain and suffering, inconvenience, humiliation, mental distress, and loss of enjoyment of life; and 111. Punitive damages. d. Costs and attorneys' fees, including expert witness fees; and e. All other relief that the Court deems just and proper.
Respectfully submitted,
ie S. Franklin ichael M. Mulder MEITES, MULDER, BURGER & MOLLICA 208 S. LaSalle Street, Suite 1410 Chicago, 1L 60604 (312) 263-0272 (312) 263-2942 (FAX)
14

Civil Cover Sheet

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS

Page I of I
DOCKETED
JAN 142002

This automated 1S-44 conforms generally to the manual 1S-44 approved by the Judicial Conference of the United States in September 1974. The data is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. The information contained herein neither replaces nor supplements the filing and service of pleadings or other papers as required by law. This form is authorized for use illlly in the Northern District of Illinois.

Plaintiff(s): John McGee and Thomas Malone

Defendant(s):lIIinois Department of Transportation, Kenneth S. Chlebicki, Dennis A. Mahoney, John Kos

County of Residence: Cook

County of Residence: Cook

Plaintiffs Atty:

Jamie S. Franklin and Michael M.

Defendant's Atty:

Mulder

Meites Mulder Burger & Mollica 208 S. LaSalle St., Ste. 1410, Chicago, IL 60604

02C

(312) 263-0272

II. Basis of Jurisdiction:

3. Federal Question (V.S. not a party)

1I1.~i!izen~hip_oU)rin_ciple.l'a!jie_s
(Diversity Cases Only) Plaintiff:- N/A
Defendant:- NIA

JUDGE PLUNKETT
MAGISTRATE JUDGE BOBRICI<

1. Original Proceeding

V. Nature of Suit:

442 Employment

VI.Cause of Action:

Title VII of the Civil Rights Act of 1964, 42 V.S.C Section 1981 and 1983; Plaintiffs seek relief against Defendants for race discrimination, retaliation and harassment.

VII. B.e'll!ested in COlllRi;ljm

Class Action: No

Dollar Demand:

Jury Demand: Yes

VIII. This case IS.l'IPT a refiling of a previously dismissed case.

. .-.---- n9~-dr--.- Signature:

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Date:

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display to make the form print properly.

Revised: 06/28/00

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS

In the Matter of

Eastern Division

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Illinois Department of Transportation, Kenneth S. Chlebicki, Dennis A. Mahoney, and John Kos

DOCKETED
JAN 1 4 2002

APPEARANCES ARE HEREBY FILED BY THE UNDERSIGNED AS ATTORNEY(S) FOR.
John McGee and Thomas Malone, Plaintiffs
MAGTSTRATE JUDGE BOBRI

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 2002 WL 32602566 (N.D.Ill.) (Cite as: 2002 WL 32602566)

Page 1

For Opinion See 2004 WL 835620, 2004 WL 726110, 2004 WL 434210, 2002 WL 31478261
United States District Court, N.D. Illinois. John MCGEE and Thomas Malone, Plaintiffs, v.
ILLINOIS DEPARTMENT OF TRANSPORTATION, Kenneth S. Chlebicki, Dennis A. Mahoney and John Kos, Defendants. No. 02 C 0277. June 20, 2002.
Defendants' Motion to Dismiss Plaintiffs' Complaint
Hon. Sidney Schenkier Judge Presiding. Defendants, Illinois Department of Transportation (“IDOT”), Kenneth S. Chlebicki (“Chlebicki”), Dennis A. Mahoney (“Mahoney”), and John Kos (“Kos”), by and through their counsel, JAMES E. RYAN, Attorney General of Illinois, hereby move to dismiss Plaintiffs' Complaint pursuant to Rule 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, stating as follows:
1. Plaintiffs' § 1981 and § 1983 claims against IDOT are barred by the Eleventh Amendment.
2. Plaintiffs' fail to state a claim under 42 U.S.C. §1983 against any Defendants.
3. Plaintiffs' claims arise out of alleged violations of the retaliation provisions contained in the Consent Decree in Massie v. IDOT.
4. Plaintiffs' complaint in the instant action duplicates their claims brought under the Consent Decree, entered in Massie v. IDOT, 96 C 4830.
WHEREFORE, Defendants Illinois Department of Transportation, Kenneth S. Chlebicki, Dennis A. Mahoney, and John Kos respectfully request that this Honorable Court grant their motion to dismiss Plaintiffs' Complaint.
DEFENDANTS' MEMORANDUM IN SUPPORT OF THEIR MOTION TO DISMISS PLAINTIFFS' COMPLAINT
Defendants, Illinois Department of Transportation (“IDOT”), Kenneth S. Chlebicki (“Chlebicki”), Dennis A. Mahoney (“Mahoney”), and John Kos (“Kos”), by and through their counsel, JAMES E. RYAN, Attorney General of Illinois, hereby submit this memorandum in support of their Motion to Dismiss Plaintiffs' Complaint, stating as follows:
I. INTRODUCTION

© 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works.

2002 WL 32602566 (N.D.Ill.) (Cite as: 2002 WL 32602566)

Page 2

Plaintiffs John McGee and Thomas Malone are class members in the Massie v. IDOT, 96 C 4830, which alleged discriminatory practices in IDOT's promotional policies. The Massie suit was resolved by the parties entering into a detailed consent decree with this Court retaining jurisdiction for a three year period to enforce the terms of the decree. This period expires on June 12, 2003.
The Massie Consent Decree contains numerous policy and promotion terms, including an equal treatment provision as well as a non-retaliation provision. The terms of the decree are to be overseen by a Monitor who is the attorney for the Plaintiffs in the Massie case. All allegations of unequal treatment and/or retaliation arising under the decree are to be investigated by IDOT and overseen by the Monitor. If the investigation is not resolved to the satisfaction of the Monitor, the matter may be brought before this Court for further proceedings.
In March 2001, pursuant to the terms of the Massie Consent Decree, Plaintiffs complained that they were being subjected to discrimination, harassment, and retaliation as result of their participation in the Massie Consent Decree. They complained of unequal treatment and an inability to perform their jobs. IDOT initiated an investigation; however the Monitor did not appear to be satisfied with the investigation. In June 2001, Plaintiffs filed a motion for rule to show cause before this Court for violation of the Consent Decree. This Court denied Plaintiffs' motion as premature. Plaintiffs then pursued their complaints with IDOT's Civil Rights Committee. In January 2002, Plaintiffs expressed their dissatisfaction with the results of IDOT's investigation and expressed their intention to appeal IDOT's recommendations to this Court.
In the present case, Plaintiffs make the same allegations of unequal treatment and retaliation as they made under the Massie Consent Decree. They complain that since their promotions under the Decree, they have been subjected to discrimination, harassment and retaliation.
In Count I of their lawsuit, Plaintiffs have brought a claim under 42 U.S.C. § 1981 against all defendants, including IDOT. In Count II, Plaintiffs have sued all Defendants under 42 U.S.C. §1983. In Count III, Plaintiffs have brought a claim under Title VII for race discrimination against IDOT only and in Count IV, Plaintiffs have brought a claim under Title VII for retaliation against IDOT only. Plaintiffs lawsuit should be dismissed for the following reasons:
A. Plaintiffs' §1981 and §1983 claims against IDOT are barred by the Eleventh Amendment;
B. Plaintiffs' fail to state a claim under 42 U.S.C. §1983 against any Defendants;
C. Plaintiffs' claims arise out of alleged violations of the retaliation provisions contained in the Consent Decree in Massie v. IDOT; and,
D. Plaintiffs' complaint in the instant action duplicates their claims brought un-

© 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works.

2002 WL 32602566 (N.D.Ill.) (Cite as: 2002 WL 32602566)

Page 3

der the Massie Consent Decree.
II. STANDARD OF REVIEW
The purpose of a motion to dismiss is to test the sufficiency of the complaint, not the merits of the lawsuit. Triad Assocs., Inc. v. Chicago Housing Auth., 892 F.2d 583, 586 (7th Cir 1989). Notwithstanding the “simplified notice pleading” requirement of the Federal Rules of Civil Procedure, dismissal is proper if “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99 (1957).
Defendants are also mindful that this Court must view the Plaintiffs allegations in the light most favorable to the Plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683 (1974). All well pleaded facts and allegations in the plaintiffs complaint must be taken as true, Ed Miniat. Inc. v. Globe Life Ins. Group. Inc., 805 F.2d 732, 733 (7th Cir. 1986), cert. denied, 482 U.S. 915, 107 S.Ct. 3188 (1987), and the plaintiff is entitled to all reasonable inferences that can be drawn therefrom. Ellsworth v. Racine, 774 F.2d 182, 184 (7th Cir. 1985), cert. denied, 475 U.S. 1047, 106 S.Ct. 1265 (1986).
III. ARGUMENT
A. Plaintiffs' §1981 And §1983 Claims Against IDOT Are Barred By The Eleventh Amendment
Plaintiffs allege that IDOT discriminated against them in violation of 42 U.S.C. §1981 and 42 U.S.C. §1983. (Ex. A, Plaintiffs' Complaint, pp.7-10). Plaintiffs' §1981 and §1983 claims against IDOT are barred by the Eleventh Amendment and should be dismissed with prejudice.
Under the Eleventh Amendment, the state and its agencies are immune from private damage actions or suits for injunctive relief in federal court unless the state by unequivocal language waives the protections of the Eleventh Amendment or Congress unequivocally abrogates the state's Eleventh Amendment immunity. Kroll v. Board of Trustees Univ.of Ill., 934 F.2d 904, 907 (7th Cir. 1991).
Illinois has not waived its Eleventh Amendment immunity. 745 ILCS 5/1 (1996). A state may waive its constitutional immunity by state statute or constitutional provision. Kroll, 934 F.2d 904, citing Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238 n.l (1985). Illinois, however, has determined by statute that the State may not be sued. The State Lawsuit Immunity Act provides that the State shall not be made a defendant or a party in any Court. 745 ILCS 5/1 (1996).[FN1] Nor has Congress expressed an unequivocal intent to abrogate the state's immunity under §1981 or §1983. Winters v. Iowa State University, 1992 U.S.App. LEXIS 1161 (April 2, 1992) (holding that the state university is immune from suit under both §1981 or §1983).

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FN1. The Illinois legislature has crafted one exception to the State Lawsuit Immunity Act. Under the Court of Claims Act, the Court of Claims has exclusive jurisdiction over all claims against the State for damages sounding in tort, if a like cause of action would lie against a private person or corporation in a civil suit. 705 ILCS 505/8(d) (1998).
IDOT is an agency of the State and as such, is immune from Plaintiffs' claims under 42 U.S.C. §1981 and 42 U.S.C. §1983. Therefore, Plaintiffs' §1981 and §1983 claims against IDOT should be dismissed with prejudice.
B. Plaintiffs' Fail To State A Claim Under 42 U.S.C. §1983 Against Any Defendants
In Count II, Plaintiffs allege that all Defendants have violated their rights under §1983. (Ex. A, pp. 9-10). Plaintiffs' claims under 42 U.S.C. §1983 fail to state a claim as §1983 does not independently provide any substantive rights and as Plaintiff fails to identify the underlying constitutional right that has allegedly been violated. Plaintiffs' claims under §1983 should therefore be dismissed.
Section 1983 does not provide any substantive rights. Thus, “[s]tanding alone, §1983 clearly provides no protection for civil rights...” Chapman v. Houstan Welfare Rights Org., 441 U.S. 600, 618, 99 S.Ct. 1905, 1916 (1979). Section 1983 merely authorizes a cause of action based upon the deprivation of civil rights guaranteed by other Acts of Congress. Id.
In this case, Plaintiffs' bring suit under § 1983 but fail to identify the underlying constitutional right(s) that Defendants have purportedly violated. While both Plaintiffs claim that they have experienced hostility, harassment, and retaliation which have deprived them of their rights under state and federal civil rights laws, Plaintiffs fail to point to the state and federal laws that have been violated. (Ex. A, ¶ 38, 41). Even under federal notice pleading standards, Defendants are entitled to fair notice of Plaintiffs' claims and the grounds upon which they rest. Kyle v. Morton High School, 144 F.3d 448, 444-445 (7th Cir. 1998). Because Plaintiffs fail to give Defendants fair notice of their claims, Plaintiffs fail to state a claim under 42 U.S.C. §1983. Plaintiffs claims under §1983 should therefore be dismissed.
C. Plaintiffs' Claims Arise Out of Alleged Violations of The Retaliation Provisions Contained in the Consent Decree In Massie v. IDOT
All of the claims in Plaintiffs' Complaint arise out of alleged violations of retaliation provisions contained in the Consent Decree entered in the case of Massie v. IDOT, 96 C 4830. Plaintiffs' Complaint should therefore be dismissed with prejudice.
The purpose of a consent decree is to avoid protracted litigation by entering into a court supervised agreement that resolves the dispute to the satisfaction of the

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parties. If Defendants violate the terms of the consent decree, the plaintiff's recourse is to bring an action to enforce the decree. USA v. City of Northlake, 942 F.2d. 1164, 1167-8 (7th Cir. 1991). To allow Plaintiffs to bring a “fresh” lawsuit would undermine the purpose of the Decree.
A judicially approved consent decree is essentially a contract for the purposes of construction. Id. In determining whether Plaintiffs' claims fall within the scope of the consent decree, the court will apply the fundamental principles of contract interpretation. Id. The court will first focus on the language contained within the decree itself. Id. If the plain language of the contract unambiguously provides an answer to the question at hand, the inquiry is over. Id. If the plain language, however, is unclear, then parol or other extrinsic evidence must be considered in order to reconstruct the intent of the parties at the time they entered into the agreement. Id.
The plain language of the Massie Consent Decree essentially provides that IDOT and its supervisory personnel shall treat all persons promoted under this decree equally to the way it treats other employees in the HCEO and Lead Worker classifications, and are enjoined from retaliating against those class members who assert any of their right under the Decree. (Ex. D, Consent Decree, pp. 17-18)(See footnote 2). The Decree also provides a mechanism for redress if any of these provisions are violated. (Ex. D, pp. 23- 25).
Plaintiffs' claims unambiguously fall within the scope of the Consent Decree entered in Massie v. DOT, 96 C 4830. In their Complaint, both Plaintiffs claim that immediately after their activities in implementing aspects of the decree and their promotions pursuant to the decree, they began experiencing race discrimination, harassment, and retaliation in that they were treated differently than other Lead Workers. (Ex. A, ¶ 2, 14, 15, 17, 21, 22). Plaintiffs' further claim that they were subjected to discrimination, harassment, and retaliation as a result of their promotions (under the decree), their participation in the Consent Decree, and their opposition to discrimination, harassment, and retaliation. (Ex. A, ?2, 14, 15, 17, 21, 22).
Through their own actions, Plaintiffs implicitly acknowledged that their claims should be brought under the Decree. The claims that Plaintiffs have made in this lawsuit are the same claims they made previously under the Massie Consent Decree, as a violation of the equal treatment and non-retaliation provisions of that Decree.
As early as March 2001, Plaintiffs complained that they were being subjected to discrimination, harassment, and retaliation as result of their participation in the Massie Consent Decree. (Ex. B, Plaintiffs Motion for Rule to Show Cause, filed June 15, 2001, pp. 2-4 and attachments C, D, G, J, K, L, M, N, 0, Q) (See footnote 2). They complained of unequal treatment and an inability to perform their jobs. (Ex. B, pp. 2-4 and attachments C, D, G, J, K, L, M, N, O, Q.) In response to

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their complaints and in accordance with the terms of the Consent Decree, IDOT initiated an investigation. (Ex. B, pp. 2-4 and attachments C, D, G, J, K, L, M, N, 0, Q.) The Monitor however did not appear to be satisfied with IDOT's efforts and in June, 2001, Plaintiffs filed a motion for rule to show cause before this Court for violation of the Consent Decree, again alleging unequal treatment, racial discrimination, harassment and retaliation. (Ex. B, pp. 2-4 and attachments C, D, G, J, K, L, M, N, O, Q). Plaintiffs complained that they were subjected to a pattern of severe harassment and retaliation based upon their race and their participation in the Massie Consent Decree. (Ex. A, ¶29, Ex. B, Plaintiffs Motion for Rule to Show Cause, filed June 15, 2001, pp. 2-4 and 6-8 and 11)[FN2]. This Court denied Plaintiffs' motion as premature. Plaintiffs then pursued their complaints with IDOT's Civil Rights Committee as required under the Decree. Then, when those efforts allegedly failed, they expressed their intention to appeal IDOT's recommendations to Judge Schenkier. (Ex. C, Letter to Maine from Franklin, dated January 28, 2002) (See Footnote 2).
FN2. Normally, attaching materials to a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) converts the motion to a motion for summary judgment. However, the “district court may also take judicial notice of matters of public record without converting a 12(b)(6) motion into a motion for summary judgment.” Henson v. CSC Credit Servs., 29 F.3d 280, 284 (7th Cir. 1994). Accordingly, this Court should take notice of all documents within the court record. D. Plaintiffs' Complaint in the Instant Action Duplicates Their Claims Brought Un-
der The Consent Decree, Entered in Massie v. IDOT, 96 C 4830
Plaintiffs' Complaint in this case is duplicative of the claims they recently raised under the Massie Consent Decree. Plaintiffs' Complaint should therefore be dismissed with prejudice.
Generally, a federal suit may be dismissed for reasons of wise judicial administration when it is duplicative of a pending parallel action, Serlin v. Arthur Anderson & Co., 3 F.3d 221, 223 (7th Cir. 1993). “District courts are accorded a great deal of latitude and discretion in determining whether one action is duplicative of another.” Id. (emphasis added) (holding “[t]he irrationality of tolerating duplicative litigation in the federal system is all the more pronounced where, as here, two federal judges sitting on the same district are ... devoting scarce judicial resources to the adjudication of the same charges, essentially by the same plaintiffs, against the same defendants.”)
The claims in Plaintiffs' Complaint are duplicative of the claims they brought under the Massie Consent Decree. As previously stated, Plaintiffs have claimed, in both their Complaint and their Motion for Rule to Show Cause, that immediately after their activities in implementing aspects of the decree and their promotions pursuant to the decree, they began experiencing race discrimination, harassment, and retaliation in that they were treated differently than other Lead Workers.

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(Ex. A, ¶ 2, 14, 15, 17, 21, 22; Ex. B, pp. pp. 2-4 and 6-8 and 11). Plaintiffs' have further claimed that they were subjected to discrimination, harassment, and retaliation as a result of their promotions, (under the decree), their participation in the Consent Decree, and their opposition to discrimination, harassment, and retaliation. (Ex. A, ?2, 14, 15, 17, 21, 22; Ex. B, pp. pp. 2-4 and 6-8 and 11). While, unlike Serlin, all of Plaintiffs claims are before the same Court, the rational in Serlin still applies as scarce judicial resources are being devoted to the adjudication of the same charges, essentially by the same plaintiffs, against the same defendants and or their employees.
IV. CONCLUSION
For the foregoing reasons, Defendants respectfully request that this Court grant their Motion to Dismiss Plaintiffs' Complaint.
Appendix not available.
John MCGEE and Thomas Malone, Plaintiffs, v. ILLINOIS DEPARTMENT OF TRANSPORTATION, Kenneth S. Chlebicki, Dennis A. Mahoney and John Kos, Defendants. 2002 WL 32602566 (N.D.Ill.)
END OF DOCUMENT

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 2002 WL 32602573 (N.D.Ill.) (Cite as: 2002 WL 32602573)

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For Opinion See 2004 WL 835620, 2004 WL 726110, 2004 WL 434210, 2002 WL 31478261
United States District Court, N.D. Illinois. John MCGEE and Thomas Malone, Plantiffs, v.
ILLINOIS DEPARTMENT OF TRANSPORTATION, Kenneth Chlebicki, Dennis Mahoney, and John Kos, Defendants. No. 02 C 0277. July 18, 2002.
Jury Trial Demanded
Plaintiffs' Response to Defendants' Motion to Dismiss
Magistrate Judge Schenkier (by consent). I. INTRODUCTION
John McGee and Thomas Malone worked as Highway Maintainers for the Illinois Department of Transportation for over two decades apiece. In the fall of 2000, they were both promoted to higher positions after this Court entered a consent decree in Massie v. IDOT, No. 96 C 4830. The Massie consent decree sought to undo decades of discrimination against African American IDOT workers by ordering several promotions, implementing a new rotation policy, providing monetary relief to class members, and instituting a no-retaliation policy throughout IDOT. Problems began to arise immediately, however. Mr. McGee and Mr. Malone experienced harassment, discrimination, and retaliation from the first day on their newjobs. They initially sought relief under the consent decree, but IDOT's investigation (using procedures that the parties drafted at the instruction of the Court last summer) came to nothing. In each and every case that IDOT investigated a complaint under the consent decree, it found no evidence of discrimination and recommended that no action be taken. Frustrated and harassed on a daily basis, the plaintiffs then elected to exercise their right to file a lawsuit and seek a jury trial on their claims under Sections 1981 and 1983 and Title VII.
Defendants' motion to dismiss plaintiffs' complaint is remarkable more for what itfails to say than for what it does. Without a shred of support in this or any other circuit, defendants ask the Court to dismiss a Title VII complaint wholesale - one that is not barred by any legal principle. As shown below, defendants' motion must be denied.
II. ARGUMENT
A. There is no authority for dismissing plaintiffs' Title VII claims.

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Defendants ask the Court to dismiss plaintiffs' Title VII claims outright, arguing (at 7-9) that the plaintiffs' only recourse is to bring an enforcement action under the Massie consent decree, and accusing plaintiffs (at 8-9) of wasting judicial resources by duplicating an action already filed under the consent decree. Defendants misrepresent the record: there is only one pending action - the instant case. There is no contempt action pending on behalf of Mr. McGee or Mr. Malone under the Massie consent decree. Although the plaintiffs did file a motion for rule to show cause last summer, the Court denied it on June 21, 2001 without prejudice as premature and plaintiffs did not refile it.[FN1]
FN1. Because the Court never reached the merits of the argument, IDOT cannot argue that the principles of resjudicata or collateral estoppel apply here, since there has been no prior final judgment on the merits under the consent decree. Smith v. City of Chicago, 820 F.2d 916, 917 (7th Cir. 1987).
As such, plaintiffs are not barred from suing IDOT for the discrimination, retaliation and harassment they experienced after they were promoted under the Massie consent decree. The decree itself does not (and cannot) preclude plaintiffs from filing Title VII lawsuits for wrongs that occurred after the Massie settlement as IDOT implies (at 7). IDOT's single authority, Serlin v. Arthur Andersen & Co., 3 F.3d 221 (7th Cir. 1993), offers no support: that case involved two parallel actions that were pending at the same time. Here, there is only one pending action the instant case.
Plaintiffs note that even if there were two simultaneous proceedings under the Massie consent decree and in this case, Serlin would, in fact preclude dismissal of this action: “a suit is duplicative if the ‘claims, parties, and available relief do not significantly differ between the two actions.’ ” Id. at 223. Here, the parties, claims, standards of proof, and relief available to Mr. McGee and Mr. Malone are entirely different in this forum than those available under the Massie consent decree.
1. The parties differ.
Here, the plaintiffs seek redress against both IDOT and the individual defendants (supervisors and officials) who either caused or allowed the discriminatory and retaliatory acts to take place. There is no provision in the consent decree to hold individual wrongdoers accountable for their actions, and the individual defendants in this action were not parties to the Massie case.
2. The scope of plaintiffs' claims differ.
The plaintiffs' claims are dissimilar in the two forums. Under the Massie consent decree, they must prove that IDOT violated the terms of a contract, Rumpke of Indiana Inc. v. Cummins Engine Inc., 107 F.3d 1235, 1243 (7” Cir. 1997), which itself is limited to the specific provisions of the consent decree. By contrast, plaintiffs may seek a jury trial in this action for violations of Sections 1981

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and 1983 and Title VII, including claims for retaliation, discrimination and harassment with respect to training, terms and conditions of employment, hostile work environment, interference with access to full and equal benefits of the laws, and deprivation under color of law of any rights, privileges, or immunities secured by the Constitution and laws. Plaintiffs in this action also have the ability to amend their complaint if future circumstances warrant (to add claims for constructive discharge, for example). Their claims and potential claims are thus far broader than those available under the consent decree, and their access to ajury is a clear distinction between this action and an action to enforce the consent decree. See Dunlap v. City of Chicago, 435 F.Supp. 1295, 1301 (liability ofjury trial in civil lawsuit and lack thereof in contempt proceeding weighed against issue preclusion).
3. The standard of proof differs.
Furthermore, the standard of proof under the consent decree requires proof by clear and convincing evidence - far higher than the preponderance of the evidence standard that applies to plaintiffs' civil lawsuit. Goluba v. SchoolDistrict of Ripon, 45 F.3d 1035, 1037 (7th Cir. 1995) (“[t]o win a motion for civil contempt, a party must prove ‘by clear and convincing evidence’ that the opposing party violated a court order”; citing Stotler and Co. v. Able, 870 F.2d 1158, 1163 (7th Cir.1989)); Hayden v. Oak Terrace Apartments, 808 F.2d 1269, 1270 (7th Cir. 1987); Shakman v. Democratic Organization of Cook County, 533 F.2d 344, 351 (7th Cir. 1976). See also Dunlap, 435 F.Supp. at 1300 (difference between burdens of proof in contempt proceeding and civil lawsuit an important factor in rejecting claim preclusion argument).
4. The available relief differs.
Plaintiffs here bring a new action for discrimination, retaliation, and harassment that arose after they were promoted to new positions under the Massie consent decree. The potential damages they can seek in this action include compensatory damages for both monetary and nonmonetary losses, punitive damages, injunctive relief, and costs and fees. By contrast, the consent decree does not specify the types of damages available. Civil contempt is the remedy for a violation of a consent decree, the nature of which is determined by the court. International Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 826-28 (1994); Connolly v. J.T. Ventures, 851 F.2d 930, 932 (7th Cir. 1988). In a contempt proceeding, the Court is limited to imposing sanctions against IDOT alone, whereas plaintiffs seek relief against the individual defendants in the instant action.
In sum, plaintiffs have the right to choose this forum to seek redress for the treatment they received by IDOT and the individual defendants, and IDOT has failed to advance a single argument (or cite a single authority) that supports its motion to dismiss the Title VII claims. As such, Counts III and IV of plaintiffs' complaint should stand.

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B. Defendants do not seek dismissal of plaintiffs' Section 1981 and 1983 claims against the individuals defendants.
Defendants argue (at 4) that plaintiffs' Section 1981 and 1983 claims should be dismissed under the principle of Eleventh Amendment immunity. Plaintiffs agree that states and their agencies that have not waived immunity are generally not subject to private lawsuits for money damages, absent special circumstances. Alabama v. Pugh, 438 U.S. 781, 782 (1978); Gleason v. Board of Educ., 792 F.2d 76, 79 (7th Cir.1986). However, plaintiffs may maintain Section 1981 and 1983 actions against the individual defendants in their individual capacities. Hafer v. Melo, 502 U.S. 21, 23 (1991) (state officials sued in their individual capacities are “persons” for purposes of Section 1983); Kroll v. Board of Trustees of University of Illinois, 934 F.2d 904, 907 (7th Cir. 1991) (“[p]ersonal-capacity suits raise no Eleventh amendment issues even though an official might have the requisite nexus to the state in order for his or her actions to be labeled state action). Additionally, plaintiffs may maintain actions against the individual defendants in their official capacities for certain types of damages: “official-capacity actions may not be barred by the Eleventh Amendment insofar as they request prospective relief- i.e., an injunction or a declaratory judgment and monetary damages that are ‘ancillary’ to either.” Id. at 908. IDOT apparently agrees, having made no argument that the Section 1981 and 1983 claims against the individual defendants should be dismissed. As such, the Court should not dismiss the plaintiffs' Section 1981 and 1983 claims (Counts I and II) against the individual defendants in their personal or official capacities.
C. Plaintiffs have properly pled their Section 1983 claim.
IDOT also argues (at 5) that plaintiffs' Section 1983 claim should be dismissed as to all defendants because plaintiffs have “fail[ed] to identify the underlying constitutional right(s) that Defendants have purportedly violated.” On the contrary, “[b]y the plain terms of Section 1983, two - and only two - allegations are required in order to state a cause of action under the statute. First, the plaintiff must allege that some person has deprived him of a federal right. Second, he must allege that the person who has deprived him of that right acted under color of state or territorial law.” Gomez v. Toledo, 446 U.S. 635, 640 (1980). Accordingly, plaintiffs met this standard by alleging race discrimination (an equal protection violation) in their complaint. See, for example: 2. After the entry of the consent decree, the two plaintiffs in this action, both of whom were class representatives in the Massie case, were promoted to higher positions under the decree and took part in implementing other aspects of the decree. They immediately began to experience race discrimination, harassment, and retaliation as a result of their promotions, their participation in the consent decree, and their opposition to the discrimination, harassment and retaliation that commenced by IDOT officials who were not parties to the Massie lawsuit. 15. Mr. McGee has been treated differently than other Lead Workers and has been prevented from performing the duties of his position because of his race and his

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participation in the Massie decree. This differential treatment is severe and pervasive and has materially altered the terms and conditions of his employment. 22. Mr. Malone has been treated differently than other HCEOs and has been prevented from performing the duties of his position because of his race and his participation in the Massie decree. This differential treatment is severe and pervasive and has materially altered the terms and conditions of his employment. 41. The defendants have wilfully and intentionally violated Section 1983 by the discrimination and retaliation alleged above, which deprived the plaintiffs of their rights under state and federal civil rights laws and the U.S. Constitution. The individual defendants, as supervisory employees of the State of Illinois, acted under color of state law. The defendants, who are the plaintiffs' direct supervisors or the supervisor of other defendants, either participated in directly or knew of the discriminatory and retaliatory conduct alleged above. The defendants knew of this conduct for several months, yet they failed to act to prevent future harm, and, indeed, continued to engage in or tolerate the discriminatory and retaliatory behavior after the plaintiffs began to pursue their complaints and failed to take remedial action.
Complaint ¶¶2, 15, 22, 41 (emphasis added).[FN2]
FN2. Defendants do not argue that plaintiffs' Section 1983 claim is preempted by their Title VII claims, which, in any case, do not preempt a cause of action for intentional discrimination in violation of the Constitution, Waid v. Merrill Area Public Schools, 91 F.3d 857, 861-862 (7th Cir. 1996), Trigg v. Fort Wayne Community Schools, 766 F.2d 299, 300-01 (7th Cir.1985).
The Supreme Court has explicitly declined to apply a heightened pleading standard to Section 1983 cases. Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, et al., 507 U.S. 163, 168 (1993) (“[w]e think that it is impossible to square the ‘heightened pleading standard’ [on review] with the liberal system of ‘notice pleading’ set up by the Federal Rules. Rule 8(a)(2) requires that a complaint include only ‘a short and plain statement of the claim showing that the pleader is entitled to relief’ ”). Plaintiffs have given defendants the required “full and fair notice” of their the nature of their claims. Walker v. Benjamin, 2002 WL 1313006, *6 (7th Cir. June 18, 2002) (plaintiff bringing Section 1983 action was not required to “set out in detail all of the facts upon which he bases his claim. Rule 8(a) requires only that the complaint give the defendants fair notice of what the claim is and the grounds upon which it rests”); Scott v. City of Chicago, 195 F.3d 950, 951 (7th Cir. 1999) (“[a] complaint need not reference every element of a legal theory to satisfy Rule 8(a)(2)'s requirements”); Conley v. Gibson, 355 U.S. 41, 47 (1957). Defendant's citation of Kyle v. Morton High School, 144 F.3d 448 (7th Cir. 1998) serves only to support plaintiffs' position; there, the Seventh Circuit reiterated that Rule 8 requires only “minimal notice of the claim” for a complaint to survive a motion to dismiss. Id. at 455. Here, defendants are fully aware of the nature and grounds of plaintiffs' claims.

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III. CONCLUSION
For all the reasons presented above, the plaintiffs respectfully request that the Court deny defendants' motion to dismiss plaintiffs' complaint.
John MCGEE and Thomas Malone, Plantiffs, v. ILLINOIS DEPARTMENT OF TRANSPORTATION, Kenneth Chlebicki, Dennis Mahoney, and John Kos, Defendants. 2002 WL 32602573 (N.D.Ill.)
END OF DOCUMENT

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 2003 WL 23683994 (N.D.Ill.) (Cite as: 2003 WL 23683994)

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For Opinion See 2004 WL 835620, 2004 WL 726110, 2004 WL 434210, 2002 WL 31478261
United States District Court, N.D. Illinois. John McGEE and Thomas Malone, Plaintiffs, v.
ILLINOIS DEPARTMENT OF TRANSPORTATION, John Kos, Dennis Mahoney and Kenneth Chlebicki, Defendants. No. 02 C 277. August 7, 2003.
Defendant's Motion for Summary Judgment
Magistrate Judge Schenkier. NOW COME Defendants, Illinois Department of Transportation (“IDOT” ¶ (“Kos”), Dennis Mahoney (“Mahoney”) and Kenneth Chlebicki (“Chlebicki”), by and through their attorney, LISA MADIGAN, Attorney General of the State of Illinois, and pursuant to Federal Rule of Civil Procedure 56, move this Honorable Court for the entry of summary judgment in their favor on all counts on the grounds that there are no genuine issues of material fact and Defendant is entitled to the entry of judgment in its favor as a matter of law.
In support of its Motion, Defendants state as follows: 1. There is no direct evidence of discrimination or retaliation; 2. Plaintiffs cannot establish a prima facie case of discrimination or retaliation as neither Plaintiff suffered an adverse employment action, Mr. McGee was not meeting his employers expectations, neither Plaintiff can show that he was treated less favorably than similarly situated non-minority employees, and Defendants had legitimate non-discriminatory and non-retaliatory reasons for their actions which Plaintiff cannot show were pretexts for harassment or retaliation; 3. Plaintiffs cannot demonstrate that they were subjected to a hostile work environment, as there was no severe or pervasive harassment which rendered the environment “hellish;” 4. Plaintiffs cannot establish a prima facie case against Defendants Kos, Mahoney or Chlebicki under either §1981 or §1983, which require the same burden for Plaintiffs as the Title VII claims, including demonstrating that the Defendants intentionally discriminated against Plaintiffs; 5. Defendant Kos did not have the requisite personal involvement required under Section 1983 to be held liable for damages; and 6. Defendants Kos, Mahoney and Chlebicki are entitled to qualified immunity from damages in this action as their conduct was objectively reasonable and did not violate clearly established constitutional rights.
Defendants attach in support their Local Rule 56.1 Statement of Facts, supporting

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exhibits, and their Memorandum in Support of their Motion for Summary Judgment.
WHEREFORE, Defendants Illinois Department of Transportation, John Kos, Dennis Mahoney and Kenneth Chlebicki pray that this Honorable Court enter judgment in their favor and against Plaintiffs John McGee and Thomas Malone on all counts as a matter of law.
DEFENDANT'S RULE 56.1 STATEMENT OF FACS
Introduction
1. Plaintiffs Thomas Malone and John McGee bring this action against Defendants Illinois Department of Transportation, John Kos, District Engineer for District One, Kenneth Chlebicki, Yard Technician for the Stevenson Yard and Dennis Mahoney, Yard Technician for the Kennedy Yard, pursuant to Title VII, 42 U.S.C. §§1981 and 1983, alleging that they were discriminated against because of their race and retaliated against because of their affiliation with the consent decree entered in the case Massie v. IDOT (Exhibit A-Complaint, ¶ 35, 41,47, 54).
2. Jurisdiction in this matter is proper in the Northern District of Illinois. (Ex. A-Complaint, ¶ 13).
Parties
3. Plaintiff Thomas Malone is an African-American IDOT employee who was promoted to the position of Heavy Construction Equipment Operator in the Kennedy Yard on September 16, 2000, as a result of the Massie v. IDOT Consent Decree. (Ex. AComplaint, ¶21)
4. Plaintiff John McGee is an African-American former IDOT employee who was promoted to the position of Lead Worker in the Stevenson Yard on October 5, 2000, as a result of the Massie v. IDOT Consent Decree. (Ex. A-Complaint, ¶14)
5. Defendant John Kos is, and was at all relevant times, the District Engineer for District One of the Illinois Department of Transportation. (Ex. A-Complaint, ¶10)
6. Defendant Kenneth Chlebicki is, and was at all relevant times, the Yard Technician for the Stevenson Maintenance Yard of the Illinois Department of Transportation. (Ex. A-Complaint, ¶8)
7. Defendant Dennis Mahoney is, and was at all relevant times, the Yard Technician for the Kennedy Maintenance Yard of the Illinois Department of Transportation. (Ex. A-Complaint, 119)
Organization of IDOT
8. The Illinois Department of Transportation is headed by the Secretary of Transportation. (Ex. B-Affidavit of Giovanni Fulgenzi ¶5)

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9. The Kennedy and Stevenson Yards are “Maintenance Yards,” and are under IDOT's Bureau of Maintenance. (Ex. B-Fulgenzi Aff. ¶ 2, Exhibit C-Affidavit of Jacek Tyszkiewicz ¶ 9)
10. Maintenance Yards differ in their work assignments depending on the tasks each Yard is responsible for performing. For example, the Kennedy and Stevenson Yards are “expressway” yards, which are responsible for maintaining the road and roadside of expressway routes. The main duties of expressway yards are litter pickup, pothole patching, sewer cleaning, mowing, snow removal and other pavement maintenance. In contrast, non-expressway yards may have responsibilities that differ significantly from expressway yards. Non-expressway yards have more varied responsibilities, including roadside maintenance, shoulder maintenance and more sewer repair. (Ex. B-Fulgenzi Aff. ¶41, Ex. C-Tyszkiewicz Aff. ¶ 12-12, 14-16)
11. Maintenance Yards also differ in the number of personnel assigned to each Yard. Such differences include variation in the number of Highway Maintainers (“HM”), Heavy Construction Equipment Operators (“HCEO”) and Lead Worker (“LW”) positions in each particular yard. (Ex. B-Fulgenzi Aff. ¶42, Ex. C-Tyszkiewicz Aff. ¶17)
12. The chain of command during the relevant time period from the Secretary to the Maintenance Yards was as follows: from the Secretary to the Assistant Secretary, Deputy Secretary, through the Division of Highways, down to the District Engineer for District One, through Operations and the Bureau of Maintenance, to the Bureau Chief, Area Operations Engineer and to the Yard Technician. (Ex. B-Fulgenzi Aff. ¶6, Exhibit D-Affidavit of John Kos ¶4, 6)
13. The highest position at a maintenance yard is the Yard Technician, who is directly supervised by the Area Operations Engineer in charge of that particular yard. (Ex. C-Tyszkiewicz Aff. ¶18)
14. Directly below the Technician is the Lead Lead Worker.[FN1] (Ex. C-Tyszkiewicz Aff. ¶19)
FN1. Not all Maintenance yards have a Lead Lead Worker, in which case the Lead Worker is directly below the Yard Technician. (Ex. C-Tyszkiewicz Aff. ¶19)
15. Directly below the Lead Lead Worker is the Lead Worker (in some yards, there is more than one Lead Worker). (Ex. C-Tyszkiewicz Aff. ¶20)
16. Other workers at the Maintenance Yards are Highway Maintainers (HMs), Heavy Construction Equipment Operators (HCEOs), storekeepers and mechanics. (Ex. CTyszkiewicz Aff. ¶21)
IDOT Anti-Discrimination/Retaliation Policies

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17. IDOT's Personnel Policies Manual contains provisions which prohibit IDOT employees from engaging in any conduct which would be a violation of state or federal laws, including the Illinois Human Rights Act or the federal Civil Rights Act. (Ex. B-Fulgenzi Aff. ¶ 27, Ex. D-Kos Aff. ¶ 19)
Anti-Harassment/Retaliation Provisions and Training Pursuant to Massie Decree
18. In addition to the existing anti-harassment, anti-discrimination and antiretaliation policies at IDOT, the Massie consent decree mandated that IDOT conduct additional diversity and anti-retaliation training of certain IDOT employees. (Exhibit E-Massie v. IDOT Settlement and Consent Decree, Section IX, Part C, p. 21-22)
19. IDOT complied with the Massie decree requirements and held mandatory training for management and non-union Maintenance personnel (which includes Yard Technicians) which emphasized the non-retaliation and equal treatment provisions of the decree. (Ex. B-Fulgenzi Aff. ¶ 29, Ex. E-Massie Decree, Section IX, Part C, p. 21-22)
20. IDOT also conducted mandatory diversity training for all union employees, (Lead Lead Workers, Lead Workers, HCEOs and HMs). (Ex. B-Fulgenzi Aff. ¶ 30)
21. This training was conducted by an independent organization hired by IDOT, and emphasized anti-harassment, anti-retaliation and anti-discrimination issues. (Ex. B-Fulgenzi Aff. ¶ 31)
22. Additional meetings were also held in June and August, 2001, attended by District 1 management personnel, yard technicians and union employees, which reinforced the non-discrimination and non-retaliation provisions contained both in IDOT's Personnel Policies Manual and the Massie decree. (Ex. B-Fulgenzi Aff. ¶ 32-33, Ex. D-Kos Aff. ¶ 34-35)
Procedure for Transfer to Different Maintenance Yard
23. If an employee wishes to transfer from their current yard to another yard, the employee submits a transfer request to the IDOT central office in Springfield, Illinois. (Ex. B-Fulgenzi Aff. ¶ 21, 23)
24. Transfers are governed by an agreement with the Teamsters union. (Ex. BFulgenzi Aff. ¶ 22)
25. According to the Union agreement, an employee may only submit one transfer request during any twelve-month period. (Ex. B-Fulgenzi Aff. ¶ 24)
26. During the time that a valid transfer request is on file with the central office, no other transfer requests will be considered. (Ex. B-Fulgenzi Aff. ¶ 25)
27. A transfer can only be approved if there is a vacancy in the same job title

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(LLW, LW, HCEO or HM) in the requested yard. (Ex. B-Fulgenzi Aff. ¶ 26)
Duties of John Kos, District Engineer, District One
17. Defendant John Kos is the District Engineer for District One, which includes Cook County. (Ex. D-Kos Aff. ¶ 1, 2)
28. Defendant Kos reports to the Director of Highways of IDOT. (Ex. D-Kos Aff. ¶ 4)
29. The following positions report directly to Defendant Kos: a. Engineer of Program Development, b. Engineer of Project Implementation, c. Engineer of Operations, d. Administrative Services Manager, e. Executive Assistant to the District Engineer, f. District 1 Public Information Manager, g. District EEO/Labor Compliance Officer. (Ex. D-Kos Aff. ¶ 4)
30. Yard Technicians do not report directly to Defendant Kos. (Ex. D-Kos Aff. ¶ 6)
31. Area Operations Engineers, the direct supervisors of Yard Technicians do not report directly to Defendant Kos. (Ex. D-Kos Aff. ¶ 6)
32. Defendant Kos does not have any direct involvement in the disciplinary process for discipline of IDOT employees. (Ex. D-Kos Aff. ¶ 7)
33. Defendant Kos does not have any direct involvement in the investigation of internal complaints of civil rights violations made by IDOT employees. (Ex. D-Kos Aff. ¶ 10)
34. Defendant Kos has never had any involvement in the IDOT Civil Rights Committee. (Ex. D-Kos Aff. ¶ 12)
Duties of Yard Technicians-Kennedy and Stevenson Yards
35. Yard Technicians for the Kennedy and Stevenson Yards are responsible for overseeing the maintenance and repair of the Kennedy and Stevenson expressways, respectively. (Ex. C-Tyszkiewicz Aff. ¶22, Exhibit G-Affidavit of Dennis Mahoney ¶3, Exhibit I-Affidavit of Kenneth Chlebicki ¶3)
36. Yard technicians are responsible for determining what tasks are to be completed by the yard employees. (Ex. C-Tyszkiewicz Aff. ¶23, Ex. I-Chlebicki Aff. ¶32)
37. Job assignments (the particular tasks which are to be performed) may be given either by the Technician or designated by the Technician to a subordinate, usually

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the Lead Lead Worker. (Ex. C-Tyszkiewicz Aff. ¶24)
38. Crew assignments (which personnel is assigned to which Lead Worker or crew leader) may be made by the Technician or designated by the Technician to a subordinate (the Lead or Lead Lead Worker). (Ex. C-Tyszkiewicz Aff. ¶25)
39. The Lead Lead Worker and Lead Workers of each Yard report directly to the Yard Technician. (Ex. C-Tyszkiewicz Aff. ¶26, 27)
40. The Lead Worker also reports directly to the Lead Lead Worker. (Ex. CTyszkiewicz Aff. ¶27)
41. Technicians do not have any authority or input into the hiring process. (Ex. C-Tyszkiewicz Aff. ¶28, Exhibit F-Deposition of Dennis Mahoney p. 12, 15, Exhibit H-Deposition of Kenneth Chlebicki p. 16)
42. Technicians do not have the authority to impose discipline. (Ex. B-Fulgenzi Aff. ¶ 37, Ex. C-Tyszkiewicz Aff. ¶29, Ex. G-Mahoney Aff. ¶7, Ex. H-Chlebicki Dep., p. 77-79,).
43. Yard Technicians only have the authority to issue a Report of Rule Infraction to an employee, but do not determine whether discipline will be issued. (Ex. BFulgenzi Aff. ¶ 11 11-20, 37, 38)
44. Yard Technicians also do not have any authority or input in determining the level of discipline issued to yard employees. (Ex. B-Fulgenzi Aff. ¶ 38)
45. Technicians do not have the authority to terminate employees. (Ex. B-Fulgenzi Aff. ¶ 37, Ex. C-Tyszkiewicz Aff. ¶30 Ex. G-Mahoney Aff. ¶16, Ex. H-Chlebicki Dep., p. 78-79)
46. Technicians do not have any authority over requests of their yard employees to transfer to other maintenance yards. (Ex. B-Fulgenzi Aff. ¶ 39, Ex. C-Tyszkiewicz Aff. ¶31, Ex. F-Mahoney Dep., p. 15, Ex. I-Chlebicki Aff. ¶8)
Kennedy Yard Assignments
47. Dennis Mahoney, as Yard Technician, generally determines the tasks which are to be performed by the yard employees. (Ex. F-Mahoney Dep., p. 16)
48. In the Kennedy Yard, the Lead or Lead Lead Worker generally decide which employees are on their respective crews. (Ex. F-Mahoney Dep., p. 16, 20)
49. In the Kennedy Yard, the Lead or Lead Lead Worker generally determines what employees in his crew are assigned specific assignments. (Ex. F-Mahoney Dep., p. 16)
50. In some instances, when a task requires a level of specialization or expert-

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ise, Mahoney assigns specific personnel to perform those tasks. (Ex. F-Mahoney Dep., p. 16, 20)
Stevenson Yard Assignments 51. Chlebicki and Lead Lead Worker Petrie had the authority, and did decide who was on what crew and what work would be done. (Exhibit M-Deposition of John McGee, p. 371-374)
52. Chlebicki typically determines what jobs need to be completed by the yard employees. (Ex. I-Chlebicki Aff. ¶32)
53. Chlebicki usually discusses the jobs with the Lead Lead Worker, who makes the crew assignments, determining what employees will be on which crew, usually with the input of the Lead Worker. (Ex. I-Chlebicki Aff. ¶33)
Duties of Lead Lead Workers
54. Lead Lead Workers are responsible for leading their own crew of workers. (Ex. C-Tyszkiewicz Aff. ¶33)
55. Lead Lead Workers are also responsible for ensuring that the various work assignments are completed, including the work assigned to crews other than their own. (Ex. C-Tyszkiewicz Aff. ¶34, 35)
56. In ensuring that assignments are satisfactorily completed, Lead Lead Workers routinely monitor the work of all crews, including crews which are led by the Lead Worker. (Ex. C-Tyszkiewicz Aff. ¶35)
Duties of Lead Workers
57. Lead Workers are responsible for directing a crew of HMs and HCEOs and ensuring that the work assigned to the crew is completed. (Ex. C-Tyszkiewicz Aff. ¶38)
58. Lead Workers are responsible for their crew and the equipment used by the crew. (Ex. C-Tyszkiewicz Aff. ¶39)
59. Lead Workers are responsible not only for leading a crew of HMs and HCEO's but are also responsible for the same duties as the crew members, including but not limited to litter pickup, pothole patching, sewer cleaning, snow removal and all other duties regularly performed by HMs and HCEOs. (Ex. C-Tyszkiewicz Aff. ¶41)
60. A Lead Worker should spend approximately ten percent (10%) of his time on ‘planning and supervision’ as coded in the time sheets used by IDOT. (Ex. CTyszkiewicz Aff. ¶42)
61. The primary planning and supervising a Lead Worker is responsible for is organizing his crew and planning the use of equipment, materials, traffic control and safety procedures prior to beginning a job. (Ex. C-Tyszkiewicz Aff. ¶43)

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62. A Lead Worker should spend the majority of his time working with his crew. (Ex. C-Tyszkiewicz Aff. ¶44)
63. When a Lead Worker leading a crew needs additional equipment, the preferred practice is for the Lead Worker to contact the yard, and request that the equipment be brought out to the job site. (Ex. C-Tyszkiewicz Aff. ¶45)
64. This practice is preferred as it allows the Lead Worker to remain with and work with the crew to ensure the crew is completing the assigned task. (Ex. CTyszkiewicz Aff. ¶46)
Duties of HCEOs
65. HCEO's are responsible for all Highway maintainer duties, as well as responsible for the operation of heavy construction equipment when needed. (Ex. CTyszkiewicz Aff. ¶47)
66. Equipment operated by HCEOs includes endloaders, skidsters, rollers, blowers and other heavy equipment. (Ex. C-Tyszkiewicz Aff. ¶48)
67. HCEO's, when not needed to operate heavy equipment, are responsible for the same duties as HMs, including but not limited to litter pickup, pothole patching, sewer repair and snow removal. (Ex. C-Tyszkiewicz Aff. ¶49)
Duties of Highway Maintainers
68. Highway Maintainers are essentially the labor force of each yard. (Ex. CTyszkiewicz Aff. ¶50)
69. HMs are responsible for the physical labor involved in highway maintenance, including but not limited to litter pickup, pothole patching, snow removal and sewer cleaning. (Ex. C-Tyszkiewicz Aff. ¶51)
IDOT Investigations of Complaints Pursuant to the Massie Consent Decree
70. According to the consent decree entered in the case of Massie v. IDOT, IDOT was to investigate, with the Monitor's assistance, complaints of retaliation and harassment by individuals promoted under the consent decree. (Ex. E-Massie Decree, Part IX, Section E, p. 23)
71. The Monitor was class attorney in the Massie case, and is also the attorney for Plaintiffs in the present case. (Ex. A-Complaint, Ex. E-Massie Decree p. 4)
72. IDOT and the Monitor, with the Court's approval, created a schedule to govern the investigation process for complaints made under the decree. (Exhibit QInvestigation Schedule, Massie v. IDOT)
73. The investigation schedule provided that the Monitor would have the ability to

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make recommendations with respect to investigations of complaints under the Massie decree, including recommendations with respect to the initial plan for the investigation, recommendations for additional investigation into complaints and recommendations to be submitted to the Civil Rights Committee at the conclusion of the investigation. (Ex. Q-Investigation Schedule ¶3, 7, 11, 12)
74. The Investigation Schedule also provided that if the Civil Rights Committee determined that live witness would be called at a Massie Civil Rights Committee meeting, the Monitor could be present at the meeting. (Ex. Q-Investigation Schedule 15)
75. IDOT also created a special committee of investigators to investigate only complaints brought under the decree (the “Investigation Committee”). (Ex. D-Kos Aff. ¶ 32)
76. The Investigation Committee consisted of Sandi Brown, the EEOC Civil Rights Officer for District 1, Malcolm Erickson, Assistant Chief Counsel for IDOT, and James Stumpner, Area Operations Engineer for the IDOT Bureau of Maintenance. (Ex. D-Kos Aff. ¶ 33)
77. The Investigation Committee was responsible only for fact-finding, not for making any determinations as to credibility. (Exhibit L-Deposition of Sandi Brown p. 49)
78. The IDOT Civil Rights Committee hears all internal civil rights complaints by IDOT employees statewide. (Ex. B-Fulgenzi Aff. ¶44)
79. The IDOT Civil Rights Committee was created prior to the Massie Consent Decree, and its' guidelines and procedures are contained in the IDOT Personnel Policies Manual, which is distributed to all IDOT employees. (Ex. B-Fulgenzi Aff. ¶ 45, Exhibit J-Affidavit of J. Randle Schick ¶ 3)
80. The Civil Rights Committee is composed of one representative from the District involved, a representative from IDOT Chief Counsel's Office and a representative from the IDOT Office of Finance and Administration. (Ex. B-Fulgenzi Aff. ¶ 46, Exhibit J- Schick Aff. ¶6)
81. Once the Committee makes a recommendation, the recommendation goes to the Director of Finance and Administration, who makes the final decision on whether discipline against an employee is warranted. (Ex. B-Fulgenzi Aff. ¶ 47)
Thomas Malone
Employment at IDOT-Stevenson Yard
82. Thomas Malone began his employment at IDOT as a Highway Maintainer on August 16, 1994 in the Stevenson Yard. (Exhibit K-Deposition of Thomas Malone, p. 7)

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83. The Lead Workers at the Stevenson included John Petrie, who later became Lead Lead Worker. (Ex. K-Malone Dep., p. 16)
84. After Petrie was promoted to Lead Lead Worker, the Lead Worker position was filled by acting workers; either Nicholas Janeteas or John Bracha. (Ex. K-Malone Dep., p. 20)
85. Plaintiff Malone never had any problems working with any LW, including Janeteas or Bracha. (Ex. K-Malone Dep., p. 17)
86. Plaintiff Malone remained at the Stevenson Yard until 1998, when he requested a transfer to the Alsip Yard. (Ex. K-Malone Dep., p. 26-27)
87. Malone's transfer request was due to his desire to work in a yard which did not service expressways, not because of any issues with the Lead Worker, Lead Lead Worker or Technician, Kenneth Chlebicki. (Ex. K-Malone Dep., p. 27)
Employment at IDOT-Alsip Yard
88. Plaintiff Malone was employed as a Highway Maintainer at the Alsip Yard from October 1998 until his promotion and transfer in September 2000. (Ex. K-Malone Dep., p. 26, 30)
89. During his employment at the Alsip Yard, Malone never requested to act as HCEO or LW. (Ex. K-Malone Dep., p. 33)
Prior Experience as HCEO
90. Plaintiff Malone acted as an HCEO for one two-month period during his employment at the Stevenson Yard, during the snow and ice season from October 1996 to April 1997.[FN2] (Ex. K-Malone Dep., p. 21-22)
FN2. This was prior to the Rotation Policy established under the Massie consent decree.
91. Plaintiff Malone asked the Technician, Kenneth Chlebicki, if he could act as HCEO, and was allowed to do so with no problem. (Ex. K-Malone Dep., p. 24-25)
92. During the period that Malone acted as HCEO, the only equipment he used was the end-loader and the roller. (Ex. K-Malone Dep., p. 9, 12-14)
93. This was the only time prior to his promotion that Plaintiff Malone either requested an “acting” HCEO position or worked as an HCEO. (Ex. K-Malone Dep., p. 33)
Promotion to HCEO under Massie
94. Plaintiff Malone never applied for a promotion to either the HCEO or LW positions prior to the Massie promotions. (Ex. K-Malone Dep., p.. 33)

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95. Plaintiff Malone applied for all promotions offered under the Massie decree, and did not have a preference with respect to yard assignment. (Ex. K-Malone Dep., p. 45)
96. When notified that he received the HCEO position at the Kennedy Yard in September 2000, Malone accepted the position, and did not inquire about the other positions available under the Massie decree. (Ex. K-Malone Dep., p. 48)
Training for HCEO Position
97. Mr. Malone received the following training for his position as HCEO: (1) the mechanic showed him how to operate the end loader; (2) he was sent to the Alsip Yard where four individuals were instructing HCEOs on how to operate various pieces of equipment; and (3) John Gabor (the other HCEO at the Kennedy Yard) gave him instruction. (Ex, K-Malone Dep., p. 49-51, Ex. F-Mahoney Dep., p. 60)
98. Mr. Malone never asked for any additional help with any of the equipment at the Kennedy Yard. (Ex. K-Malone Dep., p. 51)
Employment at IDOT-Kennedy Yard
General Yard Responsibilities
99. The main assignments in the Kennedy Yard are pothole patching, grass cutting, litter picking, snow removal and the evicting of homeless persons under the bridges of the expressway. (Ex. K-Malone Dep., p. 52, Ex. G-Mahoney Aff. ¶__)
100. Homeless eviction is a routine year-round activity which is assigned to crews numerous times each week. (Ex. K-Malone Dep., p. 53, Ex. F-Mahoney Dep., p. 22)
101. The Kennedy Yard performs the most homeless eviction due to the location of the expressway. (Ex. C-Tyszkiewicz Aff. ¶ 13)
102. Large groups are typically assigned to do homeless eviction. (Ex. F-Mahoney Dep., p. 24, 65)
103. The Kennedy Yard had two permanent HCEOs: Plaintiff Malone and John Gabor, a white male, who had been an HCEO at the Kennedy Yard since 1975. (Ex. B-Fulgenzi Aff. ¶ 56)
Malone's Alleged Instances of Harassment/Retaliation
#1: Use of Snowblower
104. During a snow and ice callout in 2000, Plaintiff Malone was called out for duty from his home, and was required to use a shovel to remove snow by hand from the reversible lane gates of the expressway while other personnel used two snowblowers attached to trucks. (Ex. K-Malone Dep., p. 54, 58-59)

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105. Other employees, including non-minority employees, were also required to shovel snow from the reversible lane gates by hand on this occasion. (Ex. GMahoney Aff. ¶18)
106. A snowblower is a six cubic foot (6' x 6' x 6') piece of equipment that is attached to a front endloader and operated through a series of more than a dozen controls. (Ex. G-Mahoney Aff. ¶14-15)
107. Snowblowers are only used during heavy storms on the Kennedy expressway. (Ex. K-Malone Dep., p. 73)
108. The Kennedy Yard has only two snowblowers for use in heavy storms. (Ex. KMalone Dep., p. 61)
109. When Mr. Malone arrived at the site, the two snowblowers were already out on the road. (Ex. K-Malone Dep., p. 63)
110. The snowblowers were being operated by Clarence Miller, an “acting” Lead Worker in the Kennedy Yard, and Eric Pineda, an “acting” HCEO from the Landscape Yard.[FN3] (Ex. K-Malone Dep., p. 62)
FN3. During Snow and Ice Season, the Landscape Yard is consolidated with the Kennedy Yard for snow and ice assignments and call-outs. (Ex. G-Mahoney Aff ¶20)
111. When Mr. Malone arrived at the site, he was told to grab a shovel by the Lead Lead Worker, Frank Torrez, who advised Malone that Mr. Mahoney had made all of the assignments. (Ex. K-Malone Dep., p. 64-65)
112. Mr. Torrez never indicated why Mahoney had made the assignments in that way. (Ex. K-Malone Dep., p. 83)
113. Later that evening, Malone claims that he asked Mr. Mahoney if he would have a chance to operate the snowblower, and Mahoney advised him that he would have to start like everyone else with a shovel in his hand. (Ex. K-Malone Dep., p. 54)
114. Malone never said anything else to Mr. Mahoney regarding this incident. (Ex. K-Malone Dep., p. 75)
115. Prior to this incident, Plaintiff Malone had never operated a snowblower. (Ex. K-Malone Dep., p. 72)
116. Both Clarence Miller and Eric Pineda had experience operating snowblowers prior to this occasion. (Ex. G-Mahoney Aff. ¶19, 20)
117. Plaintiff Malone felt, as the permanent HCEO, he should have been operating one of the snowblowers. (Ex. K-Malone Dep., p. 66)

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118. Plaintiff Malone has no factual basis to demonstrate that he was not given a snowblower because of his race or because of his promotion under the Massie decree. (Ex. K-Malone Dep., p. 70-71)
119. Plaintiff Malone believes that he was not given a snowblower either in retaliation for his promotion, or because [Mahoney] “figured I didn't have enough experience to operate it.” (Ex. K-Malone Dep., p. 67)
120. This occurrence was the only instance in which Malone was asked to shovel snow by hand. (Ex. K-Malone Dep., p. 72)
121. This occurrence was the only instance in which another employee was using a snowblower while Malone was present. (Ex. K-Malone Dep., p. 72)
122. Malone never filed a grievance about this incident. (Ex. K-Malone Dep., p. 80)
123. Malone didn't complain to anyone outside the yard about the incident. (Ex. K-Malone Dep., p. 80)
#2: Damage to Truck at Truck Bay Entrance
124. Between April 2001 and October 2001, while pulling his crew cab (pickup truck) into a truck bay at the yard, Malone hit a pole at the side of the bay entrance. (Ex. K-Malone Dep., p. 86)
125. After the accident, Malone inspected the truck, and observed damage to the steps on the side of the truck. (Ex. K-Malone Dep., p. 89)
126. That same day, Malone told Mahoney that he hit the pole, and told him the only damage was to the steps. (Ex. K-Malone Dep., p. 89)
127. Mahoney inspected the truck, and later told Malone that he had caused other damage, including damage to the exhaust pipe. (Ex. K-Malone Dep., p. 91)
128. Malone again looked at the truck, and agreed with Mahoney's assessment of the damage. (Ex. K-Malone Dep., p. 92)
129. Mahoney did not write-up Malone for this incident. (Ex. K-Malone Dep., p. 92)
130. Mahoney attributed this accident to Malone's inexperience as an HCEO, and assumed that his safety would improve as he gained more experience. (Ex. G-Mahoney Aff. ¶23)
131. Malone received no discipline for this incident. (Ex. K-Malone Dep., p. 95, Ex. F-Mahoney Dep., p. 102)
132. Malone believes that something regarding this incident was put in his file, although he has no factual basis for that belief. (Ex. K-Malone Dep., p. 109-110)

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133. Malone believes this incident was made part of his file because it was mentioned by Mahoney after he had another accident which resulted in damage to equipment. (Ex. K-Malone Dep., p. 93-94)
134. Malone's personnel file does not contain any report regarding this incident. (Ex. B-Fulgenzi Aff. ¶87, 88)
135. Malone does not believe he was treated unfairly with respect to this incident, and does not believe that this incident was one of harassment or retaliation. (Ex. K-Malone Dep., p. 99)
#3: Salt Dome Accident
136. During his first snow and ice season at the Kennedy Yard, between October 2000 and April 2001, Malone was stacking salt in the salt dome with the end loader. (Ex. K-Malone Dep., p. 102)
137. When coming out of the salt dome, Malone failed to lower the bucket on the end loader, and struck the top of the doorway. (Ex. K-Malone Dep., p. 102)
138. Malone admits that it is proper procedure to lower the bucket prior to exiting the salt dome. (Ex. K-Malone Dep., p. 104)
139. Malone did not report this accident to Mahoney right away, but did mention it later that day, telling Mahoney he didn't think he did much damage. (Ex. K-Malone Dep., p. 105, 107, Ex. F-Mahoney Dep., p. 103)
140. Mahoney inspected the damage and observed that the header beam across the top of the entryway, which was a 4 x12 piece of lumber approximately 18-20 feet long had been partially dislodged from the 12 bolts which secured it. The wood of the beam also was split. (Ex. F-Mahoney Dep., p. 104, Ex. G-Mahoney Aff. ¶26)
141. Mahoney had a crew rebuild the entrance, including a new beam across the top of the entrance as soon as the salt dome was emptied at the end of the snow and ice season. (Ex. K-Malone Dep., p. 107-108, Ex. G-Mahoney Aff. ¶27)
142. The entrance to the salt dome had evidence of prior accidents. (Ex. K-Malone Dep., p. 103)
143. Malone was not aware of the extent of the previous damage to the entrance. (Ex. K-Malone Dep., p. 104)
144. Malone was not aware of the extent of the damage after he struck the top beam of the entrance. (Ex. K-Malone Dep., p. 108)
145. Mahoney was aware of the previous damage to the beam, which prior to Malone's accident was not split or partially dislodged from the bolts which secured it. (Ex. G-Mahoney Aff. ¶25)

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146. Malone's only basis for believing that this incident was one of discrimination or retaliation is that Mahoney treated him improperly by making a remark that he almost knocked the building down. (Ex. K-Malone Dep., p. 112)
147. Mahoney didn't yell at Malone or seem upset about this incident. (Ex. KMalone Dep., p. 107)
148. Malone believes that Mahoney assumed that he did all the damage to the beam. (Ex. K-Malone Dep., p. 111)
149. Mahoney admits that the beam had been damaged prior to the incident with Malone. (Ex. F-Mahoney Dep., p. 123, Ex. G-Mahoney Aff. ¶25, 26)
150. Malone was never written up for this incident. (Ex. K-Malone Dep., p. 101, Ex. F-Mahoney Dep., p. 136)
151. Malone never received any discipline for this incident. (Ex. K-Malone Dep., p. 113, Ex. F-Mahoney Dep., p. 102)
152. Mahoney attributed this accident to Malone's inexperience as an HCEO, and assumed that his safety would improve as he gained more experience. (Ex. F-Mahoney Dep., p. 137, Ex. G-Mahoney Aff. ¶29)
153. Malone believes that this incident was entered into his file, although he has no factual basis for that belief. (Ex. K-Malone Dep., p. 113)
154. The only basis for his belief that this incident was entered into his file is that Mahoney brought up the incident after another accident in which Malone caused damage to equipment. (Ex. K-Malone Dep., p. 96)
155. Malone's personnel file does not contain any report regarding this incident. (Ex. F-Mahoney Dep., p. 136, Ex. B-Fulgenzi Affidavit ¶ 87, 88)
156. Malone never complained to any IDOT or union personnel regarding this incident. (Ex. K-Malone Dep., p. 138)
157. Malone did not file a grievance regarding this incident. (Ex. K-Malone Dep., p. 138)
#4: Snowblower Damage
158. On November 1, 2001, Malone was moving a snowblower using the endloader, when the snowblower slipped off and dropped to the ground. (Ex. K-Malone Dep., p. 118-19, Ex. F-Mahoney Dep., p. 95)
159. Mahoney heard the crash of the snowblower, as it shook the floor of the facility when it hit the ground. (Ex. F-Mahoney Dep., p. 123)
160. The proper procedure when moving a snowblower is to first line up the end-

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loader with the lift bar of the snowblower, then the HCEO should exit the endloader, secure the snowblower with the safety pins, lock in the snowblower and then proceed with lifting the snowblower with the endloader. (Ex. G-Mahoney Aff. ¶31)
161. Malone had not checked to ensure the snowblower was secure and properly lined up before he picked it up. (Ex. K-Malone Dep., p. 119, Ex. F-Mahoney Dep., p. 95, Exhibit R-Written Statement from Malone-IDOT 06976)
162. Mahoney came out, and told Malone that he didn't have the snowblower locked in. (Ex. K-Malone Dep., p. 122)
163. Mahoney had another employee pick up the snowblower and move it to the mechanic's bay, where it was inspected by Mahoney and one of the mechanics. (Ex. KMalone Dep., p. 121)
164. After the inspection, Mahoney told Malone that he had damaged the radiator. (Ex. K-Malone Dep., p. 121)
165. Later, Mahoney told Malone that he had damaged the fuel tank as well as the radiator, and that the extensive damage was from Malone dropping the snowblower. (Ex. K-Malone Dep., p. 124, Ex. F-Mahoney Dep., p. 95)
166. The damage to the snowblower required some repairs that could not be completed by the IDOT mechanic and had to be repaired by a private vendor. (Ex. GMahoney Aff. ¶34)
167. On November 16, 2001, Malone was issued a Report of Rule Infraction for damage to the snowblower. (Ex. K-Malone Dep., p. 118-119, 131-132, Ex. F-Mahoney Dep., p. 95-96, Mahoney Aff. 36)
168. The delay in issuing the Report of Rule Infraction for the incident was due to absences by both Mr. Malone and Mr. Mahoney and a delay in receiving estimates from outside vendors for repair of the snowblower. (Ex. F-Mahoney Dep., p. 96, Ex. G-Mahoney Aff. ¶36)
169. The Report of Rule Infraction against Malone for the damage to the snowblower was rescinded, and is not reflected in Mr. Malone's personnel file. (Ex. BFulgenzi Aff. ¶ 87-88, 94)
170. Other non-minority employees have received disciplinary action as a result of damaging equipment. (Ex. B-Fulgenzi Aff. ¶ 89)
171. Mr. Malone was never disciplined as a result of this incident. (Ex. K-Malone Dep., p. 134)
172. Mr. Malone did not file a grievance as a result of this incident. (Ex. KMalone Dep., p. 132)

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173. Mr. Malone did not complain to anyone at IDOT about this incident. (Ex. KMalone Dep., p. 139)
174. Mr. Malone felt that Mahoney was looking for something “to get me for.” (Ex. K-Malone Dep., p. 140)
175. Malone's only basis for believing that Mahoney wanted to “get him” because of his race or promotion under the Massie decree was Malone's “impression.” (Ex. KMalone Dep., p. 134)
176. It is Mr. Malone's impression that this incident was discriminatory or retaliatory. (Ex. K-Malone Dep., p. 134)
177. Mr. Malone felt that Mr. Mahoney didn't like him. (Ex. K-Malone Dep., p. 140)
178. Mr. Malone's only basis for believing Mr. Mahoney didn't like him because of his race was that another employee told Malone he heard Mahoney use a racial slur in reference to Malone. (Malone Dep., 141)
179. The alleged racial slur was not made in Mr. Malone's presence. (Ex. K-Malone Dep., p. 142)
180. Mr. Malone never heard Mr. Mahoney make any racial remarks against him or any other African-American. (Ex. K-Malone Dep., p. 142)
181. Mr. Mahoney denies ever using a racial slur against African-Americans, including Mr. Malone. (Ex. F-Mahoney Dep., p. 85-86, 88-89)
182. No employee at the Kennedy Yard had previously brought up Mr. Mahoney's alleged use of racial slurs to Mr. Mahoney's supervisor Area Operations Engineer Mark Jenkins, or Jacek Tyszkiewicz, Bureau Chief for the Bureau of Maintenance, District 1. (Exhibit O-Affidavit of Mark Jenkins ¶7, Ex. C-Tyszkiewicz Aff. ¶ 52)
#5: Different Treatment While Acting Lead Worker
183. Plaintiff Malone was the “acting” Lead Worker between August and September, 2002. (Ex. K-Malone Dep., p. 145)
184. During that time, Malone claims that Mahoney treated him differently than other workers. (Ex. K-Malone Dep., p. 145)
185. Specifically, Malone claims that Mahoney checked up on him after lunch and break times, embarrassed him over the radio by stating that his crew started in the wrong place and told Malone that he should know where his crew is at all times. (Ex. K-Malone Dep., p. 145-146)
186. Plaintiff Malone does not know if Mahoney ever acted that way with other Lead Workers. (Ex. K-Malone Dep., p. 146-147)

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187. Malone admits that Mahoney checked on everybody. (Ex. K-Malone Dep., p. 174)
188. As part of his responsibilities as Yard Technician, Mahoney routinely checks on crews, gives instructions over the radio and requires all Lead Workers and acting Lead Workers to know where their crews are at all times. (Ex. G-Mahoney Aff. ¶4, 41-42)
#6: Undesirable Work Assignments
189. Plaintiff Malone claims that he was given undesirable work assignments because of his race. (Ex. K-Malone Dep., p. 151)
190. Specifically, he was assigned to do litter picking and evicting the homeless from underneath the bridges. (Ex. K-Malone Dep., p. 151)
191. All employees at the Kennedy Yard are assigned to do litter picking and homeless eviction. (Ex. F-Mahoney Dep., p. 24, 65-66, Ex. G-Mahoney Aff. ¶11)
192. Litter picking and evicting homeless are part of Mr. Malone's job duties as HCEO. (Ex. C-Tyszkiewicz Aff. ¶53)
193. Malone admits that Mahoney assigns white employees and the other HCEO to evict the homeless and pick litter. (Ex. K-Malone Dep., p. 152, Ex. F-Mahoney Dep., p. 135)
194. Malone was also washing trucks while another employee on the HCEO Rotation List was activated as an “acting” HCEO and operated the endloader. (Ex. K-Malone Dep., p. 159-160, 162-163)
195. It was part of Malone's job duties to maintain the equipment, which includes washing trucks. (Ex. K-Malone Dep., p. 159)
196. Malone believes that the activation of another HCEO at a time when Malone was washing trucks was racially motivated because he believes it was unnecessary to activate another HCEO. (Ex. K-Malone Dep., p. 160-163)
197. Mahoney, as Yard Technician, activates “acting” HCEOs based on the equipment needs of the yard. (Ex. G-Mahoney Aff. ¶44)
198. Mahoney never activated an “acting” HCEO as a means of preventing Malone from using heavy equipment. (Ex. G-Mahoney Aff. ¶45)
199. Plaintiff Malone does not have any factual basis for believing that he was treated differently than other workers in terms of his assignments because of his race or his promotion under Massie. (Ex. K-Malone Dep., p. 154)
#7: Mahoney's Criticism/Riding Malone Harder
200. Malone claims that Mahoney criticized his work. (Ex. K-Malone Dep., p.

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173-174)
201. As Yard Technician, Mahoney is responsible for the operations of his yard, and routinely critiques the work of his crews. (Ex. G-Mahoney Aff. ¶3, 4, 47)
202. When Malone was using the Vactor machine, he was required to keep a log. (Ex. K-Malone Dep., p. 155)
203. Malone does not know if Mahoney required all persons operating the Vactor to keep a log. (Ex. K-Malone Dep., p. 155)
204. Mahoney requires all Vactor operators to keep a log, including the other nonminority HCEO and “acting” HCEOs. (Ex. G-Mahoney Aff. ¶56)
205. Mahoney accused him of not cleaning out sewers on one occasion. Malone responded that he did clean them, and the matter was dropped. (Ex. K-Malone Dep., p. 154-157)
206. Mahoney questioned Malone about the sewers because he personally observed that some of the sewers which had been designated as cleaned by Malone, in fact had cobwebs across the sewer lids, which would not have been present had the sewers been cleaned. (Ex. G-Mahoney Aff. ¶48-51)
207. No discipline was issued as a result of the sewer cleaning issue. (Ex. KMalone Dep., p. 164)
208. Malone does not know if Mahoney ever accused other employees of not cleaning out sewers and admits that he has no basis for believing that he was singled out on this occasion. (Ex. K-Malone Dep., p. 157)
209. Mahoney has questioned other workers, including the other non-minority HCEO John Gabor, for the same issues regarding sewer cleaning. (Ex. G-Mahoney Aff. ¶52)
210. Mahoney criticized lane closures involving Malone, complaining that there were not enough cones or signs. (Ex. K-Malone Dep., p. 173-174)
211. As Yard Technician, in monitoring the yard crews, Mahoney routinely inspects the safety procedures and lane enclosures used by the crews. (Ex. G-Mahoney Aff. ¶4)
212. When Malone was acting Lead Worker, Mahoney had another employee give Malone a crash course on how to do the paperwork which is required of the Lead Workers. (Ex. K-Malone Dep., p. 172)
213. Other white acting Lead Workers had to complete the same paperwork. (Ex. KMalone Dep., p. 172)
214. All “acting” Lead Workers are required to fill out the paperwork required of

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permanent Lead Workers, and all “acting” Lead Workers are given the same materials to familiarize themselves with this duty, including a packet containing information and codes for the paperwork. (Ex. G-Mahoney Aff. ¶55)
215. Malone felt that Mahoney leaned on him harder than others, but has no basis for that belief. (Ex. K-Malone Dep., p. 174-175)
#8: Rotation List Posting
216. In 2002, Malone did not see the Rotation List for Acting Lead Worker posted for sign up in the locker room. (Ex. K-Malone Dep., p. 175, 180)
217. Malone asked Mahoney where the sign-up list was, and Mahoney informed him that it had already been taken down and sent to IDOT in Schaumburg. (Ex. K-Malone Dep., p. 175-176)
218. Malone called Giovanni Fulgenzi at IDOT in Schaumburg, and was told that the sign-up list was to have been posted for a specified time period, and was then required to be returned Schaumburg. (Ex. K-Malone Dep., p. 181, Ex. B-Fulgenzi Aff. ¶ 95-96)
219. Malone filed a grievance seeking to sign up on the Rotation List for Acting Lead Worker, claiming that he and another employee had never seen the list posted. (Ex. K-Malone Dep., p. 175, Exhibit T, Malone Grievance-IDOT 7002)
220. Other workers from the Kennedy Yard had signed up on the Rotation List during the period Malone claimed to have not seen it. (Ex. B-Fulgenzi Aff. ¶99)
221. Malone's grievance was granted, and he was able to sign up on the Acting Lead Worker Rotation List. (Ex. K-Malone Dep., p. 175, Ex. B-Fulgenzi Aff. ¶101, Ex. TIDOT 07002)
222. Malone believes that Mahoney intentionally kept him from signing up on the Rotation List. (Ex. K-Malone Dep., p. 176)
223. Malone admits that Mahoney did not have any problem with him signing up on the Rotation List after his grievance was granted. (Ex. K-Malone Dep., p. 182)
224. Malone did not complain about this incident to anyone outside of his telephone call to Giovanni Fulgenzi and filing the grievance. (Ex. K-Malone Dep., p. 184)
Malone's Discipline at Kennedy Yard
225. Malone admits he was never disciplined while employed at the Kennedy Yard. (Ex. K-Malone Dep., p. 164)
226. Malone's personnel file does not contain any Reports of Rule Infraction is-

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sued during his employment at the Kennedy Yard. (Ex. B-Fulgenzi Aff. ¶87)
Malone's Complaints to Supervisory Personnel
227. Malone never complained about Mahoney to Mahoney's supervisor, Mark Jenkins. (Ex. K-Malone Dep., p. 183, Ex. O-Jenkins Aff. ¶8)
228. Malone never spoke about Mahoney to anyone at IDOT in Schaumburg other than Giovanni Fulgenzi. (Ex. K-Malone Dep., p. 184)
229. The only times Malone recalls complaining to Mr. Fulgenzi was in regard to the Rotation List sign up. (Ex. K-Malone Dep., p. 184-188)
230. Malone did not tell Mr. Fulgenzi that he believed Mahoney was retaliating against him. (Ex. K-Malone Dep., p. 187-88, Ex. B-Fulgenzi Aff. ¶ 102)
231. Malone never spoke to John Kos. (Ex. K-Malone Dep., p. 187)
232. Malone does not think that anyone else at IDOT retaliated against him. (Ex. K-Malone Dep., p. 190)
Malone's Transfer from the Kennedy
233. On July 18, 2001, Malone sent a letter requesting that he be transferred to the Dan Ryan Yard. (Ex. K-Malone Dep., p. 191, Exhibit S-IDOT 02572)
234. In this letter, Plaintiff Malone states that the reason he is requesting the transfer is that the Dan Ryan Yard is closer to his home than the Stevenson Yard. (Ex. S-IDOT 02572)
235. Mr. Malone further explained that during the snow and ice season, he was called at home to come to the Stevenson Yard, but due to the distance from his home, he “was over an hour late getting there.” (Ex. S-IDOT 02572)
236. Malone states with respect to the tardiness during the snow and ice callout, “I was allowed to work but technically I could have been sent back home.” (Ex. SIDOT 02572)
237. At no point in his letter does Malone state that he wishes to transfer because of harassment, discrimination or retaliation by Mr. Mahoney. (Ex. S-IDOT 02572)
238. Mr. Malone does not mention Mr. Mahoney in his letter requesting a transfer. (Ex. S-IDOT 02572)
239. Mr. Malone was transferred to the Dan Ryan Yard as an HCEO in October 2002. (Ex. K-Malone Dep., p. 191)
Malone's Complaint Under the Massie Decree

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240. Malone's complaints about his employment at the Kennedy Yard were brought to IDOT's attention through a letter sent to IDOT's attorney by the Monitor of the Massie Consent Decree on May 15, 2001. (Exhibit U, Written Complaint on Behalf of Thomas Malone)
241. In that letter, Malone claimed that he experienced “harassment, retaliation and hostility from Yard Technician Dennis Mahoney from the beginning of his tenure as HCEO to the present day. Specifically, “Mr. Mahoney routinely blames Mr. Malone for problems that he did not cause, like damage to equipment. Mr. Mahoney required Mr. Malone to shovel snow by hand during the winter season, despite the fact that snowblowers were available and other workers were using them. Mr. Mahoney treats Mr. Malone with disdain and disrespect on a daily basis and has stated openly that he does not like members of minority groups. Mr. Mahoney also retaliates against non-class members who associate with Mr. Malone.” (Ex. U)[FN4]
FN4. Plaintiff Malone's complaint under the Massie decree is made a part of Defendants' 56.1 Statement of Facts for the sole purpose of demonstrating what allegations were made to IDOT, and what steps IDOT took in investigating those claims. Defendants do not waive any objections to this Exhibit for purposes of trial, including hearsay objections. IDOT's Investigation of Malone's Complaint Under the Massie Decree[FN5]
FN5. The investigation of Plaintiffs complaints under the Massie decree is included in this 56.1 for the purpose of showing what steps were taken in the investigation of Plaintiff's complaint. Defendants do not waive any objections to these materials for purposes of trial, including hearsay objections.
242. Based on the complaints of Mr. Malone, IDOT conducted an investigation of Mr. Malone's claims. (Dep. of Sandi Brown 181-182)
243. The Civil Rights Committee was provided with the investigative reports prepared by the Massie ‘Investigation Committee’ in response to Malone's complaints which included follow-up investigation at the request of the Monitor. (Ex. JSchick Aff. ¶9, Ex. B-Fulgenzi Aff. ¶ 57)
244. These Investigation Reports included summaries of interviews of Malone and Dennis Mahoney, the Kennedy Yard Yard Technician, as well as summaries of interviews of other Kennedy Yard employees and work assignment reports. (Ex. B-Fulgenzi Aff. ¶ 58)
245. The Civil Rights Committee also received the Monitor's recommendations for Malone's complaint. (Ex. B-Fulgenzi Aff. ¶ 59, Ex. J-Schick Aff. ¶9)
246. The members of the IDOT Civil Rights Committee for Malone's case were: Giovanni Fulgenzi, Personnel Services Manager-District 1, J. Randle Schick, Assistant Chief Counsel and James Allen, Deputy Director of Office and Finance and Adminis-

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tration. (Ex. B-Fulgenzi Aff. ¶ 48-49, Ex. J-Schick Aff. ¶8)
247. The IDOT Civil Rights Committee determined that they would question certain witnesses with respect to Malone's case, and therefore the Monitor was allowed to be present for the Civil Rights Committee Meeting held on November 15, 2001, although the Monitor was not present during the Committee's deliberation. (Ex. BFulgenzi Aff. ¶ 51-53, Ex. J-Schick Aff. ¶11)
248. The Civil Rights Committee addressed Malone's claims that he was given undesirable work assignments, was required to shovel snow by hand, was blamed by Mr. Mahoney for damage to equipment that he did not cause and the general treatment of Malone by Mahoney. (Ex. B-Fulgenzi Aff. ¶60, Ex. J-Schick Aff. 1113)
249. During the Civil Rights Committee meeting on November 15, 2001, the Committee heard from Thomas Malone, Dean Bakos, Frank Torrez and Henry Santiago. (Ex. BFulgenzi Aff. ¶61, Ex. J-Schick Aff. ¶12)
250. During the Civil Rights Committee meeting on November 15, 2001, Frank Torrez and Dean Bakos claimed to have heard Dennis Mahoney make racial slurs on occasion. (Ex. B-Fulgenzi Aff. ¶67)
251. Mr. Malone informed the Civil Rights Committee that he had never personally heard Mr. Mahoney make any racially derogatory comments toward him. (Ex. BFulgenzi Affidavit ¶66, Ex. J-Schick Aff. ¶15)
252. During his questioning by the Civil Rights Committee, Malone was asked if he felt that he was treated differently than other non-minority employees by Mr. Mahoney. Mr. Malone stated that he did not believe he was treated differently than non-minority employees. Malone further stated that he didn't believe he was treated in a disrespectful manner by Mr. Mahoney. (Ex. B-Fulgenzi Aff. ¶ 62-64, Ex. J-Schick Aff. ¶14)
253. After hearing witness statements, including the in-person statement of Mr. Malone, and examining the investigation reports, the Civil Rights Committee determined that Mr. Malone had not been discriminated or retaliated against by Mr. Mahoney. (Ex. B-Fulgenzi Aff. ¶70, Ex. J-Schick Aff. ¶15)
254. Some witnesses that appeared before the Committee provided statements which were not included in the Investigation Reports that claimed that Mahoney used racial slurs in the Kennedy Yard and which were in contradiction to other statements in the investigative report. (Ex. B-Fulgenzi Aff. ¶71, Ex. J-Schick Aff. ¶16)
255. Due to the fact that Mr. Mahoney was not present before the Committee to address these statements, the Committee decided to expand the investigation to further examine the conflicting allegations of racial slurs in the Kennedy Yard. (Ex. B-Fulgenzi Aff. ¶71, Ex. J-Schick Aff. ¶16)

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256. The Committee also decided to postpone issuing its final recommendation on Malone's complaints until the expanded investigation was complete. (Ex. B-Fulgenzi Aff. ¶76, Ex. J-Schick Aff. ¶17)
257. The expanded investigation revealed that the vast majority of employees had never heard any racial slurs used by Mr. Mahoney and did not observe Mahoney treat minority employees any differently than non-minority employees. (Ex. J-Schick Aff. ¶18-19)
258. No Civil Rights Committee meeting was held on the expanded Kennedy Yard investigation due to the present lawsuit. (Ex. B-Fulgenzi Aff. ¶73, Ex. J-Schick Aff. ¶21)
John McGee
Employment at IDOT-Bishop Ford Yard
259. John McGee began his employment with IDOT at the Bishop Ford Yard as a Highway Maintainer on July 19, 1979. (Ex. M-McGee Dep., p. 7, 9)
260. McGee remained at the Bishop Ford Yard until his promotion to Lead Worker in October, 2000. (Ex. M-McGee Dep., p. 10-11)
Prior Experience as HCEO and Lead Worker
261. While employed as a Highway Maintainer at the Bishop Ford Yard, McGee “acted” as both HCEO and Lead Worker on numerous occasions. (Ex. M-McGee Dep., p. 17-24)
Promotion to Lead Worker Under Massie
262. McGee applied for the Lead Worker positions at the Harvey and Stevenson Yards under the Massie decree. (Ex. M-McGee Dep., p. 71-72)
263. McGee was promoted to the Lead Worker position at the Stevenson Yard in October, 2000. (Ex. M-McGee Dep., p. 78-79)
264. As Lead Worker, McGee was responsible for overseeing the work of his crew, and was responsible for both the crew and the equipment used. (Ex. M-McGee Dep., p. 258).
Stevenson Yard-General Yard Responsibilities
265. The main jobs at the Stevenson Yard are litter pickup (paper picking), tree trimming, pothole patching, sewer cleaning and snow removal. (Ex. M-McGee Dep., p. 87-88, Ex. I-Chlebicki Aff. ¶4)
McGee's Training
266. McGee was sent to two leadership training sessions as a result of his promo-

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tion. (Ex. M-McGee Dep., p. 82)
267. The leadership training was required of all Lead Workers. (Ex. M-McGee Dep., p. 82, 552)
McGee's Alleged Instances of Harassment/Retaliation
#1: Not Given Workspace/Not Introduced at Yard/Not Shown Area
268. McGee claims that he was retaliated or discriminated against because he was not initially introduced to the Stevenson Yard employees by Chlebicki when he first arrived. (Ex. M-McGee Dep., p. 121-122)
269. The timekeeper, Phyllis Giacalone, asked Chlebicki why he hadn't introduced McGee. (Ex. M-McGee Dep., p. 125, 130)
270. Chlebicki then held a brief meeting with the yard personnel where he introduced McGee as the new Lead Worker. (Ex. M-McGee Dep., p. 126)
271. McGee is not aware of what kind of introduction is typically given by Chlebicki for new employees at the yard. (Ex. M-McGee Dep., p. 128-129)
272. McGee does not know why Defendant Chlebicki did not introduce him to the yard employees. (Ex. M-McGee Dep., p. 130)
273. McGee did not complain about his lack of introduction to anyone at IDOT until he brought it up in conjunction with another complaint approximately four months after he assumed the Lead Worker position at the Stevenson yard. (Ex. M-McGee Dep., p. 136-139)
274. McGee claims that he was harassed and retaliated against because when he arrived at the Stevenson Yard, he was not given the proper resources to do his job; namely an office, desk, or telephone and was not given access to the yard's computer. (McGee's Response to Defendants' Interrogatories, Ex. N, #5, Ex. M-McGee Dep., p. 450, 454, 460)
275. McGee claimed that his was retaliatory and discriminatory because the Lead Lead Worker, John Petrie had an office, and Lead Workers in other yards had offices. (Ex. N-McGee Interrogatory Responses, #5, Ex. M-McGee Dep., p.459-61)
276. McGee initially had to share the office with the Lead Lead Worker, John Petrie and the timekeeper. (Ex. M-McGee Dep., p. 101-102, 117-18)
277. McGee was told that there wasn't a Lead Worker office prior to his arrival and that the previous Lead Worker shared the room with the Lead Lead Worker, John Petrie. (Ex. M-McGee Dep., p. 117-118)
278. McGee is not aware of how the previous Lead Worker operated at the yard, and

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whether or not the previous Lead Worker had his own desk or facilities. (Ex. MMcGee Dep., p. 119)
279. Previous Lead Workers at the yard shared the Lead Lead Worker office in the same way as McGee initially did. (Ex. I-Chlebicki Aff. ¶14)
280. McGee did not complain to anyone about his lack of work space for approximately seven months. (Ex. M-McGee Dep., p. 182-183)
281. McGee complained to his attorneys that he didn't have a proper workspace, and an extra room was converted to be his office. (Ex. M-McGee Dep., p. 115)
282. McGee received his office right after he started complaining about the lack of work space. (Ex. M-McGee Dep., p. 182-183)
283. The space designated for McGee's office had previously been used for radio communications, work overflow and also held lockers for temporary snow and ice employees. (Ex. I-Chlebicki Aff. ¶18)
284. McGee was never told by Mr. Chlebicki, Petrie or anyone else why he didn't have his own desk, computer or space, or that it was due to his race or his promotion under the Massie decree. (Ex. M-McGee Dep., p. 462)
285. Once McGee received his separate office, someone placed stickers on his door, chair and locker which identified them as “McGee's.” (Ex. N-McGee Interrogatory Responses, Ex. M-McGee Dep., p. 183)
286. McGee is not aware of who put the stickers on his office door and chair, but thinks that Chlebicki had it done. (Ex. M-McGee Dep., p. 367-68, 183)
287. Chlebicki did ask the timekeeper to label McGee's office as the Lead Worker office, and include McGee's name on the door in the same way the Lead Lead Worker's office is labeled. (Ex. I-Chlebicki Aff. ¶20)
288. McGee believes this was an act of discrimination or retaliation, but was never told by anyone that the stickers were placed on his door, chair and locker because of his race or promotion under the Massie decree. (Ex. M-McGee Dep., p. 477)
289. The Lead Lead Worker office at the Stevenson Yard has a sticker on the door identifying it as the Lead Lead Worker office and had LLW Petrie's name on the door during the time period that he was the LLW. (Ex. I-Chlebicki Aff. ¶15-16)
290. McGee also claims he was not shown the job sites covered by the Stevenson Yard. (Ex. M-McGee Dep., p. 322-323, Ex. N-McGee Interrogatory Responses, #5)
291. McGee told Chlebicki and Petrie that he didn't know the area, and claims he was told he would have to learn. (Ex. M-McGee Dep., p. 323)

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292. One of McGee's crew members who was familiar with the area directed him around the area. (Ex. M-McGee Dep., p. 323)
293. McGee believes he wasn't shown the routes because of his race and promotion under the Massie decree, although he was not told this was the reason. (Ex. MMcGee Dep., p. 470-471)
294. The previous Lead Worker did not need to be familiarized with the routes, as he was from the area. (Ex. M-McGee Dep., p. 325-326)
#2 Being Watched by LLW John Petrie
295. McGee felt that he was watched by the Lead Lead Worker John Petrie, and that Petrie would “pull up behind [McGee's] crew to intimidate” them. (Ex. M-McGee Dep., p. 140)
296. McGee believes that Defendant Chlebicki “forced” Petrie to watch McGee's crew, although he has no personal knowledge to support his belief (Ex. M-McGee Dep., p. 229-230)
297. No one told McGee why Petrie was watching his crew. (Ex. M-McGee Dep., p. 471-472)
298. McGee admits that part of Petrie's job as Lead Lead Worker was to monitor and supervise McGee and his crew. (Ex. M-McGee Dep., p. 140, 232)
299. Petrie checked on crews up to three to four times per day. (Exhibit PDeposition of Nicholas Janeteas p. 47)
#3 Not Being Given Opportunity to do Planning/Supervision
300. McGee claims that he was not given the opportunity to do “planning and supervision,” which he believes was part of his job as Lead Worker. (Ex. M-McGee Dep., p. 359, Ex. N-McGee Interrogatory Responses, #5)
301. A Lead Worker should spend approximately ten percent (10%) of his hours on ‘planning and supervision.’ (Ex. C-Tyszkiewicz Aff. ¶42)
302. During the time period of October 1, 2000 through September 30, 2002 McGee spent a total of 14% on planning and supervision. (Ex. B-Fulgenzi Aff. ¶105,[FN6] Ex.__-McGee Data, IDOT 10616-IDOT 10631)
FN6. As contained in Exhibit B, Affidavit of Giovanni Fulgenzi, the work assignment reports produced pursuant to Plaintiffs' discovery request (IDOT 10616-IDOT 10631) demonstrates that McGee worked a total of 2968 hours during this time period, and spent 417 hours on ‘planning and supervision. This equals 14%.
#4 Port-A-Potty Incident

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303. Soon after McGee began at the Stevenson, there was a discussion in which he was informed he was giving too many breaks to his crew. (Ex. M-McGee Dep., p. 141-143)
304. On March 15, 2001, Defendant Chlebicki questioned McGee about what he characterized as McGee's crew's excessive restroom breaks. (Ex. M-McGee Dep., p. 151-152, 159, Ex. I-Chlebicki Aff. ¶39)
305. Chlebicki was attempting to aid McGee is improving his crew's work breaks. (Ex. H-Chlebicki Dep., p. 71, Ex. I-Chlebicki Aff. ¶41-42)
306. McGee claims that Chlebicki suggested that McGee tow a port-a-potty behind his truck so that the crew would not have to leave the job site as frequently. (Ex. M-McGee Dep., p. 151-152)
307. McGee questioned why Chlebicki was raising this issue, and Chlebicki attempted to end the conversation. (Ex. M-McGee Dep., p. 153-154)
308. During the incident, McGee admitted that he raised his voice to Chlebicki. (Ex. M-McGee Dep., p. 159)
309. McGee attempted to continue the conversation, when Chlebicki stated that if he wanted to continue the conversation, he should follow him to the police station. (Ex. M-McGee Dep., p. 154, 157, Ex. I-Chlebicki Aff. ¶49)
310. McGee's behavior caused Chlebicki to be concerned for his safety. (Ex. HChlebicki Dep., p.73-74, Ex. I-Chlebicki Aff. ¶49)
311. Chlebicki left the yard and went to the McCook police station. (Ex. HChlebicki Dep., p. 73)
312. Chlebicki contacted the Area Operations Engineer, Mark Jenkins by radio and by phone, and was advised to go ahead to the police station and wait. (Ex. IChlebicki Aff. ¶50, 52)
313. After Chlebicki left the yard, McGee called his attorney, the union and the Springfield IDOT Civil Rights Office. (Ex. M-McGee Dep., p. 157, 256-257)
314. The Area Operations Engineer and Chlebicki's immediate supervisor, Mark Jenkins, went to the Stevenson Yard and sent McGee home for the remainder of the day with pay. (Ex. M-McGee Dep., p. 157)
315. Chlebicki did not return to the yard until after McGee had been sent home. (Ex. I-Chlebicki Aff. ¶54)
316. On the next business day, McGee went to the IDOT office in Schaumburg, where he met with IDOT personnel and a union representative to discuss the incident with Chlebicki. (Ex. M-McGee Dep., p. 159-163)

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317. McGee was never written up for the incident, nor did he receive any discipline. (Ex. M-McGee Dep., p. 165-67, Ex. B-Fulgenzi Affidavit ¶107)
318. Other non-minority IDOT employees have been disciplined for insubordination for raising their voice, or acting in an otherwise threatening manner, toward a Yard Technician. (Ex. B-Fulgenzi Aff. ¶ 107)
319. McGee thinks the incident was because of his race and promotion under the Massie decree, although he has no knowledge of Chlebicki's motivation. (Ex. MMcGee Dep., p. 168)
320. McGee does not think any other Lead Worker ever had to tow a port-a-potty behind their truck (McGee Dep., 171)
321. Other Lead Workers have used port-a-pottys at job sites, including one occasion when an IDOT crew took a port-a-john to a work site near Lake Shore Drive. (Ex. H-Chlebicki Dep., p. 75-76, Ex. I-Chlebicki Aff. ¶45)
#5 Accused of Poor Public Image for Allowing Crew Member to Lie Down in Truck
322. In the spring of 2001, one of McGee's crew members was ill after lunch, and McGee allowed him to lie down in his truck, while McGee got out and worked in his place. (Ex. M-McGee Dep., p. 210, 212-213)
323. LLW Petrie came to the job site, and asked why the worker was lying down in the truck. (Ex. M-McGee Dep., p. 214-215)
324. McGee told Petrie that he let the worker lie down because he wasn't feeling well. (Ex. M-McGee Dep., p. 214-215)
325. LLW Petrie took the worker back to the yard, where McGee claims the worker was written up for poor public image. (Ex. M-McGee Dep., p. 215)
326. McGee claims that when he returned to the yard, Defendant Chlebicki indicated that he was going to write him up for allowing the worker to lie down while on the job. (Ex. M-McGee Dep., p. 216, 219)
327. McGee was advised by his union representative that the write-up was just for his file, and would not result in any actual discipline. (Ex. M-McGee Dep., p. 223)
328. It is considered “poor public image” and is a violation of IDOT policy for a worker to lie down or rest in a truck while the crew is on a job site. (Ex. HChlebicki Dep., p. 82, Ex. C-Tyszkiewicz Aff. ¶_66, Ex. B-Fulgenzi Aff. ¶ 109, Ex. I-Chlebicki Aff. ¶57, Ex. O-Jenkins Aff. ¶18)
329. Other IDOT employees, including non-minority employees, have been disciplined for resting or lying down in a truck while on a job site when they should have

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been working. (Ex. B-Fulgenzi Aff. ¶110)
330. McGee complained to his attorney (the Monitor), Terry Ransom, Nell Clay and Sandi Brown at IDOT's Civil Rights Office. (Ex. M-McGee Dep., p. 225-226, 256-257)
331. The write-up for this incident was dropped. (Ex. M-McGee Dep., p. 220-221)
332. McGee was never disciplined for this incident. (Ex. M-McGee Dep., p. 220-221)
333. McGee was never told that this incident was a result of his race or his promotion under Massie. (Ex. M-McGee Dep., p. 243)
334. McGee has no knowledge of any other employee at the Stevenson Yard being allowed to lie down in a truck when not feeling well. (Ex. M-McGee Dep., p. 238)
#6 Todd Krasnow Incident
335. Todd Krasnow was a snowbird (seasonal employee) at the Stevenson Yard during the snow and ice season of 2001/2002. (Ex. M-McGee Dep., p. 258-259, Ex. IChlebicki Aff. ¶61)
336. During snow and ice season, there are temporary workers whose lockers are in the extra room which was converted into McGee's office. (Ex. I-Chlebicki Aff. ¶23, Ex. M-McGee Dep., p. 259)
337. Krasnow's locker was in McGee's office room. (Ex. M-McGee Dep., p. 259, Ex. I-Chlebicki Aff. ¶61)
338. In winter 2002, at the end of the day, Krasnow asked McGee “Why are you looking at me like that,” accusing McGee of giving him a dirty look. (Ex. M-McGee Dep., p. 260)
339. McGee told Krasnow to leave his office. (Ex. M-McGee Dep., p. 260)
340. McGee and Krasnow then got into “a loud voice confrontation.” (Ex. M-McGee Dep., p. p. 261)
341. The argument continued and McGee told Chlebicki he wanted Krasnow moved from his office to the other locker room, which was agreed to by Chlebicki. (Ex. MMcGee Dep., p. 270)
342. The next day, McGee went to the IDOT Schaumburg office to discuss the incident involving Krasnow. (Ex. M-McGee Dep., p. 263)
343. McGee believes that it was harassment that he had to go to Schaumburg to discuss the incident. (Ex. M-McGee Dep., p. 273)
344. Jacek Tyszkiewicz explained to McGee that they wanted him to come to Schaumburg so that he would not have to interact with Defendant Chlebicki with respect

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to the investigation of this incident, as McGee had already filed complaints against Chlebicki. (Ex. M-McGee Dep., p. 265-266, Ex. C-Tyszkiewicz Aff. ¶72)
345. McGee discussed the incident with Jacek Tyszkiewicz and Giovanni Fulgenzi, who asked McGee what he wanted done to Krasnow. (Ex. M-McGee Dep., p. 275-276, 287)
346. McGee responded that he did not want Krasnow to be fired, but allowed to come back to work as long as Krasnow stayed away from him. (Ex. M-McGee Dep., p. 287)
347. The next day at the end of the work day, Krasnow “made a face” at McGee and entered McGee's office. (Ex. M-McGee Dep., p. 276, 278-279)
348. McGee called Tyszkiewicz, whose phone was busy, and then called Giovanni Fulgenzi and told him he had another situation with Krasnow. (Ex. M-McGee Dep., p. 279)
349. Mr. Fulgenzi told McGee that Krasnow would be fired. (Ex. M-McGee Dep., p. 280)
350. Krasnow was then fired. (Ex. M-McGee Dep., p. 283)
351. McGee was not written up for his conduct during the incidents with Krasnow, nor did he receive any type of discipline. (Ex. M-McGee Dep., p. 273, 296)
352. McGee believes that Nicholas Janeteas (an HCEO at the Stevenson Yard), encouraged Krasnow to taunt him. (Ex. M-McGee Dep., p. 285)
353. McGee believes that Janeteas wanted power in the yard, and even caused problems for the Lead Lead Worker, John Petrie. (Ex. M-McGee Dep., p. 421)
354. McGee does not have any firsthand knowledge that Janeteas had any involvement in Krasnow's behavior towards McGee. (Ex. M-McGee Dep., p. 286)
355. McGee also has no knowledge that Chlebicki had any involvement in Krasnow's behavior towards McGee. (Ex. M-McGee Dep., p. 286)
356. McGee believes that Defendant Chlebicki should have fired Krasnow after the first incident, and that this was evidence that Chlebicki supported Krasnow. (Ex. M-McGee Dep., p. 291)
#7 Being Blamed For Damage to Saw
357. Soon after his promotion to Lead Worker at the Stevenson Yard, McGee was leading a crew cutting trees. (Ex. M-McGee Dep., p. 247)
358. After work began, the saw burned out, and could no longer be used. (Ex. MMcGee Dep., p. 251)

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359. When it was reported to Chlebicki that the saw was broken, McGee claims Chlebicki blamed him for using the wrong oil in the saw. (Ex. M-McGee Dep., p. 252)
360. McGee admits that his crew broke the saw. (Ex. M-McGee Dep., p. 252)
361. McGee told Chlebicki that his crew had used the oil the mechanics told him was for use in the saw. (Ex. M-McGee Dep., p. 252-253)
362. McGee further stated that the State had money in the budget and could buy another saw. (Ex. M-McGee Dep., p. 252)
363. As Lead Worker, McGee was responsible for both his crew and the equipment the crew used. (Ex. M-McGee Dep., p. 258)
364. McGee was not written up for the damage to the saw. (Ex. M-McGee Dep., p. 254, Ex. B-Fulgenzi Aff. ¶107)
365. McGee was never told by anyone that he was blamed for breaking the saw because of his race or affiliation with the Massie decree. (Ex. M-McGee Dep., p. 483)
#8 Chlebicki Had McGee Change a Lane Closure
366. The same day as the saw incident, shortly after McGee began at the Stevenson Yard, Chlebicki told McGee he didn't like the lane closure McGee had set up, and directed him to change it. (Ex. M-McGee Dep., p. 247, 249)
367. Chlebicki did not think that the lane closure McGee set up was safe. (Ex. IChlebicki Aff. ¶83)
368. Chlebicki directed McGee to use a lane closure which was contained in a guideline book on lane closures. (Ex. M-McGee Dep., p. 249)
369. McGee disagreed with the lane closure that Chlebicki instructed him to use. (Ex. M-McGee Dep., p. 250)
370. Chlebicki, as the Technician, had the authority to change McGee's lane closure. (Ex. M-McGee Dep., p. 255)
371. McGee was never told by anyone that Chlebicki changed his lane closure because of his race or promotion under the Massie decree. (Ex. M-McGee Dep., p. 483-484)
372. McGee did not complain to anyone about this incident until the Spring of 2001, when he complained about the poor public image incident. (Incident #5, 56.1 ¶329) (Ex. M-McGee Dep., p. 225-226, 256)
#9 Not Given the Proper Equipment to Do His Job

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373. On one occasion in June 2001, McGee claims he was not given enough equipment to perform his assignment, cutting trees. (Ex. M-McGee Dep., p. 347-350)
374. McGee suggested that Chebicki call the Alsip yard for extra equipment. (Ex. M-McGee Dep., p. 348)
375. Chebicki called the Alsip Yard to request additional equipment for Mr. McGee. (Ex. M-McGee Dep., p. 348-349)
376. McGee received the extra equipment from the Alsip Yard. (Ex. M-McGee Dep., p. 349)
377. On this occasion, Chlebicki also complimented McGee on his work. (Ex. M-McGee Dep., p. 350)
378. McGee had never heard Chlebicki compliment someone else. (Ex. M-McGee Dep., p. 351)
379. Besides the occasion when McGee entered the yard to obtain another truck (see Incident #10, 56.1 ¶381), this is the only time that McGee claims he was not initially given enough equipment to perform his assignment. (Ex. M-McGee Dep., p. 351-352)
380. McGee has no personal knowledge that he was not given the proper equipment because of his race or promotion under the Massie decree. (Ex. M-McGee Dep., p. 494)
#10 McGee Was Told Not to Come Into the Yard
381. During snow and ice season in 2001, after being sent out with his crew, McGee came into the yard to get another truck for sewer cleaning. (Ex. M-McGee Dep., p. 314-315)
382. McGee brought his crew back into the yard with him. (Ex. I-Chlebicki Aff. ¶89)
383. When he arrived at the yard, McGee claims that Chlebicki asked him why he came back to the yard, and told him not to come into the yard again; if he needed additional equipment, he should have someone bring it to him. (Ex. M-McGee Dep., p. 315-316)
384. It is the preferred procedure for a Lead Worker or crew leader to stay with his crew and have the crew continue working while another employee obtains additional equipment from the yard. (Ex. C-Tyszkiewicz Aff. ¶45-46, Ex. I-Chlebicki Aff. ¶90-91)
385. McGee was not written up for coming into the yard to get the additional truck. (Ex. M-McGee Dep., p. 318)

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386. No one told McGee that he wasn't to come into the yard because of his race or promotion under the Massie decree. (Ex. M-McGee Dep., p. 493)
#11 Claims that McGee's Crew Was Written-Up Because They Were On McGee's Crew
387. McGee claims that his crew members were written up for incidents that other workers would not have been written up for. (Ex. M-McGee Dep., p. 389)
388. McGee claims an employee, Rudy DeLaJoya [sic], was written up because he fell asleep on the hydraulic arm control while operating a spreader, causing damage. (Ex. M-McGee Dep., p. 394-396)
389. McGee does not know of any employee who caused damage because they fell asleep while operating equipment who was not written up. (Ex. M-McGee Dep., p. 397)
390. Mr. DeHoyos was written up for “careless operation and damage to state property,” and received a written warning. (Ex. B-Fulgenzi Aff. ¶ 116)
391. Mr. DeHoyos' discipline is consistent with past discipline issued for similar incidents. (Ex. B-Fulgenzi Aff. ¶ 117)
392. Other non-minority employees have also been disciplined for “careless operation and damage to state property.” (Ex. B-Fulgenzi Aff. ¶ 118)
393. McGee claims Johnny Jones was written up because he caused $1,200 in damage to a mower when he slid into and up onto a tree while mowing on an incline. (Ex. M-McGee Dep., p. 402)
394. Mr. Jones was written up for “careless and unsafe operation of state equipment” and received a written warning. (Ex. B-Fulgenzi Aff. ¶ 120)
395. The discipline Mr. Jones received for this incident is consistent with past discipline issued for similar incidents. (Ex. B-Fulgenzi Aff. ¶ 121)
396. Other non-minority employees have also been disciplined for “careless and unsafe operation of state equipment.” (Ex. B-Fulgenzi Aff. ¶ 122)
397. McGee was never told that his crew was written up because of McGee's race or promotion under the Massie decree. (Ex. M-McGee Dep., p. 494)
#12 Claims that McGee Was Assigned Crew of Snowbirds
398. McGee claims that he was harassed in December 2001 or January 2002 by being assigned a crew of snowbirds. (Ex. M-McGee Dep., p. 296-297)
399. McGee was originally to have three other full-time employees, but McGee didn't want them on his crew, so he told LLW Petrie he didn't want them and asked Petrie to have the snowbirds instead, which was agreed to by Petrie. (Ex. M-McGee

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Dep., p. 297-299)
400. The three full-time employees were then assigned to LLW Petrie's crew, where they gave Petrie a hard time. (Ex. M-McGee Dep., p. 300)
401. McGee considers this harassment against him, because he believes the fulltime employees who gave Petrie a hard time would rather have been on McGee's crew to give him a hard time. (Ex. M-McGee Dep., p. 300)
#13 Miscellaneous Problems with Crew and Co-workers
402. On one occasion, two of McGee's crew members did not follow his instructions while setting up a lane closure. (Ex. M-McGee Dep., p. 201-202)
403. LLW Petrie came to the job, and verbally reprimanded the employees who did not follow McGee's directions. (Ex. M-McGee Dep., p. 203-204)
404. McGee believes that these crew members did not follow his instructions because of his promotion under the Massie decree, although he has no personal knowledge of that. (Ex. M-McGee Dep., p. 478-479)
405. McGee had no problem with the way Petrie handled the situation. (Ex. M-McGee Dep., p. 207)
406. McGee also claims that employees in the yard were spreading rumors about him. (Ex. M-McGee Dep., p. 382-383)
407. McGee never told Chlebicki or Jenkins about the rumors he believed were being spread, but nevertheless believes that Chlebicki and Jenkins should have stopped it. (Ex. M-McGee Dep., p. 413-414)
408. McGee claims that the men in the yard were against the Massie decree and didn't like him. (Ex. M-McGee Dep., p. 244)
409. None of these employees ever said anything to McGee about the Massie decree, or ever made any racial comments towards him. (Ex. M-McGee Dep., p. 243-244)
410. McGee retired from his employment at IDOT on December 31, 2002. (Ex. BFulgenzi Aff. ¶75)
McGee's Job Performance-Stevenson Yard
411. McGee's conduct during his employment at the Stevenson Yard caused concern among his superiors. (Ex. O-Jenkins Aff. ¶15,19, 23, 30, Ex. C-Tyszkiewicz Aff. ¶84-85 Ex. H-Chlebicki Dep., p. 61, 63-65, Ex. I-Chlebicki Aff. ¶95)
412. Among the causes of concern was McGee's inability to accept constructive criticism from his superiors, his inability to control his anger in certain situations, his disrespect of his Yard Technician, his overuse of sick time, his inab-

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ility to properly complete the paperwork required during snow and ice season, and the taking of unusually long breaks. (Ex. O-Jenkins Aff. ¶15, 19, 23, 30, Ex. CTyszkiewicz Aff. ¶84, Ex. H-Chlebicki Dep., p. 61, 63-65, Ex. I-Chlebicki Aff. ¶97, 100-101)
413. The Yard Technician, Chlebicki, did not conduct an employee review for McGee during his employment at the Stevenson Yard. (Ex. I-Chlebicki Aff. ¶102, Ex. OJenkins Aff. ¶28)
414. Had Chlebicki completed McGee's evaluation, he would not have rated McGee as a satisfactory employee in all areas. (Ex. I-Chlebicki Aff. ¶104, Ex. O-Jenkins Aff. ¶27)
415. At the time McGee's review was scheduled to be completed, Chlebicki was concerned that due to the numerous complaints McGee had made against him, a negative employee review would only serve to add to McGee's unwarranted complaints. (Ex. IChlebicki Aff. ¶103, 105, Ex. O-Jenkins Aff. ¶26, 27)
416. Chlebicki discussed his concerns about McGee with his superior, Mark Jenkins. (Ex. I-Chlebicki Aff. ¶96, Ex. O-Jenkins Aff. ¶21)
417. Jenkins personally witnessed McGee failing to adequately perform his duties as LW. (Ex. O-Jenkins Aff. ¶30)
418. Jenkins observed McGee on a job site sitting in his truck when he should have been working with his crew. (Ex. O-Jenkins Aff. ¶31)
419. Jenkins has also personally witnessed McGee's inability to control his anger. (Ex. O-Jenkins Aff. ¶11-13, 15)
420. Based on his personal observations and McGee's attendance record, Jenkins was of the opinion that McGee should have been subject to discipline. (Ex. O-Jenkins Aff. ¶33)
421. McGee's personnel file does not contain any record of any discipline or Report of Rule Infraction issued to McGee during his employment at the Stevenson Yard. (Ex. B-Fulgenzi Aff. ¶101, 102)
422. Based on his personal observations and McGee's attendance record, Jenkins did not feel that McGee was meeting IDOT's expectations of him as a Lead Worker. (Ex. O-Jenkins Aff. ¶34)
McGee's Complaints to IDOT Officials
423. McGee called Giovanni Fulgenzi, IDOT District 1 Personnel Services Manager, approximately four months after he began at the Stevenson Yard. (Ex. M-McGee Dep., p. 189)

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424. McGee told Fulgenzi about general problems with his crew, attitudes of his co-workers and that he felt it was harassment. (Ex. M-McGee Dep., p. 197-198, 201-204)
425. McGee did not mention anyone by name during his conversation with Fulgenzi, and discussed his concerns in a general manner. (Ex. M-McGee Dep., p. 204, 209)
426. Fulgenzi instructed McGee to stick with the situation, that things would get better. (Ex. M-McGee Dep., p. 208-209)
McGee's Complaint Under the Massie Decree
427. McGee had numerous complaints investigated by the “Investigation Committee” pursuant to the Massie Decree, including allegations of unequal treatment in his assignments, that a sexual harassment claim was fabricated against him and that he was harassed and retaliated against by Chlebicki questioning him about his crew's restroom breaks and suggesting he tow a ‘port-a-potty’ behind his truck. (Ex. BFulgenzi Aff. ¶78, Ex. J-Schick Aff. ¶9, 22)[FN7]
FN7. Plaintiff McGeee's complaint under the Massie decree is made a part of Defendants' 56.1 Statement of Facts for the sole purpose of demonstrating what allegations were made to IDOT, and what steps IDOT took in investigating those claims. Defendants do not waive any objections to this Exhibit for purposes of trial, including hearsay objections. IDOT's Investigation of McGee's Complaints under the Massie Decree[FN8]
FN8. The investigation of Plaintiff's complaints under the Massie decree is included in this 56.1 for the purpose of showing what steps were taken in the investigation of Plaintiffs complaint. Defendants do not waive any objections to these materials for purposes of trial, including hearsay objections.
428. McGee's complaints were investigated by the “Investigation Committee” consisting of Sandi Brown, James Stumpner and Malcolm Erickson. (Ex L-Brown Dep., p. 161-162)
429. The Civil Rights Committee was provided with the investigative reports prepared by the Massie ‘Investigation Committee’ in response to McGee's complaints which included follow-up investigation at the request of the Monitor. (Ex. BFulgenzi Aff. ¶76, Ex. J-Schick Aff. ¶9, Ex. L-Brown Dep., p. 162- 168)
430. The Monitor's recommendations with respect to McGee's complaints were also provided to the members of the IDOT Civil Rights Committee. (Ex. B-Fulgenzi Aff. ¶ 77, Ex. J-Schick Aff. ¶9)
431. The Civil Rights Committee for McGee's case were: Giovanni Fulgenzi, Personnel Services Manager, District 1, J. Randle Schick, Assistant Chief Counsel and

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James Allen, Deputy Director of Finance and Administration. (Ex. B-Fulgenzi Aff. ¶ 48-49, Ex. J-Schick Aff. ¶8)
432. The members of the Civil Rights Committee determined that witnesses would be called with respect to McGee's case, and therefore the Monitor was allowed to be present for the Civil Rights Committee meeting held on November 15, 2001. (Ex. BFulgenzi Aff. ¶51-52, Ex. J-Schick Aff. ¶11)
433. The Monitor was not present during the Committee's deliberations. (Ex. BFulgenzi Aff. ¶53)
434. The specific claims addressed by the Committee were Mr. McGee's claims of a fabricated sexual harassment claim against him, harassment by Chlebicki in suggesting that he tow a port-a-potty and that he was given less desirable assignments than other Lead Workers. (Ex. B-Fulgenzi Aff. ¶78, Ex. J-Schick Aff. ¶22)
435. The Civil Rights Committee heard statements from Mr. McGee and Mr. Chlebicki on the issues. (Ex. B-Fulgenzi Aff. ¶79, Ex. J-Schick Aff. ¶23)
436. At the conclusion of the Civil Rights Committee meeting, the Committee deliberated and determined that there was no merit to McGee's claims of harassment, discrimination and retaliation. (Ex. B-Fulgenzi Aff. ¶80, Ex. J-Schick Aff. ¶24)
437. The Committee was unanimous in its decision. (Ex. B-Fulgenzi Aff. ¶82, Ex. JSchick Aff. ¶26)
438. The Committee then issued a written recommendation which included the basis for their finding that there was no merit to McGee's claims. (Ex. B-Fulgenzi Aff. ¶83, Ex. J-Schick Aff. ¶25)
439. After the Director of Finance and Administration approved the recommendation of the Civil Rights Committee, the recommendation was sent to the Monitor. (Exhibit W, January 10, 2002 Letter to Monitor enclosing recommendation)
440. The members of the Civil Rights Committee never received any document purporting to be an internal IDOT ‘response’ to the Civil Rights Committee recommendation, nor was such a document prepared by a member of the Committee. (Ex. BFulgenzi Aff. ¶84, Ex. J-Schick Aff. ¶27)
441. The recommendation of the Civil Rights Committee was sent to the Monitor on January 10, 2002, and although the Monitor had the authority to address the recommendation of the Committee with IDOT, and if no resolution could be achieved, to further pursue the matter in court under the Massie consent decree, the present lawsuit was filed on January 11, 2002. (Ex. A-Complaint, Ex. Q-Investigation Schedule, Ex. W-January 10 letter)
McGee's Complaints Against IDOT

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442. McGee does not believe that IDOT created a hostile work environment for him. (Ex. M-McGee Dep., p. 514-515)
443. McGee does not believe that IDOT discriminated, harassed or retaliated against him. (Ex. M-McGee Dep., p. 514-515)
444. McGee admits “IDOT had nothing to do with this” (Ex. M-McGee Dep., p. 539-540)
McGee's Complaints About John Kos
445. John Kos had no direct contact with McGee whatsoever. (Ex. M-McGee Dep., p. 533)
446. McGee never complained to John Kos about his treatment at the Stevenson. (Ex. M-McGee Dep., p. 534)
McGee's Damages
447. McGee did not lose any wages while employed at the Stevenson Yard. (Ex. MMcGee Dep., p. 536)
448. McGee did not suffer any financial damages as a result of his employment at the Stevenson Yard. (Ex. M-McGee Dep., p. 536)
449. McGee never did any job which was not part of his job description while employed at the Stevenson Yard. (Ex. M-McGee Dep., p. 355)
DEFENDANTS' MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT
NOW COME Defendants Illinois Department of Transportation (“IDOT”), John Kos, Dennis Mahoney and Kenneth Chlebicki, by and through their attorney, LISA MADIGAN, Illinois Attorney General, and in their Memorandum of Law in Support of their Motion for Summary Judgment state as follows:
I. INTRODUCTION
Plaintiffs John McGee and Thomas Malone bring this complaint against IDOT, John Kos, Dennis Mahoney and Kenneth Chlebicki, alleging race discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1984, as amended, 42 U.S.C. §2000e et seq., (“Title VII”), 42 U.S.C. §1981 and 42 U.S.C. §1983 (Local Rule 56.1(a) Statement of Facts (“D. 56.1”), at 1). Plaintiffs claim they were discriminated against in violation of Title VII by IDOT, and that IDOT retaliated against them in violation of Title VII as a result of their involvement in the Massie v. IDOT consent decree, their resulting promotions, and their complaints of harassment. (D. 56.1 at 1). Plaintiffs further claim that the individual Defendants (Kos, Mahoney and Chlebicki) are liable for the same conduct under 42 U.S.C. §1981 and 1983.[FN1] (D. 56.1 at 1).

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FN1. It should be noted that Plaintiffs do not claim what constitutional right has been violated in their §1983 claim. However, based on representations of Plaintiffs' counsel, Defendants construe the §1983 claim as based on an Equal Protection violation. Plaintiff Malone's allegations of retaliation and discrimination include:
1. being given less desirable work assignments, although Plaintiff Malone makes no allegation that any of his assignments were not within his job duties (D. 56.1 at 189-192),
2. being ordered, on one occasion, to shovel snow by hand while an “acting” HCEO used a snowblower (D. 56.1 at 104),
3. being blamed for damage to equipment, although Plaintiff admits to causing the damage and that he never received any discipline for any of these incidents (D. 56.1 at 124, 127, 129, 137, 146, 150, 151, 158, 165, 169, 171),
4. being written up for damage to equipment in an untimely manner, although no discipline resulted from the Report of Rule Infraction (D. 56.1 at 158, 167, 169),
5. being monitored and criticized by the Yard Technician, Defendant Mahoney (D. 56.1 at 185, 200),
6. failure of the Technician to post the Temporary Assignment Rotation sign-up sheet, although Malone was able to sign up after filing a grievance (D. 56.1 at 216, 221) and
7. an allegation that Mr. Mahoney used a racial slur against him outside of his presence, which was told to Malone by another employee (D. 56.1 at 178, 179).
Plaintiff McGee's allegations of retaliation and discrimination include:
1. not being introduced to the yard employees and not given his own work space and facilities upon his arrival, although an office was later created for him (D. 56.1 at 268, 274, 281),
2. having his work checked by the Lead Lead Worker, John Petrie (D. 56.1 at 295),
3. not being given the opportunity to “Plan and Supervise” as part of his job (D. 56.1 at 300),
4. being asked to tow a port-a-potty behind his truck due to his crew's excessive restroom breaks which led to a confrontation with the Technician, Mr. Chlebicki (D. 56.1 at 304, 306),
5. being accused of “poor public image” for allowing a crew member to lie down in his truck while on a job site, although no discipline was issued as a result of this incident (D. 56.1 at 322, 326, 332),

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6. being taunted by a temporary employee who was fired for his actions (D. 56.1 at 338, 347, 350),
7. being blamed for damaging a saw (D. 56.1 at 359),
8. having the Yard Technician change a lane closure that McGee set up (D. 56.1 at 365),
9. on two occasions, not initially being given sufficient equipment for his assignment (D. 56.1 at 373, 379),
10. on one occasion, being told not to come into the yard to pick up additional equipment after he had already left the yard with his crew (D. 56.1 at 381-383),
11. that his crew members were written up for incidents for which other employees would not have received write-ups (D. 56.1 at 387),
12. being assigned a crew of temporary employees (snowbirds) during snow and ice season (D. 56.1 at 398), and
13. other miscellaneous issues with his crew and co-workers (D. 56.1 at 402, 406).
Defendants will prove in this Memorandum and its Statement of Facts that the complaints of the Plaintiffs in this action do not amount to discrimination, harassment or retaliation.
Defendants move for summary judgment on the grounds that:
1. There is no direct evidence of discrimination or retaliation;
2. Plaintiffs cannot establish a prima facie case of discrimination or retaliation as neither Plaintiff suffered an adverse employment action, Mr. McGee was not meeting his employers expectations, neither Plaintiff can show that he was treated less favorably than similarly situated non-minority employees, and Defendants had legitimate non-discriminatory and non-retaliatory reasons for their actions which Plaintiff cannot show were pretexts for harassment or retaliation;
3. Plaintiffs cannot demonstrate that they were subjected to a hostile work environment, as there was no severe or pervasive harassment which rendered the environment “hellish;”
4. Plaintiffs cannot establish a prima facie case against Defendants Kos, Mahoney or Chlebicki under either §1981 or §1983, which require the same burden for Plaintiffs as the Title VII claims, including demonstrating that the Defendants intentionally discriminated against Plaintiffs;
5. Defendant Kos did not have the requisite personal involvement required under Section 1983 to be held liable for damages; and

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6. Defendants Kos, Mahoney and Chlebicki are entitled to qualified immunity from damages in this action as their conduct was objectively reasonable and did not violate clearly established constitutional rights.
II. FACTUAL BACKGROUND
As its factual background, in the interests of judicial economy Defendants incorporate by reference their Local 56.1 (a) Statement of Uncontested Facts which is filed with this Motion and Memorandum.
III. STANDARD OF REVIEW
Summary judgment is appropriate pursuant to Fed. R. Civ. Proc. 56 if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. Proc. 56(c). The moving party has the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In ruling on the motion, the court will not resolve factual disputes or weigh conflicting evidence. Sweet v. Peabody Coal Co., 94 F.3d 301, 304 (7th Cir. 1996). The evidence is considered in the light most favorable to the nonmovant and all legitimate inferences are drawn in favor of the nonmovant. See Dey v. Colt Construction & Development Co., 28 F.3d 1446, 1453 (7th Cir. 1994). The nonmovant, however, “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Electric Industrial Co., v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The nonmovant must produce “specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. Proc. 56(e). Summary judgment must be entered against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322.
III. ARGUMENT
A. TITLE VII CLAIMS AGAINST IDOT
In Counts III and IV of their Complaint, Plaintiffs allege that IDOT violated Title VII by discriminating against Plaintiffs based on their race and by retaliating against them for their involvement, promotions and complaints resulting from the Massie decree.
I. Title VII Discrimination
Title VII forbids an employer from discriminating against an employee based on their race. 42 U.S.C. 2000(e) et seq., (2002) (“Title VII”). However, Title VII “does not guarantee a utopian workplace, or even a pleasant one” Yore v. Indiana Bell Tel. Co., 32 F.3d 1161, 1162 (7th Cir. 1994). Furthermore, not everything

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that makes a Plaintiff unhappy is actionable under Title VII. Smart v. Ball State University, 89 F.3d 437, 441 (7th Cir. 1996). In order to bring a claim under Title VII, Plaintiffs must present a prima facie case that they were the victims of intentional race discrimination either through direct evidence or indirect evidence. Hong v. Children's Memorial Hospital, 993 F.2d 1257, 1261 (7th Cir. 1993).
Direct evidence is evidence which, “if believed by the trier of fact, will prove the particular fact in question without reliance upon inference or presumption.” Randle v. LaSalle Communications, Inc., 876 F.2d 563, 569 (7th Cir. 1989). Such evidence is that which can be interpreted as an acknowledgement of discriminatory intent by the Defendant or its agents. Troupe v. May Dept. Stores, 20 F.3d 734, 736 (7th Cir. 1994). As neither Plaintiff has identified any direct evidence of discrimination, Plaintiffs must proceed under the indirect approach as described in McDonnell Douglas Corp., v. Green, 411 U.S. 792, 802 (1973).
In order to establish a prima facie case of discrimination through indirect evidence, Plaintiffs must establish: (1) they are members of a protected class; (2) they were meeting their employer's legitimate expectations; (3) they suffered an adverse employment action; and (4) other similarly situated employees who were not members of the protected class were treated more favorably. Id. If the Plaintiffs demonstrate a prima facie case, the burden shifts to the Defendants to demonstrate that there was a legitimate, nondiscriminatory reason for its employment decision. Id. The burden then shifts again to Plaintiffs to demonstrate that the reasons put forth by Defendants are pretextual. Id. “Although intermediate evidentiary burdens shift back and forth under this framework, ‘the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.’ ” Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)(quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)).
With respect to the first requirement, it is undisputed that Plaintiffs are both members of a protected class.
With respect to the second requirement, although Plaintiff Malone may have met his employer's legitimate expectations for a new and inexperienced HCEO, Plaintiff McGee has not demonstrated that he met IDOT's expectations of a 20-plus year employee promoted to a Lead Worker position. Although Plaintiff McGee was a longstanding IDOT employee (D. 56.1 at 259), who had in fact, worked in the capacity of “acting” lead worker prior to his promotion (D. 56.1 at 261), his performance as Lead Worker in the Stevenson Yard concerned his superiors, namely his poor attendance record, his inability to handle routine criticism, his inability to properly supervise his crew and his inability to control his anger. (D. 56.1 at 411-422). See Peters v. Renaissance Hotel Operating Co., 307 F.3d 535, 545 (7th Cir. 2000)(finding that the question of whether or not an employee was meeting his

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employers' legitimate expectations involves the employee's performance at the time of the adverse employment action). These concerns were of a serious enough nature that the Area Operations Engineer who oversaw the Stevenson Yard felt that discipline should have been issued to McGee for numerous incidents (D. 56.1 420). McGee, therefore, cannot establish that he was in fact, meeting his employer's legitimate expectations.
Notwithstanding the inability of McGee to satisfy the second prong, both Plaintiffs' claims for discrimination are fatally damaged by their inability to demonstrate that they suffered any adverse employment action. An adverse employment action must have a tangible job consequence. Sweeney v. West, 149 F.3d 550, 556 (7th Cir. 1998). Differences in treatment which have “little or no effect on an employee's job” and changes in the conditions or terms of employment which do not amount to more than “mere inconveniences or alteration of job responsibilities” do not satisfy this requirement. Id. Simply put, there must be a “significant change in employment status such as hiring, firing, failing to promote, reassignment with significantly different responsibilities or a decision causing a significant change in benefits.” Bell v. Environmental Protection Agency, 232 F.3d 546, 555 (7th Cir. 2000). “Not everything that makes an employee unhappy is an actionable adverse action. Otherwise, minor and even trivial employment actions that ‘an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit.’ ” Smart, 89 F.3d at 441 (quoting Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996). Plaintiffs then “must show some quantitative or qualitative change in the terms or conditions of their employment that is more than mere subjective preference.” Johnson v. Cambridge Industries, Inc., 325 F.3d 892, 901 (7th Cir. 2003).
The present case bears striking similarity to another suit against IDOT, in which the District Court for the Northern District of Illinois found that the Plaintiff had not suffered an adverse employment action.[FN2] In Grana v. IDOT, 232 F.Supp.2d 879 (N.D.Ill. 2002),the Plaintiff claimed he received less desirable assignments than his co-workers, that his supervisors did not make casual talk with him, that, on occasion, he was not given 15 minutes at the end of the work day to wash up, that his supervisor slammed a door in his face, and that after he filed his suit against IDOT and two of its yard supervisors, he was told by one supervisor that “he hoped [Plaintiff] had a good lawyer,” and by another supervisor that the supervisor “would own [Plaintiffs] home.” Id. With respect to Grana's complaints about his work assignments, the Court found that the only consequence the Plaintiff “seemed to have suffered is disliking and resenting the duties he was assigned to do, which is insufficient to amount to a ‘tangible job consequence.’ ” Id. at 887. With respect to the claims of harassment by the supervisors, failing to make casual talk, and the statements referencing Grana's lawsuit, the court found that the supervisor's behavior and statements did not amount to an adverse employment action, stating that “Grana may not enjoy his current situation, but a less-than-desirable rapport with his supervisors does not consti-

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tute an adverse employment action.” Id. at 887.
FN2. Grana claimed a violation of Title VII for retaliation, rather than discrimination. However, the analysis of what constituted an “adverse employment action” is generally the same as in discrimination cases. (cite...)
Plaintiff Malone's claims that he was given undesirable work assignments, was monitored by the Yard Technician Dennis Mahoney, was required to shovel show by hand, was initially unable to sign up for the Temporary Assignment Rotation List as well as his other claims simply do not demonstrate that he suffered any “tangible job consequence.” Malone was never asked or required to perform tasks which were outside his duties as HCEO. (D. 56.1 at 192). Malone was also able to sign up on the Rotation List when his grievance was granted, and did in fact, act as “Acting Lead Worker” while he was assigned to the Kennedy Yard. (D. 56.1 at 212, 221). The record further reflects that at no time was Malone disciplined in any way for damage to equipment that he admittedly caused (D. 56.1 at 225, 226), and the only Report of Rule Infraction which was ever issued to Malone was rescinded, did not result in any discipline, and was not recorded in Malone's Personnel file. (D. 56.1 at 169, 226). Likewise, his allegation of being checked-up and criticized by Yard Technician Mahoney cannot be deemed an adverse employment action, as it was part of Mahoney's job responsibility to monitor the crews to ensure that assignments were being completed and that safety procedures were being followed (D. 56.1 at 188, 201, 211).
McGee's claims also do not demonstrate that he suffered an adverse employment action. Most of McGee's claims point to nothing more than a personality conflict between McGee and Chlebicki and other yard employees. Like Malone, McGee was never disciplined for any of his shortcomings including the incident when his hostility forced Chlebicki to flee the Yard and go to the McCook police station out of fear for his safety (D. 56.1 at 310, 311, 317, 421) Furthermore, McGee was never required to perform a task that was outside his job description (D. 56.1. at 449). Even if the Court were to find that the criticisms of Plaintiff's performance (for allowing a crew member to lie down on the job, the port-a-potty confrontation with Chlebicki, and the other various performance-based criticisms were unwarranted, it is well established that unfair reprimands, without tangible job consequence, do not constitute adverse employment actions. Sweeney v. West, 149 F.3d 550, 556-57 (7th Cir. 1998). The fact that McGee had a less than desirable rapport with his Technician and co-workers does not amount to an adverse employment action. See Grana, 232 F.Supp. at 887, Parkins v. Civil Constructors of Ill., 163 F.3d 1027, 1039 (7th Cir. 1998) (employee who was shunned and ostracized by co-workers did not establish an adverse employment action).
To the extent Plaintiffs claim that they were harassed to such a degree as to constitute an adverse employment action, Plaintiffs still have not met their burden. As demonstrated in the following section regarding a Title VII claim for hostile work environment (infra, Section A(III)), the conduct complained of by Plaintiffs

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simply falls short of that required to be actionable under Title VII.
Neither Plaintiff has demonstrated that they were disciplined, transferred, demoted, suffered changes in their job duties or lost wages or benefits. Therefore, as neither Plaintiff can satisfy their burden in demonstrating that they suffered an adverse employment action, IDOT is entitled to summary judgment on Plaintiffs' Title VII discrimination claim.
Just as Plaintiffs have failed to meet their burden with respect to the third factor of the McDonnell Douglas test, Plaintiffs also cannot satisfy the third prong: demonstrating that similarly situated employees who were not African-American were treated more favorably. McDonnell Douglas, 411 U.S. at 804. Similarly situated refers to other employees who were “directly comparable to [[Plaintiff] in all material respects.” Patterson v. Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir.2002). The Court considers whether the employees (i) held the same job description, (ii) were subject to the same standards, (iii) were subordinate to the same supervisor, and (iv) had comparable experience, education, and other qualifications. Id. Here, neither Plaintiff has been able to identify a similarly situated employee who was treated more favorably than the Plaintiffs.
In Plaintiff Malone's case, other employees, including non-minorities had to shovel snow by hand on this same occasion. (D. 56.1 at 105). As Malone was never disciplined for any damage to equipment that he caused, there is no need to compare the discipline issued to other employees for similar incidents (the record further reflects that other non-minority employees have been disciplined for similar incidents, thereby leading to the conclusion that Malone was treated more favorably than similarly situated employees with respect to incidents of equipment damage. (D. 56.1 at 124, 131, 137, 150, 151, 158, 170, 171, 225, 226). In terms of any claim that John Gabor, the other HCEO in the Kennedy Yard received better assignments than Malone(D. 56.1 at 189), Gabor is in no way similarly situated to Malone. Gabor has been an HCEO in the Kennedy Yard since 1975 (D. 56.1 at 103), and is far more experienced that Malone, who had only acted as HCEO for a twomonth period more than three years before his promotion (D. 56.1 at 90, 93). Therefore, any comparison between Gabor's assignments and Malone's cannot demonstrate that Gabor was treated more favorably than Malone. Finally, with respect to any claimed harassing treatment of Malone by Defendant Mahoney, Malone himself denied feeling harassed or treated differently than non-minority employees when questioned by the IDOT Civil Rights Committee. (D. 56.1 at 252). In any event, Malone's claims that Mahoney treated other non-African-American employees badly, seriously undermines any claim that Mahoney treated minorities less favorably than non-minority employees.
In McGee's case, there is no other Lead Worker at the Stevenson Yard. Therefore, as the other Lead Workers at other yards report to different Yard Technicians (D. 56.1 at 13), and have different job duties due to the varying responsibilities of the maintenance yards (D. 56.1 at 10, 13), there are no valid comparable employees

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with whom to compare McGee's assignments. Furthermore, there is no need to compare discipline of other employees as McGee was not disciplined for any of the incidents he complains of, and in fact seems to have been treated more favorably than a comparable employee who certainly would have been disciplined for insubordination which resulted in a Technician fleeing the yard in fear for his safety (D. 56.1 at 310, 311, 318, 322, 329, 332). McGee has also failed to demonstrate that LLW Petrie checked up on him (which was part of Petrie's job duty as the Lead Lead Worker) more than other employees, as other white employees confirmed that Petrie would routinely check on them, sometimes three or four times per day (D. 56.1 at 299). Regarding McGee's complaint of being verbally criticized for poor public image after allowing an ill crew member to lie down on the job, not only did the conduct not result in any discipline, other IDOT employees have been disciplined for lying down or sitting in a truck while on the job (D. 56.1 at 329, 332). Likewise, with respect to McGee's various complaints regarding Chlebicki's treatment of him, McGee is unable to satisfy his burden in demonstrating that Chlebicki treated previous non-minority Lead Workers differently than he treated McGee. In fact, McGee seems to claim that Chlebicki treated everyone badly, which would certainly not satisfy the third prong of the McDonnell test.
As Plaintiffs have thus failed to satisfy their burden, the Court need not determine whether IDOT had legitimate nondiscriminatory reasons for the alleged actions (especially in light of the fact that Plaintiffs' did not suffer any adverse employment action), or whether those reasons are pretextual. See Haywood v. Lucent Technologies, Inc., 323 F.3d 524, 531 (7th Cir. 2003).
However, even if this Court were to determine that further analysis is warranted, Plaintiffs would still fail in their burden. In order to sufficiently demonstrate that all of the reasons for the decisions regarding Plaintiffs were pretextual, Plaintiffs must show that these reasons (1) have no basis in fact; (2) that the proffered facts did not actually motivate the adverse action; or (3) that the facts were insufficient to motivate the adverse action. Collier v. Budd Co., 66 F.3d 886, 892 (7th Cir. 1995. See also Ghosh v. Indiana Dept. of Environmental Mgmt., 192 F.3d 1087, 1091 (“Pretext is established if the plaintiff can show that the defendant's proffered reasons are either lies or completely lacking in factual basis.”). Furthermore, the court does not take the position of a “super-personnel department that reexamines an entity's business decisions.” Dale v. Chicago Tribune Co., 797 F.2d 458, 464 (7th Cir. 1986), cert. den. 479 U.S. 1066, 107 S.Ct. 954, 93 L.Ed.2d 1002 (1987). “If at least one reason remains unquestioned which, standing alone, would have caused [the employer] to take the challenged action, then summary judgment is proper.” Sample v. Aldi Inc., 61 F.3d 544, 549 (7th Cir. 1995).
As demonstrated in Defendant's 56.1 Statement of Facts, incorporated in the “Background” section of this Memorandum, all of the matters complained of by Plaintiffs are routine operational matters that have legitimate, nondiscriminatory reasons. For example, with respect to Plaintiff Malone, it is ad-

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mitted that he was one of the employees required to shovel snow by hand during a large snowstorm in which the reversible lane gates of the expressway were inundated with snow (D.56.1 at 104, 105). Requiring an HCEO with no snowblower experience to shovel snow by hand while experienced personnel operate the snowblowers is an operational decision that is both legitimate and non-discriminatory. Likewise, any day-to-day decisions regarding equipment use which resulted in the experienced HCEO using equipment while Malone performed other tasks is a decision which is based on the needs of the yard at the time. It is perfectly legitimate in many situations where time is of the essence to have an experienced person perform a task rather than an inexperienced one. It is absurd to expect that just because Malone was an HCEO that he would never be required to do work that did not require equipment use, especially as these other duties are within his job description. See Grana, 232 F.Supp2d at 887, (finding no discrimination, as Plaintiff not ordered to do any task which was outside of his job description).
Regarding McGee, IDOT has legitimate, non-discriminatory reasons to explain any alleged action. For example, it is considered a violation of the poor public image policy for employees to be lying in trucks on job sites (D. 56.1 at 328). Other employees have been severely disciplined just for sitting in trucks when they should have been working (D. 56.1 at 329). As McGee was a lead worker, and was responsible for his crew, it is legitimate that the issue be discussed with him (D. 56.1 at 58). With respect to the issue of not being able to come into the yard to obtain additional equipment, IDOT's legitimate, non-discriminatory reason is that it is preferable to have the crew leader (Lead Worker) remain with the crew, rather than coming into the yard, especially in situations where another worker could bring the equipment out to the job site (D. 56.1 at 63, 64). Finally, with respect to the “port-a-potty” incident, IDOT has legitimate concerns when a Lead Worker is continually taking employees off of a job site for restroom breaks, as the Lead Worker should be directing and working with his crew, not running a shuttle service.[FN3]
FN3. IDOT does not discuss in this Memorandum every complaint of Plaintiffs and attempt to rebut them with a legitimate non-discriminatory reason, but rather refers the Court to the Defendants' 56.1 Statement of Facts, incorporated in the Background section of this Memorandum.
As Plaintiffs have thus failed to establish a prima facie case for discrimination, Defendants are entitled to summary judgment on Plaintiffs' discrimination claim against IDOT.
II. Title VII Retaliation
To establish a prima facie case for retaliation under Title VII, Plaintiffs may proceed under either a direct or indirect method. Under the direct method, Plaintiffs must demonstrate that (1) they engaged in a protected activity under Title VII; (2) they suffered an adverse employment action; and (3) there was a

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causal link between the two. McDonnell Douglas, 411 U.S. 792, Jones v. Gen. Elec. Info. Servs., 3 F.Supp.2d 910 (N.D.Ill.1998). Plaintiffs may also demonstrate retaliation under a less demanding indirect test which requires Plaintiffs to demonstrate that (1) they engaged in statutorily protected activity; (2) their performance met their employer's legitimate expectations; (3) despite their satisfactory job performance, they suffered an adverse employment action; and (4) they were treated less favorably than similarly situated employees who did not engage in statutorily protected activity. Haywood, 323 F.3d at 531(7th Cir. 2003). As in the discrimination context, the burden then shifts to the Defendant to demonstrate that the reasons for the employment action were legitimate and non-retaliatory, and then shifts back to Plaintiffs to demonstrate that these reasons were pretextual. Id
While their involvement in the Massie case, their subsequent promotions under the Massie decree and their complaints of discrimination and harassment are admittedly protected activity, Plaintiffs have again failed to establish a prima facie case for retaliation under either test.
As in their discrimination claim, under either test, Plaintiffs are required to establish that they suffered an adverse employment action in order to survive summary judgment. Id. Although ‘retaliatory harassment’ could be considered an adverse employment action, see Hennreiter v. Chicago Housing Authority, 315 F.3d 742, 745 (7th Cir. 2002), none of the conduct complained of by Plaintiffs is actionable. As is discussed in the sections below regarding a “hostile work environment” claim, none of the conduct complained of is egregious enough to cause a significant change in Plaintiffs' employment status.
Plaintiffs' allegations of ‘harassing’ behavior of their Yard Technicians and coworkers are “too petty and tepid to constitute a material change in the terms and conditions of [Plaintiffs'] employment.” Stutler v. Illinois Dept. of Corrections, 263 F.3d 698, 704 (7th Cir. 2001)(finding that supervisor's repeated comments that Plaintiff “had to go,” characterizing Plaintiffs behavior in an e-mail to IDOC Director as “bizarre” and requesting the return of her office key not actionable as retaliation under Title VII); Parkins, 163 F.3d at 1039 (finding ostracism without material harm to Plaintiff such as reduced salary, benefits, seniority or responsibilities not adverse employment action in retaliation claim). Malone and McGee's have not demonstrated that they were transferred, demoted, disciplined, suffered any changes in their job duties or loss in wages or benefits. (D. 56.1 at 225, 226, 351, 364, 421, 447, 449) Plaintiffs complaints are more fairly characterized as a “less than desirable rapport” with their Yard Technicians and coworkers, which are not actionable as adverse employment action for a retaliation claim under Title VII. Grana, 232 F.Supp.2d at 887.
Just as in their claim for discrimination, Plaintiffs' failure to demonstrate that they have suffered any adverse action is fatal to their claim of retaliation.

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Notwithstanding that they have failed to satisfy the requirement of an adverse employment action under either the direct or indirect methods, Plaintiffs have also not met the other requirements. Under the direct method, Plaintiffs have failed to establish that any of the conduct they allege to be retaliatory was causally related to any of the protected activity. Under the indirect method, Plaintiffs' claims fail for the reasons set forth in the previous section. Plaintiff McGee is not able to establish that he was meeting his employer's legitimate expectations, and neither Plaintiff can demonstrate that any other employee who did not engage in statutorily protected activity was treated more favorably. As previously demonstrated, if anything can be discerned from the allegations of the Plaintiffs, it is that they were, in fact, treated better than other employees due to their complaints under the Massie decree, as neither Plaintiff was ever disciplined (D.56.1 at 225, 226, 421), even under circumstances where other employees would have received some sort of disciplinary action against them (D. 56.1 at 170, 318, 329).
Plaintiffs are therefore unable to establish a prima facie case, and Defendant IDOT is entitled to summary judgment on Plaintiff's retaliation claim.
III. Hostile Work Environment Discrimination
To be actionable as a hostile work environment, harassment must be of a severity and pervasiveness so as to alter conditions of employment. Gleason v. Meisrow Fin., Inc., 118 F.3d 1134, 1143 (7th Cir. 1997).
In a discrimination context, to establish a prima facie case for a hostile work environment claim, Plaintiffs must demonstrate that: (1) they were subjected to unwelcome harassment; (2) the harassment was based on race; (3) the harassment was so severe or pervasive as to alter the conditions of their environment and create a hostile or abusive environment; and (4) there is a basis for employer liability. Mason v. Southern Illinois Univ. at Carbondale, 233 F.3d 1036, 1043 (7th Cir. 2000). The conditions giving rise to the claim must be both objectively and subjectively hostile and thus render the environment “hostile” or “abusive.” Murray v. Chicago Transit Auth., 252 F.3d 880, 888-89 (7th Cir. 2001). In determining whether a workplace is ‘hostile,’ a court must examine the totality of the circumstances, including the “frequency of the allegedly discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Harris v. Forklift Systems Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed2d 295 (1993). The workplace must be “hellish” to be actionable. Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1013 (7th Cir. 1997).
In determining a basis for liability, the employer is strictly liable if there was sufficient harassment by a supervisor. However, if the harassment was not by a supervisor, the employer is only liable if they were negligent in discovering or remedying the harassment. Baskerville v. Culligan International Co., 50 F.3d 428, 431-32 (7th Cir. 1995); Zimmerman v. Cook County Sheriff's Dept., 96 F.3d 1017,

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1018 (7th Cir. 1996). The various allegations of poor treatment of Plaintiffs do not meet the criteria to establish a hostile work environment claim. While Plaintiffs may believe their working environments were hostile, under an objective standard the conduct complained of simply does not meet the criteria to establish a hostile work environment claim.
Plaintiff Malone complains that he was watched by Defendant Mahoney, that he was given less-desirable work assignments, that he was not able to use certain equipment in one instance, and that he was told by a third person of racially derogatory remark allegedly made by Defendant Mahoney (D. 56.1 at 179). The complaints about over-supervision, work assignments and equipment use are not objectively unreasonable, nor are they objectively hostile. Furthermore, Malone has failed to demonstrate that these incidents were motivated by his race or his affiliation with the Massie consent decree. As previously discussed, Defendant Mahoney was Malone's Yard Technician, and it was within his job duties to oversee the yard employees (D. 56.1 at 35, 201, 211). Likewise, the work assignment and equipment use issues are not objectively unreasonable, as all assignments were within Malone's job description (D. 56.1 at 192). As Malone was a new HCEO with limited experience (D. 56.1 at 90, 93), it is also perfectly reasonable that other, more experienced employees would be utilized in certain situations.
With respect to the alleged racial remark, Malone never personally heard Defendant Mahoney make a derogatory remark against African-Americans (D. 56.1 at 180). Even assuming, in a light most favorable to Plaintiff Malone that these remarks were made, they would still not be actionable. The remarks are not objectively “hostile” as they were made outside of Malone's presence, and as there is no evidence that Malone felt physically threatened or that the remarks had an effect on Malone's performance. See Ngeunjuntr v. Metropolitan Life Ins. Co., 146 F.3d 464, 467 (7th Cir. 1998) and Johnson v. City of Fort Wayne, 91 F.3d 922 n.8 (7th Cir. 1996) (racial slurs used outside the presence of Plaintiff not actionable); Black v. Zaring Homes, Inc., 104 F.3d 822, 826 (6th Cir. 1997)(finding that comments not directed at Plaintiff were merely offensive, rather than objectively hostile); McPhaul v. Board of Commissioners of Madison County, 226 F.3d 558, 567 (7th Cir. 2000) (finding no actionable claim where there was no claim that offensive remarks interfered with Plaintiffs work performance or were physically threatening or humiliating).
Furthermore, any alleged comments, even if taken as true, were not frequent enough to be considered hostile. The Seventh Circuit has held that isolated comments do not establish a hostile working environment. See Schwapp v. Town of Avon, 118 F.3d 106, 110 (2nd Cir. 1997)(finding that “[i]nstead of sporadic racial slurs, there must be a steady barrage of opprobrious racial comments”); Logan v. Kautex Textron North America, 259 F.3d 635, 641 (7th Cir. 2001) (finding that three racially charged comments made directly to an employee by supervisor and co-workers regarding lynching and disgust at interracial relationships did not amount to a hostile work environment) and McPhaul 226 F.3d at 567 (“mere utterance of an ...epithet

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which engenders offensive feelings in an employee is not sufficient to establish a hostile working environment.”).
With respect to McGee's possible claim pursuant to a hostile work environment, it should be noted that McGee has not claimed any racial remarks on the part of Defendant Chlebicki, the Lead Lead Worker John Petrie or any of his co-workers (D. 56.1 at 409). McGee's claims, instead seem to be based on his perceived illtreatment by Chlebicki, which simply does not meet the standard to be a hostile work environment. McGee has not demonstrated that this perceived ill-treatment was based on his race. See Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668 (7th Cir. 1993) (finding that Plaintiff would not have an actionable claim under Title VII if [his supervisor] had not mixed racial comments into his daily routing of race-neutral verbal abuse.”) Id. at 676. Nor has McGee demonstrated that the complained of behavior was objectively sufficiently severe or pervasive as to make his working environment “hellish.” Gleason, 118 F.3d at 1143-1144; Perry, 126 F.3d at 1013.
Furthermore, even if Plaintiffs were able to present sufficient evidence of a hostile work environment, IDOT would not be liable under Title VII in this case. Neither Defendant Chlebicki or Mahoney are supervisory personnel. Where the harasser is not a supervisor, on the theory that employers do not entrust coemployees with “any significant authority with which they might harass a victim,” employers are liable for harassment of one employee by another only when they have been negligent in either discovering or remedying the harassment. Parkins, 163 F.3d 1027, 1032 (7th Cir. 1998). Employers adequately discharge their legal responsibility in the case of harassment of one employee by another if they “take ‘reasonable steps to discover and rectify acts of... harassment.’ ” Id. (quoting Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1013 (7th Cir. 1997)).
“Supervisor” as used in Title VII cases refers to persons who have the authority to hire, fire, demote, promote, transfer or discipline an employee. See Rhodes v. IDOT, 243 F.Supp. 2d 810, 819 (N.D.Ill. 2003). As Yard Technicians, Chlebicki and Mahoney did not have any such authority (D. 56.1 at 41-46). In fact, the Northern District of Illinois has specifically found that IDOT Yard Technicians are not supervisors for the purposes of Title VII. Rhodes, 243 F.Supp.2d at 820. Therefore, as any instances of harassment in this case would be co-worker harassment, Plaintiffs' cannot succeed on a hostile work environment claim, as IDOT was not negligent in either discovering or remedying the alleged harassment. See Parkins, 163 F.2d at 1032.
IDOT took reasonable steps in the present case to discover alleged acts of harassment and rectify the situations if necessary. IDOT fully investigated the numerous claims of each Plaintiff. (D. 56.1 at 243, 429). IDOT also had its own Civil Rights Committee hear each case, and even took the additional step of allowing each Plaintiff to personally give their statements to the Committee. (D. 56.1 at 249, 435). After reviewing the investigation materials and after hearing

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Plaintiffs' statements, the Civil Rights Committee did not find any credible evidence that either Plaintiff was the subject of harassment, discrimination or retaliation (D. 56.1 at 253, 436). Nonetheless, the Committee ordered an expanded investigation into the allegations of racial slurs in the Kennedy Yard, which revealed that the vast majority of employees did not witness or perceive any racial animus in the yard (D. 56.1 at 257).
Throughout this time period, IDOT had both its own Civil Rights Office, responsible for receiving and investigating complaints of harassment, discrimination and retaliation, and continued its ongoing training of the workforce on antidiscrimination policies. Additionally, IDOT required all Yard Technicians, Operations Engineers, LLW, LW and all other union members to attend additional meetings, in which the Massie decree, its' implications, and the Department's policies toward harassment, discrimination and retaliation were discussed. (D. 56.1 at 22)
Although no discipline was issued as a result of the complaints of Plaintiffs, the fact that Plaintiffs disagree with the resolution of their complaints of harassment is not sufficient to demonstrate that IDOT was in any way negligent. The standard is whether IDOT responded with “appropriate remedial action reasonably likely under the circumstances to prevent the conduct from recurring.” Tuttman v. WBBM-TV, Inc. 209 F.3d 1044, 1049 (7th Cir. 2000). As IDOT's investigation found the claims of Plaintiffs' to be unsubstantiated, the remedial measures taken were more than reasonable, and summary judgment is proper in favor of IDOT.
B. SECTION 1981 CLAIMS AGAINST KOS, CHLEBICKI AND MAHONEY
Count I alleges a Section 1981 claim against Defendants Kos, Chlebicki and Mahoney in their individual capacities for discriminating against, harassing and retaliating against the Plaintiffs.
Presently, this District is divided on whether there is an independent cause of action under Section 1981 against state actors. In Jett v. Dallas Independent School Dist., 491 U.S. 701, 735, 109 S.Ct. 2701, 105 L.Ed.2d 598 (1989), the Supreme Court held that a plaintiff may not proceed directly against a state actor under § 1981 for violations of that section but instead must bring such actions under § 1983. It is an unsettled question in this District whether Jett is still controlling. See Tabor v. City of Chicago, 10 F.Supp.2d 988, 991 (N.D.Ill.1998) (Gettleman, J.); Nolen v. City of Chicago, No. 97 C 6608, 1998 WL 111675, at *3-6 (N.D.Ill. March 4.1998) (Plunkett, J.) (declining to recognize a direct cause of action) contrast with Yohannan v. Patla, 971 F.Supp. 323, 327 (N.D.Ill.1997) (Aspen, C.J.); Jackson v. City of Chicago, No. 96 C 3636, 1996 WL 734701, at *8 (N.D.Ill.Dec. 18, 1996) (Castillo, J.); Jefferson v. City of Chicago, No. 97 C 4895, 1999 WL 116223, at *3 (N.D.Ill.Fe.26, 1999) (Williams, J.) (recognizing a direct cause of action).
In the event this Court allows Plaintiffs to proceed under Section 1981, Defend-

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ants Kos, Chlebicki and Mahoney are still entitled to summary judgment. Claims for discrimination, retaliation and harassment brought under Section 1981 are analyzed under the same standards as Title VII claims. Alexander v. Wisconsin Dept. of Health and Family Services, 263 F.3d 673, 681-82 (7th Cir. 2001). However, Section 1981 claims against individuals also require proof of intentional discrimination. Sanghvi v. St. Catherine's Hospital, 258 F.3d 570, 578 (7th Cir. 2001). As the above sections analyzing Plaintiffs' Title VII discrimination and retaliation claims demonstrate, Plaintiffs cannot meet their burden under Title VII. Therefore, the Section 1981 claims must also fail. Furthermore, Plaintiffs have failed to demonstrate that any of the individual Defendants intentionally discriminated, harassed or retaliated against either Plaintiff on the basis of their race or protected activity under the Massie decree. Therefore, Defendants Kos, Chlebicki and Mahoney are entitled to summary judgment in their favor on Count I.
C. SECTION 1983 CLAIMS AGAINST KOS, CHLEBICKI AND MAHONEY
In Count II of the Complaint, Plaintiffs bring a claim against Defendants Kos, Chlebicki and Mahoney for violation of Section 1983.[FN4] As with the Section 1981 claim, a claim of intentional discrimination under the Equal Protection clause requires the same method of proof as a Title VII claim, “with the added burden that the intentional discrimination must have been the ‘but for’ cause of the adverse employment action.” McLaughlin v. Chicago Transit Authority, 263 F.Supp.2d 1130, 1138 (N.D.Ill. 2003).
FN4. Plaintiffs do not identify the Constitutional right alleged to have been violated in their Section 1983 claim, however Defendants assume that it is a violation of their Equal Protection Rights which is asserted, and proceed accordingly.
Adopting by reference the previous section analyzing Plaintiffs' Title VII discrimination[FN5] claim, Plaintiffs' Section 1983 claims fail as McGee has not demonstrated that he was performing to his employer's legitimate expectations, neither Plaintiff has suffered any adverse employment action, and as IDOT and the individual Defendants have legitimate non-discriminatory reasons for all of the conduct complained of by Plaintiffs.
FN5. Plaintiffs may not proceed with a retaliation claim grounded in § 1983 as the retaliation claim may only be brought under Title VII. Gray v. Lacke, 885 F.2d 399 (7th Cir. 1989)
Therefore, Defendants Kos, Chlebicki and Mahoney are entitled to summary judgment on Count II.
Furthermore, Defendant Kos lacks the requisite personal involvement required for liability under §1983. In claims under §1983, a supervisor can be held liable only if he actively condones or facilitates a constitutional violation. Gossmeyer v. McDonald, 128 F.3d 481, 495 (7th Cir. 1997). There is no vicarious liability or

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respondeat superior available in §1983 cases. Id.
In the present case, Defendant Kos did not have any direct contact with Plaintiffs, nor is he alleged to have personal involvement in the day-to-day operations of either the Kennedy or Stevenson maintenance yards (D. 56.1 at 29-31). Furthermore, Kos was not directly involved in the investigation of Plaintiffs' complaints under the Massie decree (D. 56.1 at 33), nor was he a member of the IDOT Civil Rights Committee (D. 56.1 at 34). Defendant Kos was entitled to rely on other divisions of IDOT to carry out these tasks. Pacelli v. DeVito, 972 F.2d 871, 878 (7th Cir. 1992)(head of large bureaucracy not required to know details of every case.). Furthermore, Kos attended the meetings in June and August, 2001, which reinforced IDOT's non-discrimination and non-retaliation policies in connection with the complaints under the Massie decree. Therefore, Plaintiffs cannot demonstrate that Kos acted with deliberate indifference to the Plaintiffs' claims, and he cannot be held liable under §1983. Summary judgment is therefore warranted in his favor on Count II.
D. DEFENDANTS KOS, CHLEBICKI AND MAHONEY ARE ENTITLED TO QUALIFIED IMMUNITY
Government officials are shielded from liability for civil damages so long as their conduct does not violate clearly established constitutional rights of which a reasonable person would have been aware. McDonnell v. Cournia, 990 F.2d 963, 968 (7th Cir. 1993), quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396, S.Ct., L.Ed.)(1982). Determining whether an official's conduct violates clearly established constitutional rights involves a two-step inquiry. Id. at 968. “First, the plaintiff must show that the law was clearly established when the challenged conduct occurred. In this Circuit, we ask ‘whether the law was clear in relation to the specific facts confronting the public official when he or she acted.’ ” Id. quoting Apostol v. Landau, 957 F.2d 339, 341 (7th Cir. 1992). In other words, the unlawfulness of the action must be apparent in light of preexisting law. Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). “Second, we evaluate the objective legal reasonableness of the defendants' conduct. We inquire whether reasonably competent officials would agree on the application of the clearly established right to a given set of facts.' ” Cournia, 990 F.2d at 968, quoting Apostol, 957 F.2d at 341. Qualified immunity allows governmental officials to make mistakes in judgment. See Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991). As the Supreme Court stated in Anderson, “qualified immunity protects all but the plainly incompetent or those who knowingly violate the law.” 483 U.S. at 638.
There is no case law which would indicate that any of the conduct alleged against Defendants Kos, Chlebicki or Mahoney violated the constitutional rights of Plaintiffs. While discrimination, harassment and retaliation are admittedly seen as violation of constitutional rights, as illustrated in the previous sections, the conduct complained of in this case does not rise to that which constitutes impermissible conduct. Likewise, it cannot be said that the conduct of Defendants

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Kos, Chlebicki or Mahoney was not objectively reasonable. Therefore, Defendants Kos, Chlebicki and Mahoney are entitled to qualified immunity in this case and summary judgment is warranted in their favor.
V. CONCLUSION
WHEREFORE, Defendants IDOT, John Kos, Dennis Mahoney and Kenneth Chlebicki respectfully request this Honorable Court grant summary judgment in their favor on all counts.
Appendix not available.
John McGEE and Thomas Malone, Plaintiffs, v. ILLINOIS DEPARTMENT OF TRANSPORTATION, John Kos, Dennis Mahoney and Kenneth Chlebicki, Defendants. 2003 WL 23683994 (N.D.Ill.)
END OF DOCUMENT

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 McGee v. Illinois Dept. of Transp., Not Reported in F.Supp.2d (2004)
2004 WL 726110 Only the Westlaw citation is currently available.
United States District Court, N.D. Illinois, Eastern Division.
John McGEE and Thomas Malone, Plaintiffs, v.
ILLINOIS DEPARTMENT OF TRANSPORTATION, Kenneth S. Chlebicki, Dennis A. Mahoney and John Kos, Defendants.
No. 02 C 0277. | April 1, 2004.
Attorneys and Law Firms
Michael M. Mulder, Jamie S. Franklin, Meites, Mulder, Burger & Mollica, Chicago, IL, for plaintiffs.
Arundathi P. Rao, Meghan O‘Donnell Maine , Illinois Attorney General’s Office, Chicago, IL, for defendants.
Opinion
MEMORANDUM OPINION AND ORDER1
SCHENKIER, Magistrate J.
*1 On February 11, 2004, the Court directed the parties to submit additional briefing on the issue of whether defendant, John Kos, should be granted summary judgment on Counts I and II of plaintiffs’ amended complaint. Count I alleges harassment and retaliation in violation of 42 U.S.C. § 1981, and Count II alleges willful and intentional violation of 42 U.S.C. § 1983 by discrimination and retaliation which deprived plaintiffs of their civil rights. The parties have submitted their papers. After careful review, the Court finds that the defendants’ motion for summary judgment as to Mr. Kos should be granted.
As a preliminary matter, we note that while the plaintiffs have named Mr. Kos as a defendant on their claims in Counts I and II, they have failed to identify whether he is being sued in his individual or official capacity. In cases where a plaintiff seeks injunctive relief from official policies and customs, the Seventh Circuit treats the claim as an official capacity suit, but where the plaintiff alleges the tortious conduct of an individual acting under color of state law, the suit is considered to be against the individual. Miller v. Smith, 220 F.3d 491, 498 (7th Cir.2001). The Eleventh Amendment establishes sovereign immunity for the states and for state officials unless Congress abrogates that immunity. Although Congress has abrogated immunity for Title VII claims, the Section 1981 and 1983 claims are still subject to the Eleventh Amendment bar as to damages against the state or a state official sued in his or her official capacity. Walker v. Board of Regents of the Univ. of Wis., 300 F.Supp.2d 836, 849 (W.D.Wis.2004) (citing cases). While the presence of a damages request by plaintiffs in Counts I and II indicates that the claims against Mr. Kos are directed to him in his individual capacity, those two claims also request injunctive relief, thereby suggesting that he also is sued in his official capacity. Accordingly, we treat the plaintiffs’ claims as seeking to impose liability on Mr. Kos both in his individual and official capacities.
II.
The substantive legal standards governing claims made under Sections 1981 and 1983 are the same as those that govern claims for intentional discrimination under Title VII. Patton v. Indianapolis Public School Bd., 276 F.3d 334, 338 (7th Cir.2002); Malacara v. City of Madison, 224 F.3d 727, 729 (7th Cir.2000). The only difference, and it is relevant in the motion by Mr. Kos, is that Title VII is based on agency principles (thus, a state agency can be sued because Congress has abrogated sovereign immunity under the Eleventh Amendment), whereas Sections 1981 and 1983 are predicated upon fault. Walker, 300 F.Supp.2d at 849. To prove a claim under Section 1981, plaintiffs must show: (1) that they are members of a racial minority; (2) that the defendant intended to discriminate against them on the basis of race; and (3) that the alleged
1

McGee v. Illinois Dept. of Transp., Not Reported in F.Supp.2d (2004)
discrimination concerned an activity protected by the statute. Morris v. Office Max, Inc., 89 F.3d 411, 413 (7th Cir.1996). To establish liability under Section 1983, plaintiffs must prove: (1) that they suffered a harm caused by a constitutional violation; and (2) that the defendant had the requisite level of personal responsibility for the violation. Collins v. City of Harker Heights, 503 U.S. 115, 120, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992). In the case of Mr. Kos, the threshold question is whether plaintiffs have established a genuine issue of material fact on the elements of intent and personal fault.
*2 There can be no reasonable dispute that Mr. Kos has “supervisory status” at IDOT as the District Engineer. But, the evidence submitted on summary judgment shows that Mr. Kos occupied a very indirect and attenuated supervisory position with respect to plaintiffs—at least in a causation chain for determining who, if anyone, had the power to affect the plaintiffs’ employment. The undisputed evidence establishes that there were at least three levels of supervision between Mr. Kos and defendants Chlebicki and Mahoney (who, arguably, directly supervised plaintiffs)(see, e.g., Defs.’ 56.1 St. ¶ 12).
The plaintiffs do not offer facts to show that Mr. Kos directly engaged in the acts of discrimination and retaliation of which they complain—or, that he even knew about those specific acts. Rather, the plaintiffs’ theory seems to be that the general notice Mr. Kos received regarding concerns about compliance with the Massie consent decree was sufficient to put him on notice that plaintiffs were being discriminated against in the ways alleged, and that he is personally at fault for failing to act to remedy the alleged discrimination (Pls.’ Suppl. Mem. at 6–7). The facts offered by plaintiffs to support this theory are insufficient to create a triable issue.
The plaintiffs maintain that Mr. Kos, as District Engineer, is responsible for implementing all IDOT personnel policies, including those dictated by the Massie consent decree (Pl.’s Resp. to Def.’s Facts ¶¶ 32–33). But, the plaintiffs have offered no evidence that Mr. Kos has sole or final responsibility for implementing the Massie decree. In fact, the IDOT memorandum from Kirk Brown (upon which the plaintiffs rely in their response to defendants’ facts ¶¶ 32–33) makes clear that it is the responsibility of all IDOT managers to apply the Massie decree’s mandates “uniformly and consistently” (Pls.’ Ex. 19, IDOT 9221).
The plaintiffs, however, have argued that Mr. Kos was the head of District One, enjoined to comply with the terms of the decree, and could not delegate his duties (Pls.’ Reply at 4). They also argue that even though Mr. Kos personally knew about Massie complaints, he was deliberately indifferent, turned a blind eye, chose to ignore plaintiffs’ complaints, and let all the violations go on with his consent (Id. at 7).2 Conversely, Mr. Kos maintains that he had no personal involvement whatsoever with either the investigation or disciplinary procedures associated with alleged civil rights violations made by IDOT employees (Def.’s Facts ¶ 33). This assertion is supported by unrebutted evidence that the Engineer of Operations, who reviews all disciplinary reports, does not report directly to Mr. Kos; and, neither party alleges that Mr. Kos makes the final determination on disciplinary actions (Def.’s Ex. D; Koss Aff. ¶ 7). In addition, the undisputed facts show that Mr. Kos also does not serve on the Civil Rights Committee (Def.’s 56.1 St. ¶ 34), and has no direct contact with crew members, such as the plaintiffs (e.g., Def.’s 56.1 St. ¶¶ 295–299).
*3 Mr. Kos admittedly received an email from Sandi Brown, an IDOT Civil Rights Specialist, on May 17, 2001 (Pls.’ Ex. 13, email from Brown to multiple recipients, May 17, 2001). Mr. Kos admits that this email contained information related to a number of complaints concerning alleged violations of the Massie decree, and she asked for the help of the recipients (including Mr. Kos) in addressing the problems associated with them (Pls.’ Add’l Facts ¶ 20). Mr. Kos further admits that he took no actions in response to this email (Id. ¶ 29). But (and it is a big “but”), although there is undisputed evidence that, as of May 17, 2001, Mr. Kos personally knew about various Massie complaints, as generally described in Ms. Brown’s email (Defs.’ Ex. D, Kos Aff. ¶¶ 9–11, 21–23, 25–26, 28), there is no evidence that Mr. Kos knew about the plaintiffs’ specific complaints (Defs.’ Ex. D, ¶¶ 37–39), and failed to act regarding them.3 Without personal participation in the discrimination that is the subject of plaintiffs’ alleged complaints, there can be no finding of intent to discriminate against plaintiffs under Section 1981 or personal fault causing the alleged discrimination under Section 1983, and thus no liability. See Rasche v. Village of Beecher, 336 F.3d 588, 596–97 (7th Cir.2003) (§ 1983 actions are “based on personal liability and predicated upon fault; thus, liability does not attach unless the individual defendant caused or participated in a constitutional deprivation”); Morales v. Cadena, 825 F.2d 1095 (7th Cir.1987) (“[l]iability under § 1983 requires that the defendant have participated personally in the constitutional deprivation”); Walker, 300 F.Supp.2d at 849 (“with respect to [§§ 1981 and 1983], plaintiff may seek damages from defendant ... in his personal capacity if she can show that he was personally involved in the illegal decision”).4
For these reasons, the Court will grant summary judgment for Mr. Kos on Counts I and II in both his individual and official capacities. The question of qualified immunity is therefore moot.
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McGee v. Illinois Dept. of Transp., Not Reported in F.Supp.2d (2004)
CONCLUSION IT IS THEREFORE ORDERED that the defendants’ motion for summary judgment with respect to Mr. Kos is granted as to Counts I and II.

Footnotes

1

On May 22, 2002, pursuant to 28 U.S.C. § 636(c), the parties consented to have the case transferred to this Court for all

proceedings, including the entry of final judgment (doc.21, 22). On June 18, 2002, the case was reassigned to this Court (doc. #

23).

2

These arguments sound like a “final policy maker” argument under Section 1983 or a disparate impact case under Section 1981

and Title VII, but the plaintiffs do not make the claim that Mr. Kos was a final policy maker or that plaintiffs suffered a disparate

impact. To prove a claim against Mr. Kos in his official capacity, plaintiffs must show that they were injured by an express policy

or a widespread custom that is so well-settled as to constitute a policy or decision by an individual with final policy making

authority. McCormick v. City of Chi., 230 F.3d 319, 324 (7th Cir.2000); Fairly v. Andrews, 300 F.Supp.2d 660, 667 (N.D.Ill.2004).

But, plaintiffs neither make that argument nor offer evidence to support it.

3

The parties genuinely dispute whether Mr. Kos asked that he be made aware of Massie complaints prior to May 17, 2001 (Pls.’

Add’l Facts ¶ 28; Def.’s Resp. to Add’l Facts ¶ 28; Defs.’ Ex. D, Kos Aff. ¶¶ 9–11, 21–23, 25–26, 28). Because we find that

general notice of Massie complaints is not a sufficient basis upon which a reasonable jury could impose personal liability under

Sections 1981 or 1983, we find that this dispute, although genuine, is not material.

4

The Court previously has held that the Massie consent decree is not the exclusive remedy for independent violations of federal or

state law. See McGee v. Illinois Dep’t of Transp., No. 02 C 0277, 2002 WL 31478261 (N.D.Ill. Nov.5, 2002). The plaintiffs here

seek to impose Section 1981 and 1983 liability on Mr. Kos, not for his actions directed toward these plaintiffs, but for his alleged

failure to enforce the decree. There is, however, a significant difference between the consent decree being one source of remedy for

conduct that might violate both the decree and federal or state law, and the consent decree being the source for asserting a cause of

action for discrimination, harassment, and retaliation (vis-a-vis Mr. Kos), where there would otherwise not be one. The, plaintiffs

cannot use the Massie decree, and any alleged violations of it, to support an independent cause of action against Mr. Kos under

Sections 1981 and 1983.

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 McGee v. Illinois Dept. of Transp., Not Reported in F.Supp.2d (2004)
2004 WL 434210 Only the Westlaw citation is currently available.
United States District Court, N.D. Illinois, Eastern Division.
John MCGEE and Thomas Malone, Plaintiffs, v.
ILLINOIS DEPARTMENT OF TRANSPORTATION, Kenneth Chlebicki, Dennis Mahoney, and John Kos, Defendants.
No. 02 C 0277. | Feb. 12, 2004.
Attorneys and Law Firms
Michael M. Mulder, Jamie S. Franklin, Meites, Mulder, Burger & Mollica, Chicago, IL, for Plaintiffs.
Arundathi P. Rao, Meghan O’Donnell Maine , Illinois Attorney General’s Office, Chicago, IL, for Defendants.
Opinion
MEMORANDUM OPINION AND ORDER
SCHENKIER, Magistrate J.
*1 The defendants in this employment discrimination case, the Illinois Department of Transportation (“IDOT”) and individual defendants Kenneth Chlebicki, Dennis Mahoney, and John Kos, have filed a motion seeking summary judgment on all four counts of the complaint filed by plaintiffs, John McGee and Thomas Malone. In Counts I and II, alleged against IDOT and the individual defendants, (Mr. Kos is a District Engineer, Mr. Mahoney is a Yard Tech at Kennedy, and Mr. Chlebicki is a Yard Tech at Stevenson), plaintiffs assert claims of racial harassment and retaliation in violation of 42 U.S.C. §§ 1981, and 1983. In Counts III and IV, plaintiffs assert violations of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. against IDOT.
On August 28, 2003, this Court, in response to a motion filed by the plaintiffs, under Fed.R.Civ.P. 43(e), directed the parties to submit only Local Rule 56 statements in connection with the motion for summary judgment. Briefing on the motion was deferred until the Court could determine whether the Rule 56 statements disclosed genuine issues of material fact that precluded summary judgment and made briefing unnecessary. These Rule 56 statements have been submitted. In addition, the defendants have filed a motion to strike certain fact statements submitted by the plaintiffs in their Rule 56 .1(b)(3) Statement of Additional Facts; that motion is fully briefed.
After careful review, the Court finds that the defendants’ motion for summary judgment should be denied on all counts as to IDOT, Mr. Chlebicki and Mr. Mahoney. The Court reserves ruling on the motion for summary judgment as to Mr. Kos, pending further briefing. The motion to strike is moot, because genuine issues of material fact exist which preclude summary judgment on all counts of plaintiff’s complaint that are not the subject of the motion to strike.1
II.
We begin with a brief summary of the governing legal standards. Title VII makes it unlawful for an employer “to discriminate against any individual with respect to his [or her] compensation, terms, conditions or privileges of employment because of such individual’s race, color, religion, sex or national origin.” 42 U.S .C. § 2000e–2(a)(1). Section 1981 claims are governed by the same standards as Title VII, 42 U.S.C. § 2000e et seq., and protect individuals against “racial harassment on the job and other forms of discrimination occurring after the formation of a contract.” Harden v. S.C. Johnson & Son Inc.,
1

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167 F.3d 340, 346 (7th Cir.1999). Section 1983 provides a remedy against “any person,” who “under color of law” deprives another of the rights protected by the Constitution. Collins v. City of Harker Heights, 503 U.S. 115, 120, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992). Although the plaintiffs do not specify in their complaint the specific constitutional provision associated with their Section 1983 claim, their cause of action for disparate treatment and creation of a hostile work environment falls within the scope of behavior in violation of the Equal Protection Clause of the Fourteenth Amendment. Williams v. Seniff, 342 F.3d 774, 787–88 (7th Cir.2003). The standards for proving the disparate treatment Title VII violation therefore apply to the plaintiffs’ Section 1983 equal protection claim. If a plaintiff fails to prove a Title VII violation, then any section 1981 and 1983 claims also fail.
II. *2 Because only one genuinely disputed issue of material fact on each claim is necessary to defeat summary judgment, the Court need not set out every genuine dispute in detail. Accordingly, the Court will briefly set forth the elements of a Title VII claim and then outline some (but not all) of the genuinely disputed and material facts that exist regarding those elements for all claims and all defendants, except for Mr. Kos.2
A. To prove a Title VII violation, plaintiffs must first establish a prima facie case for intentional discrimination by proving four elements: (1) they are members of a protected class; (2) they performed their jobs satisfactorily; (3) they suffered adverse employment action; and (4) the defendant treated similarly situated, non-minority employees more favorably. Simpson v. Borg–Warner Automotive, Inc., 196 F.3d 873, 876 (7th Cir.1999). The defendants admit that the plaintiffs can prove the first two elements of the prima facie case, as to plaintiff Malone, and at least the first element as to plaintiff McGee. It is the last two elements (adverse employment action and similarly situated treatment) that are disputed regarding Mr. Malone, and the last three elements (satisfactory job performance, adverse employment action and similarly situated treatment) that are disputed as to Mr. McGee, not only for the Title VII claims in Counts III and IV of the complaint, but also for the “intentional discrimination” element of the Sections 1981 and 1983 claims in Counts I and II, respectively.
B. Regarding IDOT, the plaintiffs identify several genuine issues of material fact. For example, there are genuine disputes regarding whether IDOT complied with the non-retaliation and equal treatment provisions (Defendants’ Rule 56.1 St. “Defs.’ 56.1 St.” ¶¶ 18–22; Pls.’ Rule 56.1 Resp. ¶¶ 18–22; Defs.’ 56.1 St. ¶¶ 442–444). In particular, the plaintiffs claim that IDOT is liable for the harassment by Messrs. Chlebicki and Mahoney because they are alleged “supervisors” of McGee and Mahoney, respectively. Supervisory status, however, is a question of fact as to Chlebicki and Mahoney. Moreover, even if Chlebicki and Mahoney are not supervisors, but are merely co-workers of the plaintiffs, there are still genuinely disputed questions regarding whether IDOT had notice of the alleged discrimination and an opportunity to correct it, but then “failed to exercise reasonable care in doing so.” Mason v. S. Ill. University, 233 F.3d 1036, 1043 & n. 4 (7th Cir.2000).
C. There are also genuine disputes of material fact regarding the specific complaints of each plaintiff. We will begin with Mr. McGee’s allegations.
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1.
Mr. McGee alleges that his working conditions were intolerable, forcing him to retire (a constructive discharge theory). Specifically, Mr. McGee alleges that when he arrived at the Stevenson Yard, he was not given proper resources to do his job; namely, an office, desk or phone, and was not given access to the yard’s computer (Defs.’ 56.1 St. ¶¶ 274–79; Pls.’ Resp. ¶¶ 274–79; Pls.’ Add’l Facts ¶¶ 63–69 (office space); 70 (stickers), 71–73 (email); 74–76 (Yard); Defs.’ Resp. to Add’l Facts ¶¶ 63–69; 70, 71–73; 74–76). The defendants deny that Mr. McGee’s working conditions were harassing or retaliatory (Pls.’ 56.1 Resp. ¶¶ 274–79); they also deny that Mr. McGee’s complaints went unanswered (Pls.’ 56.1 Resp. ¶¶ 280–283). Mr. McGee also alleges retaliation and harassment based on Lead Lead Worker (“LLW”) Petrie’s actions. Mr. McGee alleges that Mr. Petrie would check on his crew more often than others to “intimidate them” because of Mr. McGee’s race (Pls.’ 56.1 Resp. ¶¶ 295–99). The defendants deny that Mr. Petrie was watching the crew for discriminatory reasons, or was doing so under orders from Mr. Chlebicki, the Yard Tech in the Stevenson Yard (Defs.’ 56.1 St. ¶¶ 51–53; Pl.’s Resp. ¶¶ 295–99).
*3 Regarding the issue of intentional discrimination, there are other job duty disputes related to the disparate treatment of Mr. McGee, a Lead Worker (“LW”), by various supervisors (namely, Mr. Chlebicki, the Yard Tech, and Mr. Petrie, the LLW) (Defs.’ 56.1 St. ¶¶ 300–302; ¶¶ 316–18 (port-a-potty incident or “PPI”); Pl .’s 56.1 Resp. ¶¶ 300–02; ¶¶ 316–18(PPI); Defs.’ 56.1 St. ¶¶ 351; Pls.’ 56.1 Resp. ¶ 351 (Krasnow confrontation); Defs.’ 56.1 St. ¶¶ 366–370; Pls.’ Resp. ¶¶ 366–70 (lane closure); Defs.’ 56.1 St. ¶¶ 387–97; ¶¶ 402–05; Pls.’ 56.1 Resp. ¶¶ 387–97; ¶¶ 402–05 (co-worker harassment); ¶¶ 398–401 (snowbirds); Defs.’ 56.1 St. ¶¶ 402–05; Pls.’ 56.1 Resp. ¶¶ 402–05 (lane-blocking incident); Defs.’ 56.1 St. ¶¶ 406–09; Pls.’ 56.1 St. ¶¶ 406–09 (rumors and mistreatment); Defs.’ 56.1 St. ¶¶ 411–12; 416–422; Pls.’ 56.1 Resp. ¶¶ 411–12; ¶¶ 416–422 (McGee’s job performance/Jenkins Review); Pls.’ Add’l Facts ¶¶ 81–84 (Chlebicki harassment); 86–88 (Chlebicki hostility); 105–110 (Janeteas harassment); Defs.’ Resp. to Add’l Facts ¶¶ 81–84; 86–88; 105–110). Finally, there is a genuine dispute about what the duties of an LW are and whether Mr. McGee was performing those duties (Defs.’ 56.1 St. ¶¶ 63–64; Pls.’ 56.1 Resp. ¶ ¶ 63–64).
2.
There are similar genuine disputes of material fact alleged by Mr. Malone. Mr. Malone was promoted to the position of HCEO at the Kennedy Yard in September 2000, under the Massie consent decree (Defs.’ 56.1 St. ¶¶ 94–96). The parties dispute the responsibilities expected of Kennedy Yard employees (Defs.’ 56.1 St. ¶¶ 99–102; Pls.’ 56.1 Resp. ¶¶ 99–102). There are also genuine disputes regarding the terms and conditions of Mr. Malone’s employment, namely, the working conditions; and, these facts go to the issue of intent under Title VII and §§ 1981 and 1983, Defs.’ 56.1 St. ¶¶ 129–134; Pls.’ 56.1 Resp. ¶¶ 129–34) (damage to truck/write up); Defs.’ 56.1 St. ¶¶ 146–55; Pls.’ 56.1 Resp. ¶¶ 146–55 (salt dome damage); Defs.’ 56.1 St. ¶¶ 164–66; Pls .’ 56.1 Resp. ¶ 164–66 (snowblower incident); Defs.’ 56.1 St. ¶¶ 167–69; Pls.’ 56.1 Resp. ¶¶ 167–69 (snowblower damage)). In addition, Mr. Malone alleges acts of disparate treatment by Mr. Mahoney from August through September 2002 (Defs.’ St. 56.1 ¶¶ 183–85; Pls.’ 56.1 Resp. ¶¶ 183–88 (checking up on him); Defs.’ 56.1 St. ¶¶ 189–99; Pls.’ 56.1 Resp. ¶¶ 189–99 (undesirable work assignments); Defs.’ 56.1 St. ¶ 215; Pls.’ 56.1 Resp. ¶ 215 (criticism); Defs.’ 56.1 St. ¶¶ 216–224; Pls.’ 56.1 Resp. ¶¶ 216–224 (rotation list posting); Defs.’ 56.1 St. ¶¶ 225–226 (discipline); Defs.’ 56.1 Facts (racial slurs); Pls.’ 56.1 Resp. ¶¶ 225–26; 257; Pls.’ Add’l Facts ¶¶ 180–84 (lack of HCEO duties); ¶¶ 190–92 (Mahoney disparate treatment); 193–95 (failure to post acting LW list); Defs.’ Resp. to Add’l Facts ¶¶ 180–84; 190–92; 193–95). Finally, the parties dispute Mr. Malone’s allegation that IDOT, as a defendant, discriminated against him with respect to his complaints (Defs.’ 56.1 St. ¶¶ 247–53; Pls.’ 56.1 Resp. ¶¶ 247–53).
IV.
*4 With respect to the individual defendants’ claim of qualified immunity, the Court denies the defendants’ motion for summary judgment. The defendants concede that the constitutional rights at stake were clearly established at the time of the alleged conduct, but they argue that “the conduct complained of in this case does not rise to that which constitutes impermissible conduct” (Defs.’ Mem. at 25). That argument goes to the merits of the substantive claims in the case; it is not a qualified immunity question. See Vidmar v. City of Chicago Board of Education, No. 98 C 0951, 1999 WL 409929, *3–4 and n. 4 (N.D.Ill. June 7, 1999) (court denied motion to stay pending interlocutory appeal of qualified immunity determination; issue whether defendant acted without any racial animus was inappropriate as a qualified immunity defense because such a
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claim is a factual defense on the merits). The determination of qualified immunity is premised on an admission that certain constitutional rights were violated and asks (inter alia ) whether, in spite of the violation, immunity is warranted because the rights were not “clearly established” at the time of the alleged conduct. This is not the defendants’ position; here, the defendants’ position is the exact opposite. Because the facts that must determine whether the defendants conduct rises to the level that “constitutes impermissible conduct” are genuinely in dispute, for the reasons summarized in this opinion, defendants’ motion for summary judgment on the issue of qualified immunity is denied.

CONCLUSION
For the reasons explained above, this Court denies the defendants’ motion for summary judgment (doc. # 40–1) on all counts of plaintiffs’ complaint as to defendants IDOT, Chlebicki and Mahoney. The Court, however, reserves ruling on the defendants’ motion for summary judgment as to Mr. Kos. The Court orders the parties to submit briefs, limited to 10 pages, on the issue of whether Mr. Kos’s motion for summary judgment should be granted. The plaintiff’s brief is due on or before February 22, 2004; Mr. Kos’s brief is due on or before March 5, 2004. In light of this ruling, the defendants’ motion to strike (doc. # 53–1) is moot.

Footnotes

1

On June 18, 2002, pursuant to consent of the parties under 28 U .S.C. § 636(c), the case was reassigned to this Court for all

proceedings, including the entry of final judgment (doc.21–23).

2

The Court finds that further briefing will be necessary on the issue of whether Mr. Kos can be held liable under Section 1981

and/or 1983 for intentionally depriving the plaintiffs of any federally protected rights. It is not clear from the factual record

whether Mr. Kos will have the requisite personal involvement required to be held liable under Section 1983, in particular, and

Section 1981, in general—especially with regard to Mr. Malone.

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 McGee v. Illinois Dept. of Transp., Not Reported in F.Supp.2d (2002)

2002 WL 31478261 Only the Westlaw citation is currently available. United States District Court, N.D. Illinois, Eastern Division.
John MCGEE and Thomas Malone, Plaintiffs, v.
ILLINOIS DEPARTMENT OF TRANSPORTATION, Kenneth S. Chleblcki, Dennis A. Mahoney and John Kos, Defendants.
No. 02 C 0277. | Nov. 5, 2002.

African-American workers promoted pursuant to consent decree in class employment discrimination action sued Illinois Department of Transportation (IDOT) and supervisory employees for race discrimination in violation of Title VII and §§ 1981 and 1983. Defendants moved to dismiss entire complaint on basis of consent decree and alternatively moved to dismiss certain counts as barred by Eleventh Amendment, and counts against individual defendants in their individual and official capacities. The District Court, Schenkier, Magistrate Judge, held that: (1) Eleventh Amendment barred §1981 and § 1983 claims against IDOT; (2) challenged conduct fell within scope of prior consent decree and could be remedied through successful contempt proceeding brought thereunder, but parties did not intend for decree to provide the exclusive remedy for that conduct, nor did that result flow by operation of law; (3) court’s retention of jurisdiction to enforce consent decree was not sufficient, without ongoing contempt proceeding, to create a pending let alone parallel action; and (4) complaint stated §1983 claim against individual defendants.
Motion granted in part and denied in part.

Opinion

MEMORANDUM OPINION AND ORDER1

SCHENKIER, Magistrate J.
*1 The defendants2 have filed a motion to dismiss plaintiffs’3 four count complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Counts I and II assert claims of race discrimination and retaliation against all defendants under 42 U.S.C. §§ 1981 and 1983, respectively. Counts III and IV assert Title VII claims of race discrimination and retaliation against IDOT alone. All defendants have moved under Rule 12(b)(1) to dismiss the entire complaint as a result of the Consent Decree entered by this Court in Massie v. IDOT, 96 C 4830 (“Massie Decree” or “Decree”), under two theories: (1) that the Decree provides the exclusive remedy for the conduct challenged in this complaint, and thus bars this action (Defs.’ Mem. at 6–8); and (2) in the alternative, that the complaint is “duplicative” of the claims that they previously attempted to raise (and still could raise) under the Decree, and thus should be dismissed as a matter of “wise judicial administration” (Defs.’ Mem. at 8).4
Alternatively, the defendants have moved to dismiss certain claims from the case. They have moved to dismiss Counts I and II against IDOT under Rule 12(b)(1), on the ground that these claims are barred by the Eleventh Amendment. The defendants have also moved under Rule 12(b)(6) to dismiss Count II, against defendants Chlebicki, Mahoney and Kos in their individual and official capacities.
For the reasons that follow, the defendants’ motion to dismiss is granted as to the Section 1981 and 1983 claims against IDOT; in all other respects, the motion is denied.

II. We outline the relevant factual and procedural background of the Massie case, and then move to the allegations in plaintiffs’
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complaint.
A.
In 1996, IDOT was sued by a group of African–American workers, on behalf of a class of similarly-situated individuals for race discrimination in violation of Title VII and Sections 1981 and 1983. Massie v. IDOT, 96 C 4830 (N.D.Ill.). In late March 2000, his Court met with the parties to mediate a settlement. After several sessions, a settlement was reached, subject to preliminary and final court approval.
Pursuant to consent of all parties (96 C 4830: doc67–69), the Massie suit was reassigned to this Court on March 30, 2000 (96 C 4830: doc. # 70). Thereafter, the Court gave preliminary approval to the proposed settlement on April 15, 2000 (96 C 4830: doc. # 72). After class notice was sent and comments were considered, on June 12, 2000 the Court gave final approval to the settlement, and entered the Consent Decree that embodied the settlement (96 C 4830: doc. # 79). Because the outcome of the pending motion to dismiss turns in the first instance on an interpretation of the terms of the Decree and its scope, we briefly outline certain relevant provisions below.
By its terms, the Massie Decree has three purposes: to ensure that class members “are afforded equal opportunity for promotions regardless of race and/or color”; to provide “injunctive and monetary relief for class members”; and “[t]o avoid further protracted and costly litigation” (Decree, Section II, at 2). However, in the Decree the parties agreed that neither IDOT nor its employees admitted any of the claims of “wrongdoing or discrimination” alleged in the Massie case (Decree, Section X, Subparts A–C, at 25).
*2 In line with these stated purposes, the Decree provided monetary relief for class members (Decree, Sections VI and VII), as well as injunctive relief (Decree, Section VIII). As part of the injunctive relief, the Decree requires that class members who receive promotions into certain job positions under the procedures in the Decree receive treatment and training equal to that received by other employees who hold those job positions (Decree, Section VIII, Subparts D(10)-D(11), at 17–18). The Decree further contains provisions enjoining the individual defendants, IDOT, its management personnel, agents “and all those in active concert or participation with them” from retaliating against class members because they complained about discrimination; filed charges or lawsuits on that subject; were identified as a plaintiff or possible witness in the Massie case; and asserted rights or received relief under the Decree (Decree, Section VIII, Subpart D(12), at 18).
The Decree also contains a section entitled “Compliance Provisions,” which includes the appointment of a “Civil Rights Monitor” to oversee implementation of the non-monetary relief, to oversee the investigation of complaints about—among other things—“racial and race-based harassment and related retaliation complaints ... concerning any promotions under the decree” and to seek the appropriate remedies for them (Decree, Section IX, Subparts E(1)-(2), at 23). The Decree sets forth a procedure for investigating such complaints; for the Class Monitor and IDOT to resolve the complaint without court action; and in the event that cannot be done, for the Class Monitor to “bring the matter to the Court for resolution” (Decree, Section IX, Subparts E(4)-(6), at 23–24).
The Decree vests in this Court “continued and exclusive jurisdiction over ... enforcement, construction and interpretation of this settlement” (Decree, Section VIII, Subpart C(4), at 30). By its terms, the Decree will remain in effect for three years after it becomes final or when all relief under it is implemented, whichever is later—unless extended by court order (Decree, Section IV, Subparts B(3)-(4), at 6).
B.
On June 15, 2001, the Class Monitor filed a motion for rule to show cause why IDOT and certain other individuals should not be held in contempt for violating the equal treatment, equal training and non-retaliation provisions of the Massie Decree (96 C 4830: doc. # 85). The Class Monitor brought the motion on behalf of the Massie class and four class members in particular—two of whom (Messrs. McGee and Malone) are plaintiffs in this case. The motion recited discrimination, harassment and retaliation that Messrs. McGee and Malone claimed they had experienced (Pls.’ Rule to Show Cause Mtn. ¶ 1–2). The Class Monitor asked for a contempt finding against IDOT and a number of individuals, including the three
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individual defendants in this case. On June 21, 2001, the Court denied plaintiffs’ motion as premature, because the Class Monitor had not yet exhausted all efforts at resolution of the alleged disputes with IDOT’s Civil Rights Committee (96 C 4830: doc. # 86). The Court’s denial of the motion was without prejudice, and the Court ordered the parties to submit a proposed schedule for investigating and attempting to resolve the complaints raised by the Class Monitor. Pursuant to the proposals submitted by the parties, on July 5, 2001 the Court entered a schedule to govern that investigation and conciliation process. After that process was completed, a renewed contempt motion could be filed.
C.
*3 The Class Monitor never filed a renewed contempt motion on behalf of Messrs. McGee or Malone, or any other member of the Massie class. Rather, on January 11, 2002, the lawyers representing the Massie class—one of whom also is the Class Monitor—filed the instant lawsuit. The allegations in this complaint, which we assume as true for purposes of this motion, Lucien v. Preiner, 967 F.2d 1166, 1168 (7th Cir.1992), are as follows.
The plaintiffs allege that pursuant to the Decree, the two plaintiffs in this action were promoted and took part in implementing other aspects of the Decree. Specifically, Mr. McGee was promoted to lead worker on October 5, 2000, while Mr. Malone was promoted to the position of Heavy Construction Equipment Operator (“HCEO”) on September 16, 2000 (Compl.¶¶ 14, 21). Mr. McGee is the only African–American in a supervisory position in the yard and one of only two African–American permanent employees in the yard (Compl.¶ 14). Since the first day of their promotions, both Mr. McGee and Mr. Malone have experienced hostility, harassment, and retaliation from IDOT and Mr. Chlebicki (in the case of Mr. McGee) and IDOT and Mr. Mahoney (in the case of Mr. Malone) (Compl.¶¶ 14, 21).
For example, Mr. McGee alleges he has been treated differently than other lead workers and has been prevented from performing the duties of his position because of his race and his participation in the Massie Decree (Compl.¶ 15). Mr. McGee claims he reported the harassment, discrimination and retaliation to the defendants in writing and on numerous occasions (Compl.¶ 18), with no correction of the problem, but only further incidents of retaliation (Compl. ¶¶ 18–19). Similarly, Mr. Malone alleges that he has been treated differently than other HCEOs and has been prevented from performing the duties of his position because of his race and his participation in the Massie Decree (Com pl.¶¶ 21–22). Mr. Malone alleges he has been subjected to racial slurs (Compl.¶ 26), and that when he reported these complaints in writing and orally, there was no corrective action taken, but instead, he was subjected to further retaliatory and discriminatory actions.
The conduct alleged in the complaint tracks—although in more summary form—the conduct alleged in the motion for rule to show cause. For relief, the plaintiffs here seek certain injunctive relief as well as actual, compensatory and punitive damages; costs and attorneys’ fees; and a jury trial.
III.
[1] [2] We turn now to the arguments made with regard to the pending motion to dismiss. At the threshold, we note that the parties agree on one point: the plaintiffs’ Section 1981 and 1983 claims against IDOT must be dismissed with prejudice because they are barred by the Eleventh Amendment (Defs.’ Mem. at 4–5; Pls.’ Mem. at 5). Under the Eleventh Amendment, a state and its agencies are immune from private suits seeking damages or injunctive relief in federal court unless the state or Congress by express and unequivocal language waives the state’s Eleventh Amendment immunity. Kroll v. Board of Trustees Univ. of Ill., 934 F.2d 904, 907 (7th Cir.1991). IDOT is a state agency of Illinois, and it is protected by the Eleventh Amendment insofar as the state of Illinois is protected. Illinois has not waived its Eleventh Amendment immunity. 745 ILL. COMP. STAT.. 5/1 (1996). And, Congress has not expressly conveyed an unequivocal intent to abrogate the state’s immunity under Sections 1981 and 1983. Perkins v. Board of Trustees of University of Ill., 1996 WL 308292, at *1 (N.D.Ill.1996) (Section 1981); Rodenbeck v. State of Ind., Leaking Underground Storage Tank Div. of Dept. of Environ. Mgmt., 742 F.Supp. 1442, 1445 (N.D.Ind.1990) (Section 1983). Moreover, states and state agencies that have not waived immunity are not subject to private lawsuits for money damages. Alabama v. Pugh, 438 U.S. 781, 782, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978); Gleason v. Bd. of Educ., 792 F.2d 76, 79 (7th Cir.1986). Consequently, the Court will dismiss plaintiffs’ Section 1981 and 1983 claims against IDOT with prejudice.
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McGee v. Illinois Dept. of Transp., Not Reported in F.Supp.2d (2002)
*4 [3] Of course, plaintiffs’ Sections 1981 and 1983 claims against the individual defendants in their individual capacities are not barred by the Eleventh Amendment. “Personal-capacity suits raise no Eleventh Amendment issues even though an official might have the requisite nexus to the state in order for his or her actions to be labeled state action.” Kroll, 934 F.2d at 907. Furthermore, the plaintiffs may not be barred by the Eleventh Amendment against maintaining actions against the individual defendants in their official capacities for prospective relief (“i.e., an injunction, or declaratory judgment and monetary damages that are ‘ancillary’ to either.”). Id. at 908. Thus, we now consider in turn the other arguments raised by the defendants: (a) that the complaint should be dismissed in its entirety because plaintiffs must proceed, if at all, under the Decree; and (b) that in any event, the Section 1981 and 1983 claims fail to state a claim for relief.
IV.
The defendants’ primary argument is that the plaintiffs’ entire complaint should be dismissed because the claims fall within the scope of the Massie Decree and are therefore subject only to the remedy of contempt for violation of the Decree (Defs.’ Mem. at 6–7; Defs.’ Reply at 2–5). The defendants’ consent decree argument is based on two separate theories. The first theory is that the Decree provides the exclusive remedy for any matters falling within its purview, and thus bars this lawsuit. To support this proposition, the defendants rely on United States v. City of Northlake, 942 F.2d 1164, 1167–68 (7th Cir.1991). Defendants’ second theory is that the plaintiffs’ new complaint is barred because it is “duplicative” of the claims raised in the earlier motion for rule to show cause. For this argument, the defendants rely principally on Serlin v. Arthur Andersen & Co., 3 F.3d 221 (7th Cir.1993). For the reasons set forth below, we do not find either argument persuasive.
A.
[4] An essential prerequisite to defendants’ argument is that the conduct challenged in this lawsuit is conduct that fall within the scope of the Decree, and thus could be remedied through a successful contempt proceeding brought under the Decree. The plaintiffs do not contend that this prerequisite is not met—and could not credibly do so. The allegations of discrimination, harassment and retaliation set forth in the compliant parallel those that were alleged on behalf of Mr. McGee and Mr. Malone in the motion for rule to show cause filed in June 2001, and are within the scope of the Decree’s requirements of equal treatment, equal training, and non-retaliation. The Court previously dismissed the motion for rule to show cause not because the alleged conduct fell outside the scope of the decree, but because the Court found the motion premature prior to completion of the investigation and conciliation process set forth in the Decree. Thus, the Court concludes that the conduct challenged in this complaint falls within the scope of the Massie Decree.
*5 However, while this is an essential prerequisite to defendants’ argument, it is not the sole prerequisite. Defendants must show that the Decree not only provides a remedy for the conduct alleged in this complaint, but that it provides the exclusive remedy for that challenge. In order to establish this point, the defendants must show that the Decree provides the exclusive remedy either because that is what the parties intended, or because that is what the law requires. For the reasons set forth below, the defendants have failed to establish either of these points.
1.
[5] [6] In determining what the parties to the Decree intended, the Court is mindful that a judicially-approved consent decree, like a settlement agreement, is essentially a contract for purposes of construction. United States v. City of Northlake, 942 F.2d 1164, 1167 (7th Cir.1991). An expression of the parties’ will is the “contractual aspect of a consent decree.” Kasper v. Board of Election Comm’rs, 814 F.2d 332, 338 (7th Cir.1987). Where a dispute arises regarding the scope of the consent decree and a court is presented with the task of interpreting the provisions of a consent decree,” the “fundamental principles of contract interpretation under relevant state law apply” and “the enforcing court will look to the plain language of the written agreement as the best expression of the parties’ intent.” City of Northlake, 942 F.2d at 1167. Where the language of the consent decree is unambiguous, then the inquiry is over. Id. Where the language is ambiguous, “then parol or other extrinsic evidence must be considered in order to reconstruct the intent of the parties at the time they entered into the agreement.” Id.
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McGee v. Illinois Dept. of Transp., Not Reported in F.Supp.2d (2002)
In this case, a close reading of the contractual language in the Massie Decree reveals that there is no language that reflects an intent by the parties to settle claims, or resolve with any finality, issues—legal or factual—other than those contained in the original pleadings of the Massie case. There is also no language that makes the Decree’s remedial provisions the “exclusive remedy” for any future violations that arise under or are related to the subject matter of the Decree (i.e., claims based on race discrimination, harassment and retaliation). Nor is there any language delineating what remedies the Court can provide to the plaintiffs in the event it finds a violation of the Decree.
[7] [8] That is not to suggest that the Court would lack the authority to provide a remedy upon a proper showing that the Decree was violated. The Court’s civil contempt power rests in its inherent authority to enforce compliance with its orders. Jones v. Lincoln Electric Co., 188 F.3d 709, 737 (7th Cir.1999). The Court’s equitable powers in civil contempt cases is broad, Spallone v. United States, 493 U.S. 265, 276, 110 S.Ct. 625, 107 L.Ed.2d 644 (1990), and includes the authority to impose monetary sanctions to compensate the victim of the contemnor’s noncompliance, International Union of United Mine Workers of America, Connolly v. J.T. Ventures, 851 F.2d 930, 932 (7th Cir.1988), or to coerce compliance with a court order. Bagwell, id.; Grove Fresh Distributing, Inc. v. John LaBatt, Ltd. 888 F.Supp. 1427, 1435 (N.D.Ill.1995), affirmed 134 F.3d 374 (7th Cir.1998). In addition, as part of the compensatory relief awarded, the Court may include a grant of attorneys’ fees and costs for preparing and prosecuting a contempt petition. Grove Fresh, 888 F.Supp. at 1436.
*6 [9] That having been said, the Court’s civil contempt authority provides a different panoply of rights and remedies to an allegedly aggrieved person than does filing a separate lawsuit under Title VII, or Sections 1981 or 1983. For example, the plaintiffs’ burden of proof in a civil rights action is generally proof by a preponderance of the evidence, Herman & MacLean v. Huddleston, 459 U.S. 375, 390, 103 S.Ct. 683, 74 L.Ed.2d 548 (1983), whereas a Court may impose civil contempt sanctions only upon proof by clear and convincing evidence. United States v. McDahl, 257 F.3d 694, 699 (7th Cir.2001). A plaintiff in a Title VII, Section 1981 or Section 1983 action has the right to a jury trial on liability and most damage issues (with backpay in a Title VII case remaining a question for the Court). Artis v. Hitachi Zosen Clearing, Inc., 967 F.2d 1132, 1135 (7th Cir.1992) (Title VII); City of Monterey v. Del Monte Dunes at Monterey, Ltd.,, 526 U.S. 687, 708–09, 119 S.Ct. 1624, 143 L.Ed.2d 882 (1999) (Section 1983); Huey v. United Parcel Service, Inc., 165 F.3d 1084, 1085–86 (7th Cir.1999) (Section 1981). By contrast, there is no right to a jury trial on a claim for civil contempt. And the remedies available under the federal civil rights laws and the Court’s civil contempt authority differ in a number of ways, with one significant difference being that punitive damages are available for violations of Title VII, Section 1981 and Section 1983 E.E.O.C. v. Indiana Bell Telephone Co., 256 F.3d 516, 527 (7th Cir.2001) (jury may award punitive damages in a Title VII case); City of New Port v. Fact Concerts, Inc., 453 U.S. 247, 269–70, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981) (general rule prohibiting punitive damages against municipalities is not absolute and such damages may be available against public officials in their individual capacities) (Section 1983); E.E.O.C. v. Foster Wheeler Contractors, Inc., Nos. 98 C 1601, 98 C 3217, 2002 WL 976618, *11 (N.D.Ill., March 28, 2002) (Section 1981); whereas, a court in a civil contempt proceeding may impose sanctions only to redress harm that has been caused or to secure compliance with its orders—and not for punitive reasons. See, e.g., South Suburban Housing Center v. Barry, 186 F.3d 851, 854 (7th Cir.1999); In the matter of Maurice, 73 F.3d 124, 127, 128 (7th Cir.1995); Connolly v. J.T. Ventures, 851 F.2d 930, 933.
These significant differences in the rights, procedures, and remedies available under Title VII, Section 1981, and Section 1983 on the one hand, and the Court’s civil contempt authority on the other hand, fortify the Court in its conclusion that the plaintiffs did not intend to make the Massie Decree their sole exclusive remedy for future alleged misconduct merely by failing to state that it is not. The Court finds that if the parties had intended to make the Decree the sole exclusive remedy, that would have been plainly stated in the Decree. The Court concludes that, as a matter of the intent of the contracting parties, the Decree does not foreclose this lawsuit.
2.
*7 We now consider whether, even though the parties did not intend the Decree to provide the exclusive remedy, that is the result that flows by operation of law. As indicated above, in support of this argument, the defendants rely on language taken from the Northlake decision, which states that “a consent decree’s value lies not in the steps to be taken immediately by the defendant to remedy discrimination, but in the promise that the plaintiff in a case like this one can look to the courts to hold the defendant in contempt for ongoing and future violations.” Northlake, 942 F.2d at 1169 (emphasis added). From this language, the defendants ask us to conclude that a consent decree, by its very nature, operates to preempt the field with respect future violations occurring between the parties that involve the same legal claims covered by the Decree (Defs.’ Reply at 3–4). However, we disagree that the Northlake decision establishes—or supports—that sweeping proposition.
5

McGee v. Illinois Dept. of Transp., Not Reported in F.Supp.2d (2002)
In Northlake, the plaintiff sought to initiate proceedings to enforce a consent decree which prohibited discriminatory hiring practices by the City of Northlake. 942 F.2d at 1165. The district court denied the relief, on the ground that the alleged conduct fell outside the scope of the decree. Thus, the district court held that the plaintiff could raise its claims only by way of a new lawsuit.
On appeal, the Seventh Circuit reversed. The appeals court focused first on the issue of whether the allegations fell within the scope the consent decree, and concluded that they did. Northlake, 942 F.2d at 1168. Having reached that conclusion, the Seventh Circuit found no basis to “make the United States file a new lawsuit to remedy allegedly illegal conduct already embraced by a consent decree,” as that would create a “disincentive to civil rights plaintiffs contemplating whether or not to enter into such a decree.” Id. at 1168. The appeals court further noted that much of a consent decree’s value “lies not in the steps to be taken immediately by the defendant to remedy discrimination, but in the promise that the plaintiff in a case like this one can look to the courts to hold the defendant in contempt for ongoing and future violations.” Id. at 1169. The Seventh Circuit reasoned that “[r]equiring the United States to file a new lawsuit to remedy discrimination already comprehended by the plain language of the consent decree undermines the judiciary’s role in overseeing the proper implementation of the decree and unnecessarily delays, frustrates and prejudices the plaintiff in its efforts to obtain enforcement.” Id.
Northlake thus provides clear governing authority for the proposition that the plaintiffs here could not be forced to proceed with their claims by way of a new lawsuit, if they instead desired to institute a proceeding for civil contempt under the Decree. But it is one thing to say that the plaintiffs cannot be forced to proceed by separate lawsuit, and quite another to claim—as do the defendants—that they are forbidden to do so. We read nothing in Northlake that requires such a result. Allowing the plaintiffs to proceed in this separate lawsuit would not “serve as a disincentive to the civil rights plaintiffs contemplating whether or not to enter into such a decree.” Northlake, 942 F.2d at 1168, because it would allow plaintiffs more (not fewer) potential remedies for future alleged misconduct. To the contrary, the result urged by the defendants could provide the very disincentive to entering into consent decrees that the Northlake court criticized: making a consent decree the exclusive remedy for future misconduct, even if that is not the expressed intent of the parties, might dissuade plaintiffs from entering into consent decrees (and thus losing future litigation rights). Moreover, while the Northlake court noted that a primary value of a consent decree is that it provides a mechanism for plaintiffs to obtain a prompt remedy for future violations by way of a civil contempt proceeding, in this case the plaintiffs have made a conscious decision to forego that benefit and to file instead this separate lawsuit which affords certain rights, procedures and remedies not available in a civil contempt proceeding.
*8 At bottom, we see no reason for the law to weigh in by making the consent decree the exclusive remedy, when the parties to that agreement could have negotiated for that result but did not do so. Accordingly, the Court finds that the Decree does not, by operation of law, bar plaintiffs from pursuing their claims in this separate lawsuit.
B.
[10] The defendants’ alternative theory for dismissing the entire complaint based on the Massie Decree is based on the case of Serlin v. Arthur Andersen & Co., 3 F.3d 221 (7th Cir.1993). The defendants argue that the Massie Decree, and this Court’s continued exercise of jurisdiction to enforce its terms, creates a pending, parallel action to the present complaint that requires dismissal of the new complaint. The plaintiffs argue that the retention of jurisdiction to enforce the Decree is not sufficient, without an ongoing contempt proceeding, to create a pending, let alone a parallel, action (Pls.’ Mem. at 5). We agree with the plaintiffs.
The first question that must be addressed with respect to this theory is whether the exercise of continued jurisdiction over the Massie Decree constitutes a “pending action.” The Court finds that it does not. We recognize that the parties to the Massie Decree are still obligated to adhere to the provisions in the Decree and that this Court retains jurisdiction to ensure compliance with its terms. In this sense, the Massie Decree is “pending.” But, when the Decree was entered as a final order, litigation was effectively terminated. For the Serlin “duplicative litigation” doctrine to apply, the Massie Decree would need to be re-opened by initiation of a contempt motion. Such a motion, as indicated, is not pending.
In addition, the Serlin Court used the term duplicative litigation to describe cases that were proceeding before two different judges at the same time, concerning the same or overlapping subject matters. 3 F.3d at 224. The problem of different judges hearing the same claim does not exist here: the parties successfully had the present complaint transferred to this Court under
6

McGee v. Illinois Dept. of Transp., Not Reported in F.Supp.2d (2002)
the doctrine of relatedness. Moreover, we find it hard to see how the mere existence of the Decree can constitute a duplicative (and parallel) action under Serlin, which defined that as a situation where the “claims, parties, and available relief do not significantly differ between the two actions.” 3 F.3d at 223. There is no pending motion to enforce the Decree, and thus nothing to compare against the claims, parties and relief sought in the pending lawsuit.
Thus, unless and until the plaintiffs seek to bring a contempt action for the conduct raised in this complaint, we fail to see how this lawsuit can be deemed “duplicative” of anything. Consequently, the Court denies defendants’ motion to dismiss Counts I–IV, under Rule 12(b)(1), for lack of subject matter jurisdiction.
V.
We now turn to the defendants’ argument that the Section 1983 claim (Count II) fails to state a claim against individual defendants. “The purpose of a motion to dismiss is to test the sufficiency of the complaint, not to decide the merits” of the lawsuit. Triad Assocs., Inc. v. Chicago Housing Auth., 892 F.2d 583, 586 (7th Cir.1990). In determining the sufficiency of the complaint under the “simplified notice pleading” requirement of Fed.R.Civ.P. 8, dismissal is proper if “it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). For purposes of reviewing the motion, the court must take all the plaintiff’s well-pleaded facts and allegations as true. Lucien v. Preiner, 967 F.2d 1166, 1168 (7th Cir.1992). The Court must also view the plaintiff’s allegations in the light most favorable to the plaintiff, Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); the plaintiff is entitled to all reasonable inferences that can be drawn therefrom. Ellsworth v. Racine, 774 F.2d 182, 184 (7th Cir.1985), cert. denied, 475 U.S. 1047, 106 S.Ct. 1265, 89 L.Ed.2d 574 (1986). “The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Triad Assoc., Inc., 892 F.2d at 586.
*9 Section 1983 authorizes a federal cause of action based upon the deprivation of civil rights guarantees. Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 618, 99 S.Ct. 1905, 60 L.Ed.2d 508, (1979). Because a claim under Section 1983 does not independently provide any substantive rights, a plaintiff must allege the violation of some other constitutional right or congressional or state statute, regulation or ordinance to state a claim under Section 1983. Id. However, only two allegations are necessary to state a cause of action under Section 1983:(1) “the plaintiff must allege that some person has deprived him of a federal right;” and (2) “he must allege that the person who has deprived him of that right acted under color of state or territorial law.” Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980).
[11] The plaintiffs have satisfied this requirement by alleging race discrimination perpetrated by a state agency and its employees. In their complaint, the plaintiffs’ clearly state that upon receiving their promotions they experienced race discrimination, harassment and retaliation because of their race, their participation in the consent decree, and their opposition to the discrimination, harassment, and retaliation that commenced by IDOT officials who were not parties to the Massie lawsuit (Compl.¶¶ 14–22). The plaintiffs’ complaint also expressly states that the defendants intentionally violated Section 1983 by the discrimination and retaliation depriving plaintiffs’ of their rights under state and federal civil rights laws and the United States Constitution (Compl.¶ 41). Further, plaintiffs allege that the individual defendants, as supervisory employees of the State of Illinois, and IDOT, as a state agency of Illinois acted under color of state law (Compl.¶ 41).
The defendants argue that these allegations are insufficient because they fail to give them full and fair notice of the claims and the grounds upon which plaintiffs’ claims rest. But the plaintiffs, are only required to include a short and plain statement of the claim showing that the pleader is entitled to relief under the federal notice pleading standards according to Fed.R.Civ.P. 8(a)(2); no heightened pleading standard applies to Section 1983 cases. Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, et al., 507 U.S. 163, 168, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). See, also Scott v. City of Chicago, 195 F.3d 950, 951 (7th Cir.1999). Under Rule 8(a)(2), a complaint need not set out in detail all of the facts upon which a plaintiff bases his claim. Moreover, in Kyle v. Morton High School, 144 F.3d 448, 454 (7th Cir.1998), the Court of Appeals found that “fair notice” exists when a complaint includes the operative facts upon which the plaintiff bases the claim. See also Bennett v. Schmidt, 153 F.3d at 518, 519 (7th Cir.1998).5
Here, the plaintiffs complain of racial discrimination in employment and expressly state that the discrimination was perpetrated by the defendants under the color of state law. These allegations meet the two requirements necessary to state a claim under § 1983; and, these allegations give the defendants sufficient notice of the claims and grounds upon which plaintiffs’ case is based. Therefore, defendants motion to dismiss Count II, plaintiffs’ Section 1983 claim against the
7

McGee v. Illinois Dept. of Transp., Not Reported in F.Supp.2d (2002) individual defendants in their individual and official capacities, is denied.

CONCLUSION *10 IT IS THEREFORE ORDERED that:
1. The motion to dismiss all claims as barred by the Massie Decree is DENIED. 2. The motion to dismiss Counts I and II against IDOT as barred by the Eleventh Amendment is GRANTED. 3. The motion to dismiss Count II against the individual defendants is DENIED. Thus, Counts I and II survive against the individual defendants in their individual and official capacities; Counts III and IV survive against IDOT.

Footnotes

1

On May 22, 2002, pursuant to 28 U.S.C. § 636(c), the parties consented to have the case transferred to this Court for all

proceedings, including the entry of final judgment (doc.21, 22). On June 18, 2002, the case was reassigned to this Court (doc. #

23).

2

The named defendants are: Kenneth Chlebicki, Yard Technician in the Stevenson Yard (Compl.¶ 8); Dennis Mahoney, Yard

Technician in the Kennedy Yard (Compl.¶ 9); John Kos, District Engineer for District 1 (Compl.¶ 10); and the Illinois Department

of Transportation (“IDOT”) (Compl.¶ 6).

3

The named plaintiffs are: John McGee, Lead Worker in the Stevenson Yard (Compl.¶ 4), and Thomas Malone; Heavy

Construction Equipment Operator in the Kennedy yard (Compl.¶ 5).

4

The defendants have attached to their motion to dismiss the Massie Decree, as well as various documents related to a claim under

the Decree that plaintiffs previously sought to raise (e.g., the motion for rule to show cause filed by plaintiffs, and this Court’s

order denying that motion as premature). As noted by defendants (Defs. Mem. at 8, n. 2), “attaching materials to a motion to

dismiss pursuant to Fed.R.Civ.P. 12(b)(6)” normally “converts the motion to a motion for summary judgment,” under Fed.R.Civ.P.

56. However, the “district court may also take judicial notice of matters of public record without converting a Rule 12(b)(6) motion

into a motion for summary judgment. Henson v. CSC Credit Servs., 29 F.3d 280, 284 (7th Cir.1994).” Henson, however, only

supports the notion that a Rule 12(b)(6) motion may avoid conversion by review of materials outside the pleadings. The defendants

have also moved to dismiss under Rule 12(b)(1). The question, therefore, is whether consideration of the Decree, in conjunction

with the complaint, converts defendants’ motion into one for summary judgment under Rule 56. Although defendants do not finish

off this point with respect to their Rule 12(b)(1) motion, we note that “unlike the strict limitations under [Rule] 12(b)(6) against

considering matters outside the complaint, a Rule 12(b)(1) motion is considered a speaking motion and can include references to

evidence extraneous to the complaint without converting it to a Rule 56 motion.” Wheeler v. Hurdman, 825 F.2d 257, 259 n. 5 (10th

Cir.1987) (internal quotations omitted). See also Crawford v. United States, 796 F.2d 924, 928 (7th Cir.1986) (“the omission ... of a

provision for converting a Rule 12(b)(1) motion into a summary judgment motion ... was not an oversight”).

5

In Bennett, an employment discrimination case, the court held that the plaintiff’s allegation that she was not permitted to interview

for a teaching position because of her race was sufficient notice. Specifically, the Bennett court found that this allegation provided

sufficient notice of the plaintiff’s complaint because it asserted racial discrimination in employment which is “ ‘a claim upon

which relief can be granted,” ’ 153 F.3d at 518–19.

8

 
 McGee v. Illinois Dept. of Transp., Not Reported in F.Supp.2d (2004)
2004 WL 835620 Only the Westlaw citation is currently available.
United States District Court, N.D. Illinois, Eastern Division.
John MCGEE and Thomas Malone, Plaintiffs, v.
ILLINOIS DEPARTMENT OF TRANSPORTATION, Kenneth Chlebicki, Dennis Mahoney, and John Kos, Defendants.
No. 02 C 0277. | April 15, 2004.
Attorneys and Law Firms
Michael M. Mulder, Jamie S. Franklin, Meites, Mulder, Burger & Mollica, Chicago, IL, for Plaintiffs.
Arundathi P. Rao, Meghan O‘Donnell Maine , Illinois Attorney General’s Office, Chicago, IL, for Defendants.
Opinion
MEMORANDUM OPINION AND ORDER
SCHENKIER, Magistrate J.
*1 The plaintiffs, John McGee and Thomas Malone, have filed a motion to reconsider the entry of summary judgment by this Court in favor of defendant, John Kos. Although the motion does not specify the rule under which the motion has been made, we assume it is filed pursuant to Federal Rule of Civil Procedure (“Rule”) 59(e), which requires such a motion to be made within 10 days after entry of the judgment. Although this motion satisfies that procedural standard, it fails to satisfy the substantive standards of Rule 59(e) and is therefore denied.
Whether to grant a motion to reconsider is a matter committed to the sound discretion of the District Court. Caisse Nationale de Credit v. CBI Industries, Inc., 90 F.3d 1264, 1270 (7th Cir.1996). In determining whether to exercise its discretion to grant reconsideration, the Court starts with the proposition that such motions “serve a limited function: to correct manifest errors of law or fact or to present newly discovered evidence.” Publishers Resource, Inc. v. Walker-David Publications, Inc., 762 F.2d 557, 561 (7th Cir.1985)(quoting Keene Corp. v. International Fidelity Insurance Company, 561 F.Supp. 656, 665-66 (N.D.Ill.1982)). A motion to reconsider should only be presented when the law or facts change significantly after the issue is presented to the Court, or the Court has “patently misunderstood a party,” “made a decision outside the adversarial issues presented” to it, or has “made an error not of reasoning but of apprehension.” Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir.1990). Thus, a motion to reconsider is not a vehicle by which a party may seek “to undo its own procedural failures [or] to introduce new evidence or advance arguments that could have and should have been presented to the District Court prior to the judgment.” Moro v. Shell Oil Company, 91 F.3d 872, 876 (7th Cir.1996) (citation omitted); see also Publishers Resource, Inc., 762 F.2d at 561. Nor is a motion to reconsider “at the disposal of parties who want to ‘rehash’ old arguments,” that previously were made and rejected. Young v. Murphy, 161 F.R.D. 61, 62 (N.D.Ill.1995). After careful review, the Court finds that plaintiffs’ motion to reconsider fails to meet the standards of Rule 59(e).
In their summary judgment papers, the plaintiffs made the same argument advanced in the present motion, namely that Mr. Kos was specifically aware of plaintiffs’ Massie complaints, because the record showed that Mr. Kos received and/or knew about “all complaints under the Massie decree that were received by IDOT” (Motion at ¶ 3; Pls.’ Suppl. Mem. Opposing Mot. for Sum. Judg., at 6-7). This argument is an attempt to rehash an old argument previously made and rejected. We do not view that evidence as creating a triable issue on whether Mr. Kos was specifically aware of the plaintiffs’ particular claims made in this case, and intentionally failed to act with respect to those claims. Such personal participation was required to hold Mr. Kos liable in this case under 42 U.S.C. §§ 1981 and 1983. The Court explained that finding in its ruling on the motion for
1

McGee v. Illinois Dept. of Transp., Not Reported in F.Supp.2d (2004) summary judgment. See McGee v. IDOT, No. 02 C 0277, 2004 WL 726110, *2 (N.D.Ill.2004) (general notice about Massie complaints not sufficient to create triable issue on issue of whether Mr. Kos “directly engaged in the acts of discrimination and retaliation” that were subject of plaintiffs’ claims; and, general notice not sufficient to impose personal fault and thus liability on him for “failing to act to remedy alleged discrimination”).
CONCLUSION *2 IT IS THEREFORE ORDERED that plaintiffs’ motion for reconsideration (doc. # 61) be denied.
2

 
 CM/ECF LIVE, Ver 3.1.3 - U.S. District Court, Northern Illinois

3/18/08 2:29 AM

BOBRICK, TERMED
United States District Court Northern District of Illinois - CM/ECF LIVE, Ver 3.1.3 (Chicago)
CIVIL DOCKET FOR CASE #: 1:02-cv-00277

McGee, et al v. IL Dept Trans, et al Assigned to: Hon. Sidney I. Schenkier Demand: $0 Cause: 42:2000e Job Discrimination (Employment)

Date Filed: 01/11/2002 Date Terminated: 10/04/2004 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Plaintiff John McGee

represented by Jamie S. Franklin Meites, Mulder, Mollica & Glink 20 South Clark Street Suite 1500 Chicago, IL 60603 (312) 263-0272 Fax: (312) 263-2942 Email: jsfranklin@mmmglaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Thomas Malone

Michael M. Mulder Meites, Mulder, Mollica & Glink 20 South Clark Street Suite 1500 Chicago, IL 60603 (312) 263-0272 Fax: (312) 263-2942 Email: mmmulder@mmbmlaw.com ATTORNEY TO BE NOTICED
represented by Jamie S. Franklin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael M. Mulder (See above for address) ATTORNEY TO BE NOTICED

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CM/ECF LIVE, Ver 3.1.3 - U.S. District Court, Northern Illinois

3/18/08 2:29 AM

V. Defendant Illinois Department of Transportation
Defendant Kenneth Chlebicki
Defendant Dennis Mahoney

represented by Meghan Maine Illinois Attorney General's Office 100 West Randolph Street 13th Floor Chicago, IL 60601 (312) 814-5165 Email: mmaine@atg.state.il.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Arundathi P. Rao Illinois Attorney General's Office 100 West Randolph Street 13th Floor Chicago, IL 60601 (312)814-3313
represented by Meghan Maine (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Arundathi P. Rao (See above for address)
Ronald Anthony Rascia Illinois Attorney General's Office 100 West Randolph Street 13th Floor Chicago, IL 60601 (312)814-3313 Email: rrascia@atg.state.il.us ATTORNEY TO BE NOTICED
represented by Meghan Maine (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Arundathi P. Rao

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CM/ECF LIVE, Ver 3.1.3 - U.S. District Court, Northern Illinois
Defendant John Kos

3/18/08 2:29 AM
(See above for address)
Ronald Anthony Rascia (See above for address) ATTORNEY TO BE NOTICED
represented by Meghan Maine (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Arundathi P. Rao (See above for address)

Date Filed 01/11/2002
01/11/2002 01/24/2002
02/04/2002 02/04/2002 02/06/2002
02/28/2002
03/06/2002

# Docket Text
1 COMPLAINT; jury demand -Civil cover sheet - Appearance(s) of Michael M. Mulder, Jamie S. Franklin as attorney(s) for plaintiff(s) (Four original and four copies summons(es) issued.) ( Documents: (1-1 through 1-3)) (ntf) Modified on 01/14/2002 (Entered: 01/14/2002)
RECEIPT regarding payment of filing fee paid; on 1/11/02 in the amount of $ 150.00, receipt # 10312997. (ntf) (Entered: 01/14/2002)
2 REFERRAL ORDER of 1/24/02 The case is referred to the Hon. Edward A. Bobrick from the Hon. Paul E. Plunkett for all discovery motion, supervision, settlement conference and to hold status hearings as necessary to advance case to trial. (For further detail see order.) Mailed notice (mw) (Entered: 01/25/2002)
3 ATTORNEY APPEARANCE for defendants by Meghan O'Donnell Maine, Arundathi P. Rao. (mw) (Entered: 02/06/2002)
4 AGREED MOTION by defendant for enlargement of time to answer or otherwise plead to plaintiffs' complaint ; Notice. (mw) (Entered: 02/06/2002)
5 MINUTE ORDER of 2/6/02 by Hon. Paul E. Plunkett : Defendants' agreed motion for enlargement of time to answer or otherwise plead to the complaint, to and including 03/06/02 [4-1], granted. Telephoned notice (mw) (Entered: 02/06/2002)
6 MINUTE ORDER of 2/28/02 by Hon. Edward A. Bobrick : Status hearing set for 03/20/02 at 10:00 a.m. Initial status hearing set before Magistrate Judge Bobrick in Courtroom 1300 for 03/20/02 at 10:00 a.m. The parties are directed to file an initial status report as provided by this order. (See reverse of minute order.) Mailed notice by judge's staff (mw) (Entered: 02/28/2002)
7 MOTION by defendants to stay proceedings (Attachments); Notice. (mw) (Entered: 03/13/2002)

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CM/ECF LIVE, Ver 3.1.3 - U.S. District Court, Northern Illinois

3/18/08 2:29 AM

03/06/2002 03/06/2002 03/12/2002 03/19/2002 03/25/2002 04/10/2002 04/12/2002 04/18/2002 05/10/2002 05/10/2002 05/22/2002
05/22/2002

8 MOTION by defendants to transfer case based on relatedness ; Memorandum of law in support (Attachments); Notice. (mw) (Entered: 03/13/2002)
10 MOTION by defendants to transfer case based on relatedness to Judge Norgle ; Memorandum of law in support (Attachments) Notice. (mw) Modified on 03/25/2002 (Entered: 03/25/2002)
9 MINUTE ORDER of 3/12/02 by Hon. Paul E. Plunkett : Defendants' motion to stay proceedings pending a ruling on defendants' motion for transfer based on relatedness [7-1], granted. Mailed notice (mw) (Entered: 03/13/2002)
SCHEDULE set on 3/19/02 by Hon. Edward A. Bobrick : Status hearing reset from 10:00 3/20/02 to 10:00 4/15/02 . Mailed notice (tmh) (Entered: 03/19/2002)
11 MINUTE ORDER of 3/25/02 by Hon. Charles R. Norgle Sr : Defendants' motion to transfer based on relatedness [10-1], [8-1] granted. Telephoned notice (mw) (Entered: 03/25/2002)
12 JOINT STATUS REPORT by defendants IL Dept Trans, Dennis Mahoney, John Kos (Attachments); Notice. (mw) (Entered: 04/12/2002)
SCHEDULE set on 4/12/02 by Hon. Edward A. Bobrick : Status hearing reset from 10:00 4/15/02 to 10:00 5/14/02 . Mailed notice (tmh) (Entered: 04/12/2002)
SCHEDULE set on 4/18/02 by Hon. Paul E. Plunkett : Status hearing set to 9:30 5/16/02 . Mailed notice (tbk) (Entered: 04/18/2002)
SCHEDULE set on 5/10/02 by Hon. Edward A. Bobrick : Status hearing reset from 10:00 5/14/02 to 10:00 5/22/02 . Mailed notice (tmh) (Entered: 05/10/2002)
14 NOTICE by defendants of motion regarding their motion to transfer based on relatedness (Attachments). (mw) (Entered: 05/22/2002)
13 MINUTE ORDER of 5/22/02 by Hon. Sidney I. Schenkier : Status hearing held and continued to 06/20/02 at 9:00 a.m. Defendants' shall response to the complaint shall be filed on or before 06/19/02. The parties are to conduct a planning conference on or before 06/12/02. A joint report of planning conference shall be filed on or before 06/19/02 th a courtesy copy delivered to chambers, room 1756. Mailed notice by judge's staff (mw) (Entered: 05/22/2002)
15 MINUTE ORDER of 5/22/02 by Hon. Sidney I. Schenkier : Motion hearing held. Defendants motion to transfer based on relatedness is granted. The Court finds that this case is related under the criteria of Local Rule 40.4 to Massie v. IDOT, 96 C 4830, that was before this Court pursuant to consent under 28 USC 636(c). The Massie litigation was resolved under a consent decree over which this Court has retained enforcement jurisdiction. Mailed notice by judge's staff (mw) (Entered: 05/22/2002)

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CM/ECF LIVE, Ver 3.1.3 - U.S. District Court, Northern Illinois

3/18/08 2:29 AM

05/22/2002
05/22/2002 05/22/2002 06/18/2002 06/19/2002 06/20/2002 06/20/2002 06/20/2002
07/18/2002 08/15/2002 08/29/2002 10/21/2002 10/31/2002

16 MINUTE ORDER of 5/22/02 by Hon. Edward A. Bobrick : Status hearing held. This case is related to 96 C 4830 and is in the process of being transferred to Magistrate Judge Schenkier. Consequently, all matters relating to the referral of this action having been resolved, the case is returned to the assigned Judge. Terminating the case referral to Hon. Edward A. Bobrick. Mailed notice by judge's staff (mw) (Entered: 05/22/2002)
21 CONSENT by plaintiffs to exercise of jurisdiction by a United States Magistrate Judge. (mw) (Entered: 06/28/2002)
22 CONSENT by defendants to exercise of jurisdiction by a United States Magistrate Judge. (mw) (Entered: 06/28/2002)
23 REASSIGNMENT ORDER of 6/18/02 This case is reassigned to the Hon. Sidney I. Schenkier from the Hon. Paul E. Plunkett pursuant to local General Rule 13 of the IOP. (For further detail see order.) Mailed notice (mw) (Entered: 06/28/2002)
17 INITIAL STATUS REPORT by defendants (Attachments); Notice. (mw) Modified on 06/20/2002 (Entered: 06/20/2002)
18 MOTION by defendants to dismiss plaintiffs' complaint ; Memorandum in support (Attachments); Notice. (mw) (Entered: 06/20/2002)
19 INITIAL STATUS REPORT by defendants (Attachments); Notice. (mw) (Entered: 06/20/2002)
20 MINUTE ORDER of 6/20/02 by Hon. Sidney I. Schenkier : Status hearing held. The parties shall make Rule 26(a)(1) disclosures by 07/11/02. Plaintiff shall disclose experts and submit Rule 26 reports by 11/18/02. Defenadnts shall disclose experts and submit Rule 26 report by 12/16/02. All discovery shall be completed by 01/31/03. The Court sets the following briefing schedule on defendants' motion to dismiss plaintiffs' complaint [18-1]: plaintiffs' response shall be filed by 07/18/02 and defendants' reply shall be filed by 08/08/02. The Court will rule by mail. Mailed notice by judge's staff (mw) (Entered: 06/20/2002)
24 RESPONSE by plaintiffs to defendants' motion to dismiss plaintiffs' complaint [18-1]; Notice. (mw) (Entered: 07/18/2002)
25 REPLY by defendants in support of their motion to dismiss plaintiffs' complaint [18-1]; Notice. (fce) (Entered: 08/16/2002)
SCHEDULE set on 8/29/02 by Hon. Sidney I. Schenkier : Status hearing held and continued to 9:00 a.m. on 10/24/02. Mailed notice (fce) (Entered: 08/29/2002)
SCHEDULE set on 10/21/02 by Hon. Sidney I. Schenkier : Status hearing reset to 9:00 a.m. on 10/31/02. Mailed & Telephoned notice (fce) (Entered: 10/21/2002)
26 MINUTE ORDER of 10/31/02 by Hon. Sidney I. Schenkier : Status hearing

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CM/ECF LIVE, Ver 3.1.3 - U.S. District Court, Northern Illinois

3/18/08 2:29 AM

11/04/2002 12/10/2002 12/24/2002 12/24/2002 12/24/2002 01/02/2003 01/09/2003
01/09/2003
02/05/2003

held and continued to 12/10/02 at 9:00 a.m. Enter protective order, as modified by the court. The plaintiffs shall disclose experts and submit Rule 26 reports by 12/18/02. The defendants shall disclose experts and submit Rule 26 reports by 01/17/03. All expert discovery shall be completed by 02/28/03. (Entered Protective Order.) Mailed notice (gcy) (Entered: 11/01/2002)
27 MINUTE ORDER of 11/4/02 by Hon. Sidney I. Schenkier: Defendants' motion to dismiss plaintiffs' complaint [18-1], is granted in part and denied in part. Entered Memorandum Opinion and Order. Notices mailed by judge's staff (cdy) (Entered: 11/05/2002)
28 MINUTE ORDER of 12/10/02 by Hon. Sidney I. Schenkier : Status hearing held and continued to 01/23/03 at 9:00 a.m . Defendant is granted leave to file an answer to the complaint by 12/23/02. Mailed notice by judge's staff (gcy) (Entered: 12/11/2002)
29 ANSWER by Kenneth Chlebicki to plaintiff's complaint [1-1]; Notice. (gcy) (Entered: 12/26/2002)
30 ANSWER by Dennis Mahoney to plaintiffs' complaint [1-1]. (gcy) (Entered: 12/26/2002)
31 ANSWER by IL Dept Trans plaintiffs' complaint [1-1]. (gcy) (Entered: 12/26/2002)
32 ANSWER by John Kos to plaintiff's complaint [1-1]; Notice. (gcy) (Entered: 01/03/2003)
SCHEDULE set on 1/9/03 by Hon. Sidney I. Schenkier : Settlement conference set for 1:30 p.m. on 2/11/03, in chambers 1756. The settlement conference will be conducted in accordance with the Court's Standing Order on Instructions for Settlement Conference, which is enclosed. The schedule for exchange of demand and offer is as follows: plaintiff's counsel shall serve on defense counsel a written settlement demand by 01/27/03. Defendant's counsel shall serve on plaintiff's counsel a written settlement offer by 02/05/03. Plaintiff's counsel shall deliver copies of these letters to chambers by noon on 02/06/03. Parties with ultimate settlement authority to be present at the conference. Mailed & Telephoned notice (fce) (Entered: 01/09/2003)
33 MINUTE ORDER of 1/9/03 by Hon. Sidney I. Schenkier: The parties joint request to extend discovery deadlines is granted. The plaintiff shall disclose experts and submit Rule 26 reports by 03/07/03. The defendant shall disclose experts and submit Rule 26 reports by 04/11/03. All discovery ordered closed on 05/30/03. , The 01/23/03 status hearing is stricken. Mailed notice by judge's staff (gcy) (Entered: 01/13/2003)
SCHEDULE set on 2/5/03 by Hon. Sidney I. Schenkier : Settlement conference reset for 1:30 p.m. on 4/1/03, at the parties request. The schedule for exchange of demand and offer is modified as follows: plaintiff's counsel shall serve on defense counsel a written settlement demand by 03/14/03. Defendant's counsel shall serve on plaintiff's counsel a written settlement offer by 03/25/03.

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CM/ECF LIVE, Ver 3.1.3 - U.S. District Court, Northern Illinois

3/18/08 2:29 AM

05/12/2003
07/03/2003 07/10/2003
07/30/2003
08/04/2003 08/06/2003 08/08/2003 08/21/2003 08/28/2003

Plaintiff's counsel shall deliver copies of these letters to chambers by noon on 03/26/03. Parties with ultimate settlement authority to be present at the conference. Mailed & Telephoned notice (fce) (Entered: 02/05/2003)
34 MINUTE ORDER of 5/12/03 by Hon. Sidney I. Schenkier : Telephone status conference held 05/09/03. Settlement conference set for 05/13/03 is stricken. On defendant's oral motion, discovery deadline is extended to 06/17/03 . No further extensions will be allowed. The final pretrial order shall be filed in open court on 07/15/03 at 9:00 a.m. The final pretrial order must be prepared in accordance with the Court's standing order (a copy of which is enclosed.) Mailed notice by judge's staff (gcy) (Entered: 05/13/2003)
35 MOTION by defendant for leave to file a motion for summary judgment ; Notice. (gcy) (Entered: 07/11/2003)
36 MINUTE ORDER of 7/10/03 by Hon. Sidney I. Schenkier : Status hearing reset 08/21/03 at 9:00 a.m. Motion hearing held. Defedants'motion for leave to file a motion for summary judgment is granted [35-1]. Defedants' motion for summary judgment and supporting memorandum shall be filed by 07/31/03. Plaintiff's response shall be filed by 08/21/03. Defendants' reply shall be filed by 09/04/03. The Court will rule by mail. The final pretrial order shall be filed in open court on 08/21/03 at 9:00 a.m. Mailed notice by judge's staff (gcy) (Entered: 07/11/2003)
37 MINUTE ORDER of 7/30/03 by Hon. Sidney I. Schenkier : Status hearing reset to 08/28/03 at 9:00 a.m. Defendants unopposed oral request for an extension of time to file motion for summary judgment is granted. Defendant's motion for summary judgment shall be filed by 08/07/03. Plaintiff's response shall be filed by 08/28/03. Final pretrial order shall be filed in open court on 08/28/03 at 9:00 a.m. Defendant's reply shall be filed by 09/11/03. Telephoned notice (gcy) (Entered: 08/01/2003)
38 MOTION by defendant for leave to file memorandum of law in support of their motion for summary judgment in excess of fifteen pages ; Notice. (gcy) (Entered: 08/07/2003)
39 MINUTE ORDER of 8/6/03 by Hon. Sidney I. Schenkier : Defendant's motion for leave to file memorandum of law in support of their motion for summary judgment in excess of fifteen is granted [38-1]. Plaintiff's response may be 27 pages in length. Defendants' reply may be 20 pages in length. Mailed notice by judge's staff (gcy) (Entered: 08/07/2003)
40 MOTION by defendant for summary judgment (Attachments); Memorandum in support; Rule 56.1 Statement; Notice. (gcy) (Entered: 08/08/2003)
41 MOTION by plaintiff to defer briefing on motion for summary judgment or, alternatively to set a rule 43(e) hearing (Attachments); Notice. (gcy) (Entered: 09/02/2003)
42 MINUTE ORDER of 8/28/03 by Hon. Sidney I. Schenkier : Status hearing held and continued to 11/05/03 at 9:00 a.m. Motion hearing held. Plaintiffs' motion to

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CM/ECF LIVE, Ver 3.1.3 - U.S. District Court, Northern Illinois

3/18/08 2:29 AM

10/01/2003 10/01/2003 10/01/2003 10/01/2003 10/01/2003 10/01/2003 10/01/2003 10/14/2003
11/10/2003 11/13/2003 11/20/2003 11/26/2003
12/22/2003

defer briefing on motion for summary judgment is granted [41-1]. Plaintiff's alternative motion to set a rule 43(e) hearing is denied [41-2]. Plaintiffs' response to fact statements shall be filed by 10/01/03. Defendants' reply shall be filed by 10/22/03. The Court will rule by mail. The final pretrial order is stricken. Mailed notice by judge's staff (gcy) (Entered: 09/02/2003)
43 EXHIBIT LIST by plaintiffs; (3 vols. 1-12, 27-33, 34-44) (gcy) (Entered: 10/10/2003)
44 EXHIBITS LISTS by plaintiff; (2 vols, exh. 12-19 and 45-63 ). (RESTRICTED). (gcy) Modified on 10/15/2003 (Entered: 10/10/2003)
45 AGREED MOTION by parties to file certain exhibits under seal ; Notice. (gcy) (Entered: 10/10/2003)
46 AFFIDAVIT of Jamie Franklin. (gcy) (Entered: 10/10/2003)
47 AFFIDAVIT of Mattie Pool (Attachments). (gcy) (Entered: 10/10/2003)
48 LOCAL RULE 56.1(b)(3)(B) Statement of additional facts by plaintiff (gcy) (Entered: 10/10/2003)
49 RESPONSE by plaintiff to Rule 56.1 statement of facts. (gcy) (Entered: 10/10/2003)
50 MINUTE ORDER of 10/14/03 by Hon. Sidney I. Schenkier : Agreed motion to file certain exhibits under seal is granted. The "Clerk of the Court" is hereby directed to place under seal, exhibits 12,13,14,1,5,18,19 and 45-63, submitted by plaintiffs in opposition to defendants' motion for summary judgment until further order of the court. Mailed notice (gcy) (Entered: 10/15/2003)
53 MOTION by defendants to strike in part plaintiff's response to defendants Local Rule 56.1 statement of uncontested facts and plaintiff's statement of additional facts ; Notice. (gcy) (Entered: 12/01/2003)
51 RESPONSE by defendants to plaintiffs statement of additional facts; Notice. (gcy) (Entered: 11/14/2003)
52 RESPONSE by plaintiff to defendant's motion to strike. (gcy) (Entered: 11/21/2003)
54 MINUTE ORDER of 11/26/03 by Hon. Sidney I. Schenkier : Defendants' motion to strike in part plaintiff's responses to defendants Local Rule 56.1 statement of uncontested facts and plaintiff's statement of additional facts [53-1] is taken under advisement. The plaintiffs' response is due by 12/22/03. If plaintiff intends to file a motion to strike, that motion must be filed by 12/22/03. If necessary , the defendants' response to plaintiffs' motion to strike due by 01/12/04. The Court will notify the parties by minute order of its ruling, or if additional briefing is necessary. Mailed notice (gcy) (Entered: 12/01/2003)
55 RESPONSE by plaintiff to defendants' motion to strike in [53-1]. (gcy) (Entered: 12/23/2003)

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CM/ECF LIVE, Ver 3.1.3 - U.S. District Court, Northern Illinois

3/18/08 2:29 AM

12/31/2003 02/11/2004
02/23/2004 03/05/2004 03/31/2004
04/12/2004 04/15/2004 04/15/2004

56 TRANSCRIPT of proceedings for the following date(s): 08/28/03 Before Honorable Sidney I Schenkier (gcy) (Entered: 01/02/2004)
57 MINUTE ORDER of 2/11/04 by Hon. Sidney I. Schenkier : Entered Memorandum Opinion and Order. For the reasons stated in the attached Memorandum Opinion and Order, this Court denies the defendants' motion for summary judgment is denied [40-1] on all counts of plaintiffs' complaint as to defendants IDOT, Chlebicki and Mahoney. The Court, however, reserves ruling on the defendants' motion for summary judgment as to Mr. Kos. The Court orders the parties to submit briefs, limited to 10 pages, on the issue of whether Mr. Kos' motion for summary judgment should be granted. The plaintiff's brief is due on or before 02/22/04; Mr. Kos's brief is due on or before 03/05/04. In light of this ruling, the defendants' motion to strike [53-1] is moot. Mailed notice by judge's staff (gcy) (Entered: 02/12/2004)
58 SUPPLEMENTAL BRIEF by plaintiff on defendant John Kos' liability (Attachments). (gcy) (Entered: 02/24/2004)
59 REPLY by John Kos in support of his motion for summary judgment [40-1]; Notice. (gcy) (Entered: 03/08/2004)
60 MINUTE ORDER of 3/31/04 by Hon. Sidney I. Schenkier : Status hearing set for 4/15/04 at 9:00 a.m. Entered Memorandum Opinion and Order. The Court grants the motion for defendant John Kos for summary judgment on Counts I and II of the Amended Complaint (doc. # 40-1). The matter is set for a status conference on 4/15/04 at 9:00 a.m. the parties are directed to seriously explore settlement prior to the status conference, and to report to the Court at the status conference on the prospects of settlement. Mailed notice (gcy) (Entered: 04/01/2004)
62 MOTION by plaintiffs for reconsideration (Attachments); Notice. (gcy) (Entered: 04/16/2004)
61 MINUTE ORDER of 4/15/04 by Hon. Sidney I. Schenkier : Entered Memorandum Opinion and Order. For the reasons stated in the attachmed memorandum opinion and order, plaintiff's motion for reconsideration (doc #61) is denied. Mailed notice by judge's staff (gcy) Modified on 04/15/2004 (Entered: 04/15/2004)
63 MINUTE ORDER of 4/15/04 by Hon. Sidney I. Schenkier : Status hearing held and continued to 7/13/03 at 9:00 a.m. Settlement conference is set for 6/1/04 at 1:30 p.m., in chambers 1756. The settlement conference will be conducted in accordance with the Court's Standing Order on Instructions for Settlement Conference. The schedule for exchange of demand and offer set forth in the standing order is as follows: plaintiffs' counsel shall serve on defense counsel a written settlement demand by 4/20/04. Defenants' counsel shall serve on plaintiffs' counsel a written settlement offer by 5/20/04. The parties shall deliver copies of these letters to chambers by close of business on 5/21/04. Parties with ultimate settlement authority must attend the conference. The parties are to submit pretrial order in open court on 7/13/04 at 9:00 a.m. Mailed notice (gcy)

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CM/ECF LIVE, Ver 3.1.3 - U.S. District Court, Northern Illinois

3/18/08 2:29 AM

05/20/2004 05/24/2004 05/26/2004
07/23/2004 07/26/2004 07/26/2004
08/13/2004 08/13/2004 08/18/2004 08/18/2004 08/18/2004

(Entered: 04/16/2004)
65 MOTION by defendants to reschedule settlement conference ; Notice. (gcy) (Entered: 05/27/2004)
64 RESPONSE by plaintiffs to defendants' motion to delay the settlement schedule. (gcy) (Entered: 05/25/2004)
66 MINUTE ORDER of 5/26/04 by Hon. Sidney I. Schenkier : Defendants' motion to reschedule settlement conference and the date for filing the pretrial order is granted. The settlement conference set 6/1/04 is stricken and reset to 7/21/04 at 1:30 p.m. The defendants' settlement offer letter is to be served on the plaintiff by 7/15/04. The plaintiff is to deliver a copy of both letters to chambers by close of business on 7/16/04. The Court defers the completion of the pre-trial order pending the settlement conference. The parties are to file final pre-trial order in open court on 8/10/04 at 9:00 a.m. The jury trial is set for 9/27/04 at 9:00 a.m. Mailed notice (gcy) (Entered: 05/27/2004)
SCHEDULE set on 7/21/04 by Hon. Sidney I. Schenkier : Settlement conference held and continued to 10:30 7/26/04 . Mailed notice (mmm) (Entered: 07/23/2004)
67 MINUTE ORDER of 7/26/04 by Hon. Sidney I. Schenkier : By agreement, the date of filing the final Pretrial order in open court is reset from 8/10/04 to 8/18/04 at 9:00 a.m. Mailed notice (gcy) (Entered: 07/27/2004)
68 MINUTE ORDER of 7/26/04 by Hon. Sidney I. Schenkier : Continued settlement conference held. By the close of business on 7/30/04, each side is to separately inform the court by facsimile (312/554-8677) whether that side accepts the Court's settlement recommendation. The matter is set for a telephone status conference on 8/03/04 at 8:15 a.m. Mailed notice (gcy) (Entered: 07/27/2004)
73 BILL OF COSTS submitted; Declaration of Thomas H. Lawrence in support (Attachments). (gcy) Modified on 08/23/2004 (Entered: 08/23/2004)
73 DECLARATION of Thomas H. Lawrence in support of bill of costs; Bill of costs. (gcy) (Entered: 08/23/2004)
69 MOTION by defendants IL Dept Trans, Kenneth Chlebicki, Dennis Mahoney to sever ; Memorandum of law in support; Notice. (emd) (Entered: 08/19/2004)
70 FINAL PRE-TRIAL ORDER (emd) (Entered: 08/19/2004)
71 MINUTE ORDER of 8/18/04 by Hon. Sidney I. Schenkier : Status hearing held. Pretrial conference set for 9/14/04 at 1:30pm. The parties submit their pretrial order in open court. The defendants submit their motions in-limine to the Court. The plaintiffs are to respond to the motions in-limine by 8/25/04. The defendants are given leave to file their motion for severance of the trial. The plaintiffs' response is due by 8/25/04 [69-1]. The parties are to meet and confer regarding the proposed trial exhibits; to the extent that there are any objections to the

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CM/ECF LIVE, Ver 3.1.3 - U.S. District Court, Northern Illinois

3/18/08 2:29 AM

08/20/2004 08/23/2004 08/23/2004 08/23/2004 08/25/2004 08/25/2004 08/27/2004 08/31/2004
09/09/2004 09/09/2004 09/09/2004 09/17/2004

proposed trial exhibits, the parties are to submit to the Court a list of the exhibits objected to and the reasons for the objections by 9/9/04. The Court will hold in abeyance its ruling on the Clay or Brown transcripts. The parties are to meet and confer regarding which documents the defendant wants to use from the bulk masterfile personnel file exhibit. Mailed notice (emd) (Entered: 08/19/2004)
72 AMENDED EXHIBIT LIST by defendant; Notice. (gcy) Modified on 08/23/2004 (Entered: 08/23/2004)
74 LETTER from plaintiffs' attorney to Judge Schenkier regarding new exhibits. (gcy) (Entered: 08/24/2004)
75 NOTICE by plaintiffs of objections to defendnts' amended exhibit list (Attachments). (gcy) (Entered: 08/24/2004)
76 ATTORNEY APPEARANCE for defendants by Ronald Anthony Rascia. (gcy) (Entered: 08/24/2004)
77 RESPONSE by plaintiffs to defendants' motion to sever [69-1]. (gcy) (Entered: 08/26/2004)
78 OMNIBUS RESPONSE by plaintiffs to defendants' 15 motions in limine (Attachments). (gcy) (Entered: 08/26/2004)
SCHEDULE set on 8/27/04 by Hon. Sidney I. Schenkier : motion inlimine hearing set for 3:30 8/30/04 . Telephone notice (mmm) (Entered: 08/27/2004)
79 MINUTE ORDER of 8/31/04 by Hon. Sidney I. Schenkier : For the reasons stated on the record in open court, defendants' motions in limine nos. 1-2,5,8,1112 and 14-15 are denied; defendants' motions in limine nos. 3 and 13 are granted; and rulings on defendants' motions in limine nos. 4,6-7 and 9-10 are deferred pending further proceedings. (See reverse of minute order.) Mailed notice (gcy) (Entered: 09/01/2004)
80 JOINT PROPOSED Voir Dire Questions; Notice. (gcy) Modified on 09/10/2004 (Entered: 09/10/2004)
81 REVISED EXHIBITS LIST by plaintiffs. (gcy) (Entered: 09/10/2004)
82 NOTICE by defendants of filing its Amended Exhibit List (Attachment). (jmp) (Entered: 09/16/2004)
83 MINUTE ORDER of 9/17/04 by Hon. Sidney I. Schenkier : Status hearing set for 9/21/04 at 9:30 a.m. Continued final pre-trial conference held. The defendants' motion in limine to bar Dr. Sensing as a witness is denied. The Court gives defendants leave to subpoena Dr. Sensing for a deposition. The parties are to meet and confer, and present to the Court joint jury instructions on 9/21/04 at 9:30 a.m. The Court enters its ruling to the parties' objections to the exhibits amd witness lists, and the parties disputes concerning the case statement and voire dire, on ther reverse of the order. Mailed notice by judge's staff (gcy) (Entered: 09/23/2004)

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CM/ECF LIVE, Ver 3.1.3 - U.S. District Court, Northern Illinois

3/18/08 2:29 AM

09/21/2004
09/22/2004 09/24/2004 09/27/2004 09/28/2004 09/29/2004 09/30/2004 10/01/2004 10/04/2004 10/04/2004
10/04/2004

84 MINUTE ORDER of 9/21/04 by Hon. Sidney I. Schenkier : Continued pretrial conference held. The parties tender an agreed list of names to be read to prospective jurors. The parties submit an agreed revised set of stipulations to be read to prospective jurors. The parties tender proposed jury instructions. The defendants on the record withdraw their remaining objections to PX9 (as redacted by agreement of the parties), 15-37,38 (as redacted by agreement of the parties), Group PX 43 (as redacted by agreement to remove certain old performance evaluations), and 59-64. Those exhibits will be admitted into evidence, and may be inserted into the jurors exhibit books. Mailed notice (gcy) (Entered: 09/23/2004)
86 AMENDED PROPOSED JURY INSTRUCTIONS #12 and revised exhibit list by plaintiff. (gcy) (Entered: 09/29/2004)
85 AMENDED EXHIBIT list by defendants; Notice. (gma) (Entered: 09/27/2004)
88 MINUTE ORDER of 9/27/04 by Hon. Sidney I. Schenkier : Trial begisn-Jury. Jury trial held and continued to 9/28/04. Mailed notice (gcy) (Entered: 10/01/2004)
87 MINUTE ORDER of 9/28/04 by Hon. Sidney I. Schenkier : Jury trial held and continued to 9/29/04. Mailed notice (gcy) (Entered: 10/01/2004)
89 MINUTE ORDER of 9/29/04 by Hon. Sidney I. Schenkier : Jury trial held and continued to 9/30/04. Mailed notice (gcy) (Entered: 10/01/2004)
90 MEMORANDUM by plaintiffs regarding supervisor status under Titile VII (Attachments). (gcy) (Entered: 10/01/2004)
91 MEMORANDUM by plaintiffs on the admissibility of witness tampering. (gcy) (Entered: 10/04/2004)
92 MINUTE ORDER of 10/4/04 by Hon. Sidney I. Schenkier : (Entered Judgment Order). The Court enters final judgment on the summary judgment order, entered on 4/1/04 (doc #60), in favor of John Kos and against the plaintiffs. Mailed notice (gcy) (Entered: 10/06/2004)
93 MINUTE ORDER of 10/4/04 by Hon. Sidney I. Schenkier : Entered Judgment Order against the Illinois Department of Transportation in the amount of one hundred and twenty-five dollars ($125,000.00) payable as attorneys fees and costs to Meites, Mulder, Burger & Mollica. Mailed notice (gcy) (Entered: 10/06/2004)
94 MINUTE ORDER of 10/4/04 by Hon. Sidney I. Schenkier : Trial continues, settlement conference held. The parties report in open court that a settlement agreement has been reached and signed by all parties. By agreement of the parties, the jury is discharged. Trial ends. Pursuant to settlement, this case is dismissed with prejudice and without costs. By agreement of the parties and as a condition of dismissal pursuant to Fed.R.Civ.P.41, the Court retains jurisdiction until the conditions of the settlement agreement have been satisfied. terminating case. Mailed notice (gcy) (Entered: 10/06/2004)

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CM/ECF LIVE, Ver 3.1.3 - U.S. District Court, Northern Illinois

3/18/08 2:29 AM

02/03/2005 02/03/2005 06/22/2005

95 EXCERPT TRANSCRIPT of Proceedings before Judge Sidney I. Schenkier held on 9/30/2004 (Volumes I). (gcy, ) (Entered: 02/07/2005)
96 TRANSCRIPT of Proceedings before Judge Sidney I. Schenkier held on 9/28/2004 (Volumes II). (gcy, ) (Entered: 02/07/2005)
97 TRANSCRIPT of Proceedings before Judge Sidney I. Schenkier held on 8/30/04 (Volumes 1). (gcy, ) (Entered: 07/06/2005)

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