IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

PATRICK EKANEM,

Plaintiff,

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v. ) No. 12 C 359

CITY OF CHICAGO,

Defendant.

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MEMORANDUM OPINION AND ORDER

Patrick Ekanem (“Ekanem”) alleges that the City of Chicago

(“City”) refused to reinstate him as a Firefighter-EMT candidate

with the Chicago Fire Department because of his race (black) in

violation of Title VII of the Civil Rights Act of 1964 (“Title

VII”), 42 U.S.C. § 2000e et seq. I grant the City’s motion for

summary judgment for the reasons stated below.

I.

I start with two preliminary matters: (1) how Ekanem’s

failure to oppose the City’s motion shapes my view of the facts

at this stage and (2) how my prior rulings on the City’s two

motions to dismiss limit the scope of Ekanem’s claim.

A.

Ekanem fired his attorney shortly before his response to the

City’s motion for summary judgment was due. At a status hearing

on March 26, 2014, I determined that Ekanem was competent to

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litigate this case without the assistance of appointed counsel. 

See Pruitt v. Mote, 503 F.3d 647, 655 (7th Cir. 2007) (en banc)

(articulating legal standard governing motions for appointed

counsel in civil cases). I advised Ekanem in open court that he

must submit any evidence supporting his claim within thirty days. 

I also ordered the City to serve Ekanem with the notice required

by Local 56.2 for pro se litigants facing a motion for summary

judgment. The City certifies that it complied with this order.

Ekanem has not filed any opposition to the City’s motion for

summary judgment more than one month after the deadline for his

response. Accordingly, I accept all properly supported

assertions in the City’s statement of material facts as true. 

See N.D. Ill. Local Rule 56.1(b)(3)(C). However, Ekanem is still

entitled to have the City’s uncontested facts and his deposition

testimony construed in the light most favorable to his claim. 

See Coleman v. Donahoe, 667 F.3d 835, 842 (7th Cir. 2012).

B.

With regard to the scope of Ekanem’s race discrimination

claim, I ruled in November 2012 that only one of his allegations

was included in a timely EEOC charge: Ekanem’s claim that the

City, acting through someone other than Chief John McKillop,

denied his July 30, 2009 request for reinstatement because of his

race. See Dkt. No. 38 (denying City’s motion to dismiss amended

complaint). 

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In recounting the facts, I focus on evidence relating to

this discrete failure-to-reinstate claim, keeping in mind that

“acts outside of the statutory time frame may be used to support

[a timely] claim.” Davis v. Con-Way Transp. Central Express,

Inc., 368 F.3d 776, 786 n.4 (7th Cir. 2004) (citing Nat’l R.R.

Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002)). 

II.

On December 1, 2008, Ekanem began working as a probationary

Firefighter-EMT candidate with the Chicago Fire Department

(“CFD”). Ekanem’s employment started with a nine month

probationary period consisting of classroom instruction at the

CFD Fire Academy (“Fire Academy”) for six months and field work

for the final three months. 

The Fire Academy portion of Ekanem’s training had two

components: (1) training on emergency medical procedures and (2)

fire suppression and hazardous materials training. As part of

his Fire Academy training, Ekanem was required to pass the

National Registry of Emergency Medical Technicians-Basic exam

(“NREMT-B exam”) within six months. Ekanem understood that

failure to pass the NREMT-B exam within six months of enrolling

at the Fire Academy could result in termination. See Pl.’s Dep

at 70:15-71:2. 

 Ekanem first took the NREMT-B exam in February 2009. After

failing the exam, Ekanem attended at least five group tutoring

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sessions offered by Fire Academy instructors. These group

tutoring sessions consisted of reviewing the assigned reading

materials and taking practice tests.

Ekanem failed the NREMT-B exam for a second time in March

2009. He then received individual tutoring from Arnold Godwin

(“Godwin”), one of the EMT instructors at the Fire Academy. 

Godwin told Ekanem that he had a 100 percent success rate in

helping Firefighter-EMT candidates pass the NREMT-B exam. Ekanem

was under the impression that Godwin would tutor him until his

third test date. However, the head instructor at the Fire

Academy, Lt. Florez, interrupted their second tutoring session to

say that Godwin could not continue tutoring Ekanem. Lt. Florez

did not provide an explanation for this decision. Godwin

remarked to Ekanem that the Fire Academy instructors had never

ended one of his individual tutoring engagements with a white

pupil in such an abrupt fashion. See Pl.’s Dep. at 123:2-4.

After Ekanem’s tutoring sessions with Instructor Godwin

ended, the Fire Academy instructors told Ekanem to stop seeking

tutoring altogether. See Pl.’s Dep. at 205:22-24. Ekanem’s

instructors also pressured him to choose the earlier of two

possible dates for his third and final attempt to pass the NREMTB exam before his six month graduation deadline. 

As with his previous two attempts, Ekanem failed the NREMT

exam when he took it for a third time on May 11, 2009. Ekanem’s

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former tutor, Godwin, called him with the test results that

night. When Ekanem asked about next steps, Godwin advised him to

speak with Instructor Daniel Hudson. Ekanem called Hudson as

soon he got off the phone with Godwin. Hudson told Ekanem that

there was nothing the Fire Academy instructors could do to help

him and instructed Ekanem to turn in his equipment.

When Ekanem reported to the Fire Academy a few days later,

his instructors allowed him to attend classes and made some

attempt to prevent him from being discharged. This turn of

events led Ekanem to think that Hudson had given him false

information on the night he learned about failing the NREMT-B

exam for a third time. Ekanem promptly submitted a form to the

Director of Training, Richard Edgeworth, stating that he hoped to

continue his studies at the Fire Academy.

On May 18, 2009, Chief John McKillop (“Chief McKillop”),

Director of EMS training at the Fire Academy, summoned Ekanem to

his office. Chief McKillop informed Ekanem that the CFD only

paid for Firefighter-EMT candidates to take the NREMT-B exam up

to three times. Ekanem asked if he could pay out of pocket to

take the exam a fourth time. Chief McKillop responded that

Ekanem would still need to take a refresher course pursuant to

the NREMT’s policy. Ekanem offered to pay for a refresher course

on this own, but Chief McKillop did not respond to this

suggestion. 

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Ekanem received a termination letter signed by Chief Charles

Stewart III (“Chief Stewart”), the Director of CFD’s Personnel

Division, on or around May 18, 2009.1 Chief Stewart’s letter

notified Ekanem that he was being discharged pursuant to the

following provision of the labor agreement between the City and

the Chicago Firefighters Union, Local No. 2:

Terminations of probationary employees shall not be

subject to the grievance procedure; however, upon the

Union’s request made within ten (10) days of notice of

discharge to the employee and the Union, the employee

and the Union may present evidence relating to the

validity of the reasons or mitigating circumstances to

the Department at a meeting between the Department and

the Union; but any action taken by the Department shall

be final and shall not be subject to the grievance

procedure.

R. at 468 (henceforth referred to as “Section 9.1 hearing”). 

Ekanem did not speak with the union after he was terminated. Nor

did the union, on its own initiative, request a Section 9.1

hearing to challenge Ekanem’s termination.

After his termination, Ekanem took a refresher course for

the NREMT-B exam in California and passed the exam in July 2009

on his fourth attempt. On July 30, 2009, Ekanem wrote a letter

to Chief Stewart requesting reinstatement. While Ekanem was

waiting for Chief Stewart to respond, he also sent a

1

 The City notes that Chief Stewart and Ekanem are both AfricanAmerican. Dkt. No. 68 at ¶ 44. I draw no inference whatsoever

from this fact. See Winston v. Boatwright, 649 F.3d 618, 626

(7th Cir. 2011) (“In Powers v. Ohio, [499 U.S. 400, 402 (1991)],

the Supreme Court rejected the premise that persons of the same

race cannot discriminate on the basis of their shared race[.]”). 

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reinstatement request to the City’s Director of Personnel on

August 6, 2009. On August 16, 2009, Chief Stewart responded to

Ekanem’s original request for reinstatement. After directing

Ekanem to submit his request to the City’s Commissioner of Human

Resources, Chief Stewart’s letter stated that “it is not Fire

Department policy to recommend the reinstatement of former

employees [who] failed to complete training.” R. at 474.

On August 24, 2009, Ekanem received a letter from Karina

Ayala-Bermejo, the Acting Commissioner for the City’s Department

of Human Resources. Ms. Ayala-Bermejo has no independent

recollection of reviewing Ekanem’s request for reinstatement. 

See R. at 543, ¶ 8. Therefore, I give no weight to her

statements about what she “would have” done upon receiving such a

request. Id. at ¶¶ 9-11. The letter sent to Ekanem under Ms.

Ayala-Bermejo’s signature states that only career service

employees who previously resigned are eligible for reinstatement. 

See R. at 616 (citing Rule XIII, Section 2 of the City’s

Personnel Rules). Therefore, Ekanem was not eligible for

reinstatement under the City’s personnel rules because of his

status as a probationary employee who had been discharged.

The City’s personnel rules also require a favorable

recommendation from the appropriate department head before a

former employee may be reinstated to his former position. See R.

at 579-80. Chief Stewart testified that CFD does not recommend

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the reinstatement of employees who were discharged for failing to

complete training. Therefore, the City contends that Ekanem’s

status a former probationary employee is not the only reason he

was ineligible for reinstatement.

At some point after he was terminated, Ekanem met with CFD

Commander Carmelita Wiley-Earls (“Commander Wiley-Earls”) in her

office at the Fire Academy. Ekanem asked about the circumstances

in which Firefighter-EMT candidates had been reinstated or

“recycled” back into the Fire Academy training program. 

Commander Wiley-Earls showed Ekanem a computer-generated list of

candidates who were reinstated to the Fire Academy following a

discharge. Ekanem believes that three non-black candidates on

this list were treated more favorably than he was. 

III.

The City has moved for summary judgment on the ground that

Ekanem has no direct or circumstantial evidence to support his

race discrimination claim. Although Ekanem has not opposed the

City’s motion, I “must still review the uncontroverted facts and

make a finding that summary judgment is appropriate as a matter

of law.” Nabozy v. Podlesny, 92 F.3d 446, 457 n.9 (7th Cir.

1996).

Ekanem has no direct evidence that he was discriminated

against based on his race. See Pl.’s Dep. at 131:20-23

(testifying that he could not remember hearing any “racially

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derogatory remarks” during his tenure at the Fire Academy). 

Although Arnold Godwin’s comment that he had never been ordered

to stop tutoring a while pupil is somewhat suspicious, there is

no evidence that the CFD employee who ended Ekanem’s personal

tutoring sessions, Lt. Florez, played any role in denying his

request for reinstatement. Thus, Godwin’s comment has no bearing

on whether the City’s failure to reinstate Ekanem was

discriminatory.

With no direct evidence supporting Ekanem’s claim, the City

is entitled to summary judgment unless the record contains

evidence that Ekanem was treated less favorably than a similarly

situated, non-black employee. See McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973); see also Coleman v. Donahoe, 667 F.3d

835, 846-47 (7th Cir. 2012) (describing “similarly situated”

prong of McDonnell Douglas burden-shifting framework in detail).

A. 

All three of Ekanem’s proposed comparisons fail to show that

he was treated less favorably than a similarly situated non-black

employee.

Two of Ekanem’s proposed comparators, Fidel Serrano

(“Serrano”) and John Welsh (“Welsh”), failed to present a valid

Illinois driver’s license during Fire Academy training. Ekanem

contends that Serrano and Welsh were terminated for this

infraction, but later reinstated. The City argues that Welsh and

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Serrano were never discharged from the Fire Academy. This

factual dispute is irrelevant because Ekanem’s assertion that

Serrano and Walsh were discharged, even if true, do not support

an inference of discrimination. 

The dispositive flaw in Ekanem’s proposed comparison to

Welsh and Serrano is that he received more favorable treatment

after committing the same infraction. Ekanem admitted at his

deposition that did not have a valid Illinois driver’s license at

the beginning of class on January 12, 2009. See Pl.’s Dep. at

155:10-13. Unlike Serrano and Welsh, Ekanem was not discharged

for this infraction and simply had to explain in writing why he

forgot his license. Thus, Ekanem’s own testimony shows that he

received more lenient treatment than Serrano and Welsh when he

committed the same infraction. The fact that Serrano and Welsh

were later reinstated shows at most that they received roughly

the same treatment as Ekanem after initially facing more severe

punishment. No inference of discrimination arises where, as

here, a Title VII plaintiff received more favorable treatment

than his proposed comparators. See Zayas v. Rockford Mem. Hosp.,

740 F.3d 1154, 1158 (7th Cir. 2014) (McDonnell Douglas framework

requires evidence that similarly situated employee outside

plaintiff’s protected group “engaged in the same behavior and was

treated more favorably”). 

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Ekanem’s proposed comparison to Christopher Clark (“Clark”),

a white Firefighter-EMT candidate, is also flawed. Shortly after

starting his training at the Fire Academy in July 2008, Clark

began suffering from an undisclosed medical condition. On

October 8, 2008, CFD’s medical section ordered Clark to take a

medical leave of absence for approximately two weeks. Clark

failed the NREMT-B exam in October 2008 and again in November

2008. Although Clark had not passed the NREMT-B exam by the Fire

Academy’s six-month graduation deadline, the City allowed him to

enroll in Ekanem’s class starting on December 1, 2008 rather than

terminating his employment. Ekanem contends that “recycling”

Clark into the next class at the Fire Academy gave him three more

opportunities (and up to five opportunities overall) to pass the

NREMT-B exam. Ekanem’s assertion has no support in the record

because Clark passed the NREMT-B exam on his third attempt in

March 2009.

In any event, Clark’s situation is distinguishable from the

circumstances that led to Ekanem’s termination. The McDonnell

Douglas framework requires evidence that Ekanem and Clark

“engaged in similar conduct without such differentiating or

mitigating circumstances as would distinguish their conduct or

the employer's treatment of them.” Radue v. Kimerbly-Clark

Corp., 219 F.3d 612, 618 (7th Cir. 2000). Here, Clark’s medical

leave of absence placed him in a different position than Ekanem

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when both men reached the end of their six month Fire Academy

training without having passed the NREMT-B exam. Clark needed

more time to pass the NREMT-B exam as an accommodation for his

medical condition and related two week absence. In contrast,

Ekanem has not presented any evidence that he failed the NREMT-B

exam three times because of a medical condition or an extended

absence. I fail to see how the City’s decision to accommodate

Clark’s medical condition suggests that Ekanem was not reinstated

because of his race. 

B.

In addition to distinguishing Ekanem’s proposed comparators,

the City attempts to show that Ekanem was treated in the same

manner as similarly situated, non-black Firefighter-EMT

candidates. I need not analyze the City’s proposed comparators

because “[t]here is no ‘similarly situated employee’ analysis

available to the employer to defeat a plaintiff's claim.” Diaz

v. Kraft Foods Global, Inc., 653 F.3d 582, 588 (7th Cir. 2011). 

Similarly, the City’s contention that it did not discharge

six black Firefighter-EMT candidates who failed the NREMT-B exam

three times has not factored into my analysis of Ekanem’s claim. 

See id. at 587 (rejecting district court’s reasoning that “the

evidence did not support an inference of discrimination because

at least one Hispanic employee was not discriminated against in

the same way” as Hispanic plaintiffs suing under Title VII).

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IV.

The City’s motion for summary judgment is granted for the

reasons stated above.

 ENTER ORDER:

 

_____________________________

 Elaine E. Bucklo

 United States District Judge

Dated: June 16, 2014

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