UNITED STATES DISTRICT COURT UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Anthony Delgado,

Plaintiff,

v.

Chicago Water and Fire Restoration,

Defendant.

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Case No. 1:20-cv-03271

Hon. Harry D. Leinenweber

PLAINTIFF’S RESPONSE TO DEFENDANT’S R 56.1 STATEMENT

OF UNCONTESTD MATERIAL FACTS & STATEMENT OF

ADDITIONAL MATERIAL FACTS

Pursuant to Local Rule 56.1, Plaintiff Anthony Delgado (“Plaintiff”, “Delgado”), through his 

counsel, submits this Response to Defendant’s Local Rule 56.1 Statement of Uncontested

Material Facts, and his Statement of Additional Material Facts.

A. Relevant POWER DRY Policies and Procedures.

1. Power Dry, a company providing water and fire damage restoration to 

commercial and residential customers, is an equal opportunity employer. It maintains clear 

policies that prohibit discrimination and provide that employment decisions will be made

without regard to an individual’s disability or any other protected characteristic. (Power Dry

Employment Handbook, page 7).

Plaintiff does not contest that Defendant’s Employment Handbook contains EEO and 

Anti-Discrimination/Harassment Policy. Otherwise contested. 

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2. Power Dry’s policies further indicate that it makes reasonable accommodations

when necessary for all employees and/or applicants with disabilities, provide the individual is

otherwise qualified to perform the essential functions of the job. (Power Dry Employment

Handbook, page 8)

Plaintiff does not contest that Defendant’s Employment Handbook contains EEO and 

Anti-Discrimination/Harassment Policy. Otherwise contested. 

3. Power Dry’s policies and procedures on attendance provides that employees 

are expected to arrive to work on time and as scheduled or assigned. Power Dry managers 

have discretion to evaluate the circumstances of an absence, tardy, or early departure, and 

determine whether or not to count the incident as a violation of Power Dry’s policies and 

procedures. (Power Dry Employment Handbook, page 10)

Contested in that the policy in the Handbook page 10 applies to salaried employees and 

that Plaintiff was paid hourly. 

4. An employee is deemed absent by Power Dry when the employee is 

unavailable for work as scheduled or assigned. (Power Dry Employment Handbook, page

10).

Contested in that the policy in the Handbook page 10 applies to salaried employees and 

that Plaintiff was paid hourly. 

5. An employee is deemed unexcused absent by Power Dry when the employee is 

unavailable for work assigned or scheduled and the time off: (1) was not scheduled or

approved in advance following Power Dry notification; or (2) is not supported through medical 

documentation. (Power Dry Employment Handbook, page 10)

Contested in that the policy in the Handbook page 10 applies to salaried employees and 

that Plaintiff was paid hourly. 

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6. An employee is deemed tardy for work by Power Dry when the employee is 15 

minutes late on a day scheduled or assigned to work. (Power Dry Employment Handbook, 

page 10).

Contested in that the policy in the Handbook page 10 applies to salaried employees and 

that Plaintiff was paid hourly. 

7. If a Power Dry employee is deemed unexcused absent or tardy, or have an 

unexcused early departure, the employee’s supervisor can begin the disciplinary process 

to include verbal and/or written warnings, unpaid suspension, deductions from salary 

and/or commissions, and termination. (Power Dry Employment Handbook, page 12).

Contested in that the policy in the Handbook page 12 applies to salaried employees and 

that Plaintiff was paid hourly. 

8. Plaintiff, Anthony Delgado, (“Delgado”), received a copy and had access to all 

Of Power Dry’s employment related policies. (Delgado Deposition, page 131:10-11)

Plaintiff does not contest that Plaintiff testified that he received Defendant’s Employment 

Handbook. Otherwise contested. Plaintiff further states that Plaintiff signed 

acknowledging the receipt of the Handbook on July 30, 2018, a year after his employment

began. (Def. Ex. 1, Employment Handbook, pp. 78-79).

B. The Business of Power Dry.

9. Power Dry is in the business of disaster restoration and rehabilitation to both 

consumer and commercial customers. This commonly includes clean up and restoration 

after fires, flooding, burst piped [sic], etc. (Plaintiff’s Complaint, ¶ 10).

Plaintiff does not contest. 

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10. In servicing its customers, Power Dry will typically send “crews” to the affected 

locations. A crew will consist of one “crew chief” and several “helpers.” (Plaintiff’s

Complaint, ¶ 11)

Plaintiff does not contest. 

11. “Helpers” at Power Dry are paid an hourly rate for hours of work performed. (Plaintiff’s

Complaint, ¶ 11).

Plaintiff does not contest. 

12. Power Dry on average has 10 to 15 helpers. (Power Drive Vice President, Kseniya

Kelly Deposition, Page 28:14-16)

Plaintiff does not contest but clarifies that Defendants had 10-15 mitigation helpers. Id. 

13. “Crew Chiefs” supervise and train the helpers at Power Dry. (Kelly Deposition, pages

14-15:24, 1-2; page 18:1-5).

Plaintiff does not contest. 

14. While helpers are paid an hourly rate, crew chiefs are paid a commission for each 

job completed and are paid more than helpers. (Plaintiff’s Complaint, ¶ 12).

Plaintiff does not contest. 

15. Crew chiefs’ salaries are strictly commission-based. (Kelly Deposition, Page 50:5-11)

Plaintiff does not contest. 

C. Delgado’s Time at Power Dry.

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16. Delgado was hired by Power Dry in 2017 as an “on-call helper” or “1099 temporary 

laborer.” (Plaintiff’s Complaint, ¶ 7-14; Delgado Deposition, pages 25-26: 23-24, 1; Kelly 

Deposition, pages 10-11:23-24, 1-12).

Plaintiff does not contest. 

17. His job duties during his time as a temporary laborer, according to Delgado, were to 

“assist the team.” He testified that he would “run the garbage” and “clean up the mess” to 

“assist the crew chief and the helper.” (Delgado’s Deposition, Page 26:10-21).

Plaintiff does not contest. 

18. Kseniya Kelly describes his time in this role as helping the company on an asneeded basis. He would come in when he was available and the company needed help. 

(Kelly Deposition, Page 12:4-7)

Plaintiff does not contest. 

19. Delgado was an on-call helper for around three months before being promoted to the 

position of “mitigation apprentice” or “helper.” (Delgado’s Deposition, Page 29:9-16; Kelly 

Deposition, Page 12:8-15).

Plaintiff does not contest that he became a full-time employee but contests that the 

change constitutes promotion. 

20. Upon being promoted to mitigation helper, Delgado became a full-time employee of

Power Dry. (Delgado’s Deposition, Page 31:11-13).

Plaintiff does not contest that he became a full-time employee but contests that the 

change constitutes promotion. 

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21. During Delgado’s employment as a helper at Power Dry, he was paid $15 an hour

plus overtime (time and a half) beyond 40 hours per week. (Kelly Deposition, page 20:3-7).

Plaintiff does not contest. 

D. Power Dry’s Paym en t t o Help ers.

22. Almost all mitigation helpers were paid $15 per hour with the exception of two 

individuals who were paid $16 per hour. One was Matthew Nelson and the other was 

Jonathan Coats. (Kelly Deposition, pages 20-21:18-24,1-4).

Plaintiff does not contest that that is Kelly’s testimony but contests that there were only 

two individuals who were paid $16 per hour. According to Defendant’s records, Robert 

Ocasio, another Helper, was initially getting paid at $15 per hour but later was getting 

paid at $16 per hour. See Plaintiff’s Additional Statement of Facts (PASF), ¶ 40.

23. Power Dry employed 43 other mitigation helpers during Delgado’s period of 

employment, all of whom, with the exception of those who were promoted, remained at the 

salary of $15 per hour until their resignation or termination. (Defendant’s Answers to 

Plaintiff’s Interrogatories).

Plaintiff contests because Robert Ocasio, another Helper, was initially getting paid at 

$15 per hour but later was getting paid at $16 per hour according to Defendant’s 

records. PASF, ¶ 40. 

24. Nelson was paid $16 per hour because he was certified to operate a forklift and, a 

specialized skill needed at Power Dry. Coats was paid $16 per hour because he used to have

his own restoration company and had extensive experience and training in mitigation services 

of all aspects. Coats was also certified through the Institute of Inspection, Cleaning and 

Restoration. (Kelly Deposition, Page 21-22: 14-24, 1-3).

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Plaintiff does not contest that this is what Kelly testified to during the Rule 30(b)(6) 

deposition, but contests that only Nelson and Coast were paid $16 per hour because 

Ocasio’s pay increased from $15 per hour to $16 per hour. PASF, ¶ 40.

25. It is Power Dry’s policy to not give raises to mitigation helpers. (Kelly Deposition, 

Page 23:2-14, Power Dry General Manager, John Montalbano Deposition, Page 23:1-4).

Plaintiff does not contest that this is what Kelly testified to during the Rule 30(b)(6) 

deposition, but contests otherwise because there was a Helper whose hourly rate was 

increased. PASF, ¶ 40.

E. Promotion to Crew Chief, Generally

26. While many helpers are promoted to crew chief, that is not always the case. (Delgado’s

Deposition, Page 44:10-18).

Plaintiff contests to the extent this statement misconstrues witness testimony.

27. Helpers, according to Kelly, have to meet company expectations in order to be

eligible for promotion to the position of Crew Chief. (Kelly Deposition, Page 29:12-15)

Plaintiff does not contest that this is what Kelly testified to during the Rule 30(b)(6) 

deposition, but contests otherwise. Defendant does not have any written policy or standard 

for promotion and promotion is usually given spontaneously within one year after a 

Helper is hired. See PASF, ¶¶1, 13-16.

28. According to Montalbano, helpers are evaluated for promotion based on their 

employment record, personnel record, eagerness, drive, responsibility, recommendations 

upon crew chiefs, and willingness of the employees. (Montalbano Deposition, Page 11:6-

17).

Plaintiff does not contest that this is what Montalbano testified to during the deposition, 

but contests otherwise. Defendant does not have any written policy or standard for 

promotion and promotion is usually given spontaneously within one year after a Helper is 

hired. See PASF, See PASF, ¶¶1, 13-16.

 

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29. Kelly has testified that sometimes helpers come and ask for promotions. She further 

stated that Power Dry will identify a person for promotion if they see the person as hardworking, shows up every time, has face time with the management during the company 

meetings, and the crew chief speaks highly of them when asked. (Kelly Deposition, Pages 

30-31:22-24).

Plaintiff does not contest that this is what Kelly testified to during the Rule 30(b)(6) 

deposition, but contests otherwise because Defendant does not have any written policy or 

standard for promotion and promotion is usually given spontaneously within one year 

after a Helper is hired. See PASF, ¶¶ 1, 13-16. Plaintiff further states that attending 

meetings did not affect eligibility for promotion to the crew chief position because the 

Defendant did not consistently discipline or disqualify Helpers when they were late for the 

meetings or missed them entirely. See PASF, ¶¶ 18, 22-25.

30. Kelly has also testified that length of employment is not a consideration 

regarding promotion. (Kelly Deposition, Pages 31-32:23-24, 1)

Plaintiff does not contest that this is what Kelly testified to during the Rule 30(b)(6) 

deposition, but contests otherwise. Plaintiff further states that it is a general practice of 

the Company to promote Helpers within a year based on Defendant’s own records and 

witness testimonies. See PASF, ¶¶ 13-16. 

31. Promotion from helper to crew chief can take anywhere from six months, to two years 

according to Kelly. She has further testified that it depends on whether the person came with 

experience already or whether the person showed outstanding work performance and

attendance. (Kelly Deposition, Page 32:2-8)

Plaintiff does not contest that this is what Kelly testified to during the Rule 30(b)(6) 

deposition, but contests otherwise. Plaintiff further states it is a general practice of the 

Company to promote Helpers within a year based on Defendant’s own records and 

witness testimonies. See PASF, ¶¶ 13-16. 

F. Delgado’s Time at Power Dry

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32. Upon hire, Delgado believed he would be promoted to crew chief based on his friend 

and co-worker telling him he could be promoted within three months. (Delgado Deposition, 

Page 14:1-14, pages 16-17:1-24, 1-9).

Plaintiff objects to this statement because it contains a hearsay. Plaintiff contests to the 

extent that this statement misconstrues the testimony because Plaintiff was merely 

explaining the reason why he applied for the Company. (Delgado Deposition, Page 14:1-

14).

33. Power Dry’s general manager, John Montalbano supervised Anthony Delgado, made

sure he was clocking in and clocking out and that he was being responsible as an employee. 

(Montalbano Deposition, Page 10:11-20).

Plaintiff contests this statement because it misstates the witness’s testimony. Montalbano 

testified that he supervised Plaintiff in only certain areas of work such as making sure 

that he was clocking in and clocking out and that he was being responsible as an 

employee. Crew Chiefs are the direct supervisors of Helpers. 

34. Montalbano discussed with Delgado several times, topics that he needed to be

working on for his employment, including responsibility, showing up to meetings, being on 

time for meetings, and clocking in and clocking out. (Montalbano Deposition, Page 23:10-

18)

Plaintiff does not contest that this is what Montalbano testified to during the 

deposition, but contested that Plaintiff was not warned or disciplined for the alleged 

conduct described by Montalbano. See PASF, ¶¶ 33-34.

35. Montalbano has stated that an employee’s disciplinary record is looked into when

considering whether to promote helpers to crew chief. (Montalbano Deposition, Page 33:3-5)

Plaintiff does not contest that this is what Montalbano testified to during the 

deposition, but otherwise contested. Plaintiff further states that most of the disciplinary 

actions against Plaintiff identified by Defendant in this lawsuit are not supported by 

written evidence and were not included in the personnel file Defendant produced in 

violation of the Illinois Personnel Record Review Act. See PASF, ¶ 32.

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36. Had Delgado ever directly requested a promotion to Montalbano, according

to Montalbano, his answer would have been no due to his personnel record. 

(Montalbano Deposition, Page 35-36:16-24, 1-2)

Plaintiff does not contest that this is what Montalbano testified to during the 

deposition, but contests otherwise. The text message communications between Plaintiff 

and Montalbano clearly shows that Plaintiff had requested to be considered for 

promotion and asked Montalbano why he was not being promoted. See PASF, ¶¶ 11-

12.

37. The reason he was not promoted, according to Montalbano, was because he missed 

too many weekly meetings, failed to follow directions, and did not present himself 

appropriately by cursing a lot while working. (Montalbano Deposition, Page 36:13-23).

Plaintiff does not contest that this is what Montalbano testified to during the deposition, 

but contests otherwise. Plaintiff further states that Defendant declined to discipline 

Helpers who did not attend a meeting and selectively disciplined Plaintiff. The 

importance of attending meetings when it comes to promotion is exaggerated by 

Defendant to justify its action not to promote Plaintiff. See PASF, ¶¶ 18, 22-26,38-39.

38. Kseniya Kelly testified that Delgado had multiple attendance issues and was unreliable. 

(Kelly Deposition, Page 65:22-24). There was also a worry, according to Kelly, that he did 

not filter his very inappropriate language. (Kelly Deposition, Page 66:1-3).

Plaintiff does not contest that this is what Kelly testified to during the deposition, but 

contests otherwise. Plaintiff further states that Kelly failed to provide any specific 

examples of Mr. Delgado’s inappropriate language other than the fact that he once 

texted Mr. Montalbano that “I think I broke my ass bone,” after falling at the company 

premises. (Defendant’s Exhibit D, 30(b)(6) Deposition, 34:8-35:7). Plaintiff further 

states that he was not warned or disciplined for his alleged inappropriate language use. 

See PASF, ¶ 34.

39. To identify a specific example, Kelly testified that on one occasion Delgado was 

absent without informing management, and told his crew chief to use another person that day 

whom his crew chief was under the impression was an employee of Power Dry. The person 

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was not an employee and ended up working that day without Power Dry’s approval, 

unbeknownst to management until later. (Kelly Deposition, Page 66-67:4-24, 1-14).

Plaintiff does not contest that this is what Kelly testified to during the deposition, but 

contests otherwise. Plaintiff further states that this conduct is not in violation of the 

company policy. It is a general and acceptable practice for an employee to send in his 

replacement when he could not work and there is no company approved on call list. It is 

Operation Manager, Trevor Madera’s responsibility to find a replacement, not 

Plaintiff’s. Defendant admitted that Plaintiff did not have the alleged approved list he 

was supposed to use to find a replacement. PASF, ¶¶ 35-36.

40. Kelly has also testified that each documented missed appointment or missed company 

meeting, was an example of Delgado not following company directions. (Kelly Deposition, 

Page 36:19-24).

Plaintiff does not contest that this is what Kelly testified to during the deposition, but 

contests otherwise. Defendant did not consistently disciplined Helpers who were late for 

or missed meetings. PASF, ¶¶ 22-25.

41. The written warnings Delgado received for missed meetings, according to Kelly, were 

crucial, not just to promotion but to employment in general. (Kelly Deposition, Page 58:13-

18)

Plaintiff does not contest that this is what Kelly testified to during the deposition, but 

contests otherwise. Plaintiff further states that Defendant failed to discipline Helpers 

who did not attend a meeting and selectively disciplined Plaintiff. PASF, ¶¶ 22-26. 

Attending meetings did not affect eligibility for promotion to the Crew Chief position. 

Id., ¶18.

42. Kelly has further testified that the weekly meetings are important to give updates to 

employees since they aren’t seen on a regular basis when they are out in the field. The

training at these meetings involves safety training and new equipment training. Both crew

chiefs and helpers are required to attend the meetings. (Kelly Deposition, Page 52-53:12-24, 

1-7).

Plaintiff does not contest that this is what Kelly testified to during the deposition, but 

contests otherwise. Plaintiff further states that Defendant failed to discipline Helpers 

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who did not attend a meeting and selectively disciplined Plaintiff. The importance of 

attending meetings when it comes to promotion is exaggerated by Defendant to justify 

its action not to promote Plaintiff. See PASF, ¶¶ 22-26 In the meeting, the 

administrative issues in the Company and customer complaints are discussed. Safety 

issues were not the main topics of the meetings and were not frequently discussed. See 

PASF, ¶ 17.

43. When meetings are missed, according to Kelly, Power Dry employees face

progressive discipline. There is a system of warnings. The employees are issued written 

warnings statingthat they are expected to come to the meetings, that their absences are not

excused, and that further instances could result in further disciplinary action, up to and 

including termination. (Kelly Deposition, Page 53:8-17)

Plaintiff does not contest this is what Kelly testified to during the deposition, but 

contests otherwise. Plaintiff further states that Defendant did not follow its 

progressive discipline policy and selectively disciplined only certain Helpers who 

missed or were late for meetings. See PASF, ¶¶ 22-26. 

44. After an employee receives a final warning, which usually follows two to three

warnings, the next step is termination. (Kelly Deposition, Page 54-55:21-24, 1-2)

Plaintiff does not contest that is what Kelly testified to during the deposition. 

G. Delgado’s Disability

45. Delgado suffers from epilepsy and has experienced seizures. (Delgado’s Deposition,

Pages 18-19:24, 1-7)

Plaintiff does not contest. 

46. Because of Delgado’s epilepsy, he is not able to drive. (Delgado’s Deposition, Pages

21:13-15).

Plaintiff does not contest. 

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47. Power Dry was aware that Delgado suffered from epilepsy during his employment, 

beginning in March 2018. (Montalbano Deposition, Page 27:4-6, Kelly Deposition, Page

59:19-22).

Plaintiff does not contest.

48. Delgado suffered a seizure during a company meeting in March of 2018, which made

Power Dry management aware of his condition of epilepsy. (Montalbano Deposition, Page 26-

27:14-24, 1-6; Kelly Deposition, Page 59-60:19-24, 1-3).

Plaintiff does not contest. 

49. Delgado’s disability does not allow him to get a driver’s license and therefore he cannot

drive a motor vehicle. (Delgado’s Deposition, Page 71: 9-14)

Plaintiff does not contest. 

50. There were other employees at Power Dry who were promoted to the position of crew

chief who did not have drivers’ licenses. (Delgado Deposition, Page 46-47:5-24, 1-3; Page

70:20-23; 73:10-12; 87:3-11; 88:8-13).

Plaintiff does not contest. Plaintiff further states that one of the reasons given by the 

company to Plaintiff when he asked Montalbano why he was not promoted was that 

he did not have a driver’s license. PASF ¶ 5. Defendant admitted that Plaintiff’s 

inability to drive was one of the reasons why he was not promoted during the EEOC 

procedure but abruptly changed its position in this lawsuit. PASF ¶¶ 7-8. The 

employees who were promoted to Crew Chief were not disabled. PASF ¶ 10.

51. Delgado therefore understood, that the reason he was not promoted to crew chief, had

nothing to do with his not being able to obtain a driver’s license. (Delgado Deposition, Page

71:15-22, 73:5-16).

Plaintiff contests because this statement misconstrues his testimony. Plaintiff 

testified that he did not believe the company’s explanation that his inability to obtain 

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a driver’s license was the reason why he was not being promoted because the 

company promoted other non-disabled employees without a driver’s license to crew 

chief. After non-disabled Helpers without a driver’s license were promoted, 

Plaintiff asked Montalbano what made him different from them and expressed that 

his diagnosis is the reason why he was treated differently. PASF ¶ 11-12.

52. Delgado states that he “would not be able to say” why he was not promoted and can 

provide no basis supporting his allegation that it was because of his disability other than to 

say other employees without disabilities were promoted. (Delgado Deposition, Page 55:1-11, 

Page55:22-24, 56:1-11).

Plaintiff contests because this statement misconstrues his testimony. Plaintiff clearly 

testified that non-disabled Helpers who did not have driver’s licenses were promoted but 

he was not being promoted even though Defendant explained to him that the reason why he 

was not promoted was because he did not have a driver’s license. 

H. Delgado’s Write-Ups

53. On August 1, 2018, Delgado was written up by Power Dry when he was late for a

7:30 a.m. meeting without any notice to management. Delgado’s write-up from that date 

further stated, “moving forward Anthony needs to follow all Power Dry SOPs (“Standard 

Operating Procedures”). Failure to do so will result in further disciplinary action up to and 

including termination. (Delgado Deposition, Page 113-114:2-24, 1-13, August 1, 2018 writeup).

Plaintiff does not contest that he received a write-up. However, Plaintiff states that 

Defendant’s disciplinary actions against employees who were late for the meetings or 

missed the meetings were arbitrary and were not consistent, and that Plaintiff was 

selectively disciplined. PASF ¶¶ 22-26.

54. On October 17, 2018, Delgado failed to attend the weekly department meeting and as 

a result received a written warning from Power Dry. (See October 17, 2018 write-up)

Plaintiff contests admissibility and credibility of this document because the write up 

was not signed by any of the managers. See Def. Ex. H [Doc # 26-8]. Plaintiff further 

states that Defendant’s disciplinary actions against employees who were late for the 

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meetings or missed the meetings were arbitrary and were not consistent. PASF ¶¶ 22-

26.

55. On November 7, 2018, Delgado received a written warning for being late to a

department meeting. (Delgado Deposition, Pages 127-128:18-24, 1-11; November 7, 2018 

write-up)

Plaintiff does not contest that he received a write-up. However, Plaintiff states that 

Defendant’s disciplinary actions against employees who were late for the meetings or 

missed the meetings were arbitrary and were not consistent. PASF ¶¶ 22-26.

56. On February 20, 2019, Delgado missed a meeting and admitted that it was because

he slept through his alarm. He admitted that this had nothing to do with his disability. 

(Delgado Deposition, Page 104:10-20 and page 111:18-24).

Plaintiff does not contest that he missed the meeting on that day but further states that 

he did not receive any write-up for missing the meeting on February 20, 2019. 

57. On May 15, 2019, Delgado received a written warning for failing to show up for the 

weekly Power Dry Crew Chief meeting without notice. (See May 15, 2019 write-up).

Plaintiff does not contest that he received a write-up. However, Plaintiff states that 

Defendant’s disciplinary actions against employees who were late for the meetings or 

missed the meetings were arbitrary and were not consistent. PASF ¶¶ 22-26. Plaintiff 

was the only one who was written up for missing this meeting even though there was 

another Helper who missed the meeting. PASF ¶¶ 24-25.

58. On September 14, 2019, Delgado received a written warning after he failed to work his 

scheduled shift and did not let dispatchers know of his absence. (See September 14-15, 2019 

write-up).

Plaintiff contests because this statement is not relevant to Plaintiff’s claim. Plaintiff filed 

his discrimination charge on May 24, 2019, challenging Defendant’s adverse employment 

action of not promoting him and not giving him a raise. PASF ¶ 30. Any subsequent 

disciplinary actions by Defendants are not relevant and are retaliatory. Plaintiff further 

contests because he informed a Crew Chief of his unavailability and found a replacement 

helper who would fill in for him pursuant to the company’s usual practice. PASF ¶ 35-36. 

Plaintiff further states that finding a replacement was not his responsibility, but 

Operation Manager Trevor Madera’s. Id.

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59. On October 23, 2019, Delgado received a written warning for being late without notice 

to a Power Dry meeting. (See October 23, 2019 write-up).

Plaintiff contests because this statement is not relevant to Plaintiff’s claim. Plaintiff 

filed his discrimination charge on May 24, 2019, challenging Defendant’s adverse 

employment action of not promoting him and giving him a raise. PASF ¶ 30. Any 

subsequent disciplinary actions by Defendants are not relevant and are retaliatory. 

Plaintiff further states that Defendant’s disciplinary actions against employees who 

were late for the meetings or missed the meetings were arbitrary and were not 

consistent. PASF ¶¶ 22-26.

Plaintiff’s Statement of Additional Facts under Rule 56.1 (b)(3)(c)

1. Defendant does not have any written procedure or standard for promoting a Helper to a 

Crew Chief. Def. Ex. F, Montalbano Transcript [Doc # 26-6], 32:10-15. 

2. Defendants does not conduct performance reviews on Helpers regarding their work. Id., 

30:7-11. 

3. Plaintiff approached John Montalbano, a manager of Defendant in mid-2018, asking 

about a raise and promotion to a crew chief. Def. Ex. B, Delgado Transcript, 65:4-66:12.

4. From then on until February 2019, Delgado had multiple meetings and text messages 

with Montalbano regarding a raise and promotion. Def. Ex. F, 16:20-18:17, Ex. A, Text 

Messages between Plaintiff and Montalbano. Page 119. 

5. During these conversations, Montalbano told Plaintiff that he was not promoted because 

he was working too much overtime and that he was not able to get his driver’s license. 

Ex. A, Page 119, and Def. Ex. B, 68:6-69:10. 

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6. During the EEOC procedure, Defendant for the first time stated that Plaintiff was not 

promoted because he missed the company meetings and failed to clock in and out. Ex. B, 

Defendant’s EEOC Position Statement, pp. 2-4. 

7. Defendant also admitted in its position statement to the EEOC that “[A]nother issue for 

CWAFR that prevents Delgado from being promoted is that its Crew Chief’s job duties 

include driving the company assigned vehicle to job sites and transport the required 

materials to customer’s homes...Delgado is not able to obtain a driver’s license because 

his epilepsy and therefore even if he did exemplify the workmanship required of a crew 

chief, he could not be promoted without a valid driver’s license pursuant to company 

policy.” Id, p. 5. 

8. In the position statement, Defendant further stated allowing Plaintiff to become a Crew 

Chief “would pose an undue burden to Defendant because promoting him would mean he 

would need to be provided transportation to job sites, meaning an additional employee 

with driving privileges, i.e., a Crew Chief, would have to transport Plaintiff to each site.”

Id. p. 11. 

9. Defendant had at least two non-disabled Crew Chiefs who did not have driver’s licenses

and it assigned drivers for them. When Plaintiff asked whether he could be promoted to a 

Crew Chief and have a driver assigned for him like them, Montalbano told Plaintiff they 

had drivers because they were already crew chiefs when their driver’s licenses were 

revoked. Def. Ex. B, 47:7-15, Ex. A, Page 118, Ex. C, Delgado Affidavit, ¶ 8.

10. However, in February 2019, Defendant also promoted Helpers who did not have a 

driver’s license to the Crew Chief position contrary to Defendant’s claim. The helpers 

were Julio Lopez and Corey Madison, and they were not disabled. Ex. C, ¶ 9.

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11. After Lopez and Madison were promoted, Plaintiff texted Montalbano and asked why he 

was treated differently because those promoted Helpers were hired around the time he 

was hired. Plaintiff also expressed that he believes that his epilepsy diagnosis was the 

reason why he was treated differently. Ex. A, p. 18. 

12. Montalbano did not respond and only stated that “[M]y one thing is not about money. It’s 

about the company.” Id. 

13. Mitigation Department Helpers are promoted to Crew Chief based on the company’s 

need. Def. Ex. F, 32:19-33:2. Mr. Michael Love and Mr. Joseph Oweina testified that 

they were promoted to Crew Chief rather spontaneously and that the Company usually 

promotes helpers to Crew Chief 5 to 7 months after they are hired or within one year at 

the latest. Ex. D, Joe Oweina Affidavit, ¶¶ 5-6, Ex. E, Michael Love Affidavit, ¶¶ 4-5, 

8.

14. According to Defendant’s Interrogatory Response, out of 28 helpers who were employed 

during Mr. Delgado’s employment, 13 of them were promoted to Crew Chief within 5 

months after they were hired as a mitigation department helper. Def. Ex. E [Doc # 26-5], 

Defendant’s Interrogatory Response No. 3, Exhibit F, Summary of Interrogatory 

Response No. 3 Data. The rest of them, except for two helpers, were all promoted to 

Crew Chief within one year. Id.

15. According to the data Defendant produced during the EEOC proceedings while Mr. 

Delgado was still employed, he had held the Helper position for 23 months which was the 

longest among the Helpers. Ex. G, Helpers Not Promoted as of October 2019 [Ex. Q to 

Defendant’s EEOC Position Statement].

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16. The data Defendant submitted to the EEOC also shows that 20 out of 21 Crew Chiefs 

who were employed at that time were promoted within a year after they were hired, and

promoted many of them within as little as 2-6 months. Ex. H, Crew Chief List as of 

October 2019 [Ex. P to Defendant’s EEOC Position Statement]. 

1Out of 22 terminated 

Crew Chiefs, 18 of them were promoted within one year. Ex. I, Terminated Crew Chief 

List as of October 2019 [Ex. P to Defendant’s EEOC Position Statement]

17. In the Company morning meetings, the administrative issues in the Company, 

employee’s appearance, and customer complaints are discussed. Safety issues were not 

the main topics of the meetings and were not frequently discussed. Ex. D, ¶ 10, Ex. E, ¶ 

13.

18. Attending meetings did not affect eligibility for promotion to the Crew Chief position. 

Ex. D, ¶ 11. Rather, Defendant considered presentability very important when promoting 

Helpers. Ex. According to Montalbono, “cleanliness or neatness of appearance, uniforms 

tucked in, clean shaven” is “very important” to the Company when promoting a helper to 

a crew chief because Defendant is a cleaning company. Id, ¶ 7. Defendant’s Ex. F, 

Montalbano Transcript, 33:3-12. 

19. According to Defendant, Helper’s drive to want to be a Crew Chief, customer reviews on 

social media, and feedback from Crew Chiefs and dispatch are considered. Id., 33:13-21. 

20. Plaintiff received several good customer reviews on a social media site. Ex. J, Customer 

Reviews. Crew Chiefs who worked with him stated that Mr. Delgado always did a good 

1 While the data shows Keith Upton, Jon Jacobsen, and Hernandez were promoted after 33, 22, and 26 months after 

they were hired, this is misstatement of the facts. Upton and Jacobsen were transferred to the mitigation department 

from other department and they were promoted to Crew Chiefs 8 and 5 months after the transfer. Hernandez were 

promoted within a month after hiring but Defendant included his previous employment experience with a different 

company to calculate the months it took for him to be promoted. 

Case: 1:20-cv-03271 Document #: 30 Filed: 07/26/21 Page 19 of 25 PageID #:406
job. Ex. D, ¶ 12, and Ex. E, ¶ 9.Mr. Love specifically asked Plaintiff to be his Helper 

due to his good work. Ex. E, ¶ 9

21. There is not much difference between the job duties of a crew chief and a helper. 

And while the company preferred that crew chiefs drive the truck most of 

the time when the crews were dispatched, helpers did drive, and there were at least two 

Crew Chiefs who did not have driver's licenses and drivers assigned for them. Ex. C, ¶ 7, 

and Ex. D, ¶ 8.

22. It was a routine practice of Defendant to set Helpers for a failure when the 

it did not want to promote the Helpers for the reasons unrelated to their job performance. 

Ex. D, ¶ 7. It did this by selectively disciplining them for missing meetings. Id. For 

example, Defendant did not issue written warnings to Ozzy Mejia, Javier Perez, Julio 

Lopez, and Jason Dlugi even though their meeting records show that they were absent 

from or late for the meetings. Ex. K, Crew Chief Meeting Records, Def. Ex. E, 

Defendant’s Response to Plaintiff’s Interrogatories No. 4. 

23. Jason Dlugi, who was late for the meeting on May 22, 2019, but was not disciplined at 

all, was later promoted to Crew Chief less than a year of his employment. Def. Ex. E, 

Defendant’s Response to Plaintiff’s Interrogatories Nos. 3 and 4. Defendant claims that 

Dlugi was promoted because of “[N]o missed meetings or disciplinary record as a 

helper.” Id., Response to Interrogatory No. 3-4). 

24. Julio Lopez was absent from the meeting on May 15 and May 22, 2019 but was not given 

any write ups for those missed meetings. Ex. K, Def. Ex. E, Defendant’s Response to 

Plaintiff’s Interrogatories No. 4. Mr. Delgado received a written warning for missing the 

May 15, 2019 meeting. Def. Ex. J, [Doc # 26-10]

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25. Mr. Delgado texted Trevor Madera on May 22, 2019 and asked why he was singled out 

and disciplined when Lopez missed the meeting as well. Ex. L, Text messages with

Madera. Madera did not respond. Id.

26. Michael Love, who was a crew chief at Defendant, missed the meeting once or twice 

when he was a helper. Ex. E, Love Affidavit, ¶ 6. However, Love did not receive any 

written warning and was promoted to a crew chief 5 months after he was hired. Id., ¶ 3. 

Defendant claims that Love did not miss any meetings as a helper. Def. Ex. E, 

Interrogatory Response No. 3-12). 

27. After Mr. Delgado’s seizure at the company meeting, the management became extremely 

concerned about the customer’s perception of the company if Mr. Delgado was to have a 

seizure while he was out at a customer’s house or a job site. At the following meeting, John 

Montalbano and Blake Veldman discussed this concern extensively. Ex. E, ¶ 11.

28. Plaintiff received his first write up on August 1, 2018, for being late for a meeting just 

after he started to ask about a raise and promotion to the Crew Chief position. Def. Ex. B, 

Delgado Transcript, 65:4-66:12, Def. Ex. G [Doc # 26-7]

29. Plaintiff received a second write up for being late for the meeting on October 18 and 

November 7, 2018, shortly after he asked Montalbano about the possibility of a raise and 

promotion again in October 2018. Defendant’s Ex. F, Montalbano Transcript, 16:20-23, 

Def. Exs. H [Doc # 26-8] and I [Doc # 26-9] 

30. Plaintiff filed his discrimination charge with the EEOC on May 24, 2019 for Defendant’s 

failure to promote him to Crew Chief and failure to raise his pay because of his disability. 

Ex. M, EEOC Charge. 

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31. During this litigation, Defendant listed 30 alleged incidents of misconduct by Plaintiff as 

reasons why he was not promoted. Def. Ex. E, Response to Interrogatory No. 12. 

However, in this litigation, Defendant stopped claiming that Plaintiff was not promoted 

because of his inability to drive even though it was one of the reasons claimed to Mr. 

Delgado in person and during the EEOC procedure. Ex. A, p. 18, Ex. B, EEOC Position 

Statement, pp. 5, 11, Ex. C, ¶ 3. 

32. During his employment, Plaintiff was not disciplined for most of the alleged violations 

identified in the interrogatory response and these violations were not included in his 

personnel file. His personnel file includes only seven write-ups, all of them issued after 

Defendant became aware of Plaintiff’s disability. Ex. N, Plaintiff’s Personnel File. After 

filing an EEOC charge, Plaintiff received three write ups within a month. Id.

33. Plaintiff regularly reported his hours via text to the management through Trevor Madera 

or John Montalbano. Ex. A, Text Messages between Plaintiff and Montalbano, page 

108-110, 112-114, Ex. L, Text messages with Madera. At no time, was Plaintiff warned 

that it was a violation of company policy. Nor was he disciplined. Ids., Ex. C, ¶ 5, Ex. N

Defendant actually disciplined other Helpers who failed to clock in and out or failed to 

report hours. Ex. O, Helper Time Record Violations.

34. Plaintiff was not warned or disciplined for using inappropriate language or supposedly 

not following directions during his employment. Ex. C, Delgado Affidavit, ¶ 6. During

Plaintiff’s employment, Montalbano never told him that he was not promoted because he 

missed the company meetings. Even though Plaintiff asked Montalbano what he could do 

or improve to be promoted, he never received any straightforward response. Id., ¶ 4. 

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35. When a Helper could not work on a certain day, he could find and send in a replacement. 

There is no pre-authorized on call list for replacement. It was not the Helper’s 

responsibility to look for a replacement. Trevor Madera, Operation Manager, was the one 

who was responsible for finding a replacement. Ex. D, ¶ 9, Ex. E, ¶14. 

36. Defendant admitted that Plaintiff was not in possession of the alleged authorized on-call 

list when he was disciplined for not utilizing the list. Def. Ex. D, 30(b)(6) Deposition, 

68:17-21.

37. It was the general opinion and consensus among the crew chiefs that Plaintiff was not 

being promoted because of his disability. Ex. E, Love Affidavit, ¶ 12.

38. When asked to give specific information as to Plaintiff’s inappropriate language use, the 

30(b)(6) witness testified that it was inappropriate to text Montalbano that “I think I 

broke my ass bone” after he slipped and fell at the company premises. Def. Ex. D, 34:7-

23.

39. The 30(b)(6) witness also testified that she regarded Plaintiff’s alleged refusal to go to a 

company assigned clinic instead of his own doctor for a fitness-for-duty certification as 

an example of him not following directions. Id. 36:19-37:18. 

40. Contrary to Defendant’s claim, there was at least one more Helper beyond the other two 

who was paid $16 per hour according to Defendant’s records submitted to the EEOC. 

Robert Ocasio received a raise from his initial $15 per hour pay and was paid $16 per 

hour. Ex. P, Defendant’s Helper Pay Record Submitted to EEOC [Ex. R to EEOC 

Position Statement]

Respectfully submitted: 

Anthony Delgado

By: /s/ Heewon O’Connor

One of His Attorneys

Case: 1:20-cv-03271 Document #: 30 Filed: 07/26/21 Page 23 of 25 PageID #:410
Heewon O’Connor

Kevin F. O’Connor

O’Connor | O’Connor, P.C.

110 E. Schiller St., Ste. 212

Phone: 630-903-6397

Fax: 630.658.0336

Case: 1:20-cv-03271 Document #: 30 Filed: 07/26/21 Page 24 of 25 PageID #:411
CERTIFICATE OF SERVICE

I hereby certify that on July 26, 2021, Plaintiff’s Response to Defendant’s R 56.1 Statement 

and Statement of Additional Facts was served this day on all counsel of record via 

transmission by electronic mail; all parties to this action being authorized to, and currently 

utilizing, the CM/ECF system for the Northern District of Illinois. 

/s/ Heewon O’Connor. 

Heewon O’Connor 

O’Connor | O’Connor, P.C.

110 E. Schiller St., Ste 212 

Elmhurst, IL 60126 

Office 630-903-6397 

Fax. 630-658-0336 

Service List

Mark Walter Guest mwg@doherty-progar.com, mail@doherty-progar.com

Michael Robert Luchsinger mail@doherty-progar.com, mrl@doherty-progar.com

Case: 1:20-cv-03271 Document #: 30 Filed: 07/26/21 Page 25 of 25 PageID #:412