fellow employees that were members of a Title VIT protected class

that did not include Graziano. In that regard Walker, 408 F.3d

at 331 cautions:

[A]s the district court recognized, this court's
opinion in Bermudez [v. TRC Holdings, Inc.], 138 F.3d
[1176,] 1180-81 [(7 Cir. 1998)], all but closes the
door on the notion that an employee who observes
workplace hostility but is not a member of the class of
persons at whom the harassment was directed may bring a
derivative claim for the harassment. We say “all but”
because, after noting an even split among the judges of
the Fourth Circuit on this question in Childress v.
City of Richmond, Va., 134 F.3d 1205 (4th Cir. 1998) (en
banc), we concluded our discussion in Bermudez with the
qualification that “[wle need not come to rest on the
subject today...” 138 F.3d at 1181. Instead, we
proceeded to reject the hostile environment claim for
lack of proof that the harassment “poisoned the working
atmosphere” for the plaintiff. Id.*4

As was true of the plaintiffs in both Bermudez and Walker
Graziano has plainly struck out on any showing that the fellow

workers’ comments poisoned his own working environment. But

because Walker, 408 F.3d at 332-34 segued into an analysis of the

plaintiff’s claim of retaliation without discussing the predicate

for treating an employee’s nonactionable discrimination claim as

supporting an actionable claim for retaliation after the employee

had referred to some discriminatory language targeting others in

14

quoted reading of Bermudez does not fully capture the tone of

[Footnote by this Court] It must be said that the just-

that opinion, which was really hostile to such derivative claims

of hostile employment environments.

20


Of the remaining 118 statements of fact purportedly contested by Plaintiffs, closer
scrutiny reveals that the overwhelming majority should be deemed admitted due to Plaintiffs’ (1)
failure to refute the asserted fact in part or in its entirety (Pls.’ 56.1 Resp. {ff 26, 27, 38, 39, 50,
51, 55, 56-58, 60-62, 63, 67, 68, 70-79, 81, 84, 86-99, 101-105, 108-124, 133-135, 138, 139,
140-142, 144, 146, 148, 153, 158-168, 172, 174, 176, 177, 179, 180, 183-186, 190-193, 195,
206, 223, 226-230, 236, 237); (2) assertion of purely argumentative denials and extraneous
information and argument (Pls.’ 56.1 Resp. {{j 27, 34-36, 38, 39, 42-49, 50, 51, 55-58, 60-62,
67, 68, 71-73, 74, 76-79, 81, 84, 86-88, 90, 92, 93-99, 101-105, 112, 117-119, 132-133, 135,
139, 141, 144-146, 148, 153, 158-168, 172, 174, 176, 177, 179, 180, 183-186, 190-192, 194,
206, 221-224, 241); and/or (3) failure to support their denial with “specific references to the
affidavits, parts of the record [or] other supporting materials relied upon.” (Pls.’ 56.1 Resp. {{|
38, 61, 67, 71, 76, 78, 79, 84 97, 109, 110, 114, 118, 131, 139, 141, 144, 159, 165, 166, 168,
184, 194, 236). See LR 56.1(b)(3)(A); see also Guzzo v. Northeast I\linois Regional Railroad
Corp., No. 94-C-5813, 1996 U.S. Dist. LEXIS 3167 at *2 (N.D. Ill. Mar. 15, 1996) (copy
attached at Supp. App. 10) (holding that including legal arguments is “wholly improper’),
McGuire, 152 F.3d at 675; Malec v. Sanford, 191 F.R.D. 581, 583 (N.D. Ill. 2000) (“factual
allegations not properly supported by citation to the record are nullities”). For these reasons, the
facts asserted in the Village’s Rule 56.1(a)(3) Statement of Material Undisputed Facts should be
accepted as true. See Valenti v. Oulex, Inc., 970 F.2d 363, 369 (7th Cir. 1992).

B. Plaintiffs’ Unsupported and Conclusory Assertions, Argumentative Denials,
Speculation, and Self-Contradiction Do Not Create A Factual Dispute.

As set forth in Defendant’s Response to Plaintiffs’ Rule 56.1 Statement of Facts,
Plaintiffs attempt to generate a material factual dispute by relying on unsupported and immaterial

assertions, misconstruing the record, asserting purely argumentative denials of facts plainly in

277622.1


Oak Park offers no explanation for the somewhat bizarre bathroom
restriction, nothing about it is probative of age-related
animus--and Rybacki’s ipse dixit statement that the measure was
“clearly based on Rybacki’s status as...an older employee” (P.
Mem. 20) does not make it so. Similarly, the mere requirement of
a physical exam is too slim a reed to support a reasonable

inference of age-related animus.

Thus quite apart from any question whether the treatment of
which Rybacki complains qualified as “severe and pervasive” in
the legal sense, any effort to link it to his age (let alone any
other protected status) would be overly attenuated. Hence this
Court finds that Rybacki’s claim based on an assertedly hostile
work environment also does not withstand summary judgment, and it

also recommends the dismissal of that claim with prejudice.
Conclusion

As stated at the outset, all claims other than Graziano’s
are before colleagues of this Court for ultimate resolution, so
that what has been said here as to those claims is by way of
recommendations for their consideration. To that end it is
submitted that Oak Park’s motion for summary judgment should be
viewed as well taken as to (1) Ruscitti’s claims of retaliation,
national origin discrimination and age discrimination,

(2) Calascibetta’s claims of retaliation and age discrimination,

and (3) Rybacki’s claims of retaliation, national origin

37


failed to pursue the claims of age discrimination and retaliation
that he originally advanced in his complaint (Rybacki Cmplt.
4913-42, 43-44).% Instead, his memorandum of law focuses solely

on a claim of hostile work environment (P. Mem. 18-20).

It is not this Court’s responsibility to fashion arguments
for the litigants when they have not done so themselves. Given
their failure to meet the most basic evidentiary requirement of
summary judgment, Ruscitti’s and Rybacki’s claims of national
origin discrimination and Rybacki’s claims of age discrimination
and retaliation all fail to survive the current summary judgment
motion. It is therefore recommended that those claims be

dismissed with prejudice.

Retaliation

Each of Ruscitti, Graziano and Calascibetta claims that Oak
Park violated Title VII by firing him in retaliation for his
complaining about unlawful workplace discrimination and/or
harassment. Any plaintiff asserting such a retaliation claim may
employ one of two legal frameworks to pursue the claim: the

direct method and the indirect method (Moser v. Ind. Dep't of

Corr., 406 F.3d 895, 903 (7th Cir. 2005)).

Here plaintiffs have chosen the direct method, which

requires a plaintiff first to provide at least reasonable

9 Rybacki’s Complaint misnumbers its paragraphs. Its
“Count Four” sets out his retaliation claim.

14


memorandum recommending the one-week suspension. But in the
summary judgment context, Graziano is entitled to invoke the
latter fact as the basis for an inference that Spataro’s
termination recommendation was solely attributable to Graziano’s

complaints.'*

Finally, Graziano observes that when he first complained to
Spataro of Vetro’s and Otters’ inappropriate conduct, Spataro
“put down his pen and took no notes.” Co-workers Ruscitti and
Rybacki observed the same response from Spataro. Although that
took place a few weeks before Spataro’s change of heart, it could
be viewed by a factfinder as suggesting an underlying hostility
to Graziano’s complaints of harassment, casting further doubt as

to the motivation for Spataro’s termination recommendation.

In sum, given the combination of the strikingly small
temporal gap between the presumptively protected conduct and the
termination recommendation, the fact that learning about that
conduct was the only intervening event that might explain
Spataro’s abrupt change of heart in his recommendation, the
sudden and belated addition of new charges and what could be seen
as Spataro’s underlying hostility toward Graziano’s complaints, a

factfinder could well draw an inference that Spataro’s

16 Indeed, Spataro himself, when given the chance,

conspicuously did not identify the new charge as a reason for
amending his recommendation (App. I, Spataro Dep. I 166-68).

24


Department (“Streets Division”): Graziano, Ruscitti and Rybacki
as “equipment operators” and Calascibetta as Maintenance Crew
Chief (“Crew Chief”) (id. 9124; Graziano Ans. 912; Ruscitti Ans.
913; Rybacki Ans. 916; App. III, Graziano, Ruscitti and Rybacki
Aff. 91).

While the bulk of the saga portrayed in these cases played
out during and after the summer of 2002, two preliminary events
should be noted to set the stage properly. First, in 1992
Calascibetta filed an employment discrimination claim against Oak
Park with the Equal Employment Opportunity Commission (“EEOC”)
and the Illinois Department of Human Rights (OP St. 9180). That
claim, which alleged that Calascibetta was denied a promotion
because of his age, was settled in 1998 (id. 4180-81). Second,
in early 2002 newly- hired Oak Park Human Resources Director
Frank Spataro (“Spataro”) began to investigate the amount of
overtime being performed by Streets Division employees (id. 19137-
38). Based on his findings, Spataro eventually concluded (among
other things) that Calascibetta had manipulated overtime
assignments for the benefit of himself and a few select employees
(id. 9174).

It was in the midst of that overtime investigation that the
Streets Division entered into what would soon become a divisive
morass of accusations and counter-accusations, investigation and

counter-investigation and feuding blocs of employees. That was


(7th Cir. 2004)).

With the facts being viewed in the light most favorable to
Rybacki, there is evidence that he was subjected to a
considerable array of troubling conduct: His machinery was
vandalized, his clean-up time was shortened, his bathroom usage
was publicly monitored and he was assigned to work that
aggravated his back condition. Even so, it is unnecessary to
decide whether that conduct was sufficiently “severe and
pervasive,” for Rybacki fails to present the additionally
required evidence that such treatment was due to any protected

status he might enjoy.

In that respect the category on which the Rybacki memorandum
focuses is his age. This opinion will assume arguendo, as our
Court of Appeals has done in some cases, that such claims are
cognizable under ADEA (though that court has yet to decide the

issue directly: Racicot v. Wal-Mart Stores, Inc., 414 F.3d 675

678 (7% Cir. 2005)). But even on that assumption, Rybacki has
not presented enough admissible evidence to avert summary

judgment.

For example, Rybacki’s claim that co-workers referred to him
as “old man” and “grandpa” might arguably support an alleged link
between the treatment that he suffered and his age. But neither

of his LR 56.1 submissions identifies any admissible record

35


the workplace, this opinion will proceed in the same fashion.’°

On that score Graziano has offered enough evidence to raise
a factual issue as to the required causal link between the
assertedly protected conduct (his references to race-based
comments) and his termination. First, the temporal gap between
Graziano’s conduct and Spataro’s decision to recommend his
termination is suspiciously short: Spataro learned of the
Hirakawa-Euclide interviews on September 9 and wrote the
memorandum recommending termination on September 11. Admittedly
(as quoted earlier) “suspicious timing alone rarely is sufficient
to create a triable issue” (Moser, 406 F.3d at 905). But here
the time gap is strikingly short: a mere two days. Though not

enough on its own, such tight temporal sequence is certainly “an

important evidentiary ally of the plaintiff” (Lalvani v. Cook

County, 269 F.3d 785, 790 (7th Cir. 2001)) and of “major
significance” in establishing causation (Culver, 416 F.3d at

546).

This opinion, like the parties themselves, has focused on
Spataro’s conduct in that respect. Normally, of course, a
plaintiff must show that the adverse decisionmaker had the

prohibited retaliatory motive (Rogers v. City of Chicago, 320

18 Because the result reached here will preserve Graziano’s

retaliation claim for future resolution, the assumptions made in
this opinion may of course be revisited if later caselaw
developments call for reconsideration.

21


Calascibetta

Unlike its approach regarding Ruscitti and Graziano, Oak
Park does not dispute that Calascibetta engaged in protected
conduct (in his case, by filing an age discrimination complaint
with the BEOC in 1992). Instead the only element of
Calascibetta’s prima facie claim in dispute is whether he has
demonstrated a causal link between that conduct and his
termination. On that score, what little purported evidence of

causation Calascibetta provides is plainly insufficient.

To begin with, the extended temporal gap between
Calascibetta’s filing of his EEOC claim and his termination
severely undercuts Calascibetta’s claim. Even if it were to be
assumed (as Calascibetta argues) that the relevant date for
measuring that gap was not his 1992 filing date but the
settlement date of August 4, 1998, that still leaves more than a
four-year interval between that date and Calascibetta’s
termination. While a short time span intervening between
protected conduct and adverse employment action can help to raise
an inference of causation, a protracted gap can actually be

“counter-evidence of any causal connection” (Johnson v. Univ. of

Wis.-Eau Claire, 70 F.3d 469, 480 (7th Cir. 1995), disavowed in

a wholly unrelated respect in Spiegla v. Hull, 371 F.3d 928, 941-

42 (7th Cir. 2004)). That is surely the case here.

As for any affirmative evidence of causation, Calascibetta

27


modest one-week suspension. Yet by September 11 he decided that
suspension was not strong enough and that outright termination
was warranted. There were no further meetings with Graziano
during that period (in which perhaps new inculpatory information
might have been gleaned), nor were there any new violations of
Oak Park rules or any other event that might have given Spataro
cause to change his recommendation. Instead the record reveals
only one event that occurred between those two recommendations:
Spataro’s learning of Graziano’s statements. Indeed, even when
given the opportunity to supply an alternate legitimate
justification for amending his recommendation, Spataro pointed to
no particular watershed event, but simply said that he had
“reconsidered” Graziano’s actions in the interim (App. I, Spataro

Dep. I 166-68).

There is the further fact that Spataro’s September 11
termination recommendation suddenly added new charges against
Graziano: that he had violated additional Oak Park rules in
going to get doughnuts on the morning of the cheese incident (P.
Ex. 20, D001540-41). That could cut either way in the analysis:
On the one hand the added charges could be viewed as validating
the termination recommendation by providing a reason for
Spataro’s upping the ante, while on the other hand Spataro had
already known of Graziano’s trip to get the doughnuts (which had

taken place on August 22) when he wrote his initial September 5

23


22

evidence of such labeling. Even the submitted excerpts from
Rybacki’s own deposition and his affidavit make no mention of any
such references to Rybacki, though his deposition does include a
statement that Vetro referred to one co-worker as a “fat old man”
(App. III, Rybacki Aff. 1-11; App. I and Supplementary App.,
Rybacki Dep. 17-32, 69-72, 97-116, 125-52, 169-72, 219, 273-80).
And the only other mention of that type comes in Rybacki’s
statement during his Hirakawa interview that a different co-
worker was referred to as an “old man” who “should retire” (see
P. Ex. 33, D 000898). But just as one swallow does not a summer
make,?? isolated remarks like these--remarks, moreover, directed
toward a third person and not Rybacki himself--are not enough to

establish a genuine question of material fact as to whether

Rybacki’s harassment was due to his protected status (see Smith

v. Ne. Ill. Univ., 388 F.3d 559, 566-67 (7% Cir. 2004)).

Apart from that, Rybacki refers to two matters that
purportedly might implicate age as a factor in his victimization:
He was required to ask permission before taking a bathroom break

and Oak Park required him to get a physical examination. While

22 Byen though Oak Park noted the same references in its
own memoranda (OP Mem. 23; OP R. Mem. 21) and referred to the
record, those record citations provide no support for that claim.

23° Though Aristotle originally spoke of “spring” rather
than “summer” in his Nicomachean Ethics, most who have borrowed
and repeated the aphorism since then (including Cervantes in Don
Quixote) have changed the season--but not the thought.

36


Moreover, Ruscitti has failed to demonstrate a sufficient
causal link between any assertedly protected conduct and his
termination. To be sure, the rarity of overt admissions that an
employee was fired due to his or her protected conduct has
properly led our Court of Appeals to allow plaintiffs to rely
instead on circumstantial evidence that would allow a factfinder

to infer the required causal link (see, e.g., Mannie v. Potter,

394 F.3d 977, 983 (7th Cir. 2005); but see Hudson v. CTA, 375

F.3d 552, 560 (7% Cir. 2004)}. But here Ruscitti fails to meet
even that less rigorous test, for all he does is to point to the
single circumstance that he was fired four weeks after his
assertedly protected conduct. It is well established that
“suspicious timing alone rarely is sufficient to create a triable

issue” as to causation (Moser, 406 F.3d at 905), and courts

regularly require additional evidence.

So Ruscitti fails to satisfy his prima facie case of
retaliation. This Court recommends that Oak Park also prevail on

its summary judgment motion as to that claim.
Graziano

As with Ruscitti, the best evidence of Graziano’s assertedly
protected conduct comes in notes from his Hirakawa-Euclide
interview. But in contrast to Ruscitti’s situation, those show
that Graziano’s complaints substantially targeted activity that

could reasonably be viewed as prohibited by Title VII.

18


(“Heise”) (id. 9145) .°

Shortly after the halting of the Hirakawa-Euclide inquiry,
Spataro authored recommendations that Graziano, Calascibetta and
Ruscitti be terminated. Those recommendations came in two
stages.

First, on September 11 Spataro issued a recommendation that,
rather than the suspension he had originally favored, Graziano be
terminated (P. Ex. 20). In support of that new recommendation
Spataro pointed first of all to the original charges stemming
from the cheese incident itself: Graziano’s violation of Oak
Park's anti-retaliation policy and his use of “abusive language
or manner” toward co-workers (OP St. qi89; P. Bx. 20). Unlike
the September 5 suspension memorandum, however, the new
recommendation also stated that in going to get doughnuts on the
morning of the cheese incident (doughnuts whose box would, hours
later, hold the three slices of cheese) Graziano had (1) overrun
his allotted break time, (2) left the job site without permission
and (3) used an Oak Park vehicle for personal reasons (OP St.
g190; P. Ex. 20). On October 3, after Spataro had briefed him,
Assistant Village Manager M. Ray Wiggins (“Wiggins”) authorized

Graziano’s termination (P. R.St. (1193, 196).

6 Although plaintiffs argue that the information was not in
fact given to Spataro, but only to Heise (P. R.St. qi45}, this
Court has adopted Oak Park’s version, which suggests that Spataro
too was aware of the content of the interviews. That scenario is
actually more helpful to plaintiffs, as discussed below.

10


R.St. 9207). In sum, Calascibetta indisputably fails to
establish his prima facie case of age discrimination. This Court

recommends the with-prejudice dismissal of that claim.
Ruscitti

Like Calascibetta, Ruscitti also fails to satisfy the fourth
element of his prima facie case. In this case Ruscitti, 41 years
old when he was fired, points to Otters as his proposed
comparator. Ruscitti urges that Otters was 38 years old at the
time and that he too engaged in at least some of the sorts of
abuse of co-workers of which Ruscitti was accused, but that

Otters nevertheless kept his job (P. Mem. 16-18).

That argument loses for a reason different from--but just as
conclusive as--the one that defeated Calascibetta. Even on the
supposition that Otters may have engaged in a level of
misfeasance that would suffice to render him “similarly situated”
to Ruscitti, under the circumstances of this case the three-year
age gap between Otters and Ruscitti is fatal to Ruscitti’s ADEA
claim. In this Circuit the comparator must be “substantially

younger,” not merely “younger,” than the laintiff (Radue, 219
Y Pp

F.3d at 619) (emphasis added)). And “substantially” means that
the difference in ages must be at least ten years (id., Hoffmann

yv. Primedia Special Interest Publ’ns, 217 F.3d 522, 524 (7th Cir.

2000) and other cases cited in both those opinions). Any gap

less than ten years is “presumptively insubstantial,” so that a

33


concededly had the crucial input into the decision, had no
knowledge of Calascibetta’s earlier EEOC filing at the time he

recommended his termination (OP St. 4180; P. R.St. g180).

In the end, then, Calascibetta has presented no evidence
that anyone involved in the decision to terminate him was
influenced by his protected conduct. Hence Calascibetta has also
failed to establish all of the elements of his prima facie case.
As with Ruscitti, this Court holds and recommends that Oak Park

should prevail in its summary judgment motion on that claim.

Age Discrimination
Calascibetta and Ruscitti also contend that Oak Park’s
termination of their employment violated ADEA (see 29 U.S.C.
§623(a)). As in the retaliation context, a plaintiff seeking to
prove such a claim may employ two different methods. One route
is the ordinarily more difficult direct method, while the other
involves the familiar and more frequently employed burden-

shifting quadrille first set out in McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802-03 (1973). In ADEA cases the latter
path (sought to be traveled by both Calascibetta and Ruscitti)
begins with the required showing that the employee (1) was 4
member of the protected age group-~here at least 40 years old (29
U.S.C. §631(a)), (2) was performing his job satisfactorily,

(3) suffered a materially adverse employment action and (4) was

treated less favorably than younger but otherwise similarly

30


Ruscitti. Employees told Spataro that Ruscitti (1) had referred
to a fellow employee as “Lassie,” whistled to call him “like a
dog” (OP St. 9109) and referred to him as a “fucking retard” (id.
9115), (2) had made another employee “stick his face out of the
truck and act like a dog” (id. qii2), (3) had denied fellow
employees a water break (id. 9113), (4) had attempted to
discourage another employee from reporting Ruscitti’s misconduct
and had referred to that employee as a “fucking pussy” for doing
so (id. 9116), (5) unlike other employees, would not stop teasing
co-workers when asked (id. q117), (6) when confronted about his
disappearances from the worksite by a summer co-worker, had
stated “I’m the boss and you are just the temp--that’s what
happens when seasonals come--its time for the full-timers to get
the summer off. I’m the boss” (id. 9119), (7) had urged co-
workers to work slowly to create more overtime opportunities (id.
q121) and (8) had avoided assigned work (id. qi20).

As to Calascibetta, in addition to the reported behavior
that had prompted the investigation to begin with, Spataro was
also told (1) that Calascibetta was advising Streets Division
employees not to talk to Spataro without a union representative
present and (2) that one of Spataro’s goals in the investigation
was to get the employees to forfeit future union representation
(OP St. 9134). Spataro saw that as a further example of an

ongoing attempt by Calascibetta to keep his co-workers from


catalyzed by Oak Park’s May 20024 receipt of an anonymous letter
{the “Speciale Letter”) that charged Calascibetta and one of his
superiors, Public Works Operations Superintendent Anthony
Speciale (“Speciale”), with abusing their positions and failing
to fulfill their duties (OP St. q119, 59-60). Rumors soon began
circulating among Streets Division employees as to the authorship
of the Speciale Letter (id. 961). In June two Streets Division
employees, Mike Otters (“otters”) and Charles Vetro (“Vetro”),
complained to Spataro that Calascibetta and Streets Division
Supervisor Jim Hirakawa (“Hirakawa”) had accused them of writing
the letter and that Calascibetta and Hirakawa had retaliated
against them for their alleged authorship (id. 9967-71). Along
with a third co-worker, Mike Pepe (“Pepe”), Otters and Vetro
further reported that Calascibetta had changed their overtime
assignments and job responsibilities (id. (970, 71,73), had
favored certain employees (id. 9974-76) and had failed to do his
own assigned work (id. 977).

In August Spataro began an investigation of those complaints
(OP St. 9983-84). In the course of that investigation, Spataro
received numerous reports of asserted misconduct by Ruscitti,
Calascibetta and Graziano.

For example, there was a whole battery of complaints about

4 Because most of the events relevant to this opinion took

place later in 2002, that year reference will be omitted
hereafter in recounting those events.

6


For example, Graziano noted that Otters referred to Frazier
as “defin[ing] a lazy blackman [sic]” and a “nigger” and that he
had referred to Polish co-worker as a “Pollock” (sic) (P. Ex. 33,
DpO00885, DO00887). Indeed, Graziano’s reports about Otters’
treatment of Frazier are echoed by Frazier’s own reports of race-
based harassment (particularly by Otters and Vetro): Frazier
told Spataro that Vetro referred to him as “Buckwheat,” that co-
workers spoke of getting “the pickup truck and the chain” for him
(referring, Frazier understood, to the Texas race-based murder of
an African-American by dragging him behind a truck) and that
Otters spoke of “getting the rope and tree ready” (P. Ex. 12,
DO000781). Such activity would surely support a reasonable and
good faith complaint that Title VII violations were occurring in
the Streets Division workplace (see, e€.g., Walker v. Mueller
Indus., Inc., 408 F.3d 328, 330, 331 (7th Cir. 2005)). Unlike
Ruscitti’s tangential reference to a stray “old man” remark,

Graziano’s complaints suffice to qualify as protected conduct.

Although this opinion speaks of Graziano’s complaints as
“protected conduct,” those references should not be misunderstood
as somehow endorsing what is really an unproved proposition in
that respect. It should always be remembered that the race-based
comments adverted to by Graziano were not only voiced by fellow
workers rather than by anyone engaged in the decisionmaking

process that affected Graziano, but were also directed at other

19


that report, Spataro “put down his pen and took no notes” (id.
478). Spataro did record, however, that African-American
employee Walter Frazier (“Frazier”) had heard Otters make
offensive comments and considered him “a racist” (OP St. 4100) .°

Seeing no action taken on their own allegations of
harassment and misconduct, Graziano, Rybacki and Ruscitti also
spoke to Hirakawa, who together with Director of Department of
Public Works Joe Buclide (“Euclide”) then launched an independent
inquiry into those counter-allegations (OP St. q141). That began
on September 5 with interviews of Rybacki, Graziano, Ruscitti and
three other Streets Division employees (id. 99141, 143). During
those interviews Graziano complained about some colleagues’
references to Frazier as a “nigger” and as “defin{ing] a lazy
blackman [sic],” noting that Otters in particular was a
“prejudice [sic] individual” (P. Ex. 33, po008ss5, DO00887).

When Spataro learned of the parallel Hirakawa-Buclide
inquiry on September 9, he informed Oak Park Village Manager Carl
Swenson (“Swenson”) of what was going on (OP St. q1144-45).
Swenson immediately ordered that the separate and not-officially-

authorized inquiry be stopped and that all interview materials be

turned over to Spataro and Oak Park Attorney Raymond Heise

> That said, Frazier also noted, as did other employees
that rough “shoptalk” including racial and ethnic slurs, while
common in the workplace, was usually used in a joking or teasing
manner (OP St. %4103-07).


termination recommendation was due to Graziano’s complaints.
Hence Graziano also satisfies the causation element of his prima

facie case.

Having thus surmounted the first hurdle--the submission of a
prima facie case--under the direct method, Graziano is entitled
to prevail against Oak Park’s Rule 56 motion unless Oak Park “can
produce uncontradicted evidence that [it] would have fired the
plaintiff anyway” (Stone, 281 F.3d at 643). “Uncontradicted”
means that for Oak Park to win at the summary judgment stage
Graziano must fail to have raised a triable issue as to whether
Oak Park’s proffered reasons were pretextual (see Culver, 416
F.3d at 546-548). Because the reasons that Spataro cited in his
memo recommending termination are facially legitimate, the

question boils down to pretext vel non.

Resolution of that question does not permit merely second
guessing the employer's personnel decisions (see, e.g., Culver,
416 F.3d at 547). Instead the inquiry asks whether, with
reasonable inferences drawn in the employee's favor, a factfinder
could legitimately find the absence of an honest belief on the
employer’s part that the reasons it has advanced justified the
adverse employment action (id. at 547-48). To that end, while
the reasonableness of a given employment decision is not at issue
as such, it can often shed light as to the honest reliance (or

its absence) on a purported justification (Firestine v. Parkview

25


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ANTHONY J. GRAZIANO, et al., )
)
Plaintiffs, )
)
v. ) No. 03 C 4562

)
VILLAGE OF OAK PARK, }
)
Defendant. )

MEMORANDUM OPINION AND ORDER

Each of Anthony Graziano (“Graziano”), Sam Calascibetta
(“Calascibetta”), Frank Ruscitti (“Ruscitti”) and Henry Rybacki
(“Rybacki”) has charged the Village of Oak Park (“Oak Park”) with
one or more of an array of violations of Title VII of the Civil
Rights Act (“Title VII,” 42 U.S.C. §§2000e to 2000e-17), the Age
Discrimination in Employment Act (“ADEA,” 29 U.S.C. §§621 to 634)
and the Americans with Disabilities Act (“ADA,” 42 U.S.C. §§12101
to 12117). Oak Park has moved for summary judgment on a subset
of those claims under Fed. R. Civ. PB. (“Rule”) 56. In
particular, Oak Park seeks summary judgment (1) on all four
plaintiffs’ claims that they were unlawfully terminated in
retaliation for conduct protected under Title VII, (2) on
Ruscitti’s and Rybacki’s Title VII claims that they were
unlawfully terminated due to their national origin, (3) on
Calascibetta’s, Ruscitti’s and Rybacki’s ADEA claims that they
were unlawfully terminated due to age and (4) on Rybacki’s claim

(though not formally set out in his Complaint) that he was


Streets Division turmoil of the summer and fall of 2002
relatively unscathed (or at least still in possession of his
job).’ But beginning in early 2003 Rybacki began to have
“disagreements” with Vetro, who had been promoted to Acting Crew
Chief when Calascibetta was terminated (OP St. 44206, 212), and
to be subjected to a number of work-related changes.

First, Vetro reduced the amount of time allotted for Rybacki
to clean and maintain his machine to 15 minutes--an amount of
time that Vetro understood from the machine’s vendor to be
adequate and to which the union contract stipulated, but that
Rybacki felt was insufficient (id. 99213-220). On another
occasion Vetro assigned Rybacki to equipment that aggravated his
back (P. R.St. 4224). In addition, Rybacki’s machine was
vandalized, including the dangerous removal of integral parts (OP
St. 9232). Further, Rybacki was required to ask permission to go
to the bathroom, was followed to the bathroom and was required to
get a physical exam (P. R.St. 9236; OP St. 91236).

Rybacki wrote two letters of complaint regarding those
incidents, the second being dated April 22, 2003 (OP St. 19232,

236). Neither letter was responded to (P. R.St. 99233, 241).

7 Rybacki did complain to both Spataro and Hirakawa about
general harassment in August and September 2002 (RP. R.St. §W85 P.
Ex. 33, D000898-99), and he even appears to have filed an EEOC
charge based on age harassment in November 2002 (Rybacki Cmplt.
q3i). Unlike his co-plaintiffs, however, the bulk of Rybacki’s
evidence and the focus of his arguments concern events that
occurred in the months following the October 2002 terminations.

12


Second, on October 2 Spataro also issued letters informing
Ruscitti and Calascibetta that he was recommending their
termination (OP St. 914173, 197). In Ruscitti’s case Spataro set
forth several justifications for his recommendation, stating that
Ruscitti (1) had used abusive language or manner toward his
fellow employees, (2) had avoided work while on the job, (3) had
imposed work restrictions and conditions on other employees
without authority and (4) had purposely slowed down work to
create overtime opportunities (id. g198}. In Calascibetta’s case
Spataro noted that he (1) had discouraged employees from taking
part in Spataro’s investigation, (2) had contributed to
divisiveness in the Streets Division by accusing Vetro and Otters
of writing the Speciale Letter and indirectly blaming them for
the decline in overtime, (3) had failed to perform fieldwork and
had been ineffective in his role as Crew Chief and (4) had
manipulated overtime assignments to benefit himself and select
employees (id. 9174).

On October 3 Wiggins, who had been delegated the termination
authority by Swenson, authorized Calascibetta’s termination on
the basis of the information and recommendations provided by
Spataro (id. 99178-79). Ruscitti’s termination became final on
October 9, after he had repeatedly declined opportunities to
contest Spataro’s recommendation (id. 417199-203).

Unlike his co-plaintiffs, Rybacki managed to survive the

1


position would make Jacks the proper comparator. Moreover, that
untested notion could not help Calascibetta, for there is no
evidence that he was in fact “in line”--just his own inadmissible

naked assertion.*°

Though it is scarcely necessary to heap Pelion upon Ossa,
Calascibetta also has not tendered the requisite evidence as to
Jacks’ age, prior experience or qualifications for the job. To
satisfy the “similarly situated” element, a plaintiff must submit
admissible evidence that he is in fact comparable--similarly
situated as to performance, qualifications and conduct--to the

asserted comparator (Radue v. Kimberly-Clark Corp., 219 F.3d 612,

617 (7th Cir. 2000)). Here Calascibetta’s unsubstantiated and
skeletal claim that Jacks is “under 40 years of age” and had
“less public works experience” than Calascibetta (see P. Add.St.

q9) just does not cut it (see Balderston, 328 F.3d at 322).

So the only proper comparison is to Vetro, the person who
replaced Calascibetta as Crew Chief. In that respect, however,

Calascibetta admits that he is younger, not older, than Vetro (P.

20 And as a third strike (though none is needed), how could
Calascibetta have been “in line” for the Supervisor job when the
position didn’t even become available, via Hirakawa’s
termination, until the day that Calascibetta was himself fired
(OP St. 79171, 179)? Or more poignantly, it seems the height of
irony for Calascibetta to label himself as next “in line” for a
better job that opened up on the day that both the incumbent and
Calascibetta were fired as part of the total housecleaning that
came out of the investigation of the highly troubled Streets

Division--talk about bootstrapping!

32


situated employees (see Bennington v. Caterpiliar Inc., 275 F.3d

654, 659 (7th Cir. 2001)). Both of them fail in that effort,

because each falls at the fourth hurdle.’®

Calascibetta

In arguing that he was treated less favorably than a younger
and similarly situated person, Calascibetta compares himself to
Brian Jacks (“Jacks”), whom Oak Park hired as Supervisor of the
Streets Division after Hirakawa was fired from that position (P.
Mem. 16). But that proposed comparison is flawed for more than

one reason.

First, Calascibetta was the Streets Division Crew Chief, not
its Supervisor. That being so, he submits no valid reason for
treating, as the required “similarly situated” employee, the
person hired to replace some other employee rather than the

person who replaced him (see Balderston v. Fairbanks Morse Engine

Div. of Coltec Indus., 328 F.3d 309, 321 (7 Cir, 2003))-

Calascibetta offers, as a lame “justification” for relying on
such an indirect comparison, the claim that he was “in line” for
the Supervisor position (P. Mem. 16). Even if that were true
(but on that score see n.20), there is no authority for the

notion that Calascibetta’s being “in line” for the Supervisor

19 That failure makes it unnecessary to analyze (1) whether
the other prima facie components have been satisfied or
(2) whether Oak Park’s stated reasons for termination were
pretextual.

3


voicing their concerns about him (id. 9135).

Finally, as to Graziano, the complaints about his conduct
centered around a single incident that occurred in the midst of
Spataro’s investigation. On the morning of August 22 Graziano
left a Dunkin’ Donuts box in the break room of the Public Works
department (OP St. q137). When Pepe, Otters and Vetro opened the
box, they found three pieces of individually wrapped cheese (id.
9138). Viewing that as a symbolic act of retaliation--that the
cheese had been intended for them as “rats”--Pepe, Otters and
Vetro again complained to Spataro (id. g139). On August 27 a
nearing was held, during which Graziano argued that instead of
the cheese having been intended to send any message, he had
simply been saving it to take home for his son after his shift
was over (id. 9191). Disbelieving that explanation, on September
5 Spataro prepared a memorandum recommending that Graziano be
suspended for a week as punishment for his “use of abusive
language or manner toward one’s fellow employees” and for
retaliating against fellow employees for reporting misconduct (Pe.
R.St. 9195; P. Ex. 19)

Graziano, Rybacki and Ruscitti were not the only Streets
Division employees complained of, however. In fact, each of them
reported to Spataro that Vetro, Otters and Pepe had themselves
been the perpetrators of harassment and other misconduct (RP.

R.St. 985). They further reported that as soon as they began


F.3d 748, 754 (7 Cir. 2003)), and in this case it is undisputed
that Wiggins and not Spataro was the decisionmaker (see OP St.
q196). But there is ample authority for the proposition that
even when the decisionmaker is unaware of a plaintiff’s protected
conduct, a showing that a non-decisionmaking employee with
“discriminatory animus” had major input into the adverse
employment decision (either controlling or perhaps affecting that

decision) will preclude summary judgment (Davidson v. Midelfort

Clinic, Ltd., 133 F.3d 499, 512 (7 Cir. 19998), citing Dey v.

Colt Const. & Dev. Co., 28 F.3d 1446, 1459 (7% Cir. 1994)).

Here Graziano has certainly presented evidence that Spataro
had input into Wiggins’ termination decision: He briefed Wiggins
before the latter reached the final determination as to
Graziano’s termination. That suffices to create the required
inference (as the parties appear to have drawn as well) that the
linkage in time of Spataro’s termination recommendation to his
having learned of Graziano’s comments on September 9 satisfies

the causation element of Graziano’s prima facie case.

Graziano does not rely on temporal proximity alone. In
addition, and more powerfully, Graziano notes that the only
significant event that might account for Spataro’s abrupt
disciplinary change of heart was his discovery of the Hirakawa-
Euclide interviews. On September 5 Spataro felt the appropriate

punishment for Graziano’s conduct in the cheese incident was a

22


Appendix 1

Each of the four plaintiffs referred to in this opinion (as
well as a fifth, Raymond Washington (*Washington”) } originally
filed a separate action against Oak Park (Graziano in Case No.

03 C 4563, Ruscitti in Case No. 03 C 4569, Washington in Case No.
03 C 4565 and Calascibetta in Case No. 03 € 4566), each of which
was assigned to a different District Judge. Soon thereafter,
however, the four higher-numbered cases were provisionally
assigned to this Court on “relatedness” grounds under LR 40.4.

At the conclusion of pretrial discovery proceedings, this
Court determined that the cases were not in the end “susceptible
of disposition in a single proceeding” as required by LR
40.4(b) (4) and the cases were returned to their original dockets.
Nevertheless this Court (by agreement of the other District
Judges involved) retained responsibility for passing judgment on
Oak Park’s summary judgment motion, but only as to those claims
of retaliation and national origin discrimination under Title VII
and age discrimination under ADEA that were common to all the
cases. This opinion has not then addressed (a) any of the claims
raised in Washington's complaint, (b) Calascibetta’s defamation
claims against Village Attorney Raymond Heise and Assistant
Village Manager M. Ray Wiggins and (c) Rybacki’s claims under

ADA.


Il. THERE IS NO GENUINE ISSUE OF MATERIAL FACT THAT PRECLUDES
SUMMARY JUDGMENT IN FAVOR OF THE VILLAGE

A. Defendant’s Statement of Facts Should Be Deemed Admitted In Its Entirety.

Local Rule 56.1(b) requires that a party opposing summary judgment respond to the
movant’s statement of facts by filing a concise response “to each numbered paragraph in the
moving party’s statement, including, in the case of any disagreement, specific references to the
affidavits, parts of the record, and other supporting materials relied upon.” LR 56.1(b)(3)(A)-
(B). These requirements are “strictly enforced” and a “failure to properly meet the requirements
to deny a moving party’s statement of facts results in the moving party's version of the facts

being deemed admitted.” Jackson v. Int'l Bhd. of Teamsters, Local Union No. 705, No. 02-C-

2745, 2004 U.S. Dist. LEXIS 14625 (N.D. Ill. July 29, 2004), aff'd, 2005 U.S. App. LEXIS 4366
(7th Cir. Mar. 9, 2005) (copy attached at App. Il, Tab. 81), citing LR 56.1(b)(3)(B).

Of the 243 statements of fact submitted by the Village pursuant to Local Rule 56.1(a)(3),
71 are “stipulated to” by all Plaintiffs. (Pls.’ 56.1 Resp. GI 1-25, 28-29, 30-33, 34-37, 40, 41, 53,
54, 59, 64-66, 69, 80, 82, 83, 85, 106, 107, 128-130, 136, 143, 149-152, 154-157, 169-171, 175,
181-182, 242, 243).? An additional 54 statements are stipulated to by one Plaintiff with no denial
or other response by the remaining Plaintiffs and, therefore, should be deemed admitted as to all
four Plaintiffs. (Pls.’ 56.1 Resp. §{] 42-49, 120-127, 137, 173, 178, 187-189, 196-205, 207-220,

225, 231-232, 234-235, 238-240). See McGuire v. United Postal Serv.,152 F.3d 673, 675 (7th

Cir. 1998) (“an answer that does not deny the allegations in the numbered paragraph with

citations to supporting evidence in the record constitutes an admission.”)

? Citations to the Village's Rule 56.1 Statement of Undisputed Facts are indicated herein as (“Def.’s. SF {

__”); Plaintiffs’ Rule 56.1(b)(3)(B) Statement of Facts is cited herein at (“Pls.' SF |__.”); Plaintiffs’ Response
Pursuant to Rule 56.1(b)(3)(A) is cited as “Pls.” 56.1 Resp. |__”); and Defendant's Response to Plaintiffs’ 56.1
(b)(3)(B) Statement is cited as (“Def.’s 56.1 Resp. §__").

3
277622.1

APPENDIX


fails even in inferential terms. Essentially he relies on
statements made by Euclide about Heise’s and Swenson’s
disapproval of Calascibetta’s 1992 EEOC filing. First,
Calascibetta refers to Euclide’s deposition, claiming that it
states that “based on [Euclide’s] discussions with Swenson,
Calascibetta would not be considered” for an available supervisor
position “in part because Calascibetta had filed the previous
charge of discrimination” (P. Add.St. 95). But an actual look at
Euclide’s deposition reveals that he really stated only his
opinion that Calascibetta was not being considered for the
position for that reason (among others) (App. III, Euclide Dep.
40)./® If that were somehow sought to be offered as evidence of
Swenson's view, it would be inadmissible hearsay and hence a
nullity under Rule 56(e)--and alternatively, as a statement of
speculative opinion on Euclide’s part it could not produce the
“genuine issue for trial” needed to defeat summary judgment (see

Jordan v. Summers, 205 F.3d 337, 343-44 (7th Cir. 2000)).

Calascibetta also claims in his own deposition that Euclide
told him that Swenson and Heise had told Euclide that “they did
not appreciate individuals who filed age--frivolous age

discrimination claims” (App. I, Calascibetta Dep. I 285-86). As

18 That is but one example of the distressing nature of the

LR 56.1-violative submissions by plaintiffs’ counsel, as
discussed earlier in n.2 and then in the section on Summary
Judgment Standards.

28


the material facts in Oak Park’s statement (either directly or by
incomplete denial), their “argumentative denials and extraneous
information” in their own responsive statement, their reliance on
unsupported and immaterial assertions and hearsay and their
submission of affidavits directly contradicting their own
deposition testimony. And as n.2 indicates, the factual
recitation in this opinion gives plaintiffs substantially more
than their due--and despite that, all but one of their claims
succumb under the Rule 56 standards.
Background

Oak Park is an incorporated municipal entity just west of
Chicago, Illinois (OP St. g95).3. It is governed ultimately by an
elected Village President and Board of Trustees (id. 712}, but
the daily operation of government services and programs is
overseen by the Village Manager (id.). All four plaintiffs were

employed by the Streets Division of Oak Park’s Public Works

3° This opinion cites to Oak Park’s LR 56.1(a) (3) Statement
of Material Facts as “OP St. 7 --,” to plaintiffs’ LR
56.1(b) (3) (A) response to that statement as “Pp, R.St. I--” and to
plaintiffs’ LR 56.1(b) (3) (B) statement of additional facts as “P.
Add.St. 9--.” In addition, this opinion cites to Oak Park’s

initial Memorandum of Law as “OP Mem. --,” to plaintiffs
responsive Memorandum of Law as “p. Mem. --” and to Oak Park’s
Reply Memorandum as “OP R. Mem. --.” Finally, this opinion

refers to particular complaints (“Cmplt. g--”) and answers (“Ans.
q--”) by the appropriate party’s name, to plaintiffs’ and
defendant’s exhibits as “P. Ex. --” and “OP Ex. ~--” respectively
and to affidavits (“Aff. I--”) and depositions (“Dep. --") by the
Appendix in which the record is found and by the subject's name
(e.g., “App. I, Ruscitti Dep. 6”).

4


inferences that (1) he engaged in statutorily protected activity,
(2) he suffered an adverse employment action taken by the
employer and (3) there is a causal connection between the two

(Culver v. Gorman & Co., 416 F.3d 540, 545 (7th Cir. 2005)).

Once plaintiff does so, summary judgment against him should be
granted only if defendant then “presents unrebutted evidence that
he would have taken the adverse employment action against the
plaintiff even if he had had no retaliatory motive” (id. at 546

quoting Stone v. City _of Indianapolis Pub. Utils. Div., 281 F.3d

640, 644 (7th Cir. 2002)).

In this instance Oak Park acknowledges that each plaintiff
did in fact suffer an adverse employment action (termination) and
contests only the remaining two elements of each plaintiff’s
case: his engagement in protected conduct and the existence of a
causal link between such conduct and his termination. This

opinion addresses each of the three retaliation claims in turn.
Ruscitti

Ruscitti contends that he engaged in protected conduct by
complaining of discriminatory activities within the Streets
Division. To qualify as protected conduct, such complaints must
target some action that is in fact prohibited by Title VII (see

Sitar v. Ind. Dep’t of Transp., 344 F.3d 720, 727 (7th Cir.

2003)). For example, simply complaining of people being “picked

on” without charging a discriminatory motivation (such as a race

15


interviews (P. R.St. 91148; P. Ex. 33, DO00895-96). But those
notes demonstrate that the overwhelming focus of Ruscitti’s
complaints was on safety violations and vandalism, activities
that--while likely violating Oak Park rules--have no relevance to
a Title VII claim (P. Ex. 33, DO00895-96). In fact, Ruscitti’s
complaints include only one potential reference to illegal
harassment (and one that was directed not at Ruscitti himself but
at a fellow employee): the claim that Otters “calls [a co-
worker) ‘old man’” (P. Ex. 33, p000896).*2. Any such isolated and
tangential reference, adverted to only in the midst of a general
complaint that really focused on conduct not prohibited by Title
VII, cannot qualify as actionable protected conduct (see Miller

v. Am. Family Mut. Ins. Co., 203 F.3d 997, 1007-08 (7th Cir.

2000).1*

1 There is also a reference in the Hirakawa-Euclide notes

to a sexual-orientation-based statement, but discrimination based
on sexual orientation is not prohibited under Title VII
(Schroeder v. Hamilton Sch. Dist., 282 F.3d 946, 951 (7th Cir.
2002)).

1s This determination is based on what is said in the text

of this opinion, not on Oak Park’s argument that complaints made
during the Hirakawa-Buclide inquiry cannot count as protected
conduct because that investigation was a “sham” (OP R.Mem. 16-
17). Again the key question is whether Ruscitti made his
complaints in good faith and with a reasonable belief that he
was opposing illegal employment action. Even if those running
the inquiry might merely have been trying to “save their own
jobs” and to discredit Vetro, Otters and Pepe (rather than
legitimately investigating workplace discrimination and
harassment), that would not necessarily preclude Ruscitti from
having such a reasonable belief and from taking part in the
inquiry in good faith.

7


burden of establishing the lack of a genuine issue of material

fact (Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).

For that purpose this Court must “consider the evidentiary record
in the light most favorable to the non-moving party ... and draw

all reasonable inferences in his favor" (Lesch v. Crown Cork &

Seal Co., 282 F.3d 467, 471 (7th Cir. 2002)). This general
standard is also applied with rigor in employment discrimination
cases, where intent is inevitably the central issue (McCoy v. WGN
Cont’1 Broad. Co., 957 F.2d 368, 370-71 (7th Cir. 1992))}. That
said, to avoid summary judgment a nonmovant still “must produce

more than a scintilla of evidence to support his position” that 4

genuine issue of material fact exists (Pugh v. City of Attica,

259 F.3d 619, 625 (7th Cir. 2001)). In the end, though, 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)). What follows is a summary of the facts
viewed in the light most favorable to the plaintiffs, but only so
long as those facts are supported by record evidence.

In that respect, as reflected in n.2, in Appendix 2 and at
pages 2 and 3 of Oak Park’s Response to Plaintiff’s LR
56.1 (b) (3) (B) Statement of Additional Facts, Oak Park has
identified a number of substantial defects in plaintiffs’ LR
56.1(b) (3) (A) response to Oak Park's LR 56.1 (a) (3) statement of

material facts. Those comprise plaintiffs’ admission of many of


discrimination and age discrimination, as well as his hostile

working environment claim.

As for Graziano, Oak Park’s motion for summary judgment as
to his claim of retaliation is denied. Graziano’s case is set
for a status hearing at 8:45 a.m. December 7, 2005 to discuss the

procedure and timing looking to trial.

Vi hl. DGenactere

Milton I. Shadur
Senior United States District Judge

Date: November 28, 2005

38


Health Sys., 388 F.3d 229, 236 (7th Cir. 2004)). And here
Graziano has raised enough doubt about the sincerity of Spataro’s

justifications to prevail in this final step of the analysis.

In many cases evidence that supports a plaintiff’s prima
facie case also supports his or her showing of pretext (see,

e.g., this Court’s opinion in Farrow v, Humana Health Plan, Inc.,

69 F.Supp.2d 1050, 1061 (N.D. Ill. 1999)). Thus logic suggests
that evidence that raises an inference of a causal link between
protected conduct and an adverse employment action can often, if
not always, also raise an inference that whatever facially
legitimate justifications the employer may have offered are

really pretextual.

Graziano’s case is a good example of that sort of overlap.
All of the already-discussed factors that give rise to an
inference of the causal link required to firm up Graziano’s prima
facie case also support an inference of pretextuality in
Spataro’s claimed justifications for recommending termination.
In short, Oak Park’s summary judgment motion as to Graziano’s

retaliation claim must be denied."’

17 That being said, this opinion will not prolong matters

by detailing Graziano’s evidence that may cast a further cloud on
the bona fides of Spataro’s assertion of additional
justifications for his recommendation. Those matters may be
adduced for evaluation by the factfinder at trial.

26


subjected to a hostile working environment.

Both sides have nominally complied with this District
Court’s LR 56.1.% For the reasons stated in this memorandum
opinion and order, Oak Park’s motion (1) is denied as to
Graziano’s retaliation claim and (2) for the reason stated in the
Appendix, is recommended to this Court’s colleagues to be granted
as to all other claims under consideration.

Summary Judgment Standards

Familiar Rule 56 principles impose on movant Oak Park the

1 See Appendix 1.

2? LR 56.1 is designed to facilitate the resolution of Rule
56 motions by calling for evidentiary statements by the moving
party and itemized responses to such statements by the nonmoving
party (in each instance with record citations), thus highlighting
the existence or nonexistence of factual disputes. “Nominally”
has been used in the text because, as to plaintiffs, Oak Park's
R. Mem. 3-4 (photocopy attached) identifies an astonishing level
of noncompliance by plaintiffs’ counsel with the LR 56.1
requirements. Although our Court of Appeals has repeatedly
approved a stern response to such subversions of that rule’s
basic purposes (see, @-J-, Cichon v. Exelon Generation Co., 401
F.3d 803, 808-10 (7'" Cir. 2005) and Ammons v. Aramark Unif.
Servs., 368 F.3d 809, g16-18 (7% Cir. 2004) and other cases
cited in those opinions), this opinion will not adopt the
draconian approach urged by Oak Park, which would essentially
junk the responses to Oak Park’s LR 56.1 submission and thereby
necessarily eliminate any possibility that material factual
issues might preclude summary judgment. At the same time, the
identification in this opinion of some outright misrepresenta-
tions of the record on plaintiffs’ behalf, as well as some lesser
departures from LR 56.1 principles, is only representative of
numerous other examples that would unduly lengthen this already
oversize opinion. Suffice it to say that a permissibly vigorous
judicial response to plaintiffs’ submission would make this an
even easier case for upholding Oak Park’s entitlement to summary
judgment on all but a single claim--that advanced by Graziano as
to claimed retaliation.



plaintiff in such a situation can prevail only by adducing
additional evidence that the employer considered his or her age
as a factor in the employment decision (Hoffmann, id. (emphasis

added) ).

In brief, Ruscitti’s three year age differential is far
below the presumptive standard,”! and there is no evidence at all
that either Wiggins or Spataro considered his age to be
significant in their decision to terminate him. That being so,
Ruscitti too has failed to satisfy the fourth element of a prima
facie ADEA case. As with Calascibetta, this Court recommends the

dismissal of that claim with prejudice.

Hostile Working Environment

That leaves for consideration only Rybacki’s hostile working
environment claim. To survive summary judgment on that claim, he
must at least identify genuine issues of material fact as to
(1) his having been subject to unwelcome harassment, (2) such
harassment having been due to his protected status, (3) such
harassment having been so severe or pervasive as to alter the
conditions of his work environment by creating a hostile or
abusive situation and (4) there being a basis for employer

liability (Williams v. Waste Mgmt. of Ill., 361 F.3d 1021, 1029

21 Differences as great as seven or even 9-1/2 years have

been found insufficient to meet that standard (see Radue, 219
F.3d at 619).

34


the awkwardness of the preceding sentence suggests, that involves
multiple levels of potential hearsay. While Calascibetta rightly
says that statements made by Heise and Swenson would be
nonhearsay under Federal Rule of Evidence (“Evid. Rule”)
801(d) (2) (D), he has not shown that Euclide’s statements about
statements by Heise and Swenson would qualify. For that purpose
Euclide would have to have been “acting within the scope of
{his]...employment” (Evid. Rule 801(d) (2) (D)) in saying that to

Calascibetta, and the record does not necessarily show that.

But even if that evidence were assumed to be admissible as
nonhearsay, it still would not help Calascibetta’s efforts to
demonstrate causation. Whenever Heise and Swenson assertedly
made those statements to Buclide (something not indicated by the
record), they are wholly without probative value because neither
author played any role in the decision to terminate Calascibetta,
nor did they provide any input that could qualify under the
principle discussed earlier regarding Spataro’s conduct vis-a-vis

Graziano.

To the contrary, Calascibetta has stipulated to Oak Park’s
contention that the termination decision “was delegated by
Village Manager Swenson to the Assistant Village Manager Wiggins
and that Wiggins made the decision based on information and
recommendations provided by Spataro” (OP St. 4178 and P.

R.St.4178). Nor does Calascibetta dispute that Spataro, who

29


Finally, on February 9, 2004 Rybacki retired from Oak Park
employment, citing stress-related health problems (id. 9241).

Threshold Nonissues

As our Court of Appeals has repeatedly held (see, e€.g., CAE,

Inc. v. Clean Air Eng’g, Inc., 267 F.3d 660, 677 (7th Cir.

2001)), a party opposing summary judgment cannot simply “rest on
the pleadings” but must come forward with some evidence (more
than a “mere scintilla”) in support of his or her claim to avoid
dismissal. In this case plaintiffs’ responsive memoranda plainly
appear to have abandoned some of their original claims, so that
they have failed to satisfy the threshold minimum requirement as

to those claims.

First, although plaintiffs Ruscitti and Rybacki included
claims of national origin discrimination in their complaints
(Ruscitti Cmplt. 9921-36; Rybacki Cmplt. 9943-54), they offered
neither argument nor evidence in support of those claims in their
memoranda, in their LR 56.1(b) (3) (A) Response to Oak Park’s
Statement of Material Facts or in their LR 56.1(b) (3) (B)

Statement of Additional Facts.® Similarly, plaintiff Rybacki has

8 Oddly, Oak Park includes in its memorandum of law an
argument as to why summary judgment is warranted for a claim of
national origin discrimination by Graziano (OP Mem. 16-18), even
though Graziano’s complaint contained no such claim (Graziano
Cmplt. (91-28). But in any case, because plaintiffs’ filings
include no evidence of any such discrimination anyway, whatever
national origin claim Graziano might have made is also defeated
by Oak Park’s summary judgment motion.

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based or sex-based motive) does not qualify as protected conduct
(see id.). And even if a plaintiff’s grievance has indeed
challenged Title-VII-prohibited activity, he or she must also
make that complaint “in good faith and with a reasonable and
sincere belief that he or she is opposing unlawful

discrimination” (Talanda_v. KFC Nat’ 1 Mgmt. Co., 140 F.3d 1090,

1096 (7th Cir. 1998)).

Here Ruscitti points to almost no evidence that he objected
to such prohibited action. Though he claims to have complained
generally about “narassment” during Spataro’s interviews (P.
R.St. 985), this Court has been given no notes from those
interviews,!° so there is no way of knowing just what his
complaints entailed.'! Ruscitti also claims to have “discussed”
age discrimination with Calascibetta (P. Mem. 14), but again he
refers to no admissible evidence of his making any such complaint
to Calascibetta, let alone to evidence of any problematic nature

of that complaint.

Ruscitti’s only submission as to just what he was

complaining about comes from notes from the Hirakawa-Euclide

10 By contrast, notes of Spataro’s interviews of other
employees have been identified in the parties’ submissions.

“ Ruscitti refers only to his affidavit, which merely re-
states that he complained to Spataro of “harassment of
employees,” without saying what sort of harassment he was
complaining about (P. R.St. q978, 85; App. III, Ruscitti Aff.
q2). That is clearly inadequate to the task.

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