Spangler et al v. Board of Trustees of the University of Illinois et al
Filing
84
MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 11/6/2015:Mailed notice(wp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
TIMOTHY SPANGLER and ANTHONY
ROBINSON,
Plaintiffs,
v.
Case No. 13 C 4859
BOARD OF TRUSTEES OF THE
UNIVERSITY OF ILLINOIS,
ALFRED PERALES, Individually,
ERIC HERSEY, Individually,
FRANK CAPPITELLLI,
Individually, and JOHN
RICHARDSON, Individually,
Judge Harry D. Leinenweber
Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiffs Anthony Robinson (“Robinson”) and Timothy Spangler
(“Spangler”) (the “Plaintiffs”), two officers with the University
of Illinois at Chicago Police Department (the “UICPD”), claim that
the Board of Trustees of the University of Illinois (the “Board”)
and
four
subjected
individual
them
retaliation.
to
Defendants
racial
(the
“Individual
discrimination,
Defendants”)
harassment,
Defendants have moved for summary judgment as to
both Robinson [ECF No. 58] and Spangler [ECF No. 55].
reasons
stated
and
herein,
Defendants’
Motion
as
to
For the
Robinson
is
granted in part and denied in part, and Defendants’ Motion as to
Spangler is granted.
I.
As
an
initial
matter,
BACKGROUND
the
Court
must
address
Defendants’
request to strike Plaintiffs’ Local Rule 56.1(b)(3)(C) statements
of additional facts.
Local
Rule
(See, ECF No. 68 at 3; ECF No. 69 at 3.)
56.1(b)(3)(B)
requires
that
the
non-moving
party
respond to the moving party’s statement of facts and include, “in
the
case
of
any
disagreement,
specific
references
to
the
affidavits, parts of the record, and other supporting materials
relied upon.”
However, “[i]t is inappropriate for a non-movant to
include . . . facts extraneous to the substance of the paragraph
to which the non-movant is responding.”
Johnson v. Cnty. of Cook,
No. 08 C 2139, 2012 WL 2905485, at *12 (N.D. Ill. July 16, 2012).
Instead, additional facts requiring the denial of summary judgment
must
be
asserted
in
a
separate
statement
pursuant to Local Rule 56.1(b)(3)(C).
striking
will
Plaintiffs’
“ignore
statements
extraneous
of
matter
of
additional
facts
Accordingly, and in lieu of
additional
in
facts,
the
[Plaintiffs’]
Court
Local
Rule 56.1(b)(3)(B) responses,” but consider those facts “relevant
to showing that [Defendants’] Local Rule 56.1(a)(3) assertions are
genuinely disputed.”
Levin v. Grecian, 974 F.Supp.2d 1114, 1118
(N.D. Ill. 2013).
Robinson,
who
UICPD since 2008.
is
biracial,
has
served
as
an
officer
with
Spangler, who is Caucasian, has served as a
- 2 -
UICPD officer since 1990.
In 2007, Spangler assumed the role of
sergeant, and in 2008, he was selected as third watch commander.
The Individual Defendants were all part of the UICPD chain of
command
during
(“Richardson”),
the
who
relevant
is
from 2004 until 2014.
time
period.
African-American,
John
served
as
Richardson
UICPD
Chief
Frank Cappitelli (“Cappitelli”), who is
Caucasian, served as UICPD Field Services Division Commander from
2001 to 2014 and reported directly to Chief Richardson. Just below
Cappitelli, Alfred Perales (“Perales”), who is Hispanic, and Eric
Hersey
(“Hersey”),
who
is
African-American,
served
as
Field
Services lieutenants.
In October 2012, Perales was transferred to
Protective
where
Services,
he
worked
as
an
Internal
Affairs
lieutenant until his retirement in 2014. Lieutenants in this role
typically assist in the investigation of complaints against UICPD
personnel.
A.
Facts Specific to Robinson
The issues giving rise to this lawsuit began early in 2012.
On or about January 26, 2012, Perales asked Robinson about his
failure
to
shave
in
accordance
with
UICPD
grooming
policy.
Robinson had brought in a doctor’s note seeking an exemption from
shaving based on a skin condition, but the note contained little
information.
University
of
Perales subsequently requested that Robinson visit
Illinois
at
Chicago
obtain an exemption.
- 3 -
(“UIC”)
Health
Services
to
Around
Perales’
February
office,
16,
where
2012,
Hersey
Robinson
was
also
met
with
present.
Perales
Perales
in
told
Robinson an anecdote, which he recounted as follows:
Early on in my career I was approached by both UIC
officers and Chicago police officers . . . and they used
to tell me — and I used the N word, I used the word
“nigger” . . . “We don’t back those N word — we don’t
hang out with those guys, you shouldn’t do that.”
And
my response to [Robinson] was that I used to tell them,
meaning the UIC and CPD officers that would use that
type of language, that I didn’t condone it, that I
didn’t appreciate them talking like that around me . . .
I then related to Officer Robinson, “So, please Anthony,
don’t put that moniker on me. That’s not what I’m
about.”
(Perales Dep. at 103:4–104:8.)
Several
weeks
passed,
and
called Robinson to his office.
in
early
March,
Perales
again
Robinson told Perales that he had
scheduled a doctor’s appointment, and then told Perales to look at
the bumps and scars on his face.
Perales responded: “[O]h, yeah,
I see it, it must be the nigger in you.”
161:16.)
(Robinson Dep. at 161:8–
Another officer — Stephen Pawlik (“Pawlik”) — overheard
Perales’ comment.
On March 14, 2012, Robinson submitted a grievance about this
incident through the Metropolitan Alliance of Police (“MAP”).
The
following day, Robinson was asked to submit a sworn complaint as
part
of
the
submitted the
UICPD
disciplinary
complaint
on
May
process.
29,
2015.
Robinson
After
ultimately
completing
its
investigation on June 21, 2012, Internal Affairs recommended that
- 4 -
Perales receive a five-day suspension, but in late July, Chief
Richardson suspended Perales for twenty days.
Robinson testified that on numerous occasions after he filed
his grievance, Perales followed him while he was on duty. Pawlik
also observed this behavior, and Spangler reported that Perales
paid closer attention to Robinson than to other officers.
On September 13, 2012, Robinson filed a second MAP grievance,
in which he stated that Perales had told another officer that
Robinson and Pawlik needed to “watch [their] asses.”
Dep.
at
258:9–12.)
Robinson
filed
a
complaint
(Robinson
with
Internal
Affairs the following day, claiming that Perales had threatened
him.
Perales was not found to have engaged in any wrongdoing, but
Chief
Richardson
ultimately
reassigned
Perales
to
Protective
Services, so that he was no longer in Robinson’s line of command.
In late 2012, a sergeant position opened up.
application process involved a civil service exam.
Part of the
The top three
scorers on the civil service exam typically receive interviews
with a panel of three UICPD commanders, including Cappitelli.
Due
to a tie, however, the top four scorers — Robinson, Gerald Jenkot
(“Jenkot”),
Christopher
Gramley
(“Gramley”),
and
Henry
Jackson
(“Jackson”) — interviewed.
After
the
interviews,
the
commanders
ranked
the
four
candidates and provided their assessment to Chief Richardson in a
written report.
The commanders ranked Jenkot first and Robinson
- 5 -
fourth.
They noted that Robinson — who had been a UICPD officer
for four years at that point — had limited street experience and
had the highest use of benefit time.
ECF No. 61-29, at 2.)
(See, Robinson Ex. 101,
“Although this officer may one day be a
fine supervisor,” the commanders’ report concluded, “this is not
the day.”
The
(Id.)
commanders
noted
that
Jenkot
–
who
had
been
a
UICPD
officer for fourteen years — had the most experience, received
strong letters of recommendation, and had previously acted in the
capacity of interim sergeant at UIC’s hospital.
(Id. at 1.) The
commanders unanimously recommended Jenkot, who is Caucasian, even
though
he
had
received
a
disciplinary
suspension
seven
years
position,
Chief
earlier.
In
evaluating
candidates
for
the
sergeant
Richardson considered the commanders’ recommendation, the number
of
years
each
candidate
had
served,
interacted with the UIC community.
and
how
the
candidate
Chief Richardson testified
that he did not consider the amount of time that the candidate had
taken off of work in making his decision.
139:11–12, 150:10–16.)
(Richardson Dep. at
Robinson disputes this fact, noting that
Chief Richardson reviewed and signed a report to UIC’s Office for
Access
and
Equity
that
Cappitelli
Robinson’s attendance record.
- 6 -
authored,
which
referenced
Throughout 2012, Robinson used vacation time, holidays, sick
time, and Family Medical Leave Act (“FMLA”) time to care for his
mother.
From January 1 to October 31, 2012, Robinson used 508
hours of benefit time, a portion of which constituted FMLA time.
(See, Robinson Exs. 72 & 79, ECF Nos. 61-21 & 61-23.)
The exact
amount of hours constituting FMLA leave is disputed.
B.
Facts Specific to Spangler
Spangler testified that on March 22, 2012, after Robinson had
filed
his
MAP
grievance,
Perales
and
Hersey
asked
him
to
“go
against” Robinson and Pawlik and “get some shit on them and write
them
up.”
(Spangler
Dep.
at
232:21–233:4.)
According
to
Spangler, Hersey stated that Spangler had to take action so that
Perales seemed uninvolved.
Spangler told Hersey that he would
treat all officers the same.
After
this
meeting,
Spangler
received
two
notices
of
infraction, one on March 22, 2012, and another on May 28, 2012.
The
March
notice
involved
Spangler’s
watch.
missing
Hersey
had
medical
asked
all
questionnaires
sergeants
to
from
return
completed questionnaires by March 19, 2012, but had only received
two of seventeen from Spangler.
Spangler told Hersey that he had
not submitted the questionnaires because he had been on vacation.
On
March
violation
rescinded.
26,
of
2012,
any
Hersey
order,
informed
and
the
Spangler
notice
of
he
was
not
infraction
in
was
Nevertheless, Spangler filed a grievance through the
- 7 -
Fraternal Order of Police on March 27, 2012.
In a June 13, 2012
report, Chief Richardson concluded that the notice of infraction
had been unfounded.
On May 24, 2012, a serious incident occurred on campus. UIC’s
vice chancellor had previously asked UICPD to inform him of any
serious incidents, and when he learned what happened, he contacted
Chief
Richardson
to
find
out
why
he
had
not
been
notified.
Perales issued a notice of infraction on Spangler to see why the
incident had not been reported.
Spangler noted that UICPD policy
did not require him to notify the vice chancellor. Accordingly,
Chief Richardson signed a finding on August 27, 2012 that the
notice of infraction was “not sustained.”
In June 2012, UICPD sergeants had the opportunity to select
their shift or “watch.”
Sergeants typically pick their shifts
every six months based on seniority.
watch
commander
since
2008.
Spangler had served as third
The
parties
dispute
whether
Cappitelli had been satisfied with Spangler’s performance up until
June 2012.
In any case, during the June 2012 selections, Sergeant
Todd Edwards (“Edwards”), the second watch commander, was bumped
into
third
Spangler
—
watch.
now
in
With
the
two
watch
commanders
third
watch
running,
—
Edwards
Cappitelli
and
chose
Edwards to be third watch commander because he believed Edwards,
who
is
Spangler.
African-American,
was
a
more
effective
leader
than
Cappitelli also expressed concerns that Spangler did
- 8 -
not wish to be in Field Services, and did not spend sufficient
time monitoring his officers or ensuring their compliance with
UICPD policies.
Cappitelli discussed his decision with Perales,
but stated that the decision was his alone to make.
As third
watch commander, Edwards selected Sergeant Stan Grice (“Grice”),
who is African-American, as his alternate.
Edwards testified that
he was under no pressure to choose Grice.
(“Dudek”)
stated
that
Edwards
told
her
Sergeant Donna Dudek
he
wanted
to
choose
Spangler, but was directed by Cappitelli to choose Grice.
In
late
July,
Spangler
filed
a
grievance
through
the
Fraternal Order of Police relating to the selection of Edwards as
third
watch
commander.
Spangler
stated
Edwards.
On
that
In
the
Perales
September
6,
grievance,
told
2012,
him
and
that
Spangler
at
he
deposition,
had
filed
a
selected
charge
of
discrimination claiming that he had been demoted based on his race
and in retaliation for not targeting Robinson.
II.
LEGAL STANDARD
Summary judgment is appropriate when “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).
Material
facts are those that affect the outcome of the lawsuit.
Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A genuine
dispute exists “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Id.
- 9 -
The moving
party may meet its burden by showing “there is an absence of
evidence to support the nonmoving party’s case.” Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986).
If the moving party satisfies
its initial burden, the non-moving party must demonstrate with
evidence “that a triable issue of fact remains on issues for which
[it] bears the burden of proof.” Knight v. Wiseman, 590 F.3d 458,
463–64 (7th Cir. 2009).
The
judge’s
role
at
summary
judgment
is
credibility determinations or weigh the evidence.
Haupert,
whether
481
a
F.3d
genuine
543,
issue
550
of
(7th
Cir.
material
2007).
fact
not
to
make
Washington v.
In
exists,
determining
the
Court
construes all evidence in the light most favorable to the nonmoving party.
Bellaver v. Quanex Corp., 200 F.3d 485, 491-92 (7th
Cir. 2000).
III.
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AS TO ROBINSON
A. Hostile Work Environment (Counts I & IV)
In Counts I and IV, Robinson claims that Defendants subjected
him to racial harassment and created a hostile work environment.
Robinson argues that because Perales was his supervisor, the Board
is vicariously liable for his actions. Even if Perales was not his
supervisor, Robinson argues, the Board would still be liable for
Chief Richardson’s delay in disciplining Perales.
Robinson does
not address how Hersey or Cappitelli’s actions contributed to a
hostile work environment.
- 10 -
To survive summary judgment on a hostile work environment
claim, a plaintiff must provide evidence sufficient to show that
“(1) [he] was subject to unwelcome harassment; (2) the harassment
was
based
on
[his]
race,
(3)
the
harassment
was
severe
and
pervasive enough to alter the conditions of [his] employment and
create a hostile or abusive atmosphere, and (4) there is a basis
for employer liability.”
713 (7th Cir. 2004).
claim,
courts
including
Luckie v. Ameritech Corp., 389 F.3d 708,
In assessing a hostile work environment
consider
“the
the
frequency
“totality
of
the
of
the
discriminatory
circumstances,”
conduct;
its
severity; whether it was physically threatening or humiliating, or
a mere offensive utterance; and whether it unreasonably interferes
with an employee’s work performance.”
650
F.3d
640,
647
quotations omitted).
(7th
Cir.
Ellis v. CCA of Tenn. LLC,
2011)
(citation
and
internal
“A hostile work environment must be both
objectively and subjectively offensive.”
Luckie, 389 F.3d at 714.
As the Seventh Circuit has observed, few actions can more
quickly create an abusive working environment than a supervisor’s
use
of
a
racial
epithet
in
front
of
subordinates.
Rodgers
v.
Western-Southern Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993).
There
is
no
“magic
number”
of
episodes
generates a hostile work environment.
that
automatically
Cerros v. Steel Techs.,
Inc., 288 F.3d 1040, 1047 (7th Cir. 2002).
“A sufficiently severe
episode may occur as rarely as once, while a relentless pattern of
- 11 -
lesser harassment that extends over a long period of time also
violates the statute.”
Id. (citations omitted).
The racial epithet that Perales used is reprehensible in any
context.
However, Robinson has failed to show how Perales’ use of
this term on two isolated occasions created a work environment
that
was
“objectively
language
was
threatening.
hostile
humiliating,
it
or
offensive.”
was
not
Although
frequent
or
Perales’
physically
The first time Perales used the term, he was quoting
other officers in apparent disapproval.
The impact of harassing
language that is not directed at the plaintiff “is obviously not
as great” as the impact of harassment that is.
Smith v. Ne. Ill.
Univ., 388 F.3d 559, 567 (7th Cir. 2004) (citation and internal
quotations omitted). Moreover, Robinson has presented no evidence
that Perales’ language interfered with his job performance, which,
according
to
improving.
his
(See,
own
testimony,
Robinson
Dep.
was
at
exemplary
and
57:21–59:5.)
continually
Based
on
the
context and frequency of Perales’ language, and Robinson’s own
self-assessment of his ability to do his job, the Court cannot
conclude that Perales’ conduct was so severe and pervasive as to
alter the conditions of Robinson’s employment.
It
is
undisputed
that
Robinson
did
not
file
an
internal
complaint against Perales until May 29, 2012, and that Internal
Affairs completed its investigation less than a month later.
the
end
of
July,
Chief
Richardson
- 12 -
had
served
Perales
with
By
a
disciplinary
suspension
recommendation
basis
for
by
notice
exceeding
days.
The
fifteen
liability
under
Robinson’s
Internal
Court
Affairs’
therefore
alternative
finds
theory,
no
and
grants Defendants summary judgment on Counts I and IV.
B.
Racial Discrimination (Count II)
In Count II, Robinson claims that Defendants discriminated
against him on the basis of race when they failed to promote him
to
sergeant.
A
plaintiff
may
establish
racial
discrimination
based on a failure to promote under either the direct method of
proof,
or
the
indirect,
burden-shifting
method
established
in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Fischer v.
Avanade, Inc., 519 F.3d 393, 401 (7th Cir. 2008).
Under the
indirect method, a plaintiff must show that (1) he is a member of
a protected class, (2) he applied for and was qualified for the
position sought, (3) he was rejected for that position, and (4)
the position was given to someone outside the protected class who
was not better qualified than the plaintiff.
Id. at 402.
If the
plaintiff makes such a showing, the burden then shifts to the
defendant
to
set
forth
evidence
supporting
employment decision was non-discriminatory.
a
Id.
finding
that
the
If the defendant
presents a legitimate, non-discriminatory basis for not promoting
the plaintiff, the burden shifts back to the plaintiff to show
that the defendant’s proffered explanation is pretextual.
- 13 -
Id.
When an employer’s proffered non-discriminatory reason for an
employment
decision
is
that
it
selected
the
most
qualified
candidate, “evidence of the applicants’ competing qualifications
does not constitute evidence of pretext unless those differences
are so favorable to the plaintiff that there can be no dispute
among reasonable persons of impartial judgment that the plaintiff
was
clearly
better
Millbrook
v.
IBP,
(citation
and
qualified
Inc.,
280
internal
for
F.3d
the
1169,
quotations
position
1180
at
(7th
omitted).
issue.”
Cir.
That
2002)
is,
the
plaintiff’s credentials must be so superior “that no reasonable
person, in the exercise of impartial judgment, could have chosen
the
candidate
question.”
selected
Id.
at
over
1180–81
the
plaintiff
(citation
and
for
the
internal
job
in
quotations
omitted).
Here, Defendants contend that they chose Jenkot because he
was
more
qualified
fourteen
years
of
interim
sergeant
than
Robinson
experience
at
UIC’s
to
—
specifically,
Robinson’s
hospital,
four,
and
Jenkot
worked
received
as
had
an
strong
recommendations from his peers. Challenging these qualifications,
Robinson
argues
that
a
jury
could
infer
that
he
was
the
top
candidate because he had superior policing statistics and test
scores, had received numerous Officer of the Month awards, and
supervisors
frequently
asked
him
- 14 -
for
assistance.
Moreover,
Robinson argues, Jenkot was ineligible for promotion because of
his prior disciplinary incident.
Robinson’s
evidence
is
problematic
for
several
reasons.
First, although UICPD used civil service exam scores to determine
who would interview for the sergeant position, the scores were not
dispositive of who would be promoted.
Second, even if Robinson
had superior policing statistics, it is undisputed that such data
was not used in evaluating sergeant candidates.
Indeed, two of
the four candidates — Jenkot and Gramley — were not included in
officer
statistical
reports
because
they
did
not
work
patrol.
Finally, Chief Richardson stated that Jenkot was eligible for the
sergeant position in spite of his prior disciplinary incident.
(Richardson
arguments
to
Supp.
Decl.,
the
ECF
contrary,
No.
69-1,
Robinson
¶
has
6.)
Despite
produced
no
his
concrete
evidence demonstrating that Jenkot could not be promoted.
Even
if
Robinson’s
remaining
evidence
—
that
supervisors
routinely asked for his assistance and that he received awards —
was
sufficient
Jenkot,
to
Robinson
establish
has
failed
that
to
he
was
produce
more
qualified
evidence
Defendants’ selection of Jenkot was pretextual.
showing
than
that
“To show pretext,
a plaintiff must show that (1) the employer’s non-discriminatory
reason was dishonest, and (2) the employer’s true reason was based
on a discriminatory intent.”
internal
quotations,
and
Fischer, 519 F.3d at 403 (citation,
alterations
- 15 -
omitted).
Even
when
a
business decision is unreasonable, “pretext does not exist if the
decision-maker
honestly
believed
the
nondiscriminatory
reason.”
Stockwell v. City of Harvey, 597 F.3d 895, 902 (7th Cir. 2010)
(citation omitted).
As evidence of pretext, Robinson notes that Jenkot received a
lower test score on the civil service exam and had no supervisory
duties while serving as interim sergeant at the hospital.
But, as
the Seventh Circuit has cautioned, “evidence of . . . competing
qualifications does not constitute evidence of pretext” unless a
plaintiff’s
qualifications
applicant’s.
decade
less
are
clearly
superior
Millbrook, 280 F.3d at 1180.
experience
than
Jenkot
—
to
the
chosen
Robinson — who had a
has
not
shown
that
his
qualifications were so superior that no reasonable employer could
have
selected
departments”
business
charged
decision
Defendants
that
Jenkot.
with
was
do
was
correct.
ample
the
more
not
determining
offered
have
Jenkot
Courts
sit
qualified
“superpersonnel
whether
Stockwell,
evidence
as
597
supporting
and
an
employer’s
F.3d
at
their
experienced
902.
belief
candidate.
Because Robinson has not provided any evidence suggesting that
this rationale
was
a
lie,
the
Court
grants
Defendants
summary
judgment on Count II.
C.
In
Count
III,
Retaliation (Count III)
Robinson
asserts
that
Defendants
retaliated
against him based on his complaints of racial discrimination and
- 16 -
harassment.
As with his underlying discrimination claim, Robinson
may establish retaliation under the direct or indirect method of
proof.
Under the direct method, Robinson must produce evidence
sufficient to show that “(1) he engaged in a statutorily protected
activity;
(2)
he
suffered
a
materially
adverse
action
by
his
employer; and (3) a causal connection exists between the two.”
Stephens v. Erickson, 569 F.3d 779, 786 (7th Cir. 2009).
“Under
the indirect method, the first two elements remain the same, but
instead of proving a direct causal link, the plaintiff must show
that he was performing his job satisfactorily and that he was
treated less favorably than a similarly situated employee who did
not complain of discrimination.”
establishes
burden
a
prima
shifts
nondiscriminatory
defendant
clears
facie
case
to
the
back
reason
this
for
its
hurdle,
Id. at 786–87.
under
the
indirect
defendant
action.
it
is
If a plaintiff
to
Id.
the
adverse
employment
at
plaintiff’s
actions
the
articulate
demonstrate that the defendant’s reason is pretextual.
Unlike
method,
787.
If
burden
a
a
to
Id.
required
for
a
discrimination claim, the anti-retaliation provisions of Title VII
and § 1981 are “not limited to discriminatory actions that affect
the terms and conditions of employment.”
Burlington Northern &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 64 (2006). Instead, a
materially adverse action is one that might dissuade a reasonable
- 17 -
employee “from making or supporting a charge of discrimination.”
Id. at 57.
Robinson
contends
that
the
following
materially adverse employment actions:
four
incidents
were
(1) Perales’ monitoring of
him, (2) Perales’ “heightened scrutiny” of his job performance,
(3) Chief Richardson’s decision to promote Jenkot, and (4) Chief
Richardson’s reassignment of Perales to Protective Services.
The
Court notes that Robinson’s claim focuses exclusively on Perales’
and
Chief
Richardson’s
actions,
and
does
not
attribute
any
retaliatory conduct to Cappitelli or Hersey.
Robinson
investigation,
was
never
and
he
disciplined
appears
not
or
to
subject
have
suffered
consequences as a result of Perales’ conduct.
jury
could
reasonably
infer
that
to
a
formal
any
formal
Nevertheless, a
aggressive
monitoring,
“heightened scrutiny,” and the denial of a higher paying position,
are sufficiently adverse actions that could prevent employees from
complaining of discrimination.
Likewise, a jury could infer that
transferring Perales — the subject of a discrimination complaint —
to the internal unit charged with investigating such complaints,
might also dissuade employees.
the
direct
method,
a
circumstantial evidence.
To
plaintiff
establish
may
rely
causation
on
under
direct
or
Lang v. Ill. Dep't of Children & Family
Servs., 361 F.3d 416, 419 (7th Cir. 2004).
Although temporal
proximity
causation,
may
serve
as
important
- 18 -
evidence
of
it
is
insufficient to establish causation without “other evidence that
supports the inference of a causal link.”
Id.
In support of his
causation argument, Robinson relies on (1) evidence that Perales
directed Spangler to target him eight days after he complained of
racial
harassment,
complaints
and
(Robinson
Resp.,
and
(2)
Perales’
ECF
the
temporal
monitoring
No. 63,
at
proximity
and
14.)
between
heightened
The
Court
his
scrutiny.
finds
this
combination of circumstantial evidence sufficient to establish a
nexus between Robinson’s complaints and Perales’ conduct.
See,
Lang, 361 F.3d at 419 (“Close temporal proximity provides evidence
of
causation,
and
may
permit
a
plaintiff
to
survive
summary
judgment provided that there is also other evidence that supports
the inference of a causal link.”).
Ignoring
complaints
Richardson’s
the
and
potential
Perales’
actions.
connection
actions,
Here,
between
Defendants
Robinson’s
Robinson’s
focus
evidence
on
falls
Chief
short.
Robinson argues that Chief Richardson was “waiting in the weeds”
for the opportunity to deny him a promotion, but has failed come
up with any evidence linking Chief Richardson’s decision to his
complaints.
Indeed, the record is clear that Chief Richardson
responded to Robinson’s internal complaint by suspending Perales
for twenty days instead of five.
Robinson’s claim as to Chief Richardson fares no better under
the indirect method of proof.
Here, Robinson directs the Court’s
- 19 -
attention to the arguments raised in his failure to promote claim.
(See, Pl.’s Resp., ECF No. 63, at 14 n.12.) However, as discussed
above, those arguments fail because Robinson has no evidence that
Chief Richardson’s reason for choosing Jenkot — qualifications and
experience he believed to be superior — was pretextual.
The
Judgment
Court
on
therefore
Count
II
as
grants
to
Defendants’
Defendants
Motion
for
Richardson,
Summary
Hersey,
and
Cappitelli, but denies the Motion as to Defendant Perales and the
Board.
D.
In
Count
IX,
FMLA Retaliation (Count IX)
Robinson
asserts
that
Defendants
retaliated
against him based on his use of FMLA leave when they failed to
promote him to sergeant.
employer
to
retaliate
Under the FMLA, it is unlawful for an
against
an
attempts to exercise FMLA rights.
employee
that
exercises
29 U.S.C. § 2615(a)(2).
or
The
Court evaluates FMLA retaliation claims under the same framework
as Title VII and § 1981 retaliation claims.
See, Pagel v. TIN
Inc., 695 F.3d 622, 631 (7th Cir. 2012).
Robinson argues that a reasonable jury could infer causation
because Cappitelli and Chief Richardson held the use of FMLA time
against Robinson, but not against other candidates. However, even
though Cappitelli mentioned the use of FMLA time in the report
that was submitted to Chief Richardson, Chief Richardson testified
that he did not look at time off in making the sergeant decision.
- 20 -
(See,
Richardson
Dep.
at
139:11–12,
150:10–16.)
Thus,
Cappitelli’s reference to benefit time provides no evidence that
Robinson was denied the promotion based on his use of FMLA leave.
Because Robinson has failed to show that his use of FMLA leave
time
informed
Chief
retaliation fails.
Richardson’s
decision,
his
claim
for
FMLA
The Court therefore grants Defendants’ Motion
for Summary Judgment on Count IX.
IV.
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AS TO SPANGLER
A.
In
Count
against
him
V,
Retaliation (Count V)
Spangler
based
on
asserts
refusal
his
that
to
Defendants
“go
retaliated
against”
Robinson.
According to Spangler, Defendants’ retaliatory acts included (1)
the two notices of infraction he received, (2) his removal from
watch
commander,
Services.
and
(3)
Perales’
reassignment
to
Protective
Defendants contend that Spangler cannot establish a
retaliation claim under the direct method of proof because he did
not engage in protected conduct, suffered no adverse employment
actions, and cannot establish causation.
his
claim
fails
under
the
indirect
They also contend that
method
because
he
has
no
evidence of pretext.
Title VII’s anti-retaliation provision extends to employees
who have “opposed any practice” made unlawful by Title VII.
42
U.S.C. § 2000e–3(a).
Spangler has presented evidence that Perales
and
him
Hersey
ordered
to
take
- 21 -
retaliatory
actions
against
Robinson based on Robinson’s complaints of racial discrimination,
and that he refused to comply.
ECF No.
64-22.)
The
Court
(See, e.g., Spangler Ex. 49,
finds
that
in
opposing
Perales’
directive, Spangler engaged in protected conduct.
Defendants
were
not
argue
materially
infraction,
the
that
Spangler’s
adverse.
Court
With
agrees.
claimed
respect
As
noted
retaliatory
to
the
acts
notices
previously,
in
of
the
retaliation context, materially adverse actions are “not limited
to discriminatory actions that affect the terms and conditions of
employment.”
Burlington,
548
U.S.
at
64.
Nevertheless,
even
under this more lenient standard, the Seventh Circuit has noted
that
“unfair
reprimands
or
negative
performance
evaluations,
unaccompanied by some tangible job consequence, do not constitute
adverse employment actions.”
665,
671
(7th
Cir.
2010)
Jones v. Res-Care, Inc., 613 F.3d
(citation
and
internal
quotations
omitted); see also, Chaib v. Ind., 744 F.3d 974, 987 (7th Cir.
2014)
(“Even
under
the
more
generous
standard
that
governs
retaliation claims, a reprimand without more is not an adverse
employment action.”) (citation and internal quotations omitted),
cert. denied, 135 S.Ct. 159 (2014).
Although Spangler was issued
two
and
notices
their
of
infraction,
accusations
of
Perales
wrongdoing
after
Hersey
speaking
quickly
with
dropped
him.
The
notices of infraction were, at most, “unfair reprimands” that were
- 22 -
quickly laid to rest and unlikely to dissuade other employees from
complaining of racial discrimination.
That
Perales’
leaves
Spangler’s
reassignment
established
that
a
to
removal
from
Protective
decrease
in
watch
commander
Services.
wages
or
It
loss
of
and
is
well
a
more
distinguished title may constitute a materially adverse action.
See, Oest v. Ill. Dep’t of Corr., 240 F.3d 605, 612–13 (7th Cir.
2001).
Because
Spangler
has
presented
evidence
that
watch
commanders earn more than other sergeants, and that within UICPD,
watch commander is a relatively prestigious position, he has shown
that
his
removal
from
this
position
constituted
an
adverse
employment action.
Causation, however, is problematic.
As an initial matter,
Spangler must show that the decision-maker responsible for his
removal was at least aware of his protected conduct.
See, Bernier
v. Morningstar, Inc., 495 F.3d 369, 376 (7th Cir. 2007).
Both
Chief Richardson and Cappitelli testified that the decision to
remove
Spangler
(Richardson
Dep.
rested
at
squarely
124:12–15;
in
Cappitelli
Cappitelli’s
Dep.
at
hands.
37:15–38:9.)
“While I did discuss it with Lt. Perales,” Cappitelli stated, “the
decision was mine to make based upon my individual evaluation of
the performance and leadership of the Field Services Division’s
sergeants based on over 30 years of law enforcement supervisory
- 23 -
experience.”
(Cappitelli
Decl.,
Defs.’
Ex.
F,
ECF
No.
57-7,
¶ 18.)
Spangler testified that Perales told him that he made the
decision, (see, Spangler Dep. at 108:15–22, 116:7–18), but this
statement is hearsay and fails to create a triable issue of fact
as to who removed Spangler from watch commander.
See, Gunville v.
Walker, 583 F.3d 979, 985 (7th Cir. 2009) (“A party may not rely
upon
inadmissible
judgment.”).
hearsay
to
oppose
a
motion
for
summary
In the absence of evidence that Cappitelli knew of
his protected conduct, Spangler cannot show causation under the
direct method of proof or pretext under the indirect method.
As for Perales’ reassignment to Protective Services, Spangler
does not show how this action is connected to his initial refusal
of Perales’ order, which took place seven months earlier.
The
Court thus finds that Defendants are entitled to summary judgment
on Count V.
B.
In
Counts
Racial Discrimination (Counts VI & VII)
VI
and
VII,
Spangler
claims
that
Defendants
subjected him to discriminatory treatment when they removed him
from the position of third watch commander and kept Edwards from
selecting him as his alternate.
In a reverse discrimination case
such as this one, a plaintiff must establish a prima facie case of
racial discrimination under a modified version of the McDonnell
- 24 -
Douglas test. Under the indirect method of proof, the plaintiff
must show the following:
(1) [B]ackground circumstances that demonstrate that a
particular
employer
has
reason
or
inclination
to
discriminate invidiously against whites or evidence that
there is something ‘fishy’ about the facts at hand; (2)
that [he] suffered an adverse employment action; and (3)
that [he] was treated less favorably than similarly
situated individuals who are not members of the
protected class.
Good v. Univ. of Chi. Med. Ctr., 673 F.3d 670, 678 (7th Cir. 2012)
(citation
and
internal
quotations
omitted).
If
a
plaintiff
satisfies his or her initial burden, the burden then shifts to the
defendant to present a legitimate, nondiscriminatory reason for
its decision.
Id. at 679.
If the defendant does so, the burden
returns to the plaintiff to prove that the defendant’s explanation
is pretextual.
Id.
As evidence of suspicious background circumstances, Spangler
broadly directs the Court’s attention back to the arguments raised
in
support
of
his
retaliation
ECF No. 66. at 15 n.15.)
claim.
(See,
Spangler
Resp.,
As this Court has already concluded,
however, Spangler has failed to present sufficient evidence to
support a claim of retaliation. Critically, he has not shown that
the decision-maker for watch commander — Cappitelli — even knew of
his protected conduct. Spangler also relies on Dudek’s declaration
as
evidence
that
Cappitelli
alternate watch commander.
Edwards
said
hearsay,
it
forced
Edwards
to
choose
Grice
as
Not only is Dudek’s retelling of what
is
also
- 25 -
contradicted
by
Edwards’
own
testimony that he was under no pressure to select Grice.
Dep.
at
unusual
42:6–43:1.)
background
demonstrate
Because
Spangler
circumstances
UICPD’s
or
inclination
has
“fishy
to
not
(Edwards
established
facts”
necessary
discriminate
the
to
invidiously
against whites, the Court grants Defendants summary judgment on
Counts VI and VII.
C.
Violation of the Illinois Whistleblower
Act (Count VIII)
In Count VIII, Spangler asserts a retaliation claim under the
Illinois Whistleblower Act (“IWA”) based on his refusal to comply
with Perales’ order.
The IWA prohibits employers from retaliating
against an employee who “refuse[s] to participate in an activity
that would result in a violation of a State or federal law, rule,
or regulation.”
740 ILCS 174/20.
Under the IWA, “a plaintiff
must establish that (1) he refused to participate in an activity
that would result in a violation of a state or federal law, rule,
or regulation and (2) his employer retaliated against him because
of that refusal.”
656–57
(Ill.
Sardiga v. Northern Trust Co., 948 N.E.2d 652,
App.
Ct.
2011).
Because
Spangler
has
failed
to
connect his refusal to follow Perales’ order to either of the two
adverse
actions
identified
above
—
his
removal
from
watch
commander or Perales’ reassignment to Protective Services — he has
failed to establish a claim under the IWA.
See, Nelson v. Levy
Home Entm’t, LLC, No. 10 C 3954, 2012 WL 403974, at *8 (N.D. Ill.
Feb. 8, 2012) (“A Whistleblower Act claim requires the plaintiff
- 26 -
to show that refusal to participate in an illegal activity caused
[his]
employer
to
retaliate
against
[him].”).
Defendants
are
therefore entitled to summary judgment on Count VIII.
V.
CONCLUSION
For the reasons stated herein, Defendants’ Motion for Summary
Judgment as to Robinson [ECF No. 58] is granted in part and denied
in part.
Defendants’ Motion for Summary Judgment as to Spangler
[ECF No. 55] is granted.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
Dated: 11/6/2015
- 27 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?