Labor & Employment Law Daily Wrap Up, RETALIATION—N.D. Ill.: Probationary officer, fired before back pay eligibility from prior discrimination suit, advances claims, (Jan 15, 2025)

By Marjorie Johnson, J.D.

The employer failed to undisputedly show that it would have terminated him before he finished training, and treated him with hostility despite his military service and successful bias lawsuit.

The City of Chicago will face trial on the ADA retaliation and USERRA claims brought by a former probationary aviation security officer (ASO) who claimed that after the Illinois Human Rights Commission (IHRC) ordered his reinstatement into the training academy following a hearing on his charges of disability and veteran status discrimination, his supervisors subjected him to a hostile environment and terminated him before he could complete training and become entitled to a regular position with backpay and seniority. The suspicious timing together with evidence that some of his supervisor’s alleged reasons for recommending his firing him may have been pretextual could be imputed to the ultimate decisionmaker under the cat’s paw theory (Venticinque v. City of Chicago, No. 21 C 3084 (N.D. Ill. Jan. 13, 2025)).

First termination. The Army honorably discharged the officer in 2005 due to his vertigo. On June 28, 2010, the Chicago Department of Aviation (CDA) hired him as a probationary ASO, a position that provides security at Chicago airports. Shortly after he started the requisite training program at the police academy, he reported that he injured his shoulder and could not continue with training. On July 14, he got into an argument with a fellow recruit regarding his failure to participate in training. The CDA terminated him two days later.

Reinstated following IHRC hearing. He filed an Illinois Department of Human Rights (IDHR) charge alleging disability and veteran status discrimination, and a hearing was eventually held in 2017. After the administrative law judge found in his favor, IHRC ordered the city to rehire him as a probationary ASO and, contingent on his successful completion of the requisite training, to place him in an ASO position with over $250,000 in backpay and the seniority he would have earned if he had not been discharged.

Rocky rehiring. The officer began training in early December 2018, but claimed his supervisors subjected him to hostile treatment and treated him less favorably than his fellow recruits, including by giving him fewer desirable assignments.

Injury. On February 12, 2019, he advised his commander that he had suffered a hearing injury due to a loud alarm that went off while he was inspecting equipment. He called off on February 15 due to his injury and allegedly stated that he could not drive but was later seen parking his car. The commander told him he was required to call in sick every day. He missed 105 days and never returned to work, though he claimed he asked to come back but his commander refused to speak to him. Meanwhile, he filed a workers’ compensation claim which was later denied after the third-party administrator’s doctor found the results of his tests inconsistent.

On June 21, the commander sent a memorandum to a superior recommending that the officer be terminated for “numerous infractions” including clocking out early, abandoning his post, arguing with a fellow recruit, lying about being able to drive, and filing an injury-on-duty claim that was not substantiated. The superior approved the request, and the officer was terminated.

Hostile environment. The court concluded that the officer presented sufficient evidence that he was subjected to a hostile work environment during his rehiring such that the treatment amounted to an adverse employment action. The parties disputed whether the city provided him with a start date, and he testified that he did not receive a badge when he first went to receive one despite having the correct identification and was instructed to leave. He also never received his bullet-proof vest. In addition, the suspicious timing and evidence suggesting he was treated less favorably than other recruits could allow a jury to conclude that the hostile treatment was causally related to his prior discrimination claims against the city.

Lack of backpay not adverse action. However, the court rejected his contention that his failure to receive backpay and seniority constituted a separate adverse employment action. Significantly, it was undisputed that after the IHRC ordered that the officer receive backpay and seniority after he completed his training, the parties jointly submitted a report that the training was 12 weeks long. Therefore, despite his arguments to the contrary, he did not complete training.

Cat’s paw theory. While the city argued that the ultimate decisionmaker in the officer’s termination did not know about his previous lawsuit, the court found that a triable issue existed as to whether that knowledge could be imputed under the “cat’s paw theory.” Significantly, the superior testified that she relied solely on the commander’s memorandum, and he admittedly knew about the officer’s lawsuit and that he stood to receive backpay if he completed his training. Moreover, as discussed below, some of his proffered reasons for recommending the officer’s termination may have been pretextual and indicative of retaliatory animus.

Suspicious timing. The timing of the officer’s termination appeared suspect as he was close to finishing his training, which would have entitled him to backpay and seniority. Thus, if a jury credited his evidence more than the city’s, it could reasonably find the timing suspect enough to support causation. Additionally, he presented evidence that some of the alleged reasons for his termination were pretextual.

Evidence of pretext. For instance, a triable issue existed as to whether he acted improperly by leaving his post without permission and clocking out early on certain days. Timekeeping records and memorandums documenting his leaving work before the end of his shift and leaving his assigned posts suggested the city had an honest basis to think he clocked out early on certain days and left his post without permission. But a reasonable jury could also conclude from his testimony that the city did not have the established policy such that clocking out less than 10 minutes early or working alone was a valid basis for termination.

Honest belief. However, there was no dispute that the city had a reasonable basis to believe he fabricated his ear injury. The doctor who evaluated him as part of his worker’s compensation claim found him to be “malingering,” which meant that he expressed a complaint that didn’t match the objective evidence. Moreover, video recordings appeared to show him talking with his fellow officer on the night he sustained his alleged injury and the coworker also stated that the officer never told him he was injured. The officer also did not dispute that the city had an honest belief that he got into an argument with another recruit during training.

Entitled to disability leave? A material dispute did exist as to whether the city deviated from its standard practices and policy which dictated that the officer should have been placed on “injured on duty” status rather than be required to call in every day once he reported his ear injury. A jury would also decide whether he qualified for “duty disability leave” under the collective bargaining agreement, and the city failed to provide him with that leave.

Tort claim tossed. Lastly, the court held that the Illinois Worker’s Compensation Act precluded the officer’s separate claim for intentional infliction of emotional distress under Illinois common law. Because he failed to present evidence suggesting that senior leadership authorized or directed CDA staff to treat him poorly or to set him up to injure his ears, the city was entitled to summary judgment on this tort claim.

The case is No. 21 C 3084.

Judge: Ellis, S.

Attorneys: Kelly Ann Krauchun (Rock Fusco Connelly) for Paul A. Venticinque. Derek R. Kuhn, City of Chicago Law Department, for City of Chicago.

Companies: City of Chicago

Cases: Retaliation Discrimination DisabilityDiscrimination USERRAVeterans Discharge EmployeeLeave Procedure StateLawClaims TortClaims IllinoisNews