Figueroa v. Village of Melrose Park, Illinois et al

Filing 61

MEMORANDUM Opinion Signed by the Honorable Andrea R. Wood on 8/31/2015. Mailed notice(ef, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BLANCA N. FIGUEROA,
Plaintiff,
v.
VILLAGE OF MELROSE PARK,
Defendant.

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No. 13-cv-03026
Judge Andrea R. Wood

MEMORANDUM OPINION
Plaintiff Blanca Figueroa claims that her former employer, the Village of Melrose Park
(“Village”), and its Chief of Police, Sam Pitassi, refused to allow her to join the Village’s police
force because of her gender and race. Figueroa has sued the Village and Pitassi for this alleged
discrimination and those defendants have now moved for summary judgment on all of the claims
against them. (Dkt. No. 43.) For the reasons detailed below, the defendants’ motion is denied.
BACKGROUND
Figueroa, who is a Hispanic woman, was employed by the Village from March 2011 until
September 2011. (Pl.’s Resp. to Def.’s Rule 56.1 Stmt. of Uncontested Material Facts (“Pl.’s
Rule 56.1 Resp.”) ¶ 2, Dkt. No. 47.) Figueroa was originally hired as a probationary police
officer. (Id. ¶ 4.) Then, on May 11, 2011, Figueroa and another police officer candidate, Aldo
Scudiero, were enrolled by the Village in the training academy for the police department of the
City of Chicago. (Pl.’s Rule 56.1(b)(3)(C) Stmt. of Additional Facts (“PSAF”) Ex. P at 13-14,
Dkt. No. 46-6.) The City of Chicago’s academy trained recruits for suburban police departments
on a contract basis. (PSAF Ex. N at 6-7, Dkt. No. 46-4.) Figueroa claims that she successfully

completed her basic training and, as a result, she was certified by the State of Illinois as a
qualified law enforcement officer in August 2011. (PSAF ¶ 2, Dkt. No. 46.)
Despite what Figueroa describes as her successful completion of the academy basic
training course, she was not given an assignment as a police officer. (Id. ¶¶ 2-4.) Moreover, she
was asked to resign and ultimately terminated without ever receiving an assignment. (Id.)
Figueroa claims that the Village’s decision not to give her an assignment but instead to terminate
her was motivated by prejudice against her gender and Hispanic heritage. She seeks relief from
the Village and Pitassi for the alleged gender and race discrimination under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e-2(a). She also seeks relief from the Village and Pitassi for
race discrimination under 42 U.S.C. § 1981.
DISCUSSION
Summary judgment is appropriate when the admissible evidence considered as a whole
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); Davis v. Time Warner Cable of S.E. Wisc.,
651 F.3d 664, 671 (7th Cir. 2011). At the summary judgment stage, a district court may not
assess the credibility of witnesses, choose between competing inferences, or balance the relative
weight of conflicting evidence. Abdullahi v. City of Madison, 423 F.3d 763, 769 (7th Cir. 2005).
The court must view all the evidence in the record in the light most favorable to the non-moving
party and resolve all factual disputes in favor of the non-moving party. Id.
Because the elements and methods of proof are the same regardless of whether a
discrimination claim is brought under Title VII or § 1981, the summary judgment analysis is also
the same for claims under both statutes. McGowan v. Deere & Co., 581 F.3d 575, 579 (7th Cir.
2009). The “fundamental question” for discrimination claims under either statute “is simply

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whether a reasonable jury could find prohibited discrimination.” Bass v. Joliet Pub. Sch. Dist.
No. 86, 746 F.3d 835, 840 (7th Cir. 2014).
A plaintiff may establish the existence of evidence of discrimination sufficient to reach a
jury by either “direct” or “indirect” methods. Orton-Bell v. State of Indiana, 759 F.3d 768, 773
(7th Cir. 2014). “Direct” proof includes both evidence explicitly linking an adverse employment
action to an employer’s discriminatory animus and circumstantial evidence that would permit a
trier of fact to infer that discrimination motivated the adverse action. Diaz v. Kraft Foods Global,
Inc., 653 F.3d 582, 587 (7th Cir. 2011). In responding to a summary judgment motion, a plaintiff
must identify the method of proof that supports an inference of discrimination in her case.
Morgan v. SVT, LLC, 724 F.3d 990, 995 (7th Cir. 2013). Here, Figueroa contends that there is
sufficient evidence of gender and racial discrimination under both methods.
I.

Direct Evidence of Discrimination
Under the direct proof approach, remarks and other evidence that reflect a propensity by

the decision maker to evaluate employees based on illegal criteria will suffice as evidence of
discrimination even if the evidence stops short of a virtual admission of illegality. Whitfield v.
Int’l Truck and Engine Corp., 755 F.3d 438, 443 (7th Cir. 2014) (quoting Miller v. Borden, Inc.,
168 F.3d 308, 312 (7th Cir. 1999); Venters v. City of Delphi, 123 F.3d 956, 973 (7th Cir. 1997)).
At her deposition, Figueroa testified that on multiple occasions over the course of her
basic training at the Chicago police academy, Pitassi told her that she would be a liability to the
Village police department and that she would not be hired as an officer. (PSAF Ex. L at 213-14,
223, 240, Dkt. No. 46-2.) On at least one such occasion, Pitassi told her that she would not be
able to defend herself in a confrontation with a 200-pound man. (Id. at 225.) Figueroa’s brother
Anthony, a member of the Village’s fire department, was present at one such meeting and

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countered Pitassi’s comments by pointing out that the City of Chicago had many female police
officers. (Id. at 226.) Pitassi responded by stating that that the City of Chicago’s much larger
number of police officers would allow backup officers to arrive more quickly. (Id.)
Although Pitassi did not explicitly admit that his aversion to hiring Figueroa was because
of her gender, his comments do suggest a presumption that she would be physically unable to
perform as a police officer. Yet no evidence supports that presumption. In contrast, Figueroa has
presented evidence that to enter the police academy she was required to pass a “power test” that
included strength, stamina, and flexibility requirements. (PSAF Ex. L at 35, Dkt. No. 46-2;
PSAF Ex. N. at 207, 233, Dkt. No. 46-4.) She also has presented evidence that, although she
struggled to complete training runs during one period of her police academy course, she had no
other physical difficulties at the academy and passed the tests—including physical tests—that
were requirements for successful completion of the academy program. (PSAF Ex. L at 41-43,
Dkt. No. 46-2; PSAF Ex. N at 207, 233, Dkt. No. 46-4.) Pitassi’s speculation that Figueroa
would be unable to defend herself against a man, in the absence of proof that she was unable to
perform at the physical level required by the academy, supports an inference that his
presumption was related to her gender.
Such presumptions are unlawful. “It is now well recognized that employment decisions
cannot be predicated on mere ‘stereotyped’ impressions about the characteristics of males or
females. Myths and purely habitual assumptions about a woman’s inability to perform certain
kinds of work are no longer acceptable reasons for refusing to employ qualified individuals, or
for paying them less.” City of Los Angeles, Dept. of Water and Power v. Manhart, 435 U.S. 702,
707 (1978). Thus, the Court concludes that Pitassi’s comments provide sufficient direct evidence

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to support an inference that his assessment of her employment prospects was motivated by
gender discrimination.
The defendants contend that Pitassi’s motives provide insufficient evidence to permit
Figueroa to present her case to a jury because the ultimate decision to terminate her was made by
the Village Board of Fire and Police Commissioners. But evidence of discrimination by an
individual who provides input into the ultimate employment decision, when it occurs around the
time of, and in reference to, the adverse employment action complained of, is sufficient to show
that the decision was motivated by discriminatory intent. Hunt v. City of Markham, Ill., 219 F.3d
649, 652-53 (7th Cir. 2000). In this case, it is undisputed that Pitassi recommended to the
commissioners that Figueroa’s employment be terminated. It is also undisputed that the
commissioners followed his recommendation. (Defs.’ Rule 56.1 Stmt. of Material Facts,
(“DSOF”) Exs. W, X, Dkt. No. 45-4.) Pitassi’s discriminatory motive would thus be sufficient to
support a determination that the commissioners’ ultimate decision was improperly motivated.
The record does not contain similar direct evidence of race discrimination, however.
Figueroa asserts that Pitassi, when suggesting that she resign, offered to place her in a job at a
911 call dispatch center and remarked that the center was looking for bilingual employees.
(PSAF Ex. M at 69, Dkt. No. 46-3; PSAF Ex. L at 240, 260, 302, Dkt. No. 46-2.) Although the
alleged remark and its context indicate that Pitassi was expressing an unwillingness to allow
Figueroa to join the police force, the comment does not suggest that his unwillingness was
related to his view of her bilingual abilities. Pitassi’s remark thus fails to raise a direct inference
of racially discriminatory motive.

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II.

Indirect Evidence of Discrimination
A plaintiff may also survive summary judgment by raising a sufficient inference of

discriminatory action through the “indirect” method of proof. Under this method, a plaintiff
seeking to avoid summary judgment must establish a prima facie case of discrimination by
showing that (1) she is a member of a protected class, (2) she met her employer’s legitimate job
expectations, (3) she suffered an adverse employment action, and (4) similarly situated
employees outside of the protected class received more favorable treatment. Lucas v. PyraMax
Bank, FSB, 539 F.3d 661, 666 (7th Cir. 2008). If she can make this showing, her employer then
bears the burden of showing that it had a legitimate, nondiscriminatory reason for the adverse
action of which she complains. Gates v. Caterpillar, Inc., 513 F.3d 680, 690 (7th Cir. 2008). If
the employer makes this showing, the plaintiff still may prevail by presenting sufficient evidence
to support a determination that the asserted legitimate reason was pretextual. Id.
The parties in the present case do not dispute that Figueroa is a member of a protected
class or that she suffered an adverse employment action. The defendants instead argue that they
terminated Figueroa because she was not meeting their job expectations. They also contend that
her failure to meet expectations prevents her from establishing favorable treatment for a similarly
situated employee, since Figueroa’s only asserted comparator, fellow recruit Scudiero, did not
suffer comparable failures.
The deficiencies in Figueroa’s performance identified by the defendants all relate to her
performance at the police academy. The City of Chicago’s academy conducted training classes
for police officer recruits of suburban municipalities and instructed those recruits on state law
requirements for certification as law enforcement officers. (PSAF Ex. N at 6-10, Dkt. No. 46-4.)
Under the academy’s rules, any request for time off, or any performance failure, rules infraction,

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or disciplinary incident by a recruit, mandated that the recruit write a memo to a superior officer
detailing the occurrence and, if necessary, the steps the recruit would take to remedy the
situation. (Id. at 18-20.) Any memo relating to a recruit was forwarded to the academy’s contact
person at the recruit’s home police department. (Id. at 11.) Trak Silapaduriyang, the homeroom
instructor for Figueroa’s class of recruits, communicated with Pitassi about the Village’s recruits.
(Id.at 24-25.)
Figueroa’s term at the academy produced numerous memos. Some apparently related to
technical disciplinary matters. In one memo, Figueroa explained that she had attended class
without her uniform hat and acknowledged that she was required to appear for class in full
uniform and would do so in the future. (DSOF Ex. H, Dkt. No. 45-3.) When she chewed bubble
gum and blew bubbles during a training exercise, one of her superior officers wrote a memo
about the incident and she was directed to write a memo as well. (DSOF Exs. R, S, Dkt. No. 454.) When she changed out of uniform to participate in a plainclothes training exercise, she left
her uniform shirt and badge hanging in a women’s restroom; the officer who found the items
wrote a memo and Figueroa was also required to provide a written explanation. (DSOF Exs.
U,V, Dkt. No. 45-4.) Other memos related to Figueroa’s performance in training. As noted
above, she had difficulties completing training runs; she and her homeroom instructor,
Silapaduriyang, both wrote memos documenting her inability to complete runs on July 8 and
July 11, 2011. (DSOF Exs. J, K, L, Dkt. No. 45-3.) A firearms training instructor reported that, at
a session on June 17, 2011, Figueroa “was unable to perform any of the hands on practical
application of the pistol.” (DSOF Ex. I, Dkt. No. 45-3.)
In July 2011, Steve Rogowski, a Village police department lieutenant, went to the
academy to observe Figueroa and Scudiero. He wrote a memo to Pitassi documenting his visit.

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(DSOF Ex. M, Dkt. No. 45-3.) Rogowski saw a training exercise in which Figueroa and Scudiero
were partners in a scenario that required them to respond to a radio alert of a suspicious person
and ultimately to approach and arrest suspects. (Id.) Rogowski observed that their response “was,
overall and relative to other members of their class, above average.” (Id.) But in discussing
Figueroa specifically, he noted that when the suspect she was arresting yelled, “get your hands
off me,” she released his arm and took a defensive stance. Rogowski observed that academy staff
advised Figueroa on how to correct her procedure in future exercises. (Id.)
Rogowski commented on Figueroa’s apparent “relative lack of physical conditioning”
and reported that he had heard from academy staff that she had been unable to complete training
runs. (Id.) He also stated that he believed she needed to “compensate for her physical
limitations” by “increasing her mental toughness” and “working harder than other recruits.”
Rogowski wrote, “[h]er willingness to [drop out] of runs and quit on her fellow recruits at the
first signs of discomfort may be a signal that during a physical altercation with a criminal she
may quit the fight too easily causing harm to the public, her fellow officers and most likely and
importantly to herself.” (Id.)
An August 12, 2011 memo from recruit training instructor Stanley Williams reported
that, in a suspicious person training exercise, Figueroa, after controlling the suspect, returned to
her car and failed to respond as the suspect went back to his car, received a gun, and approached
her with it. (DSOF Ex. T, Dkt. No. 45-4.) Williams wrote that Figueroa appeared to be
unconcerned with the outcome of the exercise, that she did not appear to be focused on the
exercise, and that she had not appeared to absorb the vehicle stop training. (Id.)
The defendants argue that these and other similar incidents establish that Figueroa was
not meeting their legitimate job expectations, and they cite as support for their arguments various

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cases in which employees have been held to have been properly terminated because of repeated
disciplinary actions, including actions occurring during training. But each of the cited cases
analyzed facts distinguishable from those presented here. For example, in Buntin v. City of
Indianapolis, 500 Fed. Appx. 524 (7th Cir. 2013), the plaintiff, a probationary police officer,
received failing scores in a required training program, never completed the program, and
admitted that she had fairly been given failing grades in “critical” areas upon which advancement
was conditioned. Id. at 525-26. In Sheppard v. Village of Glendale Heights, No. 11-cv-1044,
2014 WL 1227025 (N.D. Ill. Mar. 25, 2014), the employer’s summary judgment motion
identified multiple disciplinary infractions that prevented any finding that the plaintiff was
meeting its expectations; there, the plaintiff admitted the infractions and did not offer any
evidence that she had performed adequately. Id. at *5. Finally, the plaintiff in Garcia v. Illinois
State Police, 545 F. Supp. 2d 823 (C.D. Ill. 2008), was terminated from her attendance at the
state’s police academy after senior officers at the academy recommended her dismissal for
“inability to follow directions, be forthright, or accept responsibility” and for “untruthfulness and
insubordination.” Id. at 829.
Unlike the cases cited by the defendants, Figueroa here has presented evidence that her
missteps at the academy were considered correctable events that would not prevent successful
completion of her training. For instance, Silapaduriyang was asked in his deposition about a
training exercise in which Figueroa stood in an exposed position, called a “fatal funnel,” and was
shot while trying to unjam a malfunctioning gun. (PSAF Ex. N at 183-84, Dkt. No. 46-4.) He
said, “it doesn’t surprise me that the, you know, recruits will get shot because, again, that’s
training. You know, we’re trying to teach them something, to make sure that if it is a fatal funnel,
do not stand there; otherwise, you will get shot.” (Id. at 184.) Silapaduriyang emphasized that a

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recruit’s mistakes in training were not predictors of bad performance as a police officer: “You
have to understand, training – we want you to make mistakes in our training buildings. We don’t
want you to make that same mistake when you’re out on the street.” (Id. at 185.) He further
explained, “That’s how we train. It doesn’t mean that this person is a bad officer or a bad recruit
because he or she stands.” (Id.at 186.) What is more, Silapaduriyang went on to elaborate, “You
know, some people will get it the first training, the first time they do a scenario, some people
don’t. We may have to put them through a couple times.” (Id. at 188.)
Asked about the firearms instructor’s assessment that Figueroa had been unable to
perform any of the practical applications of her pistol, Silapaduriyang responded, “[S]ome
recruits do have problems with the firearms. And I’ll be the first to tell you, when I came through
I never touched a handgun before. The only thing is, as long as they follow instructions, do what
the experts are telling them to do, and at the end if they pass the State qualification – Statemandated qualification, then you know that, you know, the firearm instructor did their job.” (Id.
at 126.) It is undisputed that upon completion of her academy training, Figueroa passed the state
firearms test on her first attempt. (Defs.’ Resp. to Pl.’s Stmt. of Additional Material Facts
(“DAF”) ¶ 5, Dkt. No. 52.)
Williams, the instructor who authored the memo describing Figueroa’s failure to secure a
suspect properly, failure to react as he approached her with a gun, and apparent lack of concern
with her performance on the exercise, testified at his deposition that such failures were
“common” even at the stage of training when the incident occurred, i.e., approximately two
weeks before the end of the academy term. (PSAF Ex. O at 56, Dkt. No. 46-5.) Williams said
that scenario-based training was not assessed on a pass-fail basis or otherwise graded. (Id. at 26.)
He further testified that when a recruit performed an exercise incorrectly, she would be retrained

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and would go through the exercise again. (Id.) After the exercise that prompted Williams’s
memo about Figueroa, she was retrained on the proper approach to the scenario and performed
the exercise correctly thereafter. (Id. at 52-54.) And the parties do not dispute that Figueroa
completed her academy training, passed the tests required for certification as a law enforcement
officer under Illinois law, and was certified as a qualified law enforcement officer by the state.
(DAF ¶ 2, Dkt. No. 52.)
Figueroa has thus presented evidence sufficient to raise an inference that in the eyes of
her instructors, she successfully completed her academy training. In response to this inference,
the defendants contend that Figueroa was not an employee of the City of Chicago’s police
department or its police academy, that the Village was entitled to set its own standards regarding
success for its recruits, that it could set higher performance standards than the academy, and that
Figueroa’s failure to meet those standards defeats her claim that she was meeting the
expectations of her position. The defendants correctly observe that their application of higher
standards need not be accurate, wise, or well-considered; rather, the application of those
standards need only be the honest reason for the action taken. Ptasznik v. St. Joseph Hosp., 464
F.3d 691, 696 (7th Cir. 2006).
But when asked at his deposition about the standards that Figueroa failed to meet, Pitassi
identified the standards “that are set forth by the Chicago Police Academy.” (PSAF Ex. P at 25,
Dkt. No. 46-6.) Asked if the Village had specific physical performance tests, Pitassi further
testified: “No, not after the academy, just should be in good physical condition.” (Id. at 37.)
Pitassi also acknowledged that the Village had no written standards for its police officers’
physical performance, stating “[t]hat’s what the academy is for.” (Id. at 38.)

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This evidence supports an inference that Pitassi shared the view of the academy training
process expressed by the academy instructors themselves—that successful completion of the
academy training course and certification by the state constituted sufficient performance to
permit recruits to progress to the next stage in their employment progression, which was field
training with the Village police department. A factfinder accepting this view of the evidence
could therefore conclude that the Village’s true expectation of recruits during their academy
training was that they successfully complete the course of study and the certification process.
Such a finding would support a determination that Figueroa was meeting the Village’s legitimate
expectations and that its claims to the contrary were a pretext for discrimination. Conversely, the
evidence could also support an inference that Pitassi honestly believed that Figueroa’s early
performance difficulties were too serious to be cured, no matter how well she performed later.
The conflicting inferences regarding whether Figueroa was meeting the Village’s expectations
create a disputed issue of material fact. Tarochine v. Roberts Pipeline, Inc., No. 13-cv-1304,
2014 WL 6786268, at *6-7 (N.D. Ill. Dec. 3, 2014); Pu v. Columbia Coll. Chicago, 934 F. Supp.
2d 964, 971-72 (N.D. Ill. 2013).
The conflicting evidence of the defendants’ legitimate expectations of Figueroa creates a
factual dispute as to whether her fellow recruit Scudiero is a similarly situated comparator for
purposes of showing discrimination through the indirect method of proof. The parties do not
dispute that Scudiero is a white male and that, upon completion of his academy training and state
certification at the same time as Figueroa, he received an assignment with the Village police
department while she was terminated. (DAF ¶¶ 2, 4, Dkt. No. 52.) If successful completion of
the academy training and state certification process are the only honestly-held Village measures
for inclusion on its police force, Figueroa and Scudiero are similarly situated. Scudiero, as a

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white male, received better treatment, and a jury could find that the defendants’ reliance on
Figueroa’s academy performance as the reason for her termination is pretextual. On the other
hand, as noted above, if a factfinder accepted academy performance as the defendants’ goodfaith basis for differentiating between recruits, a jury could find that Figueroa and Scudiero were
not similarly situated. Whether a comparator is similarly situated is usually a question for the
factfinder, and summary judgment is generally appropriate only when no reasonable factfinder
could find that the plaintiff has met her burden on the issue. Srail v. Village of Lisle, 588 F.3d
940, 945 (7th Cir. 2009). The issue is properly reserved for the jury here.
CONCLUSION
For the reasons detailed above, Figueroa has presented sufficient evidence of gender
discrimination under both the direct and indirect methods of proof to establish disputed issues of
material fact on her claims. She has also presented sufficient evidence of race discrimination
under the indirect method of proof to show disputed issues of material fact. The defendants’
motion for summary judgment is therefore denied.

ENTERED:

Dated: August 31, 2015

__________________________
Andrea R. Wood
United States District Judge

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