UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DEMARCO NICHOLS, )

)

Plaintiff, )

) 12 C 1789

vs. ) Judge Thomas M. Durkin

)

ILLINOIS DEPARTMENT OF )

TRANSPORTATION and ILLINOIS )

DEPARTMENT OF CENTRAL MANAGEMENT )

SERVICES, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff DeMarco Nichols filed this lawsuit under Title VII, 42 U.S.C. § 2000e,

against the Illinois Department of Transportation (IDOT) and the Illinois 

Department of Central Management System (CMS). IDOT is Nichols’s former 

employer, and CMS is a state agency with responsibility for overseeing and 

implementing the state civil service and personnel code.1 After ten years of 

employment, IDOT terminated Nichols effective June 4, 2008 for violation of IDOT’s 

policy against workplace violence. Nichols is Muslim, and he alleges that IDOT 

discriminated and retaliated against him based on his religion, and refused to 

accommodate his request for a quiet place to pray while at work. Defendants have 

1 Defendants have stipulated that IDOT, and not CMS, is responsible for the 

employment actions challenged in this matter, and that any potential monetary 

award against Defendants can be recovered from IDOT. See R. 137-36. As a result of 

this stipulation, the parties agree that CMS will remain a nominal party to this 

lawsuit solely in the event that injunctive relief is ordered whereby CMS may have 

some role in the processing of paperwork should reinstatement be ordered. Id. 

 
filed a motion for summary judgment. For the reasons that follow, Defendants’ 

motion is denied.

BACKGROUND2

Nichols was hired by IDOT on March 2, 1998 to work at the I-57 Maintenance 

Yard in Markham, Illinois. In or about 2003, he was transferred to the Harvey 

Maintenance Yard in Harvey, Illinois. With the exception of one temporary shortterm re-assignment in the spring of 2006, Nichols worked at the Harvey Yard from 

2003 until his discharge on June 4, 2008. Nichols’s position throughout his ten-year 

employment with IDOT was “Highway Maintainer,” and one of his primary jobs was 

to plow snow during the winter season. During the summer months, Nichols was 

given various other tasks to perform. Nichols had relatively few problems during 

most of the years in which he was employed at the Harvey Yard, and his supervisor

testified that at no time did he recall Nichols ever exhibiting any type of hostility or 

committing any act of violence. See R. 137-7 at 217; R. 137-8 at 26. Nichols testified 

that for the most part he kept to himself. He received “satisfactory” and occasional 

“very satisfactory” job reviews from his supervisor. See R. 137-7 at 142, 144-46. His 

only dissatisfactory review was in the spring of 2008, when the events at issue in this 

lawsuit transpired.

2 The facts in this section are taken from the parties’ statements of undisputed facts 

and the documents attached thereto. While IDOT argues that Nichols’s statement of 

additional facts violates Local Rule 56.1, the Court has determined that neither party 

has fully complied with that Rule. Accordingly, the Court will not strike any of the 

parties’ fact statements, and will consider those statements in conjunction with the 

record itself in determining IDOT’s motion. The Court has only included facts in its 

opinion that are adequately supported by evidence in the record.

2

 
A. Nichols Becomes Acting Lead Worker

While at the Harvey Yard, Nichols’s direct supervisor was George Martin, 

whose title was “Yard Technician.” The yard technician is in charge of the yard, and 

is assisted in his duties by two permanent “lead workers” and one “lead lead worker.” 

The permanent lead workers at the Harvey Yard in the early part of 2008 were 

Robert Thompson and Kevin Reynolds. The lead lead worker in this same period was 

Frank Romanski. 

At some point prior to 2008, IDOT instituted a policy whereby workers in the 

yard became eligible to apply for a position of “temporary acting lead worker.” If an 

employee volunteered to be a temporary acting lead worker and met the qualification 

requirements, his name was placed on a list. The yard technician was required to 

appoint the worker whose name was at the top of the list to act as the temporary lead 

worker for a two-month period. E.g., R. 137-7 at 101-03, 174-75. The position would 

then rotate to the person whose name was next on the list. During the two months 

that a worker was assigned to be an acting lead worker, he would be paid at a higher 

rate to assist the permanent lead workers in their duties under the supervision of the 

lead lead worker, who in turn received his orders from the yard technician.3 Nichols 

volunteered and became qualified to put his name on the list of rotating temporary 

lead workers. His name came up to serve in that position for a two-month period 

beginning on December 28, 2007. 

3 This describes how the chain of command in the yard worked in practice. E.g., 

R. 137-7 at 97, 103. Under the formal chain of command, however, all highway 

maintainers including the lead workers reported directly to the yard technician, who 

was considered their immediate supervisor. 

3

 
Nichols believes that his problems at work began in December 2007 because 

“someone” at the Harvey Yard “did not want [him] to be the acting lead worker.” 

R. 137-20 at 5. Nichols claims that although he was acting lead worker from 

December 28, 2007 through February 28, 2008, Martin, Romanski, Thompson, and 

Reynolds refused to treat him as such. Among other things, he claims that (1) he was 

made to do highway maintainer work while workers who he was supposed to be 

supervising were “sitting” back at the yard; (2) efforts were made to procure false 

accusations against him; and (3) he was required to always be on the road with his 

crew, while other acting lead workers did not go out on the road, and if they did they 

got to take the supervisor’s truck and ride by themselves. Id. Nichols also claims that 

he was suddenly being called out for rule infractions while similar or worse rule 

infractions of other workers were ignored. In particular, Nichols complains about a 

one-day suspension he received without pay for violating IDOT’s “Snow and Ice 

Policy” on February 5, 2008. R. 137-13 at 3; R. 137-14 at 2.

B. Nichols’s Grievances

Rather than attempt to summarize the contents of Nichols’s grievances, the 

Court will set them out in full. 

Nichols’s first grievance challenged his citation for violating the snow and ice 

policy. Nichols also addressed his belief that he was being treated unfairly as acting 

lead worker. On March 10, 2008, Nichols filed a grievance with Martin stating as 

follows:

A meeting took place in Your office approximately one 

month ago. At that meeting were: You, your Lead Lead 

4
Worker Frank Romanski, your Lead Worker, Kevin 

Reynolds, and myself. We had a discussion concerning 

what problems “they” had with the way I do my job. Your 

Lead Lead Worker and your Lead Worker left that office 

with a “bad taste” in their mouths. I have heard it said by 

your Lead Worker: I know who to talk to in order to “get 

things done”. I don’t know what this means to you, but it 

sounds like “GANGSTER TALK” to me. That’s not a 

problem for me. I am “very familiar” with this kind of 

“talk”. Since then, I am witnessing an outright attempt by 

these two individuals (with the help of others) to “push me 

out”. Literally. I am currently facing “discipline” due to 

“willful negligence” by these two individuals.

The grievance. On the night I was supposedly a “noanswer” [violation of snow and ice policy], I called the team 

section TWICE that night in LESS THAN TEN MINUTES. 

NO ONE ANSWERED THE PHONE. I continued to call. 

No one answers [sic] the phone until AFTER six O’clock, 

only to tell me I was “passed over”. I can and will prove this 

allegation. I will also prove the “PROCEDURES” ARE NOT 

APPLIED EVENLY ACROSS THE BOARD. Why would 

they NOT answer the phone? Possibly because they were 

TOO EAGER to “got to the next person”. These “despots” 

are so hell-fired to “get me”. You (George) were asked by 

me to “get these people off my back”. Now I am asking you, 

openly and formally. GET YOUR LEAD LEAD WORKER 

AND YOUR LEAD WORKER OFF MY BACK. It is 

WRONG for “THEM” to “DICTATE POLICY” onto me 

WHILE “THEY” commit every “administrative atrocity” on 

the “book”. 

“ASSALAAMALAIKUM”

D. NICHOLS

R. 137-9 at 3. 

Nichols’s second grievance was addressed to IDOT’s policy requiring workers 

to rotate weekly between day and night shifts during the snow and ice season. See 

R. 137-7 at 130-31. Nichols’s wife was suffering from a debilitating illness, and 

Nichols was needed at home during the evenings to care for her. Nichols requested to 

5
be relieved from the rotation policy. On March 10, 2008, he filed a grievance stating 

as follows:

A serious medical condition within my household requires I 

remain on the day shift for the duration of the snow & ice 

season—This medical condition, combined with willful 

negligence by the “office” is making the job a very difficult, 

yet stressful one.

A “prompt” reply is appreciated. Before next week if 

possible.

R. 137-10 at 2. 

Nichols’s third grievance requested a religious accommodation to pray. 

According to Nichols, one of the tenets of his Islamic faith is that, when a person is 

faced with troubles in his life, he should pray more frequently. Nichols was finding it 

difficult to pray while serving as acting lead worker. Therefore, on March 10, 2008, 

Nichols filed a grievance stating as follows:

I am a man of the Islamic faith—Have been a Muslim my 

Entire Life. It is a must for every Muslim to pray five (5) 

times a day. The hours spent on the road disallows time for 

at least 2 prayer sessions. I would appreciate if 

arrangements could be made for me to practice my religion 

in the proper manner.

R. 137-11 at 2. 

All three of Nichols’s grievances were denied at the step 1 level4 on March 13, 

2008. In each instance, the denial was signed by James Stumpner, Martin’s 

4 It appears from the grievance documents included in the record that IDOT’s 

grievance process involved four steps. First there is an attempt by the grievant’s 

supervisor to resolve the matter (step 1), followed by an attempt to resolve the matter 

by the next higher level supervisor (step 2), followed by (or possibly in the 

alternative) an attempt to resolve it by the manager (“where applicable”) (step 2a), 

6

 
supervisor twice removed. Three days later, on March 13, 2008, all three grievances 

were denied at the step 2 level by someone with the initials “MS.” “MS” likely stands 

for Mike Schivarelli, Martin’s supervisor once removed.5 On March 20, 2008, all three 

grievances were denied at the step 2a level by Carmen Iacullo. The record does not 

indicate any action on Nichols’s three grievances beyond the step 2a level.6

C. Nichols Seeks Help From Employee Assistance/Labor 

Relations

Although the timeline of events is not clearly established by the current 

record, it is reasonable to infer from the documents submitted to the Court that,

shortly after Nichols filed these grievances, he became aware of increasing talk at the 

yard about someone wanting to hurt him. He previously had heard “certain ‘tough 

guy’ talk around the yard” that “you don’t want to piss this guy off” because “he can 

do this—he can do that—he can have your legs broken.” R. 137-22 at 3. Nichols 

followed by an attempt to resolve it by the agency head (step 3). A review and final 

determination is made by the Director of CMS (step 4). See, e.g., R. 137-9 at 2. 

5 Nichols’s chain of command was as follows: Nichols reported to Martin (Yard 

Technician), who reported to Tricia Robinson (Area Manager), who reported to 

Schivarelli (Director of Operations), who reported to Stumpner (Bureau Chief of 

Maintenance), who reported to Carmen Iacullo (Assistant to the Region One 

Engineer), who reported to Diane O’Keefe (Deputy Director of Highways, Region One 

Engineer). One explanation for why Schivarelli may have acted on Nichols’s 

grievances at a level above Stumpner (Schivarelli’s superior) is that, according to 

Nichols’s testimony, Martin (Nichols’s direct supervisor and the supervisor who likely 

should have signed the grievances at the step 1 level ) ignored Nichols when Nichols 

tried to give him the grievances. As a result, Nichols states, he delivered his 

grievances to Stumpner instead. 

6 Apparently, Nichols was placed on administrative leave before any further steps in 

the grievance process could occur. R. 152 at 11 (¶ 42). An undated notation on 

Nichols’s grievance requesting an accommodation to pray states that it ultimately 

was withdrawn by the union.

7

 
believed these statements referred to Romanski. Initially, Nichols claims, he 

dismissed comments such as this as ‘idle chatter.’” Id. But during the time period he 

was acting lead worker, he was “sitting in a truck out in the bays” when he heard “a 

voice say—the guy is going to get himself ‘fucked up.’” Id. Nichols believed this 

statement was made about him. Later, on March 28, 2008, one of Nichols’s coworkers told him that “[Reynolds] is saying if you don’t stop what you’re doing, you 

are going to get ‘fucked up.’” Id. Nichols believed these threats were being made 

against him because he had been complaining about being treated unfairly while 

serving as acting lead worker and calling attention to the ways in which the lead 

workers, the lead lead worker, and the yard technician were misapplying the rules 

and policies of IDOT. Frustrated and distraught over these threats, Nichols called 

the Employee Assistance Program (“EAP”) in Springfield. The person with whom he 

spoke (Donna Kohlberg), however, did not know how to handle the problem and 

forwarded his call to the Labor Relations office in Springfield. Id. The person with 

whom Nichols spoke at the Labor Relations office (“Julie”) told Nichols to “go to [his] 

supervisors.” Nichols replied that “the problem is with [his] supervisors.” Id. The 

person from the Labor Relations office responded that her department does not “talk 

directly to the workers,” and apparently terminated the call. Id. 

A few days later, on April 1, 2008, Nichols had a medical emergency with his 

wife, and rushed to get to work on time. He states that he arrived within the thirty 

minutes grace period accorded to workers under department policies, but that Martin 

already had pulled the sign-in sheet and refused to let him work. Nichols says that 

8
when he complained about the incident to Giavanni Fulgenzi, District Personnel 

Manager, Martin lied to Fulgenzi about what time he had arrived.7

D. Nichols Sends The Fax That Caused Him To Be Fired

On April 2, 2008, the day after Martin sent Nichols home after arriving late to

work, Nichols was again at home, this time serving the one-day suspension he 

previously had received for violating the snow and ice policy. Nichols states that he 

was “very frustrated—so much so [he] felt [he] was going to do whatever [he] could to 

get their attention.” R. 137-22 at 4. That day, Nichols sent a fax both to EAP and to 

the Labor Relations Department, stating the following:

Attention: Julie or Terry Redman

From Demarco Nichols

The E.A.P. suggested I write this letter to you, Labor 

Relations. Obviously, they didn’t think this was 

“worthwhile”. There is a problem between myself and the 

“supervision” at the Harvey Team Section. This supervision 

has “singled” me out as some sort of disciplinary “project”. I 

was “judged” the moment I set foot in this team section. 

They are trying to make an “example of me” to show others 

what they should not do. To scare them into “playing the 

game”. To show how far-reaching their “power” goes. This 

supervision includes George Martin (technician), Frank 

Romanski (Lead Lead Worker), Robert Thompson Jr. (Lead 

Worker) and Kevin Reynolds (Lead Worker). I was Acting 

Lead Worker from 12-28-08 to 2-28-08. Before this twomonth period, I had been at this team section 5 1⁄2 years. 

WITHOUT A PROBLEM. The problems began because 

“someone” in that “office” DID NOT WANT ME TO BE 

THE ACTING LEAD WORKER. While I was Acting Lead 

Worker, I was accused of SLEEPING IN THE TRUCK BY 

THE “OFFICE”. EVERY TIME I WENT ON THE ROAD, I 

7 See R. 137-24 at 3 (“[Martin] LIED . . . about what time I arrived at work. This was 

done out of ‘hostility’. ‘I’m not letting you work, and there is NOTHING you can do 

about it’.”).

9

 
was made to take “someone” with me. The Acting Lead 

Worker after me, Mark Edwards, ALWAYS GOES ALONE. 

I GET THE FEELING I CAN’T BE TRUSTED. IN FACT, 

NO OTHER LEAD WORKER TAKES ANYONE ON THE 

ROAD WITH THEM. There are thirteen rooms in that 

team section. In the 5+ years I have been there, I have 

been allowed in SIX (6), while the “others” have full run of 

the place.

While I was Acting Lead Worker, I was made to do H.M. 

work (highway maintainer) while there were 

“insubordinates” (H.M.’s) sitting in chairs, never to go on 

the road. I have had the Lead Lead Worker (Frank 

Romanski) call the yard at 3:00 a.m. His shift did not start 

until 6:30 a.m. When he saw I was there for a callout, HE 

WOKE UP HIS SUBORDINATE, HAD HIM GET OUT OF 

HIS BED, THEN COME TO THE YARD (3:45 A.M.) TO 

“SEE” WHAT I WAS DOING! While I was Acting Lead 

Worker, I was made to plow snow while an insubordinate, 

(H.M.) was allowed to sit in the “office”. While I was Acting 

Lead Worker, I was marked “A.W.O.L.” without ample 

show-up time while the “others” are allowed to take as long 

as they need, or stay home. While I was Acting Lead 

Worker, I was referred to Schaumburg for “discipline”. By 

the time you get this, I will be serving a suspension.

I have heard a lot of “TOUGH-GUY TALK” in the last 

three months. I filed a grievance with the “Technician” 

George Martin, asking him to “GET HIS LEAD WORKERS 

OFF MY BACK” (SEE PAGES 2&3). Since the grievance, I 

have heard one of the Lead Workers, Kevin Reynolds, 

saying: De Marco is going to mess around and get himself 

“fucked up”. What do you think this means? I think it 

means “SOMEONE” wants me physically hurt. I am 

capable of protecting myself. And WILLING, if the threat 

persists, to do away with it by ANY AND ALL 

NECESSARY MEANS. Am I “hostile”? No. THE QUR’AN 

TEACHES PEACE. Am I capable of “hostility”? Yes. 

INFINITE hostility. Just yesterday, I had a family 

emergency. When I came in late, the “tech” sent me home. 

If there is another incident of this nature, someone in the 

Harvey yard is going to get “fucked up”. YOU HAVE BEEN 

TOLD: These men are trying to act like “mobsters”. These 

men are trying to say they “know people”. Well[,] so do I. 

10
“AS TO LIFE, ALLAH GAVE IT.” “A COWARD IS NOT 

LIKELY TO SAVE IT[.]”.

“ASSALAAMALAIKUM”

DE MARCO NICHOLS

R. 137-15 at 5-6.

E. IDOT Suspends Nichols Following Receipt of the Fax

On April 3, 2008, the Labor Relations office forwarded Nichols’s fax to 

Fulgenzi. This was the same day that Nichols returned to work after serving his oneday suspension for the ice and snow policy rule infraction. Nichols states that, “as 

soon as [he] got to the job site, th[e] same co-worker approached [him] again” and 

said “they’re saying you’ve got to stop what you’re doing, or you’re going to get ‘fucked 

up.’” R. 137-22 at 4. Later that day, Nichols received a faxed letter under the typed 

name of Iacullo’s superior, Diane O’Keefe, but signed by Fulgenzi. The letter advised 

Nichols that he was being placed on paid administrative leave as of the close of 

business that day. R. 137-19 at 2. 

The next day, Nichols received a second letter under O’Keefe’s name, also 

signed by Fulgenzi, directing him to attend a pre-disciplinary meeting on April 10, 

2008, which was “being held to discuss your alleged threat of violence in the 

workplace.” R. 137-20 at 2. Enclosed with the letter was a Statement of Charges

indicating that Nichols was being charged with an infraction of IDOT’s rule against 

“Threat of Violence in the Workplace,” id. at 3, which states as follows: 

Violence in the Workplace. The use of violence or the threat 

of the use of violence by Department employees to 

subordinates, co-workers, superiors or others will not be 

tolerated. No employee may physically use or threaten to 

use any object to harm another individual. All employees 

11
have the responsibility to promptly and completely report 

any actions of violence or the threat of violence, to the 

appropriate management personnel.

R. 137-27 at 79. A third letter in O’Keefe’s name and signed by Fulgenzi informed 

Nichols that “in compliance with Departmental Policies” a state-ordered medical 

examination had been scheduled for him. R. 137-21 at 2. 

The pre-disciplinary meeting was held on April 10, 2008. In attendance were 

Nichols, Fulgenzi, Schivarelli, Martin, and Nichols’s union representative, Mike 

Melone. R. 137-16 at 2. Melone spoke on Nichols behalf, stating the following:

On the day in question, a co-worker told [Nichols] of an 

alleged threat against him so he called Springfield and 

spoke to Donna Kohlberg who transferred him to Labor 

Relations where he faxed his statement. They didn’t know 

that he felt threatened and that’s why he wrote what he 

did. However, he has prepared a statement which he 

brought with [him] today. 

Id. Nichols’s statement said that he had “tried to report that [he] was being 

threatened to EAP Springfield” but that “[he] was blown off,” and that he “put 

[himself] in a ‘real’ EAP on Monday.” Id. Not satisfied with this explanation, Fulgenzi 

directed Nichols to provide an additional rebuttal in which he was to explain each of 

the specific statements in the fax which Fulgenzi identified to him as being in 

violation of IDOT’s policy against violence in the workplace. Id. at 3.

12
F. Nichols Provides A Supplemental Statement 

Explaining The “Threatening” Statements In His Fax

Nichols provided his supplemental statement to Fulgenzi on or about April 21, 

2008. See R. 137-24 at 2-4. Nichols’s supplemental statement claimed that Fulgenzi 

had “picked apart [his fax] to show a ‘problem’ on MY PART,” and noted that “this 

fax was sent ONLY AFTER YOUR EMPLOYEE ASSISTANCE UNIT, AND YOUR 

LABOR RELATIONS OFFICE REFUSED TO DEAL WITH THE PROBLEM.” Id. at

3. Nichols then attempted to respond to the “parts” of his fax that Fulgenzi had 

“‘picked’ out of the last paragraph.” Id.

Nichols explained that the statement he was “capable of protecting [himself]” 

meant that he has “spent the better years of my life as a dilligent [sic] practitioner of 

boxing, and the martial arts. (SELF DEFENSE).” Id. The statement that he was 

“willing, if the threat persists, to do away with it by any and all necessary means,”

referred to “a natural instinct. No one wants to live in a hostile environment.” Id. 

Nichols wrote that the statement “Am I capable of hostility? yes. Infinite hostility,”

was “made to show that [he was] ‘HUMAN’. If a person was made to work in the type 

of environment [he was] forced to work in, his hostility would become ‘infinite.’” Id. 

Nichols pointed out that he had heard “on THREE (3) OCCASIONS how [he] [was] 

going to get ‘fucked up.’” Id. He also pointed out that focusing solely on the statement 

that he was “capable of [infinite] hostility” ignores the sentence immediately before 

that sentence, which stated he was not hostile (“Am I hostile? No. The Qur’an teaches 

‘PEACE’”). That focus also ignores, he said, the fact that he actually took a peaceful 

approach to his work problems when he “called Springfield for help.” Id. Yet after 

13
taking this peaceful approach and peacefully serving a one-day suspension for a rule 

infraction he believed was manufactured against him, he still was met upon return to 

work with another threat that he was going to be “fucked up.” Id. 

Finally, Nichols explained that the statement “if there is another incident of 

this nature, someone at the Harvey yard is going to get ‘fucked up’” was “made out of 

sheer frustration, and born of the fact [he] tried to present [his] problem to the 

appropriate office (Springfield Employee Assistance Unit and Labor Relations (3-28-

08)) but they wanted nothing to do with it. The fax was sent with the hope they 

would be more ‘attentive’ to the PROBLEMS [he] was having with [his] supervisors.”

Id. Nichols closed by explaining the last line of his fax: ’As to life, Allah gave it’ ‘A 

coward is not likely to save it.’” This sentence meant: “Life is given by God. No man 

should be ‘AFRAID’ to defend himself.” Id. 

G. IDOT Terminates Nichols

The formal decision to discharge Nichols was made sometime before May 9, 

2008, when a letter was prepared in O’Keefe’s name and signed by Fulgenzi

informing Nichols he was being “suspended up to 30 days pending decision to 

discharge.” R. 137-25 at 2. IDOT claims that the decision to suspend Nichols pending 

decision to discharge was the result of a determination that Nichols’s fax contained a 

“straight[-]forward threat of violence” in violation of IDOT’s “zero tolerance policy.” 

R. 137 at 9 (¶ 68). IDOT states that Fulgenzi and Stumpner were the ones who 

14
recommended that Nichols be discharged. R. 137 at 9 (¶ 69).8 This recommendation 

was made to Iacullo. Id.; see also R. 137-5 at 16 (Iacullo Dep. 15). Fulgenzi testified 

that he concluded that termination was appropriate after consultation with: 

(1) Nichols’s chain of command, (2) Charles Klemz, Fulgenzi’s supervisor in the 

Personnel Department, and (3) the Labor Relations Office (either the head of that 

office, T. Redman, or someone on his staff). See R. 136-6 at 47-48 (Fulgenzi Dep. 46-

47). Fulgenzi’s recommendation to discharge was based on his discussions with these 

individuals as well as on “the outcome of the pre-disciplinary hearing” and Nichols’s 

“response to the charges.” Id. at 47 (Fulgenzi Dep. 46). After speaking with Fulgenzi 

and Stumpner about their recommendation, Iacullo concurred with it. R. 137-5 at 17 

(Iacullo Dep. 16). Iacullo likely then conferred with Klemz about the 

recommendation, and then either he or Klemz would have been the one to bring the 

recommendation to O’Keefe. Id. at 20-21 (Iacullo Dep. 19-20). O’Keefe concurred in 

the recommendation, and then Fulgenzi passed it on to IDOT’s Central Office in 

Springfield on O’Keefe’s behalf. R. 137 at 9 (¶ 69). The final step in the discharge 

process was CMS’s approval of Nichols’s termination and service of discharge papers 

on him. Id. (¶ 70).9 The discharge papers, dated May 20, 2008, indicate that Nichols 

was terminated for cause effective June 4, 2008. R. 137-26 at 2. 

8 Stumpner testified he did not recall whether he was involved in the decision to 

terminate Nichols. R. 149-6 at 10 (Stumpner Dep. 47). 

9 Some of the deposition testimony (Fulgenzi and Iacullo) stressed that ultimately it 

was CMS’s decision to terminate Nichols. But as noted in an earlier footnote, IDOT 

has stipulated that the decision to terminate Nichols was made by IDOT, not CMS. 

The Court concludes therefore that IDOT’s decision to discharge Nichols officially 

was made on May 9, 2006, when the letter notifying Nichols that he was being 

15

 
H. Post-Discharge Proceedings

The union filed a grievance on Nichols behalf on June 8, 2008. R. 137-31 at 2. 

Nichols filed a charge of discrimination with the EEOC on June 24, 2008. R. 137-32. 

The union stated in its grievance that Nichols “was subject to an uncomfortable work 

environment with co-workers that was brought to the attention of management.”

R. 137-31 at 3. The union’s position was that “the incident [of alleged threat of 

violence in the workplace] was over exaggerated and there was no intent of violence.” 

Id. On July 8, 2008, Schivarelli signed off on a Step 2 and Step 2a denial of Nichols’s

grievance. Id. at 2. A grievance hearing was scheduled to take place on July 11, 2008. 

At the start of the hearing, however, Nichols was told for the first time that in order 

to proceed with the grievance he would have to withdraw his EEOC charge. Nichols 

declined to do so, and therefore the grievance hearing was not held. See R. 149-3 at 6 

(Nichols Affidavit, ¶¶ 25-26). A notation on the grievance form dated July 22, 2008 

indicates that the union later withdrew Nichols’s grievance. R. 137-31 at 2.

LEGAL STANDARD

Summary judgment is appropriate “if the movant shows that there is no 

genuine dispute as to any material fact and the movant is entitled to judgment as a 

matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 

322-23 (1986). The Court considers the entire evidentiary record and must view all of 

the evidence and draw all reasonable inferences from that evidence in the light most 

favorable to the nonmovant. Ball v. Kotter, 723 F.3d 813, 821 (7th Cir. 2013). To 

suspended pending decision to discharge was prepared and forwarded by Fulgenzi to 

CMS for final action. 

16

 
defeat summary judgment, a nonmovant must produce more than “a mere scintilla of 

evidence” and come forward with “specific facts showing that there is a genuine issue 

for trial.” Harris N.A. v. Hershey, 711 F.3d 794, 798 (7th Cir. 2013). Ultimately, 

summary judgment is warranted only if a reasonable jury could not return a verdict 

for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

DISCUSSION

I.

IDOT’s Motion To Strike The William’s Affidavit.

As an initial matter, the Court will address IDOT’s oral motion to strike the 

Williams Affidavit. At the hearing held on IDOT’s motion for summary judgment, 

counsel for IDOT orally moved to strike one of the affidavits submitted by Nichols in 

opposition to IDOT’s summary judgment motion on the ground that the witness, 

Robert Williams, was not listed in Nichols’s Rule 26(a) initial disclosures. Counsel for 

IDOT pointed out that the Court granted Nichols’s motion to strike the Romanski 

Affidavit (R. 162) for this very reason, and argued that the same ruling should be 

applied to the Williams Affidavit. Plaintiff’s counsel replied that Nichols in fact did 

disclose Williams as a witness having knowledge of contested issues, but that he did 

so in his answers to IDOT’s interrogatories rather in his initial disclosures. 

The Court disagrees with IDOT that Nichols’s failure to disclose Williams is 

the equivalent of IDOT’s failure to disclose Romanski. If in fact Nichols disclosed 

Williams in his interrogatory answers, his failure to disclose Williams in his initial 

disclosures was harmless. Ultimately IDOT received notice that Nichols might rely 

on Williams as a witness having knowledge of relevant facts prior to the summary 

17
judgment briefing. In contrast, IDOT never disclosed Romanski as having relevant 

knowledge prior to submitting his affidavit in support of summary judgment. 

Counsel for IDOT informed the Court at oral argument that she could not speak to 

whether Williams in fact was disclosed in Nichols’s interrogatory responses. Because 

IDOT has not contested otherwise, the Court will rely on the representation of 

Plaintiff’s counsel that Williams was disclosed in Nichols’s interrogatory answers. In 

any event, however, since Nichols also submitted the affidavits of several other 

individuals whose testimony was similar to Williams’ testimony, even if the Court

were to strike the Williams Affidavit, that would not have any effect on the outcome 

of IDOT’s motion for summary judgment.10

II.

Summary Judgment

It appears from the amended complaint that Nichols is alleging that IDOT is 

liable under Title VII for failing to accommodate his religious practices, for 

discriminating against him based on his religion, and for retaliating against him 

based on his engagement in statutorily protected activities. The Court will discuss 

IDOT’s motion for summary judgment on each of these claims in turn.

10 The Court has reviewed the Romanski Affidavit and similarly concludes that the 

Court’s ruling striking that affidavit did not have any effect on the outcome of IDOT’s 

motion for summary judgment. Moreover, in striking the Romanski Affidavit, the 

Court indicated that Romanski’s testimony would not barred at trial. However, the 

Court granted Nichols leave to take Romanski’s pre-trial deposition if he chooses to 

do so. 

18

 
A. Failure to Accommodate

Title VII prohibits employers from “discriminat[ing] 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)(1). Title VII defines “religion” as “all aspects of religious observance and 

practice, as well as belief, unless an employer demonstrates that he is unable to 

reasonably accommodate to [sic] an employee’s or prospective employee’s religious 

observance or practice without undue hardship on the conduct of the employer’s 

business.” 42 U.S.C. § 2000e(j). “The statutory definition of ‘religion’ in Title VII is 

drafted as an unusual blend. It combines a broad substantive definition of religion 

with an implied duty to accommodate employees’ religions and an explicit affirmative 

defense for failure-to-accommodate claims if the accommodation would impose an 

undue hardship on the employer.” Adeyeye v. Heartland Sweeteners, LLC, 721 F.3d 

444, 448 (7th Cir. 2013). The Seventh Circuit has said that, to establish a prima facie 

case of religious discrimination based on an employer’s failure to provide reasonable 

accommodation, “a plaintiff must show that the observance or practice conflicting 

with an employment requirement is religious in nature, that [he] called the religious 

observance or practice to [his] employer’s attention, and that the religious observance 

or practice was the basis for [his] discharge or other discriminatory treatment.” 

EEOC v. Ilona of Hungary, Inc., 108 F.3d 1569, 1575 (7th Cir. 1996) (citations 

omitted). “[O]nce the plaintiff has established a prima facie case of discrimination, 

the burden shifts to the employer to make a reasonable accommodation of the 

19
religious practice or to show that any accommodation would result in undue 

hardship.” Id.

1. Prima Facie Case

IDOT argues that Nichols has failed to establish any of the three elements of a

prima facie case of failure to accommodate. First, IDOT argues that Nichols’s stated 

religious practice—prayer in a quiet place—did not conflict with his job duties as a 

Highway Maintainer. R. 136 at 14. Nichols testified that it takes him approximately 

seven minutes to pray, and that a normal work break provided a sufficient length of 

time to pray. Nichols was afforded three work breaks—morning, afternoon, and 

lunch. Nichols testified that he had worked for IDOT for approximately ten years, 

and that, in the past, he had been able to pray during his breaks. Therefore, IDOT 

concludes, Nichols’s religious practices did not conflict with his employment 

requirements. 

IDOT’s argument ignores that Nichols also testified that, although he 

previously had found sufficient time to pray during his breaks, in early 2008 he felt 

he needed to pray more frequently because of the stress he was experiencing while 

serving as acting lead worker. In addition, because the conditions of his job had 

changed, he could no longer pray during the same times or in the same places as he 

had before. Nichols testified that prayer on the road while he was acting lead worker 

was impossible because his supervisors always required him to have other workers in 

his truck. Nichols stated that ideally he wanted permission to return to the yard for 

brief periods during the day to pray in a quiet place alone. The Court finds that this 

20
testimony creates a disputed issue of fact as to whether Nichols’s need to pray during 

the workday in 2008 while he was acting as temporary lead worker conflicted with 

his job requirements in that position.

Second, IDOT argues that Nichols failed to properly notify IDOT of his 

religious requirements because he never specifically told his supervisors that in order 

to properly pray during the workday he needed to be alone in a quiet place and that 

he would prefer to return to the yard once or twice a day as the best means by which 

he could accomplish praying in the proper manner. See R. 136 at 14. IDOT 

misperceives the notice requirement. As the Seventh Circuit has explained, Title VII 

does not “require adherence to a rigid script[.]” Adeyeye, 721 F.3d at 450. Rather, 

“Title VII, like the Americans with Disabilities Act [ADA], was written to deal with 

real communications between employees and managers, and the law expects both to 

be reasonable.” Id. The employee’s request satisfies the notice requirement if it is 

sufficient “to alert the employer to the fact that the request is motivated by a 

religious belief.” Id. Nichols’s grievance stated that “the hours spent on the road 

disallows time for at least 2 prayer sessions,” and that he “would appreciate if 

arrangements could be made for [him] to practice [his] religion in the proper 

manner.” R. 137-11 at 2. These statements clearly alerted IDOT that Nichols’s 

grievance was motivated by a religious belief. If IDOT was not certain about the 

manner in which “the hours [Nichols] spent on the road” prevented him from being 

21
able to pray at least twice a day, then it had the duty to communicate with Nichols to 

clarify the nature of his request.11

Finally, IDOT argues that Nichols has failed to establish the last requirement 

of a prima facie religious accommodation case because there is no evidence in the 

record to suggest that the religious observance or practice in question was the basis 

for Nichols’s discharge. The last requirement of a prima facie case presents 

somewhat of a problem, which neither party has squarely addressed. As previously 

noted, the formulation most frequently cited by the Seventh Circuit for the last 

requirement of a prima facie case is that the plaintiff must show that the religious 

observance or practice was the basis for the plaintiff’s “discharge or other 

discriminatory treatment.” Ilona of Hungary, Inc., 108 F.3d at 1575. But Seventh 

Circuit case law gives very little guidance as to what the term “discharge or other 

discriminatory treatment” means. On the one hand, the concept might be the same as 

the term “adverse employment action,” as interpreted and applied in Title VII 

disparate treatment cases. Indeed, some of the cases in this circuit do use the term 

“adverse employment action” in place of the term “discharge or other discriminatory 

treatment” for the third prerequisite to a plaintiff’s prima facie religious 

11 See Adeyeye, 721 F.3d at 450 (if employee’s request for accommodation is not 

certain, managers should ask employee to clarify the nature of his request); Porter v. 

City of Chicago, 700 F.3d 944, 953 (7th Cir. 2012) (“In requiring employers to ‘offer 

reasonable accommodations,’ we have encouraged ‘bilateral cooperation’ between the 

employee and employer and recognized that employers must engage in a dialogue 

with an employee seeking an accommodation.”) (citation omitted); Xodus v. 

Wackenhut Corp., 619 F.3d 683, 686 (7th Cir. 2010) (when presented with a request 

for a religious accommodation, “an employer cannot shield itself from liability by . . . 

intentionally remaining in the dark”) (internal quotation marks and citation 

omitted).

22

 
accommodation case. See, e.g., Anderson v. U.S.F. Logistics (IMC), Inc., 274 F.3d 470, 

478 n. 2 (7th Cir. 2001) (citing EEOC v. United Parcel Serv., 94 F.3d 314, 317 (7th 

Cir. 1996)). But these cases appear to invoke the adverse employment action 

requirement without consciously considering whether that term is appropriate in the 

context of a religious failure to accommodate case. Since such cases generally deal 

with obvious adverse employment actions—e.g., Adeyeye, 721 F.3d at 447

(termination); Xodus, 619 F.3d at 684 (refusal to hire)—they cannot be said to stand 

for the proposition that an adverse employment action is required. See Stanek v. St. 

Charles Cmty. Unit Sch. Dist. No. 303, 783 F.3d 634, 640 (7th Cir. 2015)

(“unexamined assumptions of prior cases do not control the disposition of a contested 

issue”).

Several other circuits have held that an adverse employment action is required 

in a religious failure to accommodate case, although it is not entirely clear whether 

those circuits ascribe the same meaning to that term as does the Seventh Circuit.12

Cases within this circuit at the district court level are somewhat mixed. Compare 

Rodriguez v. City of Chicago, 1996 WL 22964, at *3 (N.D. Ill. Jan. 12, 1996) (applying 

the Ninth Circuit standard that requires either an adverse employment action or a 

12 See, e.g., Ellis v. Principi, 246 Fed. App’x 867, 872 (5th Cir. 2007) (the employee 

must show that he “was discharged or disciplined for failing to comply with the 

conflicting employment requirement”); Goldmeier v. Allstate Ins. Co., 337 F.3d 629, 

637 (6th Cir. 2003) (same); Ali v. Alamo Rent-A-Car, Inc., 8 Fed. App’x 156, 158-59

(4th Cir. 2001) (dismissing failure to accommodate claim due to absence of adverse 

employment action where employee alleged she was transferred to a different job 

position based on her religious beliefs); see also Heller v. EBB Auto Co., 8 F.3d 1433, 

1438 (9th Cir. 1993) (employee must show he was either subjected “to discriminatory 

treatment, including discharge, because of his inability to fulfill the job 

requirements” or else threatened with same) (emphasis added).

23

 
threat of one), with Williams v. U.S. Steel Corp., 40 F. Supp. 3d 1055, 1064 (N.D. Ind. 

2014) (holding that adverse employment action in the disparate treatment sense is 

required).

While not discussing the issue, the Seventh Circuit’s opinion in Porter, 700 

F.3d 944, suggests that an adverse employment action is not required in a religious 

failure to accommodate case. There the court based its affirmance of the district 

court’s denial of the plaintiff’s failure to accommodate claim on a finding that the 

employer had offered a reasonable accommodation. But the court also affirmed the 

district court’s denial of the plaintiff’s disparate treatment claim, doing so based on a 

finding that the plaintiff had not alleged an adverse employment action. If an 

adverse employment action was required for the religious accommodation claim as 

well as for the religious disparate treatment claim, then presumably the court would 

not have had to reach the issue of whether the employer’s accommodation of the 

plaintiff’s religious beliefs was reasonable.

Also lending support to the argument that an adverse employment action is 

not required in a religious failure to accommodate case is the Seventh Circuit’s 

jurisprudence under the ADA. The Seventh Circuit generally applies similar 

standards in religious failure to accommodate cases and disability failure to 

accommodate cases. E.g., Adeyeye, 721 F.3d at 450. Whereas the Seventh Circuit 

requires an adverse employment action for a disparate treatment claim under the 

ADA, it does not impose the same requirement in the context of a failure to 

accommodate claim under the ADA. Instead, to survive summary judgment on a 

24
failure to accommodate claim under the ADA, the third element of a plaintiff’s prima 

facie case requires the plaintiff to point to evidence that, if believed by a jury, would 

demonstrate only that “his employer failed to reasonably accommodate that 

disability.” Reeves ex rel. Reeves v. Jewel Food Stores, Inc., 759 F.3d 698, 701 (7th Cir. 

2014). It makes sense, therefore, that proof that an employer failed to accommodate a 

conflicting religious practice in circumstances where an accommodation would not 

impose an undue burden also would be sufficient in and of itself to support a religious

failure to accommodate claim, without the necessity of the employee showing that he 

also suffered some separate adverse employment action as that term is used in 

disparate treatment cases.13 Logically, it also makes sense as the injury in a failure 

to accommodate is the inability to practice one’s religion that occurs immediately, not 

later when there may be some possibly related job action.

If an adverse employment action is required for Nichols to establish a prima 

facie religious failure to accommodate claim, then perhaps he has satisfied that 

requirement by IDOT’s termination of his employment. IDOT argues, however, that 

it terminated Nichols’s employment for a legitimate, nondiscriminatory reason, 

namely that he violated IDOT’s policy against workplace violence. Of course, Nichols 

13 See Lawson v. Washington, 319 F.3d 498, 500 (9th Cir. 2003) (Berzon, J., 

dissenting from denial of rehearing en banc) (“accommodation is a statutory 

obligation and [therefore] failing to accommodate is itself an unlawful employment 

practice, without regard to whether another employment consequence, other than the 

failure to accommodate, is visited upon the employee”); see also Nawrot v. CPC Int’l, 

259 F. Supp. 2d 716, 724 (N.D. Ill. 2003) (holding that the ADA does not require a 

separate adverse employment action to state a failure to accommodate, and stating in 

dicta that this holding was justified by the parallel rule under Title VII religion cases 

that “plaintiffs are not required to prove adverse employment actions to state a 

claim”).

25

 
challenges IDOT’s reason for his termination as pretext for discrimination against 

him because he is Muslim. But even if Nichols were to succeed on this disparate 

treatment claim, IDOT still argues that the evidence is insufficient to show that 

Nichols was terminated “because of a conflict with his need to pray while at work”

(presumably as distinguished from “because of his status as a Muslim”). 

Notwithstanding IDOT’s argument, IDOT’s summary judgment papers simply 

assume that an adverse employment action is required without any analysis of that 

issue. The Court therefore finds either that an adverse employment action separate 

from IDOT’s failure to accommodate is not required, or that the evidence is disputed 

as to whether IDOT’s termination of Nichols’s employment was motivated in part by 

his request for a religious accommodation.14 Should it later be determined that the 

evidence is insufficient to support a connection between Nichols’s religious need to 

pray at work and IDOT’s termination of Nichols’s employment, then it may become 

necessary for the Court to make a definitive ruling on whether Nichols must 

establish some other employment action taken against him because of a conflict with 

his religious practice of prayer. The parties will be asked at that time to submit 

additional briefing papers setting out their reasoned and legally supported analysis 

of that issue. 

14 On the latter point, the Court notes that one of Nichols’s co-workers testified that 

he has heard Romanski complain about Nichols requesting an accommodation to 

pray and state “why does he want special privileges to pray.” R. 150-15 (Williams 

Affidavit, ¶ 5). When Romanski made these comments, Martin also was present. Id., 

¶ 6.

26

 
2. Undue Hardship

Assuming that Nichols can establish a prima facie case for his failure to 

accommodate claim, the next issue is whether IDOT either offered him a reasonable 

accommodation or else can establish undue hardship. IDOT admits it did not offer 

Nichols any accommodation for his request to pray. Instead, IDOT argues it was not 

required to offer Nichols any religious accommodation because it can show undue 

hardship. Undue hardship exists when a religious accommodation would cause “more 

than minimal hardship to the employer or other employees.” Endres v. Ind. State 

Police, 349 F.3d 922, 925 (7th Cir. 2003). “[A]n accommodation that requires other 

employees to assume a disproportionate workload (or divert them from their regular 

work) is an undue hardship as a matter of law.” Noesen v. Medical Staffing Network, 

Inc., 232 Fed. App’x 581, 584-85 (7th Cir. 2007). IDOT argues that accommodating 

Nichols’s prayer request would impose more than minimal hardship on both IDOT 

and other IDOT employees because it would be operationally prohibitive for IDOT to 

allow Nichols to leave his work location on the road to return to the yard at least 

twice a day. According to IDOT, allowing Nichols to return to the yard would put a 

scheduling strain on IDOT and result in extra costs and disruptions to the entire 

work crew. See R. 136 at 16. 

IDOT relies on the conclusory assertions of its management personnel to the 

effect that it would be an undue hardship on IDOT to allow Nichols to return to the 

yard twice a day to pray. The individuals who make this assertion, however, do not 

provide any concrete factual support for it. Moreover, the conclusory assertions of 

27
management personnel are contradicted by Nichols, who states by affidavit that the 

work site is always within a few miles of the yard and that IDOT has never required 

a lead worker to stay on the road with his crew at all times.15 According to Nichols, 

he is the only lead worker that IDOT has required to stay with his crew throughout 

the entire day, and IDOT could have accommodated his prayer request simply by 

allowing him to do what every other lead worker before and after him has done.16

The testimony of one of Nichols’s co-workers supports Nichols’s testimony.17 This

evidence is sufficient to create a disputed issue of fact on the question of undue 

hardship. See Minkus v. Metro. Sanitary Dist. of Greater Chi., 600 F.2d 80, 81 (7th 

Cir. 1979) (“whether an employer can reasonably accommodate a person's religious 

15 See, e.g., R. 149-3 at 5 (Nichols Affidavit, ¶ 30) (“Based upon my 10 years of 

experience with working with IDOT lead worker’s (LW’s) temporary and permanent, 

daily or almost daily and throughout the day would leave their crew and take their 

truck to drive to other job sites, the yard or for other reasons.”); id., ¶ 20 (“During my 

10 years with IDOT, . . . I witnessed IDOT allowing other LW’s to be alone in their 

truck and to go where they wished alone in their truck, including during the lunch 

break.”).

16 See R. 149-3 at 7 (Nichols Affidavit, ¶ 29) (“Had IDOT provided me with a religious 

accommodation, it would not have required to take the whole crew with me to the 

yard, provided that IDOT no longer required me to remain with the crew at all times. 

Indeed, based upon my experience of working with IDOT for 10 years, IDOT did not 

require any other lead worker before or after me to remain with the crew at all times. 

IDOT only required this of me.”).

17 See R. 149-1 at 4 (Love Affidavit #1, ¶ 30) (acting lead worker typically has his own 

separate truck); R. 149-2 at 1 (Love Affidavit #2, ¶ 11) (“Some highway maintainers 

would remain at the job site during the morning breaks. Others would take a truck 

and drive somewhere during the morning break. Many trucks existed at the job 

site.”); R. 149-2 at 1-2 (Love Affidavit #2, ¶¶ 12, 14) (Nichols could have driven to a 

quiet place and prayed alone during morning and afternoon breaks); R. 149-2 at 2-3 

(Love Affidavit #2, ¶¶ 18-31) (both acting lead workers and highway maintainers 

frequently left the job site in a truck alone for short periods of time but Nichols was 

never allowed to do the same).

28

 
beliefs without undue hardship is basically a question of fact.”) (internal quotation 

marks and citation omitted).

In addition to the above, a disputed issue of fact exists on the question of 

undue hardship because a reasonable jury could question IDOT’s good faith in 

asserting undue hardship. IDOT’s good faith is at issue because IDOT admits it 

never engaged in any dialogue with Nichols about his request for an accommodation. 

See R. 158 at 7.18 The Seventh Circuit has said that, “[i]n addition to holding 

employees to their obligation to fully participate in the interactive process, our cases 

also demonstrate that if the employee has requested an appropriate accommodation, 

the employer may not simply reject it without offering other suggestions or at least 

expressing a willingness to continue discussing possible accommodations. This 

reflects the give-and-take aspect of the interactive process. An employer cannot sit 

18 Nichols testified that he attempted to explain the circumstances of his prayer 

request to Martin but that Martin refused to engage in any conversation with him on 

the topic. R. 137-3 at 158. After Martin refused to acknowledge his verbal requests 

for an accommodation, Nichols prepared a written grievance and presented it to 

Martin. Although Martin was required to acknowledge and sign the grievance, he 

refused to do so. Martin denied having any knowledge of Nichols’s request for a 

religious accommodation, and also denied refusing to sign Nichols’s grievance. 

R. 137-7 at 48, 192. But on summary judgment, the Court is required to credit 

Nichols’s version of what happened. Nichols also states that after Martin refused to 

acknowledge his grievance, he presented it to Stumpner at the pre-disciplinary 

hearing that was held to address Nichols’s missed snow days infraction. There is no 

dispute that Stumpner considered Nichols’s request for a quiet place to pray, and 

that he denied it. R. 137-11 at 2. Stumpner testified that neither he nor anyone of 

whom he was aware sought any clarification from Nichols about what would be 

required to accommodate Nichols’s request that “arrangements . . . be made for [him] 

to practice [his] religion in the proper manner.” R. 149-6 at 12 (Stumpner Dep. 60). 

Stumpner’s testimony on this point was confirmed by Martin, R. 137-7 at 193-94, 206 

(Martin Dep. 192-93, 205), and by Fulgenzi, R. 136-6 at 145-47 (Fulgenzi Dep. 144-

46), both of whom also said they were not aware of anyone who investigated or spoke 

with Nichols about his prayer request.

29

 
behind a closed door and reject the employee’s requests for accommodation without 

explaining why the requests have been rejected or offering alternatives.” E.E.O.C. v. 

Sears, Roebuck & Co., 417 F.3d 789, 806 (7th Cir. 2005) (emphasis added); see also 

Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1062 (7th Cir. 2014) (“While an

employer’s failure to engage in the interactive process alone is not an independent 

basis for liability, it is actionable if it prevents identification of an appropriate 

accommodation for a qualified individual.”) (internal quotation marks and citation 

omitted); Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996) (“A 

party that fails to communicate, by way of initiation or response, may . . . be acting in 

bad faith. In essence, courts should attempt to isolate the cause of the breakdown 

and then assign responsibility.”).

IDOT “bears the burden of proof, so it must show, as a matter of law, that any 

and all accommodations would have imposed an undue hardship” on the conduct of 

its business. Adeyeye, 721 F.3d at 455. The proof submitted by IDOT in support of 

summary judgment on this issue is insufficient to warrant a finding as a matter of 

law in IDOT’s favor. Accordingly, summary judgment in favor of IDOT on Nichols’s

failure to accommodate claim is denied.

B. Disparate Treatment

To withstand summary judgment on a disparate treatment claim, a plaintiff 

must show that he suffered an adverse employment action and that the action was 

the product of discrimination. Chaib v. Indiana, 744 F.3d 974, 981 (7th Cir. 2014). 

There is no dispute that Nichols suffered an adverse employment action when he was 

30
fired. The only question is whether he was fired because of his religion. 19

“Under Title VII, a plaintiff can prove discrimination either by presenting 

evidence of discrimination (the ‘direct method’ of proof), or by the McDonnell Douglas

burden-shifting approach (the ‘indirect method’).” Darchak v. City of Chi. Bd. of 

Educ., 580 F.3d 622, 630 (7th Cir. 2009). Nichols argues he has met his burden of 

proof under either method. Examining the evidence under the direct method, the 

Court concludes that summary judgment is not appropriate on Nichols’s disparate 

treatment claim. Therefore, the Court finds it unnecessary to address the parties’ 

arguments with respect to the McDonnell Douglas indirect approach. 

“Under the direct method of proof, a plaintiff’s claim survives summary 

judgment if [ ]he can demonstrate triable issues as to whether discrimination 

motivated the adverse employment action.” Darchak, 580 F.3d at 631 (internal 

quotation marks and citation omitted). “The focus of the direct method of proof . . . is 

19 In addition to his termination, Nichols alleges disparate treatment in numerous 

other respects. The Court agrees with IDOT that many of these other complaints are 

not independently actionable because they do not rise to the level of an adverse 

employment action and/or may be time-barred. But since it is undisputed that 

Nichols suffered an adverse employment action when he was terminated and timely 

filed his EEOC claim after that termination, the Court does not need to specifically 

address in detail all the forms of disparate treatment Nichols raises. Whether and to 

what extent Nichols can introduce evidence at trial concerning his other allegations 

of differential treatment will depend on a determination of their relevancy to the 

issue of whether IDOT acted with discriminatory intent when it fired Nichols. See 

Malin v. Hospira, Inc., 762 F.3d 552, 561 (7th Cir. 2014) (while the defendant was 

correct as a matter of law that discrete discriminatory acts that are not part of an 

EEOC charge filed within 300 days of the date on which those acts occurred are not 

actionable, “[t]he district court erred by failing to consider [those time-barred events] 

in evaluating [the plaintiff’s] [timely] Title VII [ ] claim.”). Relevancy issues will be 

determined either at trial or upon the filing of pre-trial motions in limine.

31

 
whether the evidence points directly to a discriminatory reason for the employer’s 

action.” Atanus v. Perry, 520 F.3d 662, 671 (7th Cir. 2008). Discriminatory intent can 

be shown either through direct evidence, such as an admission that the motive was 

discriminatory, Darchak, 580 F.3d at 631, or by “circumstantial evidence which 

suggests discrimination albeit through a longer chain of inferences,” Luks v. Baxter 

Healthcare Corp., 467 F.3d 1049, 1052 (7th Cir. 2006). “Examples of circumstantial 

evidence that might suggest intentional discrimination are suspicious timing, 

ambiguous statements, comments directed at employees in the protected group, and 

examples of similarly situated employees outside the protected class who received 

better treatment.” Nehan v. Tootsie Roll Indus., Inc., 621 Fed. App’x 847, 850 (7th 

Cir. 2015). IDOT argues that there is no direct or circumstantial evidence that 

Nichols’s termination had anything to do with his religion. Rather, according to 

IDOT, “it is undisputed” that Nichols was discharged for cause because he violated 

IDOT’s policy against violence in the workplace. R. 136 at 10. The Court disagrees, 

and instead finds that Nichols has assembled a number of pieces of evidence, none 

perhaps dispositive in itself, but that taken as a whole point in the same direction 

and thus provide adequate support to avoid summary judgment. See Sylvester v. SOS 

Children’s Villages Ill., Inc., 453 F.3d 900, 903 (7th Cir. 2006).

32
1. Evidence Of Differential Treatment

Nichols testified that he was the only Muslim at the Harvey Yard and that he 

was treated differently than other workers, who were not Muslim.20 For instance, 

Nichols testified that he was punished more severely for missed snow days and for 

being late to work, that he was the only worker who was prohibited from entering all 

thirteen rooms in the team section of the Harvey Yard, and that he was excessively 

scrutinized and monitored by the permanent lead and lead lead workers. Moreover, 

he was treated differently than other acting lead workers when he was denied the 

use of the supervisor’s truck, he was required to bring other workers with him in one 

truck, he was required to stay with his crew at all times, he was given non-lead 

worker duties to perform, he was not sent to leadership school for training, and he 

was not given access to IDOT’s computer system. R. 149-3.

Nichols’s testimony regarding differential treatment is similar to the plaintiff’s 

testimony in Anderson v. Advocate Health & Hospitals Corp., 2014 WL 4922371 (N.D. 

Ill. Sept. 29, 2014). In that case, the plaintiff, who was black, also alleged that her 

employer used an incident of workplace violence as a pretext for firing her. In 

denying the employer’s summary judgment motion, the court held that,

notwithstanding evidence that the defendant had terminated other workers who also 

were accused of violating the defendant’s workplace violence policy, a triable issue of 

fact existed on the question of discriminatory intent. The plaintiff claimed among 

20 The Court does not need to spend any time addressing IDOT’s suggestion that 

Nichols’s supervisors were not aware that Nichols was Muslim. The evidence in the 

record to the contrary is sufficient to allow a jury to decide that issue.

33

 
other things that her supervisor restricted her from leaving the building for lunch, 

made her work alone in an isolation unit and transport patients alone on an injured 

foot, and disciplined her for missing an antibiotic treatment, but that her supervisor 

“did not subject the White nurses to the same treatment.” Id. at *4. The court found 

that the plaintiff’s allegations regarding differential treatment were “of greater

relevance” than the defendant’s evidence of other workers who were also terminated 

for workplace violence. Id. Although the defendant “unequivocally den[ied]” the 

plaintiff’s allegations of differential treatment, the court held that it was required to 

“credit [the plaintiff’s] version of the events at this stage.” Id.

2. Factual Dispute Regarding Seriousness Of 

Threats Made In Nichols’s Fax

IDOT attempts to distinguish Anderson on the ground that it was disputed in 

that case whether the plaintiff actually punched a co-worker. R. 157 at 10. But the 

court’s denial of summary judgment did not turn on that dispute. Instead, the 

dispute over whether the alleged act of violence actually occurred merely was one of 

several factors that contributed overall to the court’s finding that a factual issue 

existed for the jury to resolve regarding the employer’s discriminatory intent. 

Moreover, although there is no dispute here that Nichols’s sent the April 2, 

2008 fax, there is a dispute regarding the seriousness of the “threats” contained in 

the fax. A reasonable jury could disagree with IDOT’s position that the fax represents 

a “straight[-]forward threat of violence.” R. 137 at 9 (¶ 68). To begin with, Fulgenzi’s

deposition testimony regarding IDOT’s determination that the fax contained a 

34
“straight-forward threat of violence” was equivocal on this point.21 In any event, a 

reasonable jury might disagree with IDOT’s characterization of the fax, and instead 

agree with Nichols that, rather than threaten violence, the fax asserted only a right 

to self-defense.

In addition, the jury might consider “[t]he special context in which [Nichols] 

expressed [his] anger,” Coleman v. Donahoe, 667 F.3d 835, 855 (7th Cir. 2012)—to 

the EAP/Labor Relations office—to be important in assessing the level of seriousness

of the threats contained in the fax (and hence the credibility of IDOT’s stated reason 

for terminating Nichols). For instance, the jury reasonably might conclude that the 

statements in the fax were not “true threats,” similar to the Seventh Circuit’s 

reasoning in Coleman, where the plaintiff had told her psychiatrist that she had

fantasized about killing her boss. Id. at 856 (finding it “troubling to think that 

anyone who confides to her psychiatrist . . . could automatically be subject to 

termination for cause”). The Seventh Circuit acknowledged that the employer in that 

case would have had reason to be concerned if the plaintiff had expressed to her 

psychiatrist “a genuine and ongoing intent to harm another person.” Id. But the 

record in that case showed that the employer “had little reason to believe that [the 

plaintiff] posed a continuing threat”—and even more to the point, [like IDOT here], it 

21 See, e.g., R. 136-6 at 69 (Fulgenzi Dep. 68) (referring to the fax as a “perceived

threat of violence”) (emphasis added); id. at 87 (Fulgenzi Dep. 86) (“When I discussed 

[the fax] with the Office of Labor Relations, they concurred that [the fax] can be

construed as a threat of violence.”) (emphasis added); id. at 187 (Fulgenzi Dep. 186)

(“the statement that Mr. DeMarco made, whether or not that was to be considered a 

threat of violence . . . . Ultimately it was considered to be a threat of violence”) 

(emphasis added).

35

 
appear[ed] to have made no effort to ascertain whether [the plaintiff] did or not.” Id. 

Not only did the employer make no inquiry before terminating the plaintiff, the 

Seventh Circuit said, but the employer also “had good reason to believe that 

whatever danger [the plaintiff] ever posed had subsided by the time she sought to 

return to work.” Id. A jury could find the same factors are at play in this case, which, 

according to the Seventh Circuit, would “give some boost to [an employee’s] claim 

that [the employer’s] asserted reasons for terminating [the employee] were 

pretextual.” Id. at 857.

Finally, in assessing the severity of the threats in the fax, the jury might 

consider the fact that the language used by Nichols to convey the so-called “threats” 

mimics the language Nichols claimed in the fax that his supervisors used when they 

made threatening statements against him. A reasonable jury could conclude that the 

statements in Nichols’s fax for which he was fired do no more than reflect the way 

employees at the Harvey Yard talked to each other all the time. See Sumner v. U.S. 

Postal Serv., 899 F.2d 203, 210 (2d Cir. 1990) (“even accepting the Postal Service's 

account of the May 2 incident, Sumner's response to Montemarano does not rise to 

the level of insubordination that would warrant firing, particularly when considered 

in light of the history of interactions between Sumner and his supervisors and what 

appears from the record to be the milieu of the office”); see also NLRB v. Mueller 

Brass Co., 501 F.2d 680, 686 (5th Cir. 1974) (“Blanton's abusive outburst at Gray . . . 

was understandable. Expression of his anger in the language of the mill is not nearly 

as shocking to us as respondent's counsel would suggest.”). 

36
In sum, given all of the above, the Court declines to make a legal 

determination that the fax contained a “straight[-]forward threat of violence,” and 

will leave that issue for the jury to decide. 

3. Evidence Of Religion In The Workplace

In addition to evidence of disparate treatment, Nichols also has presented 

testimony from some of his co-workers that Martin, who is a Baptist (R. 137-7 at 45), 

had strong religious views, which he affirmatively promoted while performing his 

duties at the Harvey Yard. According to several of Nichols’s co-workers, Martin

“would arrive to work and leave work with the Holy Bible in his hand,” would began 

meetings with a prayer, kept an open Bible on his desk, and would refer to Bible 

passages to make a point. R. 149-4 at 1 (Perryman Affidavit, ¶¶ 4-9).22 One co-worker 

testified that, “[p]eriodically, George Martin would prophesize to me during work 

hours,” and told “me that God appeared to him in his dreams” and “informed [him] to 

inform me to do certain things in my life.” R. 149-4 at 1 (Perryman Affidavit, ¶ 9). 

The same co-worker also testified that employees at the Harvey Yard, including 

himself, “would be in Frank Romanski’s office while Frank Romanski was present 

and argue about religion.” Id., ¶ 12. Some employees “would bring the Bible to work,” 

and they would argue about particular Bible passages” with Romanski present. Id., 

22 See also R. 149-1 at 1 (Love Affidavit #1, ¶¶ 5, 6, 8) (Martin begins every meeting 

with a prayer, asks co-workers about their religion, informs others that he is a 

church deacon, and asks other workers to become a member of his church); id., ¶¶ 9-

10 (Martin has “a big book, stating Holy Bible on the cover . . . always on his desk. It 

was large, approximately 13" x 8" x 3-4 inches. When [he] wanted to make a point, he 

would refer to a passage in the Bible.”); R. 150-15 (Williams Affidavit, ¶ 4) (Martin 

starts meetings with a prayer, has an open Bible on his desk, and carries the Bible to 

and from work).

37

 
¶ 14. Nichols did not participate in these discussions. Id., ¶ 13. In addition, Martin 

admitted at his deposition that he has sent somewhere between 100 and 200 emails 

to other employees at the Schaumburg office containing excerpts from the Bible. 

R. 137-7 at 76-78. 

IDOT argues the Court should ignore the affidavits of Nichols’s co-workers 

because they are “inadmissible.” R. 157 at 8.23 For instance, IDOT repeatedly cites to 

Federal Rule of Evidence 404(a)(1), and asserts that the testimony of Nichols’s coworkers constitutes “character evidence which is not admissible for proving action in 

conformity therewith.” See R. 158, passim. But the testimony in question does not 

attempt to state an opinion regarding either Martin’s or Romanski’s character. See, 

e.g., Michelson v. United States, 335 U.S. 469, 477 (1948) (“What commonly is called 

‘character evidence’ is only such when ‘character’ is employed as a synonym for 

‘reputation.’”); Schweitzer-Reschke v. Avnet, Inc., 881 F. Supp. 530, 533 (D. Kan. 

1995) (evidence of defendant’s reputation as a “male chauvinist” inadmissible under 

Rule 404(a) on issue of discriminatory intent). The co-workers’ testimony therefore 

23 The Court is under no obligation to address IDOT’s evidentiary objections to the coworkers affidavits because IDOT failed to raise those objections in a proper manner. 

IDOT raised its evidentiary objections in its response to Nichols’s Local Rule 56.1 

statement of additional facts, rather than in its brief, which is not allowed under the 

local rules. See Sys. Dev. Integration, LLC v. Computer Sciences Corp., 739 F. Supp. 

2d 1063, 1068 (N.D. Ill. 2010) (factual and legal arguments in Rule 56.1 statements 

are improper). And, while IDOT attempted to incorporate its evidentiary objections 

from its Rule 56.1 response into its brief, that attempt was insufficient to preserve 

the issues. The references to IDOT’s evidentiary objections in its brief and IDOT’s 

citation to specific rules of evidence in its response to Nichols’s fact statement are 

vague and conclusory, and it is well established that perfunctory arguments that are 

not supported by pertinent authority are generally waived. See Davis v. Carter, 452 

F.3d 686, 691-92 (7th Cir. 2006). Nevertheless, as the Court previously noted, it will 

overlook the local rule violations of both parties and address the issues on the merits.

38

 
falls under Rule 404(b), relating to evidence of specific acts to show character, rather 

than Rule 404(a)(1), relating to opinion testimony to show character. Under Rule 

404(b)(2), the testimony is admissible as evidence of prior or specific instances of 

conduct offered to prove, among other things, motive or intent. See, e.g., SchweitzerReschke, 881 F. Supp. at 533 (“[t]he plain language of Rule 404(b) [ ] allows for the 

use of specific instances of conduct” to prove “intent or motive to discriminate”).

IDOT also objects on the basis of hearsay, see R. 158, but the statements in the 

co-workers affidavits appear to be based on personal knowledge. To the extent that 

any of the co-workers relate an out-of-court conversation or statement, the 

conversation or statement is not hearsay because it is not being offered for the truth 

of the religious matters asserted. For instance, one affiant’s statement that Martin 

said that God appeared to him in his dreams is not offered to prove that God actually 

appeared to Martin in his dreams. Finally, IDOT asserts that the statements in the 

co-workers affidavits to the effect that Martin began meetings with a prayer 

“constitute inappropriate opinion testimony.” R. 158 at 11-12. It is not clear to the 

Court how these statements, which describe events or conduct personally witnessed 

by the affiants, constitute opinion testimony. In any event, the Court notes that, 

pursuant to Federal Rule of Evidence 701, a lay witness may testify to an opinion 

that is “rationally based on the witness’s perception and helpful to clearly 

understanding the witness’s testimony or to determining a fact in issue.”

IDOT raises two other reasons why the co-workers affidavits are insufficient to 

preclude summary judgment in its favor. The first is that the co-workers affidavits 

39
are irrelevant because Nichols was terminated for making a threat, not because of 

his religion. That argument is unavailing because Nichols offers the co-workers

affidavits concerning religion in the workplace as evidence that his April 2, 2008 fax 

was not the real reason for his termination. “[W]hat role if any [Nichols’s] religion . . . 

played in h[is] discharge [as opposed to the reasons given by IDOT for his discharge] 

is a question that the jury must sort out.” Venters v. City of Delphi, 123 F.3d 956, 974 

(7th Cir. 1997) (holding that the city’s evidence as to the legitimate reasons for 

terminating the plaintiff did not eliminate all doubt as to whether religion played at 

least a motivating role in the plaintiff’s discharge) (citing Blalock v. Metals Trades, 

Inc., 775 F.2d 703, 708-09 (6th Cir. 1985) (evidence that company owner was willing 

to give special consideration to those who shared his religious views, and withheld 

that consideration from those who did not, constitutes direct evidence that religion 

played a role in plaintiff’s discharge))).24

IDOT’s other argument is that the religious proclivities of Martin and others 

at the Harvey Yard are irrelevant because Nichols was terminated by upper 

management personnel (Stumpner, Fulgenzi, Iacullo, and O’Keefe). Generally 

speaking, IDOT is correct that comments by a non-decision maker do not suffice as 

evidence of discriminatory intent. See Williams v. Seniff, 342 F.3d 774, 790 (7th Cir. 

2003). However, the Seventh Circuit has “qualified” this principle, id., to say that if 

24 See also Stone v. West, 133 F. Supp. 2d 972, 982-83 (E.D. Mich. 2001) (evidence of 

an email in which the plaintiff’s supervisor “specifically discusses the Sabbath, 

quotes a biblical passage calling for observance of the Sabbath, and then calls upon 

her employees to ‘leave next Sunday free for rest and worship,’ . . . gives rise to an 

issue of fact as to whether [the supervisor] acted on a predisposition to discriminate 

against Plaintiff’s exercise of her religion”).

40

 
the person in question has input into the decision then a reasonable jury might “infer 

that the decision makers were influenced by [that person’s] feelings in making their 

decision.” Hunt v. City of Markham, 219 F.3d 649, 653 (7th Cir. 2000); see also Lewis 

v. City of Chicago, 496 F.3d 645, 652 (7th Cir. 2007) (because individual was involved 

in the decision-making process, his comments “qualify as direct evidence of 

discrimination”).

There is sufficient evidence in the record for a reasonable jury to conclude that 

Martin had input in the decision to place Nichols on suspension pending decision to 

discharge.25 Fulgenzi, who played the leading role in the investigation into Nichols’s

fax and decision to terminate, testified that Nichols’s chain of command had input in 

the decision. See R. 136-6 at 47-48 (Fulgenzi Dep. 46-47). Martin was Nichols’s

immediate supervisor and therefore part of his chain of command. Moreover, upon 

further questioning, Fulgenzi specifically admitted that he likely consulted with 

Martin as part of the process in which a collective decision regarding punishment 

was reached. Id. at 43-47 (Fulgenzi Dep. 44-48). Martin too admitted that he had 

conversations with Fulgenzi about the decision of whether to place Nichols on 

administrative leave, suspend or fire him. R. 137-7 at 172 (Martin Dep. 171). Martin 

also admitted that he also “may” have had such conversations with Stumpner. Id. at 

171 (Martin Dep. 170). 

In addition to the above, Fulgenzi testified that he had to rely primarily on the 

input he received from Nichols’s chain of command in deciding whether to terminate 

25 There also is evidence that Romanski had influence over Martin, and that 

Reynolds and Thompson were Romanski’s “foot soldiers.”

41

 
Nichols because he personally did not have any knowledge about Nichols’s behavior. 

When asked what information he obtained from his consultation with Nichols’s chain 

of command was most important to his decision to recommend termination, Fulgenzi 

responded that he was impressed by the fact that Nichols’s supervisor appeared to be 

extremely concerned over his own safety after Nichols sent the April 2, 2008 fax, to 

the point where that supervisor reported his safety concerns to the police. R. 136-6 at 

52-53 (Fulgenzi Dep. 51-52). Again, the supervisor in question was Martin.26

Finally, Fulgenzi also suggested that it was up to the employee’s immediate 

supervisor to decide whether to report a particular incident, even one involving 

violence or threats of violence, as a violation of IDOT’s policy against workplace 

violence. See R. 136-6 at 57 (Fulgenzi Dep. 56). Iacullo similarly testified that an 

employee’s immediate supervisor has discretion to deal with an incident that 

otherwise could have been written up as a violation of IDOT’s policy against 

workplace violence by imposing remedial measures short of a citation for violating 

the policy to avoid the employee being discharged.27 This testimony collectively 

26 The police report incident occurred after Martin told others that he had 

information that Nichols was “hanging around” the work site after being suspended 

for sending the fax. Nichols claims that Martin manufactured the story about Nichols 

visiting the work site while on suspension in order to have an excuse to file a false 

police report for the purpose of creating the impression that Nichols was unstable 

and posed a threat to others. See, e.g., R. 137-24 at 3. While Martin denies these 

accusations, R. 137-7 at 141, the Court must credit Nichols’s testimony on a motion 

for summary judgment.

27 This discretion seems inconsistent with a so-called “zero tolerance” policy for 

workplace threats and violence. Iacullo testified: “I don’t know if we have zero 

tolerance to violence in the workplace. I believe we do.” R. 137-5 at 49 (Iacullo Dep. 

48).

42

 
suggests that the employee’s immediate supervisor has a great deal of control over 

the ultimate employment action that is taken against an employee when an issue of 

workplace violence arises. Once again, this testimony points to Martin as the person 

with the most influence over the decision to terminate Nichols.28

4. IDOT’s Failure To Investigate Threats Against 

Nichols

Another piece of evidence that a reasonable jury could take into account in 

deciding whether IDOT was motivated by discrimination when it decided to 

terminate Nichols for a violation of the policy against workplace violence is that 

IDOT never took any steps to investigate threats of violence against Nichols. 

Nichols’s testimony and his April 2, 2008 fax both describe how Nichols sent the fax 

in response to threats of violence that were made against him. Nichols’s fax further 

described how Nichols had attempted to address the threats in a proper manner by 

contacting the EAP. Not only did the EAP not offer any help to Nichols, but it 

referred him to the Labor Relations Office, which also declined to help Nichols, which 

led Nichols to send the fax, which ironically was then used against him as a reason to 

fire him.

28 Given the above, this case is distinguishable from Sattar v. Motorola, Inc., 138 F.3d 

1164 (7th Cir. 1998), wherein the plaintiff claimed that he was terminated because 

his former supervisor, who was a practicing Muslim, disliked the plaintiff, who was a 

non-practicing Muslim. The plaintiff’s current supervisors in that case affirmatively 

testified that they reached their decision to terminate the plaintiff independent of 

any input from the plaintiff’s former supervisor. In contrast, none of the individuals 

in Nichols’s chain of command affirmatively testified that they did not rely on any 

input from Martin when they signed off on the decision to terminate Nichols.

43

 
Courts that have addressed similar situations have said that “[w]here the 

employer provokes a reaction from an employee, that reaction should not justify a 

decision to impose a disproportionately severe sanction.” Sumner, 899 F.2d at 210.

IDOT asserts in a conclusory manner that “the record is clear” that Nichols “was not 

‘ignored,’ nor did IDOT do anything to provoke him into violating its policy against 

work-place violence.” R. 157 at 10 n.9. But the record contains sufficient evidence as 

already has been discussed for that question to be put to the jury.

The Eighth Circuit’s opinion in Excel Corp. v. Bosley, 165 F.3d 635 (8th Cir. 

1999), is a good example of the provocation principle as applied in the Title VII 

context. There the plaintiff worked at the same meat packing plant as her ex-spouse. 

At trial, the plaintiff introduced evidence that her ex-spouse subjected her to sexual 

harassment during confrontations at work, such as calling her “bitch,” “slut” or 

“whore,” and threatening to kill her current husband. Id. at 637-38. The plaintiff 

repeatedly reported the unwelcome harassment and her fear of her ex-husband’s 

temper to the defendant’s management. Id. at 638. On one particular day, the 

plaintiff’s ex-husband was near the plaintiff’s work station calling her names such as 

“fucking bitch.” The plaintiff asked the floor supervisor to relieve her temporarily 

from her work station, but the supervisor refused, despite knowledge of the 

harassment and the plaintiff’s ex-husband’s proximity to the plaintiff. The plaintiff’s 

ex-husband continued to harass the plaintiff, and, out of frustration, the plaintiff 

pushed him “once in the chest and told him to get out of the area and go back to his 

assignment.” Id. The plaintiff was sent to the supervisor’s officer and told she was 

44
being placed under “indefinite suspension” for violating a work rule against physical 

contact between employees. Upon leaving the work floor, the plaintiff saw her exhusband in another room. Believing that he was not being sanctioned as strongly as 

she was, if at all, the plaintiff pushed past a supervisor to enter the room to talk to 

her ex-husband. This incident was reported as the plaintiff having struck a 

supervisor. These events then formed the basis for the defendant’s decision to 

terminate the plaintiff. The ex-husband did not receive any sanction.

In upholding the jury’s verdict in favor of the plaintiff on her discrimination 

claim, the Eighth Circuit said:

Under Title VII . . ., an employee is entitled to relief if he or 

she proves that impermissible discrimination was a 

“motivating factor” in the employment decision, “even 

though other factors also motivated” the employer’s

decision. . . . It is not necessary that the actual termination 

decision be motivated by discriminatory animus. If the 

decision making process is tainted by discrimination, the 

claimant is entitled to relief. When an employee is fired 

because he acted to defend himself against harassment, 

which supervisors failed to take reasonable measures to 

prevent or correct, the termination process cannot be said 

to be free from discrimination. This is so even if the 

ultimate decision maker was moved purely by a legitimate 

concern about personnel matters.

Id. at 638-39 (citations omitted).29 The Court concludes that Nichols is entitled to 

present evidence of provocation to the jury, which then would be entitled to consider 

29 See also Hertz v. Luzenac Am., Inc., 370 F.3d 1014, 1022 (10th Cir. 2004) (holding 

that the plaintiff’s “outburst constituted protest against perceived discrimination,” 

was “a solitary event,” and did “not reach the threshold of unreasonableness 

necessary to deprive him of the protections of Title VII,” and concluding that “[a]n 

emotional response to a racial or religious epithet is a most natural human reaction” 

and that “[i]t would be ironic, if not absurd, to hold that one loses the protection of an 

antidiscrimination statute if one gets visibly (or audibly) upset about discriminatory 

45

 
that evidence in deciding whether IDOT’s decision to terminate Nichols for sending 

the April 2, 2008 fax was free of discriminatory intent.

5. Similarly Situated Employees

In addition to the above, Nichols has presented evidence of similarly situated 

employees who engaged or may have engaged in conduct that could or should have 

fallen under IDOT’s policy against workplace violence but who Nichols claims or 

believes were not terminated for their conduct. IDOT asserts that it is Nichols’s 

burden of proof to establish whether any of the alleged comparators in fact were 

similarly situated but not terminated, and that the evidence in the record identified 

by Nichols concerning the comparators is insufficient to meet this burden. 

The Court acknowledges that there may be some evidentiary issues regarding 

some of the alleged similarly situated comparators which will have to be resolved if 

this case goes to trial. For purposes of IDOT’s summary judgment motion, however, 

the Court concludes that at least some of the evidence submitted by Nichols—

including Nichols’s own testimony, an affidavit of his counsel, and documents 

produced by IDOT—is sufficient to create a disputed issue of fact as to whether IDOT 

conduct”); Mueller Brass Co., 501 F.2d at 686 (“more significant” than the employee’s 

outburst was the fact that it was “spontaneous” and “provoked by the unlawful 

conduct of his employer”); cf. NLRB v. M & B Headwear Co., 349 F.2d 170, 174 (4th 

Cir. 1965) (in rejecting employer’s argument that an employee was terminated for 

her verbal outbursts rather than for her pro-union activities in violation of the 

National Labor Relations Act, court states that it could not “disregard the fact that 

the unjust and discriminatory treatment of [the employee] gave rise to the 

antagonistic environment in which [her] remarks were made,” that to accept the 

defendant’s argument regarding a legitimate reason for firing the employee “would 

be to provide employers a method of immunizing themselves from the only real 

sanction against violations of [the statute],” and that “refusal to reinstate [the 

employee] would put a premium on the employer’s misconduct”). 

46

 
treated similarly situated employees differently than Nichols. For instance, Nichols 

reported that Reynolds was threatening him with bodily harm, yet Fulgenzi admitted

nothing was done to look into those threats and that Reynolds is still working for 

IDOT. See R. 136-6 at 183-84 (Fulgenzi Dep. 182-83); see also R. 149-5 at 2 (¶ 9).

Inexplicably, IDOT claims that Nichols’s report that Reynolds threatened him by 

saying that Nichols was going to “get himself fucked up” was too “vague” of a threat 

to warrant investigation, while at the same time arguing that Nichols’s statement in 

the April 2, 2008 fax that “someone in the Harvey year is going to get ‘fucked up’” 

was “a straight[-]forward threat of violence” warranting Nichols’s termination. See

R. 149-8 at 2-5 (¶¶ 2, 3) (Defendants’ Response To Plaintiff’s Requests To Admit). A 

reasonable jury may find it difficult, as the Court has, to reconcile those two 

positions.

Another comparator is an employee named Stephen Cameron, who was 

formally charged with a threat of violence when he “made several harassing and/or 

threatening phone calls to the Department[‘]s EAP Coordinator and the District 6 

Acting Personnel Manager,” including voice mails stating that he had guns, that the 

EAP coordinator “[g]ot [him] thrown out of [his] house,” that he knew what she 

looked like and where she lived, and that he wanted to “blow the kid’s brains out” 

(referring to his own son). R. 171-1 at 60. IDOT did not produce any evidence that 

Cameron was ever terminated for these charges. See R. 149-5 at 2 (Plaintiff’s 

Counsel’s Affidavit, ¶ 10) (“[D]espite the plaintiff’s request to produce, the defendant 

did not produce any document demonstrating that the defendant suspended, 

47
disciplined or fired Stephen Cameron.”). In addition to Cameron, Nichols cites to 

other examples of similarly situated employees, including: (1) an employee named 

Robert Marti, who, according to the written statement of another employee, was “out 

of control” when he “charged at” the other employee “screaming obscenities” only 

“inches from [the other employee’s] face” while being restrained by a third and fourth 

employee, and calling the other employee “A FUCKING RAT AND SAYING YOU’RE 

THE BIGGEST FUCKING BEEFER IN THE WHOLE STATE,” R. 149-7 at 42; (2) an 

employee named Anthony Altmeyer, who was accused of threatening another 

employee that he “would be waiting outside the gate” after work to beat up the other 

employee, and that he “was going to beat [the other employee] to death,” R. 149-7 at 

13; (3) an employee named James Jackson, who was accused in a written statement 

by another employee named Julius Perryman that he “knocked” Perryman out of his 

way,” and then “pushed” Nichols, R. 149-7 at 28; see also R. 149-7 at 31 (Jackson 

pushed, elbowed and slammed into Perryman and shoved Nichols); R. 149-7 at 33 

(police report filed by Perryman alleging that Jackson had been threatening 

Perryman since December 2005 by stating that he was going to “kick [his] ass” and 

follow [him] home,” and stating that Perryman reported being in fear of his life); and 

(4) an employee named Macklin, who was accused by another employee named 

Marvin Harrison of “physically assaulting a third employee, and of verbally 

assaulting and threatening Harrison, R. 149-7 at 36; see also id. at 37 (“Macklin has 

a long history of making threats against other employees and nothing has ever been 

done to put a stop to this bully”). Fulgenzi testified that he could not say whether 

48
Marti was ever disciplined. R. 136-6 at 246-47 (Fulgenzi Dep. 245-46). He testified 

that Altmeyer received a 10-day suspension for his conduct. R. 136-6 at 200-01 

(Fulgenzi Dep. 199-200). It appears that Jackson was initially cited for an alleged 

threat of violence and placed on administrative leave. R. 149-7 at 30. Ultimately, 

however, he received only a citation for discourteous and inappropriate behavior and 

given a written reprimand. R. 149-7 at 27. According to an email from Fulgenzi 

(likely admissible at trial as a party admission), Macklin was investigated by the 

office of civil rights and placed on administrative leave, but after a pre-disciplinary

hearing, he was placed on a 5-day suspension instead. R.149-7 at 38.

The similarly situated analysis requires a context-based examination of all 

relevant factors, and the Seventh Circuit has said that it “ought not be construed so 

rigidly or inflexibly that it [becomes] a useless analytical tool.” South v. Ill. Envtl. 

Protection Agency, 495 F.3d 747, 752 (7th Cir. 2007). The similarly situated inquiry 

“simply asks whether there are sufficient commonalities on the key variables between 

the plaintiff and the would-be comparator to allow the type of comparison that, taken 

together with the other prima facie evidence, would allow a jury to reach an inference 

of discrimination[.]” Id. (internal quotation marks and citation omitted) (emphasis in 

original). 

In Coleman, 667 F.3d 835, the Seventh Circuit considered factual 

circumstances very similar to those here. The United States Postal Service 

terminated a black female employee because she told her psychiatrist she was having 

thoughts of killing her supervisor. The Postal Service said it believed the plaintiff 

49
posed a danger to her fellow employees. Id. at 841. The plaintiff presented evidence, 

however, that two white male employees at the same facility had recently threatened 

another employee at knife-point, yet received only one-week suspensions. Id. The 

district court held that these comparator employees were not similarly situated 

because they had different direct supervisors, and also that the plaintiff had not 

provided evidence that the Postal Service’s stated reason for firing the plaintiff—that 

she violated its rule prohibiting workplace violence and threats—was pretextual. The 

Seventh Circuit reversed, holding that because the proposed comparators were 

disciplined by the same decision-maker, were subject to the same code of conduct, 

and were disciplined more leniently for violating the same rule as the plaintiff, their 

cases were close enough to the plaintiff’s to provide a meaningful comparison and 

permit a reasonable jury to infer discrimination. Id. at 841. This same evidence, the 

court held, also was relevant on the issue of pretext such that the Postal Service was 

not entitled to summary judgment simply because it cited to a legitimate reason for 

firing the plaintiff. Id. 

IDOT argues that Nichols’s alleged comparators are dissimilar for essentially 

three reasons: (1) some of the comparators were not charged with a violation of 

IDOT’s policy against workplace violence, like Nichols was; (2) some of the 

comparators were accused of violence or threats of violence in a “he said/she said” 

situation, versus Nichols, who made threats of violence in a fax sent to the EAP and 

the Office of Labor Relations; and (3) some of the comparators had their discipline 

reversed or reduced through remedial action such as anger management or therapy, 

50
or as a result of a successful or partially successful grievance proceeding. These 

arguments are without merit. 

First, the fact that some of the comparators were not charged with a violation 

of IDOT’s policy against violence in the workplace is not a basis for arguing 

dissimilarity. As the Seventh Circuit explained, “the critical question” for deciding 

“whether two employees have engaged in similar misconduct . . . is whether they 

have engaged in conduct of comparable seriousness.” Coleman, 667 F.3d at 851 

(emphasis added) (internal quotation marks and citation omitted). The relative 

comparison, therefore, is between Nichols’s conduct and the conduct of the 

comparator. “[C]ompany discipline rules are not conclusive indicators of comparable 

seriousness.” Johnson v. Artim Transp. Sys., Inc., 826 F.2d 538, 543 (7th Cir. 1987). 

Moreover, “precise equivalence in culpability between employees is not the ultimate 

question.” Coleman, 667 F.3d at 850. It goes without saying that actual violence is 

much more serious and explicit than threats of violence, even if the threat of violence 

is made in a fax sent to the EAP and Labor Relations Office. Some of Nichols’s 

comparator evidence involves employees who engaged in actual violence but were not 

terminated. Other comparators were accused of making threats that were more 

serious than Nichols’s alleged threats, and not couched in terms of self-defense as 

Nichols’s fax was. The fact that some of these comparators may not have been 

charged with a violation of the policy against workplace violence does not show a lack 

of similarity. If anything, that fact could be cited by Nichols as additional evidence of 

discrimination against him. 

51
Second, the “he said/she said” nature of some of the alleged comparators also is 

not a valid basis for concluding that a comparator is too dissimilar for a jury to infer 

discriminatory intent from the disparate treatment. IDOT appears to contend that 

the unique fact that Nichols’s threats were made in a fax sent to the EAP and Labor 

Relations Office warrants a different treatment of Nichols than all the other 

comparators. IDOT offers no basis for saying that a verbal threat is any less serious 

than a written threat. Moreover, the suggestion that IDOT could not substantiate the 

verbal threats of other employees is belied by the record in some cases. Several of the 

verbal threats were witnessed by other employees, and/or IDOT made a finding that 

the threats actually took place. If in fact IDOT made an investigation into the alleged 

verbal threats and that investigation resulted in a finding that the threats had been 

made, then the distinction IDOT seeks to make is not compelling. In addition, IDOT 

should not be able to use its own lack of investigation into whether the verbal threats 

actually were made as a way to shield itself from the comparator evidence. In not 

even attempting to substantiate an alleged verbal threat, IDOT would be treating 

employees whose conduct consisted of written threats differently without a good 

reason for doing so.30

30 For instance, Nichols testified that Reynolds made a verbal threat against him, but 

IDOT’s position is that because it was Nichols’s word against Reynold’s word, IDOT 

had no obligation to even investigate whether the threat was made. In any event, 

IDOT cannot sensibly argue that the threatening voice messages left by Stephen 

Cameron with the EAP are distinguishable from the fax Nichols sent to the EAP. 

IDOT argues that Cameron is distinguishable because his threats were directed at 

family members rather than IDOT employees. R. 171 at 10 (¶ 16). Even if this were a 

valid basis for distinguishing Cameron from Nichols, the documents show that IDOT 

interpreted Cameron’s threats as also being directed against the EAP counselor.

52

 
Third, the fact that some of the comparators had their discipline reversed or 

reduced through remedial action such as anger management or therapy, or as a 

result of a successful or partially successful grievance proceeding, also cannot be a 

basis for finding those comparators to be dissimilar. IDOT has taken the position in 

this litigation that Nichols was fired because IDOT has a “zero tolerance” policy 

against violence or threats of violence in the workplace. But if IDOT does have a 

“zero tolerance” policy, then allowing an employee to avoid discharge for any reason

would conflict with that policy. In addition, the very fact that other employees were 

allowed to reduce their punishment through remedial actions such as anger 

management or therapy, or through the grievance process, raises the question of why 

Nichols was not allowed to do the same.31

In sum, Nichols’s evidence of similarly situated co-workers suggests that the

IDOT “decision-makers here did not take the rule against threats as seriously as they 

claimed.” Coleman, 667 F.3d at 853. IDOT is certainly entitled to make the argument 

that Nichols was not similarly situated to the comparators based on nondiscriminatory reasons such as those articulated by IDOT in its summary judgment 

briefing. But ultimately it is up to the jury to decide whether to believe IDOT’s 

argument or whether to conclude that the only rational explanation for the difference 

in treatment is that Nichols was discriminated against because of his Islamic faith.

31 Indeed, the fact that Nichols was not allowed to proceed with a grievance is a basis 

for concluding that IDOT unlawfully retaliated against him, as discussed in the next 

section. 

53

 
6. IDOT’s Zero Tolerance Policy

Finally, evidence regarding IDOT’s stated reason for terminating Nichols—its 

“zero tolerance” policy—may actually support an inference of discriminatory intent in 

this case. Fulgenzi testified that his job as personnel manager was simply to apply 

IDOT’s “zero tolerance” rule to charges of workplace violence or threats of violence. In 

other words, Fulgenzi said, if an employee is charged with an act of violence or threat 

of violence, then the Personnel Department automatically recommends termination 

of the employee. But IDOT’s written policy against workplace violence does not 

contain any zero-tolerance language, and IDOT has not pointed to any written rule or 

policy that does. Moreover, assuming IDOT nevertheless adheres to “zero tolerance” 

as a principle, a jury could conclude that IDOT’s own formulation of the rule is so 

malleable that discrimination cannot be excluded as a motivating factor in Nichols’s

discharge. See R. 137 at 8 (¶ 58) (“IDOT has a zero tolerance policy on threats of 

violence or violence in the work place, which means that if an incident is reported, 

IDOT looks into it to determine whether the conduct warrants discipline, [and] . . . . 

[i]f IDOT determines there was a violation of the zero tolerance policy, it 

automatically recommends discharge.”) (emphasis added); but see R. 136-6 at 58 

(Fulgenzi Dep. 57) (IDOT’s “zero tolerance” policy means that the employee “in most 

cases” is discharged, but there may be a grievance, or other action,” which results in 

the decision to discharge being “downgraded and remedial action, [ ] such as anger 

management[,] . . . recommended”) (emphasis added); R. 137-5 at 49 (Iacullo Dep. 48) 

(zero tolerance “means that you don’t have to do progressive discipline, . . . that you 

54
can opt to give a sizeable suspension short of termination or termination”) (emphasis 

added). 

In Coleman, the Seventh Circuit noted that disparate application of the 

employer’s “no tolerance policy” is evidence of pretext. There the Postal Service 

argued that it believed the plaintiff was a greater threat than two alleged 

comparators who were not terminated for actual violence, because the Postal Service 

viewed the comparators’ behavior as “an ‘isolated instance’ where ‘no particular 

threats were involved.’” 667 F.3d at 851. The Seventh Circuit said in response:

The Postal Service may make that argument at trial, but it 

is not a winner on summary judgment. When two grown 

men hold a person down while brandishing a knife . . . a 

jury could reasonably conclude that it was a far more 

immediate [threat] than an employee confiding to her 

psychiatrist in a private therapy session that she was 

having thoughts about killing her boss. To be sure, the 

Postal Service is right to take seriously all threats made 

by, and against, its employees. But at the summary stage, 

the employer cannot defeat a plaintiff’s prima facie case of 

discrimination on the theory that it applied its “no 

tolerance” policy on threats to some workers while 

dismissing dangerous acts of others as mere “horseplay.”

Id.

To show pretext for an employer’s stated legitimate reason for an adverse 

employment action, the employee “must identify such weaknesses, implausibilities, 

inconsistencies, or contradictions” in the employer’s proffered reason such “that a 

reasonable person could find [it] unworthy of credence.” Id. at 852 (alteration in 

original). Based on weaknesses, implausibilities, inconsistencies, and contradictions 

in the way IDOT articulates and applies its stated “zero tolerance” policy, the jury 

55
might conclude that in this case IDOT used the concept of “zero tolerance” as a 

pretext for discrimination. 

7. Conclusion

In summary, this case is not like others in which courts have determined that 

a plaintiff had shown animosity or problems between himself and his supervisor but 

had not shown that the animosity was tied in any way to a discriminatory motive, 

see, e.g., Hopkins v. Bd. of Educ. of City of Chi., 73 F. Supp. 3d 974,986 (N.D. Ill. 

2014) (“although Hopkins has certainly presented evidence that personal and 

professional animosity existed between Berman and her, she has utterly failed to tie 

that animosity to Hopkins' race”), or that the discriminatory motive had any 

connection to the adverse employment action, see, e.g., Carothers v. Cnty. of Cook, 

2015 WL 9268078, at *7 (7th Cir. Dec. 21, 2015) (“even assuming that Ms. Welch 

held racial animus against African–Americans, Carothers cannot succeed . . . without 

showing any connection between this animus and Carothers' . . . discharge”). The 

record here contains adequate evidence to support a jury finding that there was 

animosity between Nichols and his supervisors, that the animosity was motivated at 

least in part by Nichols’s religion, and that the animosity which was motivated by

Nichols’s religion played a role in Nichols’s discharge. Moreover, the evidence 

regarding IDOT’s so-called “zero tolerance” rule is not sufficient in itself to override 

any factual dispute regarding whether Nichols’s religion was the real reason for his 

discharge, particularly given the mitigating circumstances surrounding Nichols’s fax,

which a jury reasonably could conclude warranted a lesser sanction than 

56
termination. Those mitigating circumstances include at least the following: 

(1) Nichols sent the fax in what he thought was a communication with the employee 

assistance program, suggesting he never intended to make a public threat but rather 

only hoped to garner the attention of someone who would then come to his aid; 

(2) immediately after receiving the fax, IDOT was able to clarify the situation by 

discovering what provoked Nichols to send the fax, which should have led to an 

investigation to determine whether Nichols in fact posed any real threat; (3) the 

alleged threatening statements in the fax were couched in terms of self-defense after

threats of violence were made against Nichols; (4) Nichols had asked for but was not 

given help from his employer in putting a stop to these threats; (5) the threatening 

language in the fax mimics the threats that were made by others against Nichols;

and (6) Nichols has never been violent or threatened violence before this incident. It 

is up to the jury to view the evidence in its totality and determine whether IDOT’s 

stated reason for terminating Nichols was sincere or a pretext for discrimination. 

Accordingly, Nichols has met his burden of proof under the direct method for showing 

a factual dispute regarding his employer’s discriminatory intent warranting a jury 

trial on Nichols’s disparate treatment claim.

C. Retaliation

Nichols’s final claim is that IDOT retaliated against him for engaging in 

protected activity under Title VII. A claim of retaliation under Title VII is analyzed 

under the same direct/indirect framework as a claim of discrimination. Porter, 700 

F.3d at 957. Like Nichols’s disparate treatment claim, the Court will address 

57
Nichols’s retaliation claim under the direct method of proof. Under the direct method 

of proof, Nichols must produce evidence from which a reasonable jury could conclude: 

(1) that he engaged in a statutorily protected activity; (2) that he suffered a 

materially adverse action by his employer; and (3) there was a causal link between 

the two. Id. “Whether [the court] appl[ies] this method formally or just cut[s] to the 

chase and ask[s] the fundamental question directly—could a reasonable trier of fact 

infer retaliation?—makes no difference.” Castro v. DeVry Univ., Inc., 786 F.3d 559, 

564 (7th Cir. 2015). 

1. Termination

The first element requiring a materially adverse employment action is 

satisfied by Nichols’s termination. The question is whether Nichols has engaged in 

protected activity causally linked to his termination. The Court will consider several 

possibilities. 

a. Religious Accommodation Grievance

Nichols filed a grievance requesting a religious accommodation, which clearly 

constitutes protected activity. To establish a material issue of genuine fact whether 

Nichols’s religious accommodation request caused his termination, Nichols relies on 

circumstantial evidence. “Circumstantial evidence suffices if a convincing mosaic of 

circumstantial evidence would permit a reasonable trier of fact to infer retaliation by 

the employer. In retaliation cases, [the Seventh Circuit] [has] recognized three 

categories of circumstantial evidence available to a plaintiff using the ‘convincing 

mosaic approach.’ These categories include (1) evidence of suspicious timing, 

58
(2) evidence that similarly situated employees were treated differently, and 

(3) evidence that the employer’s proffered reason for the adverse employment action 

was pretextual.” Castro, 786 F.3d at 564-65 (internal quotation marks and citations 

omitted). The Court already has identified substantial evidence under the last two 

categories in its discussion of Nichols’s disparate treatment claim; much of this same 

evidence is relevant to Nichols’s retaliation claim as well. See also, R. 150-15 

(Williams Affidavit, ¶¶ 5-6) (affidavit of co-worker testifying that he has heard 

Romanski complain on several occasions in the presence of Reynolds and Martin 

about Nichols requesting an accommodation to pray, and asking “why does he want 

special privileges to pray”). 

In addition to this evidence, Nichols can add evidence of suspicious timing. The 

Seventh Circuit has “rejected any bright-line rule about how close the events must be 

to establish causation, but in cases where there is corroborating evidence of 

retaliatory motive, an interval of a few weeks or even months may provide probative 

evidence of the required causal nexus.” Id. at 565 (internal quotation marks and 

citation omitted). Nichols was suspended pending a decision to discharge less than a 

month after he filed his grievance requesting a religious accommodation. Therefore, 

Nichols has met his burden on summary judgment of producing evidence on 

causation sufficient to present this retaliation claim to the jury. 

b. Complaints about Disparate Treatment 

and Threats/Harassment

In addition to his request for a religious accommodation, Nichols’s complaints 

to IDOT about differential treatment and harassment by his supervisors also might 

59
satisfy the protected activities component of Nichols’s retaliation claim. Complaints 

of discrimination are statutorily protected activity, but the “complaint must indicate 

the discrimination occurred because of . . . some . . . protected class. Merely 

complaining in general terms of discrimination or harassment, without indicating a 

connection to a protected class or providing facts sufficient to create that inference, is 

insufficient.” Tomanovich v. City of Indianapolis, 457 F.3d 656, 663 (7th Cir. 2006) 

(citations omitted). IDOT argues that Nichols never told his supervisors that he 

believed the reason for his differential treatment was religious discrimination. As the 

court in Weintraub v. Mental Health Auth. of St. Mary's, Inc., 2010 WL 4868095, at 

*6 (D. Md. Nov. 23, 2010), stated, however, it is not necessary that the plaintiff “utter 

. . . magic words” in opposing an employer’s discriminatory conduct if the context of 

the plaintiff’s complaints allow a reasonable inference that it is. See, e.g., Lerman v. 

Turner, 2013 WL 4495245, at *15 (N.D. Ill. Aug. 21, 2013) (Tomanovich inapplicable 

where attention was drawn to fact that individual who was terminated was 

Palestinian such that reasonable inference could arise that the alleged 

discrimination was based on anti-Arab sentiment).

The record contains sufficient evidence from which a reasonable jury could 

conclude that even though Nichols never explicitly stated there was a connection 

between his differential treatment and his religion, it was reasonable to infer from 

the circumstances that IDOT knew that Nichols was complaining about 

discrimination based on his Islamic faith. See, e.g., R. 149-1 (Love Affidavit #1, ¶¶ 44-

45) (co-workers asked Thompson why management treated Nichols “so poorly when 

60
he became acting lead worker, belittling him, stripping him of things that ordinarily 

went with a supervisor,” and Thompson stated “that Muslims were troublemakers” 

and “that the problem with DeMarco was DeMarco’s religion”). In addition, Fulgenzi 

testified that Nichols’s allegations in his April 2, 2008 fax about being threatened 

and harassed were “forwarded to the Office of Civil Rights.” R. 136-6 at 173 (Fulgenzi 

Dep. 172). This testimony is direct evidence that IDOT recognized that Nichols’s

complaints of harassment were based on religious discrimination.

The Court also finds support in the case law that asserting self-defense against 

threats of violence directed against an individual because of his religion is itself 

protected activity (as opposed to the protected activity being the communication 

complaining about unlawful discrimination). In Van Horn v. Specialized Support 

Services, Inc., 241 F. Supp. 2d 994 (S.D. Iowa 2003), an employee working with a 

special needs population was subjected to ongoing inappropriate sexual conduct by a 

twenty-one year old male client with Down’s syndrome. Id. at 999-1002. The plaintiff 

notified her supervisor and later expressed concern at a staff meeting, but she was 

offered no assistance or guidance and no action was taken by her employer to address 

the ongoing situation. Id. at 1001. The problem continued to escalate, and culminated 

when the plaintiff “instinctively slapped” the client after he inappropriately pinched 

her breast. Id. at 1004. Based on the purported justification that “slapping a 

mentally retarded person was never justified,” the plaintiff’s employment was 

terminated. After recognizing that Title VII certainly does not grant employees a free 

61
license to unreasonably engage in violence to protest discrimination, the Court 

concluded,

the law is equally clear that an individual who is 

unlawfully attacked and has no opportunity to seek legal 

recourse may reasonably act to defend against physical 

harm. See 1 Wayne R. LaFave & Austin W. Scott, Jr., 

Substantive Criminal Law § 5.7(a) (1986). See also 

Restatement (Second) of Torts §§ 63–66 (recognizing the 

right to the use of force in self-defense). Therefore, where 

employees find themselves in such an exigency and act in 

their own defense, they are not engaging in “unreasonable” 

oppositional activity. . . . [W]hen an employer’s failure to 

act forces an employee to act in self-defense at the 

workplace, the employee’s defensive conduct is reasonable 

and the employee cannot be terminated for doing so.

Id. at 1012–13. 

If Nichols had a protected right, as the above passage suggests, to defend 

himself against violence directed at him because he is a Muslim, then his verbal 

assertion of that right in the April 2, 2008 fax also would constitute oppositional 

activity protected by the anti-retaliation provision of Title VII. As the Van Horn court 

observed, an employer is “certainly free to maintain [a] ‘zero-tolerance’ policy,” but 

“it cannot do so without also protecting its workers from unlawful harassment. To 

allow an employer to ignore clear warning signs and then terminate an employee 

who resists sexual harassment and assault at the workplace [or, as in this case, who 

resists threats of violence based on his religion] is to deny the employee the basic 

protection against discrimination which Title VII affords.” Id.; see also Speed v. WES 

Health Sys., 93 F. Supp. 3d 351, 364 (E.D. Pa. 2015) (“Even if one were to conclude 

that Speed's conduct in striking her harasser was inappropriate under all of the 

62
circumstances, it would be profoundly anomalous to protect the very employer which 

had failed in the first instance to protect her; but for that failure, Plaintiff need not 

have confronted an escalation of Garway's behavior.”). 

c. 2006 and 2007 Grievances

Finally, Nichols cites to protected activity occurring in 2007, when he filed an 

EEOC charge for race discrimination, as well as in 2006, when he filed a claim 

complaining that employees were harassing him because he was Muslim and that 

IDOT transferred him for going to his car to pray. While an independent claim of 

disparate treatment based on these allegations would be time-barred, that does not 

preclude Nichols from relying on this evidence to support his timely retaliation claim 

based on his 2008 termination. See Malin, 762 F.3d at 560-61. The problem with 

Nichols’s reliance on this 2006 and 2007 protected activity for purposes of his 2008 

retaliation claim is not that such a claim would be time-barred but that the earlier 

protected activity may be too remote in time to establish a causal connection with 

Nichols’s 2008 termination. Nevertheless, the Seventh Circuit has held “that the 

mere passage of time ‘does not conclusively bar an inference of retaliation.’” Castro, 

786 F.3d at 565 (quoting Malin, 762 F.3d at 560 (reversing summary judgment for 

employer where evidence showed patient retaliation over period of several years)). In 

Malin, the Seventh Circuit cited case law finding retaliation where the protected 

activity and the plaintiff’s termination were separated by up to two years. 762 F.3d 

at 559. The Court cannot say on the current record as a whole that Nichols’s 2008 

63
termination as a matter of law was not proximately caused by Nichols’s 2006 and 

2007 grievances complaining about race and religious discrimination against him.32

2. IDOT’s Refusal To Conduct Grievance

It is undisputed that the union filed a grievance on Nichols’s behalf to contest 

his termination. See R. 137-31 at 2-3.33 It also is undisputed that a hearing was 

32 That there is possibly a connection, for instance, is supported by Fulgenzi’s 

testimony about the matters he considered to be important in deciding to recommend 

that Nichols be terminated. One of those matters was Fulgenzi’s belief that Nichols 

“had up to that point engaged in . . . behavior that many people . . . didn’t feel 

comfortable with.” R. 136-6 at 52 (Fulgenzi Dep. 51). When asked what he meant by 

that statement, Fulgenzi said that he “would have to look at the record as a whole,” 

but also cited to “numerous correspondence from Mr. Nichols, grievances, and things 

of that nature . . .” Id. at 53 (Fulgenzi Dep. 52) (emphasis added). When asked 

whether he had any information that Nichols exhibited any signs of violence during 

his ten years of employment with IDOT, Fulgenzi’s only response was to again cite to 

the “great volume of . . . typed up letters and other documents” in Nichols’s personnel 

file, which Fulgenzi found to be “peculiar” because they “were extremely hard to 

understand and to put together, and . . . personally gave [him] a concern and gave 

[him] pause.” Id. at 54 (Fulgenzi Dep. 53). When asked why they gave him pause, 

Fulgenzi repeated that the letters and documents were “typed up . . . [in] a very tight 

space,” and “hard to understand.” Id. at 55 (Fulgenzi Dep. 54); see also R. 136-6 at 

172-73 (Fulgenzi Dep. 171-72) (Nichols “sent a large amount of documents 

handwritten very tightly . . . [with] a lot of allegations contained in it”). There are 

any number of ways a jury might interpret this testimony, but the Court does not 

think it would be unreasonable for the jury to conclude that behind Fulgenzi’s 

comments was the fact that Nichols’s personnel file contained a number of grievances 

he had filed over the past years, including complaints of discrimination related to 

being Muslim. Notwithstanding that some of those complaints were several years old, 

Fulgenzi’s testimony could be read as evidence that he considered those older 

complaints in deciding what to do about the 2008 situation which led to Nichols’s 

firing. 

33 IDOT suggests that there is a dispute over whether Nichols sought relief for his 

termination through the grievance process. See R. 136 at 19. But Nichols’s grievance 

was filed on his behalf by the union and is part of the record before the Court. R. 137-

31. The facts cited by IDOT—that Nichols did not fill out the grievance form himself 

and has never seen it, and that the union did not state in the grievance form that 

Nichols believed he was terminated because of his religion—do not create any issue 

64

 
convened on July 11, 2008 to discuss Nichols’s grievance, R. 158 at 46 (¶ 23), and 

that IDOT did not allow Nichols to continue with the grievance hearing unless he 

withdrew his pending EEOC charge, R. 149-3 at 6 (¶ 25).34 The basis for IDOT’s 

actions with respect to Nichols’s post-termination grievance is Section 6.2 of the 

collective bargaining agreement between IDOT and Nichols’s union. Section 6.2 

provides that if a grievant has filed an appeal with the EEOC over the same subject 

matter as the grievance, then the grievance procedures found in the collective 

bargaining agreement “will not be applicable.” R. 137-12 at 8. Fulgenzi explained his 

understanding of Section 6.2 and how it affected Nichols’s post-termination grievance 

as follows:35

[I]f an employee has filed a grievance . . . in conjunction 

with filing a charge with the EEOC or [Illinois] 

Department of Human Rights, I [would] have brought up 

of fact regarding whether Nichols filed a grievance to contest his termination, the 

only relevant issue here.

34 In responding to Nichols’s statement of additional facts, IDOT “disputed” the 

statement that IDOT did not allow Nichols to continue with the grievance hearing 

unless he withdrew his pending EEOC charge, but only “to the extent that [it] 

mischaracterizes the evidence cited.” R. 158 at 47. Nichols’s fact statement did not 

mischaracterize the evidence, however, see R. 137-3 at 191, and his affidavit 

affirmatively states that Fulgenzi told him that in order to proceed with the 

grievance he needed to withdraw his EEOC claim. See R. 149-3 at 6 (¶ 25). Moreover, 

Fulgenzi’s testimony is not inconsistent with Nichols’s affidavit; Fulgenzi testified 

only that he could not remember what he said to Nichols. See R. 137-6 at 60 

(Fulgenzi Dep. 59). More importantly, it is clear from IDOT’s summary judgment 

papers that IDOC’s position is that Nichols was required to choose between his 

EEOC claim and his grievance, and IDOT admitted as much in discovery, R. 149-8 at 

5-6 (¶¶ 14, 16). 

35 Because Fulgenzi testified he could “not recall” what he actually said to Nichols, 

R. 136-6 at 60, his explanation is stated in terms of what he hypothetically would

have said to Nichols.

65

 
the fact that the Union contract clearly states that the 

employee cannot do both. So . . . I would have said to . . . 

Mr. Nichols[ ] . . . [that] [t]his is not a grievable matter 

because if you file a charge with the EEOC, then there is 

no grievance rights. . . . I would not recommend or 

mandate that the employee drop the charges with the 

EEOC. I would say if the employee chooses to drop the 

charges with the EEOC, then maybe the grievance process 

would be available to that employee.

R. 137-6 at 61 (Fulgenzi Dep. 60). 

In EEOC v. Board of Governors of State Colleges & Universities, 957 F.2d 424, 

431 (7th Cir. 1992), the Seventh Circuit held that “[a] collective bargaining 

agreement may not provide that grievances will proceed to arbitration only if the 

employee refrains from participating in protected activity under the ADEA.” Like 

Section 6.2 in this case, the collective bargaining provision in Board of Governors 

“authorize[d] [the defendant] to take an adverse employment action (termination of 

the in-house grievance proceeding) for the sole reason that the employee has engaged 

in protected activity (filing an ADEA claim).” Id. at 430. The Seventh Circuit held 

that this was discriminatory on its face and constituted “a per se violation” of ADEA’s 

anti-retaliation provision. Id. at 429. 

IDOT argues that Board of Governors is inapplicable here because it was 

decided twenty-three years ago and because it applies the anti-retaliation provision 

of the ADEA rather than Title VII. See R. 157 at 20. IDOT does not say on what basis 

this Court would be free to ignore controlling Seventh Circuit precedent, even if it is 

from twenty-three years ago. In any event, the Court concludes that the Seventh 

Circuit’s analysis in Board of Governors is just as compelling today as it was in 1992. 

66
See, e.g., Trayling v. St. Joseph Cnty. Emp’rs Chapter Of Local #2955, 953 F. Supp.

2d 793, 800 (W.D. Mich. 2013) (adopting the “cogent” analysis of Board of Governors 

in holding that an election-of-remedies provision of a collective bargaining agreement

violated the anti-retaliation provisions of the ADEA and ADA); Brinkley v. Bd. of 

Comm’rs of Franklin Cnty., Ohio, 2013 WL 394158, at *5-6 (S.D. Ohio Jan. 29, 2013) 

(relying on Board of Governors in holding that the plaintiff had “demonstrated a 

strong likelihood of success of the merits” of her retaliation claims because her 

grievance was dismissed pursuant to a collective bargaining agreement which 

prohibited her from maintaining both a grievance and an EEOC charge regarding the 

same circumstances that led to her removal).

In addition, IDOT does not explain why the fact that Board of Governors

involved the anti-retaliation provision of the ADEA rather than the anti-retaliation 

provision of Title VII is a distinction that matters. As stated in Board of Governors,

“[s]tatutory provisions against retaliation such as those in the ADEA and Title VII

protect employees’ rights to participate in protected activity and aid the work of the 

EEOC which depends upon employee cooperation.” 957 F.2d at 431 (emphasis 

added); see also Brinkley, 2013 WL 394158, at *5 (applying Board of Governors to 

Title VII retaliation claim); Portland State Univ. Chapter of Am. Ass’n of Univ. 

Professors v. Portland State Univ., 291 P.3d 658 (Or. 2012) (en banc) (same). IDOT 

admits that Nichols could have contested his termination through the grievance 

process or filed a complaint concerning his termination with the EEOC, but not both. 

Such a policy adversely affects Nichols by “stripping him . . . of an employment 

67
privilege for filing with the EEOC. Such activity is expressly prohibited by the 

literally interpreted provisions of both the ADEA and Title VII.” EEOC v. Gen. 

Motors Corp., 826 F. Supp. 1122, 1126 (N.D. Ill. 1993).

The Court therefore finds that IDOT’s invocation of Section 6.2 of the collective 

bargaining agreement to prevent Nichols from challenging his termination through 

both a grievance proceeding and an EEOC charge constitutes a per se violation of the 

anti-retaliation provision of Title VII. Although Nichols has not moved for summary 

judgment on this claim, the Court has the authority to enter summary judgment on 

its own motion. See Fed. R. Civ. P. 56(f). Before doing so, however, the Court will 

permit IDOT to file a supplemental memorandum of law addressing whether any 

disputed issues of fact would prevent the Court from entering summary judgment in 

Nichols’s favor under the holding of Board of Governors. See Hotel 71 Mezz Lender 

LLC v. Nat’l Retirement Fund, 778 F.3d 593, 603 (7th Cir. 2015) (whenever a court 

entertains the possibility of summary judgment against a party sua sponte, the court 

must afford the party notice of that possibility and a reasonable opportunity to 

respond).

III.

CONCLUSION

For the reasons stated herein, Defendants’ motion for summary judgment 

[R. 135] is denied. Further, within fourteen days from the date of entry of this order, 

IDOT may file a supplemental memorandum of law of no more than five pages 

explaining why the Court should not enter summary judgment against IDOT on 

68
Nichols’s retaliation claim based on IDOT’s denial of Nichols’s post-termination 

grievance. Nichols may file a response brief of the same length within fourteen days 

thereafter. No reply briefs shall be filed. If IDOT fails to file a supplemental 

memorandum of law, the Court will assume that IDOT concedes that no factual 

disputes exist regarding Nichols’s retaliation claim based on the denial of his posttermination grievance, and will enter partial summary judgment in favor of Nichols 

on that claim in accordance with the reasoning set forth in this opinion.

This case is set for a jury trial on June 13, 2016. It was represented by the 

parties that the trial will last no more than 5 days. The case is set for a status 

conference on Wednesday, January 27, 2016 at 9:00 a.m. to discuss trial scheduling 

issues.

 ENTERED:

 ___

Honorable Thomas M. Durkin

United States District Judge

Dated: January 19, 2016

69