Suppressed v. Suppressed

Filing 98

MEMORANDUM Opinion and Order: Defendants' motion for summary judgment 80 is granted. Signed by the Honorable Rebecca R. Pallmeyer on 1/14/2014: Civil case terminated. Mailed notice(etv, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA, ex rel.
THERESA HILL,
Plaintiff,
v.

CITY OF CHICAGO,
Defendant.

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No. 08 C 4540
Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER
Plaintiff Theresa Hill ("Hill"), a former Assistant Commissioner of Workplace Compliance
for the City of Chicago ("City"), brought this qui tam action against the City under the False
Claims Act, 31 U.S.C. §§ 3729-33 ("FCA"). Plaintiff claims that, in order to obtain federal grant
money, the City filed certifications representing that it had an equal employment opportunity
program that, in fact, did not exist. These allegedly false certifications in support of grant
applications were made by the Chicago Police Department and the City's Department of Family
and Support Services between 2002 and 2008. As a result, Plaintiff argues, any application that
relied on the City's non-existent plan included a false statement designed to induce the
fraudulent disbursement of federal funds in violation of the FCA. Following pretrial proceedings
under seal, the United States declined to intervene [2] and the case was assigned to this court
for adjudication of Plaintiff's individual claim.

The City has moved for summary judgment,

arguing that Hill has offered no evidence of any fraudulent conduct on the part of the City. For
the reasons explained below, Defendant's motion for summary judgment [80] is granted.
BACKGROUND
Under the FCA, a private individual may bring an action on behalf of the United States to
recover funds that the government paid in reliance on a false statement. To understand the
nature of Plaintiff's allegations under the Act, and the City's response, the court must first

describe the City's grant application and EEOP certification process. The City of Chicago relies
on funding from grants to pay for vital services, such as law enforcement, that are not
completely covered by local taxes or fees. (Pl.'s Concise Resp. to Def.'s 56.1 Statement [86],
hereinafter "Pl.'s 56.1," ¶¶ 12, 21.) These grants, totaling approximately $1.4 billion annually,
come from governmental as well as non-governmental organizations (not all of them identified in
the record). (Id. ¶ 13.)
I.

Equal Employment Opportunity Plan Certification
This case involves a small subset of the grants applied for by the City and its

departments between 2002 and 2008. 1 Specifically at issue are seventeen grants funded by the
U.S. Department of Justice ("DOJ") under the Omnibus Crime Control and Safe Streets Act of
1968 ("OCCSSA"). 28 C.F.R. §§ 42.301-02. These grants were administered by the Illinois
Criminal Justice Information Authority ("ICJIA") and awarded to two Chicago departments—the
police department ("CPD") (eleven grants) and the Department of Family and Support Services
("DFSS") 2 (six grants). (Pl.'s 56.1 ¶ 23.) Pursuant to the OCCSSA, these grants required the
applying entity to submit, for each application, a separate equal employment opportunity plan
("EEOP") certification verifying that the applicant has "formulated an Equal Employment
Opportunity Plan in accordance with 28 C.F.R. §§ 42.301-08, that was signed into effect within
the past two years by the proper authority and that it is available for review." (Id.) Under the
relevant regulations, recipients of federal funding are "required to formulate, implement, and
maintain an equal employment opportunity program relating to employment practices affecting
minority persons and women within 120 days after . . . the initial application for assistance is
1

The parties and the court have focused on these years because Plaintiff initiated
this action in 2008 and the applicable statute of limitations is six years. 31 U.S.C. § 3731(b).
2

Two of the seventeen applications at issue here were submitted by the
Department of Children and Youth Services ("DCYS"), which later merged with the Department
of Human Services ("DHS") to form the DFSS. (Def.'s Reply [87] at 2 n.1.)
2

approved." 28 C.F.R. § 42.302(d). The regulations further specify the characteristics of a
satisfactory EEOP; for instance, it must be in writing and must include the number of persons
employed by the grant applicant, identified by race, sex, and national origin; community labor
characteristics such as population and existing unemployment figures by race, sex, and national
origin; and "a detailed narrative statement setting forth the recipient's existing employment
policies and practices[.]" 28 C.F.R. § 42.304.
Despite the language in these regulations, the City argues that an active EEOP was not
a precondition for receiving these grants. This position is based on guidance that Larry Sachs,
the Director of CPD's Research and Development Division (and a former grants research
specialist) claims to have received (in some unspecified fashion) from the DOJ.

In his

declaration, Sachs expressed his belief that "if an EEOP has expired or a new EEOP has not
yet been approved that [recipients] may continue to submit grant applications . . . and to receive
. . . grant awards[.]" (Sachs Decl., Ex. D to Def.'s 56.1 [83], ¶ 7.) Plaintiff suggests, however,
that this argument is inconsistent with City officials' insistence that EEOP certifications be
submitted with grant application packets. (Pl.'s Resp. [85] at 9.) As further rebuttal of Sachs's
position, Plaintiff notes that Gail Woods ("Woods"), a CPD grant specialist, told her that "[u]nless
[the CPD applications included an EEOP certification], the CPD was not going to get grant
money." 3 (Pl.'s 56.1 ¶ 97.) The court notes, however, that Woods's statement is not actually
inconsistent with the position taken by Sachs and the City: namely, that although EEOP
certification was required as part of the grant applications, the EEOP referenced in those
certifications need not have been "active" to receive the funding. And, whatever the City's
practice or policy may have been, a failure to adhere to that policy is not by itself a violation of
federal regulations. As noted above, those regulations appear to require that grant applications
3

Plaintiff did not depose Woods and relies instead on Hill's own deposition
testimony regarding comments Woods allegedly made on unspecified dates in 2006 and 2007.
3

certify the existence of an EEO plan and that the grant applicant implement an EEO program
120 days after the application is approved.
II.

The City's Equal Employment Opportunity Plans
The City included an EEOP certification with each application it submitted for an ICJIA

grant. Until late 2006, pursuant to the City's internal grant procedures, any department that had
developed its own EEOP plan could submit an EEOP certification signed by officials from that
department.

(Hill Dep., Ex. A to Pl.'s 56.1, hereinafter "Hill Dep.," at 70:3-14.)

Individual

departments that completed grant applications but lacked their own EEOP plan could
alternatively rely on the City's plan. In these instances, an official from the Office of Compliance
or the Department of Human Resources ("DHR")—the departments responsible for
promulgating the City's EEOP—could sign the certification. (Id.; Pl.'s 56.1 ¶ 34.) Starting in
November 2006, however, all such certifications were to be signed by officials from the DHR.
(E-mail from Woods to Devane of 06/04/07, Ex. 15 to Pl.'s 56.1.)
The seventeen grant applications at issue contained twenty-five certifications, which
referred to three separate EEOPs: (1) the CPD's own EEOP; (2) the City's Equal Employment
Opportunity/Affirmative Action Plan; and (3) the City's "Short Form" EEOP. (Def.'s Reply [87] at
1-2.) The parties agree that the CPD's EEOP and the City's "Short Form" EEOP satisfied the
requirements of 28 C.F.R. §§ 42.301-08, but Plaintiff argues that the City's Equal
Opportunity/Affirmative Action Plan was "non-performing." (Pl.'s Resp. at 7.) As a result, Hill
argues, any application that relied on this plan included a false certification designed to induce
the fraudulent disbursement of federal funds to the City in violation of the False Claims Act.
A.

Chicago Police Department's EEOP

The CPD has historically developed and maintained its own EEOP based on the DOJ's
"Seven-Step Guide to the Design and Development of an EEOP." (Pl.'s 56.1 ¶ 25.) Since May
2002, CPD equal employment opportunity officer Robert Flores has led the CPD's ongoing
4

efforts to maintain its EEOP. (Id. ¶ 24.) Flores updated the CPD's EEOP in 2003, 2005, and
2007; and in each instance the CPD submitted the new plan for approval to the DOJ's Office of
Civil Rights. (Id. ¶¶ 26, 28, 30.) Each update was approved shortly after its submission via a
letter from the director of the Office of Civil Rights which stated that "the approved plan is
effective for two years from [the date of the letter]." (Id. ¶¶ 27, 29, 31.) The most recent letter
relevant to this litigation was dated November 1, 2007, approving the CPD EEOP through 2009.
(Id. ¶ 31.)
B.

City of Chicago's Equal Employment Opportunity/Affirmative Action Plan

The DFSS, unlike the CPD, has never developed its own EEOP, choosing instead to rely
on the City's plan, promulgated by the DHR in 2005. (Id. ¶ 34.) This plan, which the City (and,
therefore, the DFSS) relied on from 2005 to 2008 4, was called the "Equal Employment
Opportunity/Affirmative Action Plan" ("EEO/AAP"), and it aimed to "establish specific policies
and procedures to promote employment opportunities for minorities and women in the workforce
of the City." (Equal Employment Opportunity/Affirmative Action Plan, hereinafter "EEO/AAP,"
Ex. 11 to Pl.'s 56.1, at 4.) While Plaintiff does not deny that the EEO/AAP satisfies 28 C.F.R.
§§ 42.301-08 on its face, she contends that the plan was "not functional or implemented." (Pl.'s
56.1 ¶ 34.) To support her assertion, Hill points to (1) inconsistencies between the hierarchy of
the DHR and the oversight structure called for in the EEO/AAP; and (2) high-ranking City
officials' limited familiarity with the EEO/AAP. (Id.) For instance, the EEO/AAP called for the
"Commissioner of Personnel" to chair the "Equal Employment Opportunity/ Affirmative Action

4

As noted, the CPD's EEOP (discussed above) was regularly updated. In
contrast, there is no indication in the record that the EEO/AAP was ever updated after it was
drafted in 2005. Significantly, however, none of the certifications that relied on the EEO/AAP
appear to have been submitted more than two years after the plan was drafted in 2005. Thus,
no certification appears to rely on a plan that was not “signed into effect within the past two
years by the proper authority. . . . “ (E.g., Equal Employment Opportunity Plan Certification of
4/21/06, Sachs Decl., Attachment 5.)
5

Advisory Council." (EEO/AAP at 7-9.) Yet the position of Commissioner of Personnel had not
existed since 2000 when the Department of Personnel became the DHR. (Pl.'s 56.1 ¶ 35.)
Further, Jacqueline King ("King"), the Commissioner of the DHR from 2005-2008 (King Dep.,
Ex. B to Pl.'s 56.1, at 8:2-7), who was ostensibly responsible for the implementation and
monitoring of the EEO/AAP, testified that she is "not familiar" with either the Affirmative Action
Advisory Council or the EEO/AAP plan itself. (King Dep. 13:11-20; 64:10-18.) Then-Deputy
Commissioner Mark Devane ("Devane") assisted King with the DHR's EEOP efforts. (Pl.'s 56.1
¶ 35.) Devane was also unfamiliar with the Advisory Council and he could not recall ever
having read 28 C.F.R. §§ 42.301-08. (Devane Dep., Ex. C to Pl.'s 56.1, 48:12-14; 53:13-21.)
These concerns, the City urges, "elevate[] form over substance," because King and
others were, in reality, promoting initiatives that were consistent with the EEO/AAP. (Def.'s
Reply at 6.) For instance, the two main personnel practices identified by the EEO/AAP are
"recruitment" and "selection" of under-represented groups in the City's work force. (EEO/AAP at
12.) King testified that her department worked in both of these areas to improve diversity in the
City's departments, both externally ("[w]e targeted particular groups that we felt . . . were underrepresented in the hiring process in the past to get more engaged in applying for jobs . . . .") and
internally ("we worked with the city departments on a regular basis to make sure they are aware
of the new policies [i.e., the targeting of under-represented groups in the hiring process] and,
you know, make sure that they were in compliance . . . .") (King Dep. 70:22-72:4.) For her part,
Plaintiff has not identified any particular hiring decisions or practices that cast doubt on King's
assertions.
Further, although the Commissioner of Personnel position no longer exists, Defendant
argues that King, who occupied the equivalent position in the DHR, carried out the role defined
by the EEO/AAP.

The EEO/AAP describes the responsibilities of the Commissioner of

Personnel as follows: "[d]evelop policies and procedures to identify and remove unjustifiable or
6

discriminatory barriers to the employment and promotion of minorities and women." (EEO/AAP
at 7.)

Consistent with that job description, King testified that she and other DHR officials

focused on improving employment opportunities for underrepresented minorities: "we were
there to improve the hiring process and make sure that the process was open and everyone had
access . . . our primary goal was to remove [discriminatory] barriers." (King Dep. at 70:2271:10.) Also, another DHR employee, Torrick Ward ("Ward") 5, testified that he had participated
in an "Executive Diversity Committee," which was preceded by the "Affirmative Action
Committee or something like that." (Ward Dep., Ex. D to Pl.'s 56.1, at 68:18-70:10.) Ward
recalled the names of several members of the committee, remembered that it met several
times 6, and explained that it focused on "issues regarding equal employment opportunity and
diversity in the City." (Ward Dep. at 70:17-72:4.) While the committee titles Ward cited are not
identical to the phrasing in the EEO/AAP (Affirmative Action Advisory Council v. Affirmative
Action Committee), Defendant argues that "the subject matter intended to be covered by the
committees was the same." (Def.'s Reply at 7.)
C.

City of Chicago's EEOP Short Form

In 2007, the City's Office of Compliance also created another city-wide EEOP called the
"EEOP Short Form" ("short form"), which replaced the City's EEO/AAP. This plan was effective
for a two-year period from January 1, 2008 through December 31, 2009. (Pl.'s 56.1 ¶ 36.) The
parties agree that this plan satisfied the requirements of 28 C.F.R. §§ 42.301-08. (Id.)
III.

Grant Applications and Equal Employment Opportunity Certifications
As noted, the seventeen federal grants at issue include a total of twenty-five EEOP

5

Prior to working for the DHR, Ward served as an attorney in the City's law
department. (Def.'s Resp. to Pl.'s AMF [88] ¶ 82.)
6

Ward did not mention, nor was he asked at his deposition, when these meetings

occurred.
7

certifications signed by various city officials. Nine of these certifications relied on the disputed
EEO/AAP, while thirteen relied on the CPD plan, and three others relied on the short form
EEOP.
A.

Chicago Police Department's Grant Applications

The CPD's Research and Development Division is responsible for the police
department's grant procurement.

(Id. ¶ 38.)

Between 2002 and 2008, the Research and

Development Division submitted eleven grant applications for ICJIA funds that included
eighteen EEOP certifications. (Id. ¶¶ 43-46, 48-52, 55-59.)
Thirteen of the eighteen certifications relied on the CPD's own EEOP, which was
reviewed and approved by the DOJ. 7 Neither party disputes that the CPD's EEOP was on file
and available for review at the time in the CPD's Office of Legal Affairs at 3510 South Michigan
Avenue. (Id. ¶¶ 26-32, 43-45, 48-51, 56-57.) Of the remaining five certifications, two relied on
the City's EEOP Short Form. 8 (Id. ¶¶ 58-59.) The other three relied on the City's EEO/AAP:
Mark Devane signed two and Tariq Malhance signed one. 9 (Id. ¶¶ 46, 52, 55.) The certification
signed on October 12, 2005 by Malhance, the City's former Comptroller, stated (and the parties
agree) that the City had an EEOP on file and available for review at the Department of
Personnel at 333 South State Street, Suite 330.

According to Malhance's declaration,

7

These thirteen EEOP certifications were part of the following grant applications:
601007 (two EEOP certifications, submitted in 2004); 600207 (two, submitted in 2005); 602007
(one, submitted in 2005); 403800 (two, submitted in 2006); 503026 (one, submitted in 2006);
104052 (two, submitted in 2006); 602107 (one, submitted in 2006); 403703 (one, submitted in
2007); 106052 (one, submitted in 2008). (Pl.'s 56.1 ¶¶ 43-45, 48-51, 56-57.)
8

These certifications were part of applications for grants number 106052 and
505026 (both submitted in 2008). (Pl.'s 56.1 ¶¶ 58-59.)
9

Devane served as signatory for certifications relying on the City's 2005-2009 Plan
as part of applications for grants 602107 and 504026 (submitted in 2006 and 2007,
respectively); Malhance signed a certification for grant 602007 (submitted in 2005). (Id. ¶¶ 46 ,
52, 55.)
8

Malhance believed the certification to be true at the time he signed it, and had no intention of
submitting an inaccurate or false certification. (Id. ¶¶ 46-47.) The final two certifications, signed
by Devane in 2006 and 2007, certified that the City had an EEOP on file at the DHR at 333
South State Street, Suite 330. Devane does not recall signing either of these certifications, but
he denies ever making any representations he knew to be false or with the intent to defraud.
(Id. ¶¶ 52-55.)
The City does not explain why the CPD, which had its own EEOP, would rely on the
City's plan for these certifications, but Hill testified that Woods (the CPD's grant specialist) told
her the CPD was relying on the City's plan because the department's own EEOP was "inactive."
(Id. ¶ 8.) Neither Hill nor the City deposed Woods, and Hill does not specify exactly where,
when, or how (e.g., in person or via e-mail) Woods made this statement to her. For its part, the
City neither confirms nor denies that Woods made the statement, choosing instead to argue that
Woods's comments constitute inadmissible hearsay (discussed below).

The court notes,

however, that Woods’s alleged comments appear to be at odds with the undisputed fact that the
CPD's EEOP was updated in May 2005 and, therefore, was valid and active in 2006 when
Woods approached Hill. (Id. ¶¶ 28-31.) The court suspects that the exchange between Woods
and Hill may instead have been a comment on the 2006 policy change explained in a June 2007
e-mail between Woods and Devane that required all EEOP certifications starting in fall 2006 to
go through the DHR's office. (E-mail from Woods to Devane of 06/04/07, Ex. 15 to Pl.'s 56.1.)
B.

Department of Family and Support Services' Grant Applications
Between 2002 and 2008, the DFSS and its predecessors (the Department of Children

and Youth Services ("DCYS") and the Department of Human Services ("DHS")) filed seven
EEOP certifications as part of six grant applications (id. ¶¶ 62-63, 65-70, 72); six of the seven

9

relied on the City's EEO/AAP (the other relied on the City's short form EEOP 10). Three of these
six certifications were signed by Loisteen Woods Walker ("Walker"), the DHS's Director of
Administration, in June 2006, April 2007, and July 2007, respectively. 11 (Id. ¶ 62, 67-69.) Each
of the certifications signed by Walker stated that the City's EEOP was on file at 1615 West
Chicago Avenue. At that time, Walker did have a copy of the City's EEO/AAP in her office at
that address. (Id. ¶¶ 62-64, 67-69.) Another certification, signed by then-commissioner Sheryl
McGill ("McGill") on June 12, 2006, identifies the same EEOP and filing location as those signed
by Walker. 12 (Id. ¶ 65.) McGill believed the City's EEO/AAP complied with federal requirements
and would not have signed it otherwise.

(Id. ¶ 66.)

One certification, signed by then-

commissioner Mary Ellen Caron on September 6, 2006, certified that DCYS had an EEOP on
file in the DHR at 121 North LaSalle Street. 13 (Caron Decl., Tab K to Def.'s 56.1, ¶ 5.) Caron
believed this statement to be true and was aware that the DHR, which was then located at 121
North LaSalle Street, had developed the City's EEO/AAP. (Pl.'s 56.1 ¶¶ 70-71.) The seventh
EEOP certification, signed by Devane, stated that the City had an EEOP on file in the DHR at
333 South State Street, Suite 330. 14 The parties agree that the City had an EEOP on file at the
DHR at that time. (Id.) As with his certifications for the CPD, Devane does not recall signing
10

This certification was included in the application for grant 206389.

(Pl.'s

56.1 ¶ 69.)
11

These certifications were included in applications for grants 205289, 206289, and
205389. (Pl.'s 56.1 ¶¶ 62-64, 67-68.)
12

This certification was included in the application for grant 205289. (Pl.'s

56.1 ¶ 65.)
13

This certification was included in the application for grant 2006-JU-FX-K012.
(Pl.'s 56.1 ¶ 70.)
14

Defendant cites to this certification for Grant No. 105072 by its Bates number
(City 1681) but does not provide its location in the lengthy record in this case. (Pl.'s 56.1 ¶ 72.)
The court has been unable to locate the certification or the date it was signed, but the parties do
not dispute its contents.
10

this certification, but he denies ever making any representations that he knew to be false or with
the intent to defraud. (Id. ¶ 72.)
IV.

Hill's Involvement with Grant Applications
Plaintiff Theresa Hill began working for the City of Chicago as an Assistant

Commissioner in the Workplace Compliance Unit ("WCU") of the DHR in October 2006. (Id.
¶ 5.) Hill's responsibilities at DHR included overseeing matters related to drug testing, sexual
harassment, and labor relations, as well as EEO issues. (Hill Dep. at 118:3-20; 126:2-10.)
Shortly after Hill joined the DHR, 15 Robert Keller ("Keller"), the department's equal employment
opportunity officer, asked Plaintiff to contact Gail Woods about signing an EEOP certification for
a federal grant application prepared by the CPD. (Id. ¶ 7.) According to Plaintiff, Woods told
Hill that the CPD's affirmative action plan was "inactive" and, in order to be eligible for funding,
the CPD needed to substitute the City's plan until the CPD could "get their plan back together."
(Hill Dep. at 69:17-70:1.)
Before signing the certification, Hill decided to do more research regarding the City's
purported plan. (Pl.'s 56.1 ¶ 9.) As part of this effort, Plaintiff obtained a copy of the City's
EEO/AAP and searched for evidence that it had actually been "implemented." (Id. ¶ 9.) Hill did
not, however, read the regulations referred to in the EEOP certifications. (Hill Dep. at 104:8-12.)
After examining personnel payroll and other documentation in search of evidence that the City
had made efforts to implement its plan, Plaintiff concluded that the plan had not, in fact, been
implemented by the City (Plaintiff did not offer any additional details regarding either the
methodology or findings of her research into the implementation of the purported plan, nor did
she identify with greater particularity the records or other circumstances that led her to believe it
was not implemented). (Pl.'s 56.1 ¶ 9.) Based on this belief, Plaintiff refused to sign the EEOP
15

Neither party identified the date on which Hill was first asked to sign an EEOP

certification.
11

certification. Hill testified that she was asked to sign "at least six or seven certifications in
2006," but did not provide documentation for any 2006 requests other than Woods's. (Hill Dep.
at 121:12-16.) She declined to sign every certification, and it is undisputed that she was never
ordered or required to do so by her superiors. (Pl.'s 56.1 ¶ 9.)
Several months later, Hill again refused to sign another CPD EEOP certification
forwarded to her via e-mail by Devane. (Id. ¶ 98.) On June 4, 2007, in addition to declining to
sign the certification, Hill e-mailed then-Commissioner of the DHR, Jacqueline King, raising
concerns about the EEOP implementation. (Id. ¶¶ 10, 99.) Plaintiff claims that King later
acknowledged that the City has an EEOP "on paper only." (Compl. [1] ¶ 14.) Plaintiff has not
explained when or how King made this concession, nor does she clarify whether it was in
person or via e-mail. For her part, King acknowledges discussing the subject with Hill; however,
King says that she was never personally sure whether Hill's concerns about the EEO/AAP were
accurate, but that she "trusted [Hill]" and told Hill to "never sign anything you are not
comfortable with." (King Dep. at 75:10-21, 76:20-77:10.) King also testified that she brought
Hill's concerns to other City officials, including members of the legal department, although she
could not recall the names of these individuals. (Id. at 75:24-76:4.)
King also advised Plaintiff to contact the City's legal department about the issue. (Pl.'s
56.1 ¶ 11.)

In response, Hill contacted Torrick Ward and Amy Kovolan ("Kovolan"), two

attorneys then employed in the City's law department, in person and via e-mail about the City's
EEOP. (Id. ¶¶ 99, 102.) Subsequent e-mails between Plaintiff, Ward, and Kovolan in the record
are heavily redacted, as the City has invoked the attorney-client privilege as to these
communications. (Ex. 17 to Pl.'s 56.1.) It is undisputed, however, that Kovolan wrote in a June
11, 2007 e-mail to Plaintiff that the Mayor's office had asked the law department to "explore
having the required work done on behalf of the City"; the first step of which was to "complete the
study" and then "execute the plan." (Id. ¶ 101.) Plaintiff did not depose Kovolan, nor does she
12

offer any additional explanation or context for these comments, but she argues that they
corroborate her assertions regarding the status of the City's EEO/AAP. (Id.) Through her
correspondence with the law department officials, Plaintiff came to believe that no City
employee was to sign off on any EEOP certifications until the City could ensure it was compliant
with 28 C.F.R. §§ 42.301-08. Hill herself never signed off on any of the certifications brought to
her, nor does it appear that any City official signed any EEOP certification from the time Hill
raised her objections until the City's new EEOP Short Form was adopted in 2008.

(Pl.'s

56.1 ¶ 11.)
DISCUSSION
I.

Standard of Review
Summary judgment is appropriate "if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV.
P. 56(a).

In other words, a court may grant summary judgment "when the pleadings and

submissions in the record indicate the absence of any genuine issues of material fact, so that
the moving parties are entitled to judgment as a matter of law." U.S. ex rel. Yannacopoulos v.
Gen. Dynamics, 652 F.3d 818, 823 (7th Cir. 2011) (citing Midwest Imports, Ltd. v. Coval, 71
F.3d 1311, 1317 (7th Cir. 1995)). As the non-moving party, Hill is entitled to the benefit of any
reasonable inferences in her favor that are supported by the record. (Id.) (citing Jakubiec v.
Cities Service Co., 844 F.2d 470, 471 (7th Cir. 1988)).
II.

False Claims Act
Hill brings this qui tam action under the False Claims Act. Qui tam suits have been part

of the FCA's scheme for preventing fraud against the federal government since the Civil War.
Under that scheme, a private citizen with personal knowledge of such fraudulent activity may
bring suit on behalf of the government in return for a share of the proceeds, should the suit
prevail. United States ex rel. Lamers v. City of Green Bay, 168 F.3d 1013, 1016 (7th Cir. 1999).
13

Any such proceeds are calculated based on the defendants' liability, which, under the FCA,
amounts to three times the sum of ill-gotten funds, plus a civil penalty. 31 U.S.C. § 3729.
Where, as here, the government chooses not to intervene, the relator's cut is between twentyfive and thirty percent 16 of the proceeds of a successful action, in addition to reasonable
expenses and attorneys' fees, all of which are awarded against the defendant.

31 U.S.C.

§ 3730(d)(2).
To establish civil liability under the False Claims Act ("FCA"), a relator generally must
prove (1) that the defendant made a statement in order to receive money from the government;
(2) that the statement was false; and (3) that the defendant knew the statement was false. 31
U.S.C. § 3729(a)(2); United States ex rel. Yannacopoulos, 652 F.3d at 822. Regarding the
knowledge requirement, the defendant must have acted with "actual knowledge," "deliberate
ignorance," or "reckless disregard" to the possibility that the submitted claim was false. 31
U.S.C. § 3729(a)(1)(A), (b). To survive a motion to dismiss, Relators must "identify specific
false claims for payment or specific false statements made in order to obtain payment." United
States ex rel. Garst v. Lockheed-Martin Corp., 328 F.3d 374, 376 (7th Cir. 2003). Further, an
FCA claim premised upon an alleged false certification of compliance with statutory or
regulatory requirements also requires that the certification of compliance be a condition of or
prerequisite to government payment. United States ex rel. Gross v. Aids Research AllianceChicago, 415 F.3d 601, 604 (7th Cir. 2005) (citing cases from other circuits). The FCA is not,
however, "an appropriate vehicle for policing technical compliance with administrative
regulations." Lamers, 168 F.3d at 1019-20.

16

The exact percentage is determined by the court based on what is "an amount
which . . . is reasonable." 31 U.S.C. § 3730(d)(2). Where the government does intervene, the
private citizen may receive between fifteen and twenty-five percent. 31 U.S.C. § 3730(d)(1).
14

A.

EEOP Certifications as Prerequisite for Government Funding

Plaintiff argues that a certification that the City had an "active" EEOP was a precondition for receiving federal funds via the ICJIA. (Pl.'s Resp. at 8-10.) Defendant counters
that an active EEOP was not, in fact, a precondition for these moneys. Rather, the City points
to the declaration of Larry Sachs, Director of the CPD's Research and Development Division,
who, based on his interactions with the DOJ and the ICJIA, testified that grant applications may
be accepted even if a recipient's EEOP is "inactive." (Sachs Decl. ¶ 7.) The City also argues
that Plaintiff has not offered any admissible evidence to rebut Sachs's position and show that
certification of an "active" EEOP was actually a condition of funding. (Def.'s Reply at 2-4.)
Thus, Defendant argues, the City is entitled to summary judgment, as even false EEOP
certifications could not give rise to FCA liability where those certifications were not prerequisites
for federal grant funding. (Id.)
The only support Plaintiff offers for her position is indeed hearsay—statements allegedly
made by Woods to Hill in 2007. The evidence is admissible in the sense that it is an admission
by the agent of a party opponent, as Woods, a City employee, was speaking to Hill about a
matter within the scope of her employment, namely, grant applications.

FED. R. EVID.

801(d)(2)(D). But Woods's statement is a statement of law, not of fact. Woods's interpretation
of federal requirements is not controlling as a matter of law. That is, the court will not declare
the City to be out of compliance with a legal standard merely because any particular City official
believes it is.
Unfortunately, the regulations cited in the EEOP certifications themselves provide little
clarity as to whether an "active" EEOP was a precondition to funding. On the one hand, they
define "noncompliance" as "[f]ailure to implement and maintain an [EEOP]," suggesting that an
"active" plan was required to receive funding. On the other hand, the regulations elsewhere
allow recipients a 120-day buffer from the date their application is accepted in which to
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"formulate" and "implement" an EEOP, 28 C.F.R. § 42.302(d), which corroborates the position
held by Mr. Sachs and the City. Based on both the actions of City officials and the text of the
relevant regulations, it is unclear whether an "active" EEOP was truly a prerequisite for these
grants. For the purposes of this opinion, however, the court will assume that an "active" EEOP
was a condition of payment for the grants involved here.
B.

FCA Liability for Grant Applications Relying on the City's EEO/AAP

Of the twenty-five EEOP certifications signed by City officials between 2002 and 2008,
only the ten that relied on the City's EEO/AAP are at issue here, as the CPD and short form
EEOPs undisputedly comply with the relevant regulations. That is, the certifications that relied
on the CPD and short form EEOPs were not "false" under the FCA.
Regarding the ten certifications that relied on the City's EEO/AAP, Plaintiff argues that
they violate the FCA because the plan existed "on paper only." (Pl.'s Resp. at 7.) That is, the
EEO/AAP "perform[ed] no function other than to be used to obtain federal funding, and,
therefore, the certifications indicating otherwise were false statements designed to obtain
federal dollars.

It is a non-performing plan, i.e., ineffective, existing in name only."

(Id.)

Assuming that an "implemented" EEO/AAP was required in order to receive grant funding,
Plaintiff still must show that (1) the certifications here were false (i.e., that the EEO/AAP was not
implemented in compliance with 28 C.F.R. §§ 301-08); and (2) the City prepared the false
certifications "knowingly."
Plaintiff insists that the EEO/AAP was not properly "implemented," citing three types of
evidence. First, Hill argues that the City itself has acknowledged that its EEO/AAP was a sham.
On this score, Hill relies largely on language in the City's memorandum in support of summary
judgment, and characterizes that language as an admission that the EEO/AAP was nonfunctional. She asserts that, "[f]or purposes of its summary judgment motion, the City assumes
that it did not have a properly functioning plan." (Id.) Notably, Plaintiff does not cite to any
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portion of Defendant's memorandum in support of this assertion, and the court is unable to find
any indication that the City has made any such concession.

To the contrary, the City's

memorandum argues that the City is entitled to summary judgment even if the court finds that
the EEO/AAP was non-functional. For instance, regarding the certification signed by Malhance,
the City argued that (1) the certification did not violate 28 C.F.R. §§ 42.301-08; and (2) if it did,
the City still did not violate the FCA because it made no willful false statements:
Relator has not and cannot dispute the fact that the City's . . . EEO/AAP, which
had been developed by DHR, was in existence at the time, and that DHR [was
located at the address in the certification.] Further, although Relator may claim
that that document did not satisfy the EEOP Certification requirements, because
it was allegedly not being fully implemented, any such error . . . would not rise to
the level of a false statement . . . Moreover, there is no evidence . . . that
Malhance acted with deliberate ignorance or reckless disregard . . . .
(Def.'s Mem. at 12-13.) As the court reads this language, it presents an alternative basis for
summary judgment in favor of the city—not an admission, even for purposes of its summary
judgment motion, that the EEO/AAP was inadequate or somehow not properly implemented.
Second, Hill makes a number of arguments regarding the non-"implementation" of the
EEOP, but these efforts amount to little more than formalism. For instance, Plaintiff highlights
formalistic inconsistencies between the structure of the City's actual equal employment
opportunity bureaucracy and the one outlined in the EEO/AAP. (Pl.'s 56.1 at 3.) She also
emphasizes the limited knowledge that EEOP certification signatories have of the EEO/AAP and
of 42 C.F.R. §§ 42.301-08. (Id. at 3, 13-14.) The record indicates, however, that Defendant
was actually following the guidance provided by the EEO/AAP by (1) marketing job vacancies to
those groups that were underrepresented in the City's workforce; (2) internally prioritizing the
hiring of individuals from these underrepresented groups; and (3) establishing committees to
monitor the progress of the City's equal employment opportunity initiative. Plaintiff has offered
no evidence to the contrary, nor has she even attempted to substantively attack the City's
efforts to carry out its plan (which she acknowledges is adequate on paper) as inadequate
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under the requirements laid out in 28 C.F.R. §§ 42.301-08. While King and Devane were
disappointingly uninformed about the City's affirmative action plans and relevant federal
regulations, Plaintiff ignores the deposition testimony and declarations of other City officials,
such as Ward, who displayed command of the City's EEOP. Ward's familiarity evinces the
City's efforts to implement its EEOP throughout the relevant period.
Third, and finally, Plaintiff supports her contention that the EEO/AAP was not
"implemented" with her own deposition testimony recalling conversations she had with Woods
and King. Woods's alleged statements are immaterial, however, insofar as they refer to the
CPD's EEOP rather than the City's. This leaves only Hill's assertion that King had agreed that
the City's plan existed "on paper only." Even taken in the light most favorable to Hill, this
testimony alone does not create a genuine issue for trial.

Hill's deposition testimony is

contradicted by both King's own deposition testimony as well as the testimony of Ward and
others who indicated that the plan was, in fact, in action. In conjunction with Hill's failure to offer
any specific evidence that indicates that the EEO/AAP violates relevant regulations, Hill's
unsupported testimony is insufficient to defeat a motion for summary judgment.

Although

summary judgment must be denied where the parties simply aver to competing versions of
events, Lujan v. Natl'l Wildlife Fed'n, 497 U.S. 871, 888 (1990), the non-moving party is still
required to present evidence that "meets the usual requirements for evidence presented on
summary judgment—including the requirements that it . . . set forth specific facts showing that
there is a genuine issue for trial[.]" Payne v. Pauley, 337 F.3d 767, 773 (7th Cir. 2003). Hill has
failed to do so here.
The City's EEO/AAP was, in fact, implemented in accordance with 28 C.F.R. §§ 42.30108. The City's EEOP certifications that relied on the EEO/AAP, therefore, did not contain a false
statement required to establish FCA liability. Accordingly, Defendant is entitled to judgment as
a matter of law.
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Finally, because the statements in the City's EEOP certifications were not false, they
could not have been "knowingly" false as required to trigger FCA liability. Thus, the court need
not explore this element of Plaintiff's FCA claim.
CONCLUSION
Defendants' motion for summary judgment [80] is granted.
ENTER:

Dated: January 14, 2013

_________________________________________
REBECCA R. PALLMEYER
United States District Judge

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