Poe v. University of Chicago Police Department
Filing
79
MEMORANDUM Opinion and Order: Signed by the Honorable Harry D. Leinenweber on 5/15/2013: Case TerminatedMailed notice(wp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DEBRA A. POE,
Plaintiff,
Case No. 10 C 6811
v.
Hon. Harry D. Leinenweber
UNIVERSITY OF CHICAGO POLICE
DEPARTMENT,
Defendant.
MEMORANDUM OPINION AND ORDER
The Plaintiff, an African-American female, was employed by
the University of Chicago (the “University”) Police Department
(the “Department”) as a police officer from 1987 to August 12,
2009 when she was fired.
She claims that her termination was in
violation of Title VII of the Civil Rights Act of 1964 because it
was
in
retaliation
for
her
having
filed
a
charge
of
discrimination with the Equal Employment Opportunity Commission
(the “EEOC”) and a lawsuit against the University in 2004.
Because the Plaintiff has failed to create a genuine issue of
material fact that her termination was a result of retaliation
under either
by
direct evidence
or by
the
indirect
burden
shifting method of proof established in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802-4 (1973) the Court grants Summary
Judgement to the University.
I.
BACKGROUND
The following facts are taken from the parties’ Local Rule
56 statements.
In 2004 Plaintiff held the rank of Sergeant.
In
that year she filed a charge of discrimination with the EEOC in
which she alleged that she had been harassed by a fellow Police
Sergeant. She received a Notice of Right to Sue and subsequently
filed a lawsuit against the University.
in 2006.
The lawsuit was settled
At the time of her charge, the Department was led by
Chief Rudolph E. Nimocks (“Nimocks”) and Deputy Chief Lee D.
Caldwell (“Caldwell”).
About
this
same
time, in
2003
or
2004,
Plaintiff
was
assigned to be the Department’s Training Sergeant, a position she
held until her discharge in 2009.
In the year 2009 Plaintiff was
assigned a class of seven recruits to train.
In February of that
year the University hired Marlon C. Lynch (“Lynch”).
He was
given the title of Associate Vice President for Safety and
Security.
He was assigned the job of creating a new Department
of Safety and Security which was to include the University Police
Department.
Shortly after Lynch was hired both Nimocks and
Caldwell left the Department and Lynch assumed the title of Chief
of Police.
In early June 2009, two female recruits, LaTonya Morgan
(“Morgan”) and Shalaine Enahora (“Enahora”), met with Lynch
complaining that Plaintiff was harassing them by singling them
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out for poor treatment because they were women, and generally
treating them in an unfair and overly harsh manner.
Three days
later Lynch received an e-mail from Police Sergeant Gwen Jackson
(“Jackson”), confirming their harassment complaints, which she
described as “very blatant,” and was causing Morgan and Enahora
to have second thoughts about working for the University Police
Department.
Jackson further stated that this was not the first
time that female recruits had made complaints about Plaintiff.
As a result of these complaints Lynch decided to institute
an
internal
investigation,
called
a
CR.
Prior
to
its
commencement, Lynch received an e-mail from Morgan stating that
the two recruits no longer wished to pursue the matter as they
wished “to leave well enough alone.”
After receiving the e-mail
Lynch met with Morgan and Enahora.
The parties dispute what
occurred at this meeting.
The University contends that Morgan
and Enahora changed their minds and wished to make a formal
complaint against Plaintiff.
The Plaintiff contends that Lynch
asked them to agree to the investigation which they did.
In any
event Lynch decided to go ahead with the CR and appointed Deputy
Chief David Browne (“Browne”) to conduct the investigation, which
was
to
focus
on
three
Enahora’s complaints:
allegations drawn
from
Morgan’s and
(1) that Plaintiff had made inappropriate
and discriminatory remarks to Morgan and Enahora; (2) that
Plaintiff had engaged in a pattern of harassment against them;
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and (3) that Plaintiff acted in an unprofessional manner during
recruit training.
Browne’s investigation was carried out over a period of
eighteen days, during which he interviewed Plaintiff, Sergeant
Jackson, Moran, Enahora and the other five recruits who were
enrolled in Plaintiff’s training class.
He was assisted in the
investigation by a University Human Resources representative,
Tremaine
Maebry
(“Maebry”).
The
recruits
disclosed
that
Plaintiff had during the training sessions stated that Nimock was
“senile,” “old and useless,” “no longer capable of holding his
job” and that “it was time for him to go.”
They also said that
Plaintiff had called Caldwell “an egomaniac that exaggerated his
experiences in the military and held himself up as some sort of
CIA operative” who “made up a lot of stuff.”
They also said that
Plaintiff had described two female officers as “useless” and that
each had “got her position by lying oh her back” and had “slept
their way into cake positions.” Also during the training session
Plaintiff had threatened to have a physical fight with a former
recruit who failed to complete the police academy phase of
training, saying she would “slam-dunk” her.
Sgt. Jackson stated
that when asked why she was so hard on recruits, Plaintiff
responded “I don’t give a fuck about those bitches.”
It should
be noted here that while Plaintiff denies making the comments
attributed to her, she does not deny that the investigation
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concluded that she had made them.
The recruits also described
the quality of the training given by Plaintiff as “deficient” and
“too long, and of poor quality” and “disorganized.”
Browne concluded from his investigation that the first and
third
allegations
that
she
had
made
inappropriate
and
discriminatory remarks and had acted in an unprofessional manner
during the training, were sustained, but that the second, that
she had engaged in a pattern of harassment against Morgan and
Enahora, had not been sustained because the evidence disclosed
that she treated every recruit poorly, and had not singled out
Morgan and Enahora for special abuse.
Browne recommended that
Plaintiff be suspended and demoted to the rank of police officer.
Lynch, however, decided to terminate Plaintiff’s employment and
she was so informed in writing on August 12, 2009.
While the
termination letter was signed by Browne it was actually the
decision of Lynch.
The stated reasons for the termination were
that Plaintiff had “repeatedly made disparaging comments and
statements about [her] colleagues’ abilities and competencies and
[her]
superiors’
decision-making
authority
.
.
.
[causing]
friction and general malaise in the entire [recruit] training
class.”
Further “[plaintiff’s] actions have tarnished the image
of this department, the authority of [her] superiors and [her]
reputation as officer of this university.”
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Based on the foregoing, the University claims that Plaintiff
cannot
prove
her
allegation
that
she
was
terminated
in
retaliation for her 2004 EEOC charge and subsequent lawsuit
against the University.
The University contends that she cannot
prove either by direct or indirect methods of proof.
II.
DISCUSSION
The direct method requires Plaintiff to prove three things:
(1) that she engaged in a protected activity; (2) that she
suffered an adverse employment action; and (3) and that there is
a causal connection between the protected activity and the
adverse employment action.
Gates v. Caterpillar, Inc., 513 F.3d
680, 686 (7th Cir. 2008).
The University agrees that she has
established the first two elements but denies that she has
offered any admissible proof as to the causal connection.
It
contends that there is absolutely no evidence that Lynch, the
decision maker, was aware of the 2004 EEOC charge and subsequent
lawsuit which was the protected activity.
Since Lynch was
unaware of the charge and lawsuit, it could not have been the
reason for terminating Plaintiff.
The only “evidence” that Plaintiff has brought forth in an
attempt to prove a causal connection is contained in Paragraph 14
of her Additional Statement of Facts. Paragraph 14 states in its
entirety:
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14.
In July 2009 Sergeant Poe learned that she
had been removed from my [sic] role as
training
Sergeant
because
of
the
announcement from Chief Lynch.
The next
day, officer Bowers [the head of the union
representing the campus police] approached
Sergeant Poe and discussed his meetings with
Chief Lynch.
When she asked him about my
[sic] removal from the training Sergeant
position he told me [sic] that the new chief
did not like people who filed lawsuits and
kept their jobs. He said that based on my
[sic] prior history of filing a complaint
that she wouldn’t get any promotions and
then
stated
that
very
soon
certain
supervisors were no longer going to be
employed.
She cites as authority for this statement her own affidavit and
the affidavit of a Lieutenant Homes.
Admissibility of this
statement is the threshold question because a court may only
consider admissible evidence in assessing a motion for summary
judgment
and
inadmissable
summary judgment.
(7th Cir. 1997).
hearsay
evidence
cannot
preclude
Eisenstadt v. Centel Corp., 113 F.3d 738, 742
The University contends that this statement is
hearsay on hearsay, i.e., what Bowers said what Lynch said while
both were out or court and not under oath.
Although it is
probably not double hearsay {because what Bowers was referring to
Lynch’s state of mind,
Luckie v. Ameritech Corp., 389 F.3d 708,
716 (7th Cir. 2004)), what Bowers told Plaintiff about Lynch’s
state of mind is obviously inadmissable hearsay on its own.
An
out-of-court statement, not made under oath as to another’s state
of mind is classical hearsay.
Therefore, since this is the only
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“evidence” proffered to prove causation as to retaliation under
the direct method, the effort fails.
Gunville v. Walker, 583
F.3d 979, 986 (7th Cir. 2009).
In order to prove retaliation under the indirect method of
proof, Plaintiff must first establish a prima facie case before
the
burden
shifts
to
the
Defendant
to
offer
one
or
more
legitimate non retaliatory reasons for terminating her. Once the
Defendant
does
so,
the
Plaintiff
must
show
by
competent
admissible evidence that there is a genuine issue as to the
reasons given for the decision to terminate is a pretext for
discrimination. The burden of persuasion remains on Plaintiff to
show the decision to terminate was retaliatory. Rudin v. Land of
Lincoln Community College, 420 F.3d 712, 724 (7th Cir. 2005). In
order to establish a prima facie case a plaintiff must present
admissible
evidence
that
she
(1)
engaged
in
a
statutorily
protected activity; (2) was performing her job satisfactorily;
(3) experienced an adverse employment action, and (4) was treated
less favorably than similarly situated employees who did not
engage
in
a
protected
activity
were
treated.
Luckie
v.
Ameritech, 389 F.3d 708, 714 (7th Cir. 2004).
The
University,
while
conceding
that
Plaintiff
has
established elements one and three, takes dead aim at elements
two and four.
Lynch, the admitted decision maker, had received
a slew of complaints concerning Plaintiff’s actions as a training
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officer.
He instituted an investigation that was conducted by
two employees, one of whom was from the University’s Human
Resources Department.
substantiated.
All three of the charges were in effect
The one charge not “sustained” was in itself
damning, viz., that Plaintiff had not singled out Morgan and
Enahora for abuse, but had mistreated each of the recruits
equally.
Thus, the University claims that it is clear that
Plaintiff was not performing up to its reasonable expectations.
Plaintiff’s response contends that her misconduct was not so
serious as to justify termination, and her conduct was no worse
that than that of Lieutenant Homes who also disparaged Nimocks
and Caldwell.
Plaintiff’s response in unavailing.
position
to
weigh
the
competence
or
The Court is not in a
the
fairness
of
the
University’s decision to terminate Plaintiff simply because of a
belief that the employer may have made an unfair or a poor
choice.
A
court
may
only
interfere
when
the
decision
is
unlawful, i.e., based a prohibited factor, such as retaliation,
or race, or sex, for example.
Plasnik v. St. Joseph Hospital,
464 F.3d 691, 697 (7th Cir. 2006). Here the Plaintiff disparaged
her supervisors before a class of new recruits. It certainly was
not her place to poison the views of new employees toward their
superiors.
She also abused and abased the recruits causing some
of them to want to drop out of the police force.
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Her training
classes were not well run.
Lynch and the University were
certainly within their rights to terminate Plaintiff based on the
record compiled in the investigation.
While Plaintiff contends
that the investigation was flawed and not carried out in full
accord with its written policy, this does not help her prove that
she was treated less favorably than other similarly situated
training officers. Logan v. Caterpillar, Inc., 246 F.3d 912, 920
(7th Cir. 2001).
Moreover the investigation was not carried out
by Lynch but by his appointee, Browne.
Plaintiff also contends that what she said was no worse than
what others had said about the Chief and the Assistant Chief.
Thus, she was treated less favorably that those others.
also
unavailing
disparagement
circumstances.
she
because
none
of
the
cites
were
under
other
the
same
This is
instances
or
similar
Plaintiff was terminated for abusive, insulting
and unprofessional behavior before a class of new recruits.
so-called
of
similar
situated
employees
were
alleged
to
The
have
disparaged Nimocks and Caldwell in private conversations and not
before a class of recruits.
Further, none of them were alleged
to have abused recruits and improperly conducted a training
class.
Thus, they were not similarly situated.
Willaims v.
Airborne Express, Inc., 521 F.3d 765, 768 (7th Cir. 2008).
Therefore, Plaintiff has failed to establish retaliation by the
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indirect
method
as
well.
Accordingly,
the
Motion
of
the
Defendant for Summary Judgment is granted.
III.
CONCLUSION
For the reasons stated herein, the Defendant’s Motion for
Summary Judgment is granted.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
Date: 5/15/2013
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