White v. Cook County Public Defender's Office et al

Filing 166

MEMORANDUM OPINION Signed by the Honorable John Robert Blakey on 8/14/2017. Mailed notice(gel, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
PATRICK J. WHITE,
Plaintiff,

Case No. 14-cv-7215

v.
OFFICE OF THE COOK COUNTY
PUBLIC DEFENDER, et al.

Judge John Robert Blakey

Defendants.
MEMORANDUM OPINION
This Court began a jury trial in this case on July 10, 2017. At the beginning
of trial, six claims from Plaintiff’s Second Amended Complaint [35] remained at
issue:
Claim
1
2
3

Description
Title VII
Discrimination 1
Title VII
Retaliation
42 U.S.C. § 1983
Discrimination

4

42 U.S.C. § 1983
Retaliation

5

42 U.S.C. § 1983
Discrimination
42 U.S.C. § 1983
Retaliation

6

Defendant(s)
Office of the Cook County
Public Defender
Office of the Cook County
Public Defender
Stephanie Hirschboeck
Crystal Marchigiani
Darlene Williams
Stephanie Hirschboeck
Crystal Marchigiani
Darlene Williams
Office of the Cook County
Public Defender
Office of the Cook County
Public Defender

Plaintiff supported his Title VII discrimination claim with theories of both disparate treatment and
disparate impact. See Tr. [157] 597:3-11. The former was decided by the jury, while the latter
proceeded to a bench trial. See Tr. [152] 4:6-25.
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On July 12, 2017, at the conclusion of Plaintiff’s case-in-chief, all Defendants
jointly moved for judgment as a matter of law pursuant Federal Rule of Civil
Procedure 50(a). Tr. [156] 541:18-542:6. On July 13, 2017, after considering the
parties’ written submissions [136, 141] and oral arguments, the Court orally
granted in part, denied in part, and took under advisement in part, the Defendants’
motion. Tr. [157] 595:25-602:4. Specifically, the Court granted Defendants’ motion
as to Claims 5 and 6, as well as to Claim 4 insofar as it related to Defendant
Darlene Williams. Id. The Court denied Defendants’ motion as to Claim 2, and
took Defendants’ motion under advisement as to Claims 1 and 3, as well as to Claim
4 insofar as it related to Defendants Stephanie Hirschboeck and Crystal
Marchigiani. Id. On July 17, 2017, the Court reaffirmed its ruling at the close of
evidence. Tr. [161] 1045:12-1046:4.
Claim
1

Description
Title VII
Discrimination 2

Defendant(s)
Office of the Cook
County Public Defender

Ruling
Taken under advisement

2

Title VII
Retaliation
42 U.S.C. § 1983
Discrimination

Office of the Cook
County Public Defender
Stephanie Hirschboeck
Crystal Marchigiani
Darlene Williams

Denied

4

42 U.S.C. § 1983
Retaliation

5

42 U.S.C. § 1983
Discrimination
42 U.S.C. § 1983
Retaliation

Stephanie Hirschboeck
Crystal Marchigiani
Darlene Williams
Office of the Cook
County Public Defender
Office of the Cook
County Public Defender

3

6

Taken under advisement
Taken under advisement
Taken under advisement
Taken under advisement
Taken under advisement
Granted
Granted
Granted

This ruling applied both to Plaintiff’s disparate treatment and disparate impact theories of liability.
Tr. [157] 599:24-600:8.
2

2

On July 18, 2017, this Court rendered a bench trial verdict against Plaintiff
on his disparate impact claim, and the jury returned a verdict in favor of all
Defendants on each of Plaintiff’s remaining causes of action. See Minute Entry
[149].

Given the evidence presented at trial, these results was not surprising.

Indeed, this case constituted more than just a simple failure of proof by Plaintiff.
To the contrary, the evidence vindicated the Defendants outright.
As promised at trial, this Memorandum Opinion supplements the Court’s
oral rulings on Defendants’ motion for judgment as a matter of law. The verdicts on
Plaintiff’s: (1) Title VII discrimination and retaliation claims (Claims 1 and 2); (2)
42

U.S.C.

§

1983

discrimination

claim

against

Defendants

Hirschboeck,

Marchigiani, and Williams (Claim 3); and (3) 42 U.S.C. § 1983 retaliation claim
against Defendants Hirschboeck and Marchigiani (Claim 4) rendered the Court’s
ruling as to those claims moot. Therefore, they will not be further discussed. The
below analysis explains the Court’s rationale for granting Defendants’ motion as to
Plaintiff’s 42 U.S.C. § 1983 discrimination and retaliation claims against the Office
of the Cook County Public Defender (Claims 5 and 6), as well as Plaintiff’s 42 U.S.C.
§ 1983 retaliation claim against Defendant Williams.
I.

Legal Standard
A court should render judgment as a matter of law when “a party has been

fully heard on an issue” and there is no “legally sufficient evidentiary basis” for a
reasonable jury to find for that party on that issue. Fed. R. Civ. P. 50(a). The
standard for granting judgment as a matter of law “mirrors the standard for

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granting summary judgment.” Pandya v. Edward Hosp., 1 F. App’x 543, 545 (7th
Cir. 2001) (internal quotations omitted). Thus, the Court examines the record in its
entirety and views the evidence in the light most favorable to the nonmoving party.
Id.

After doing so, the Court determines “whether the evidence presented,

combined with all reasonable inferences permissibly drawn therefrom, is sufficient
to support [a] verdict.” Mathur v. Bd. of Trustees of S. Illinois Univ., 207 F.3d 938,
941 (7th Cir. 2000) (quotations omitted). Judgment as a matter of law is proper “if
a reasonable person could not find that the evidence supports a decision for a party
on each essential element of the case.” Campbell v. Peters, 256 F.3d 695, 699 (7th
Cir. 2001).
In making this determination, the Court “may not step in and substitute its
view of the contested evidence for the jury’s.” Emmel v. Coca-Cola Bottling Co. of
Chicago, 95 F.3d 627, 634 (7th Cir. 1996).

“Credibility determinations, the

weighing of the evidence, and the drawing of legitimate inferences from the facts
are jury functions, not those of a judge.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986).

Nevertheless, “there must be more than a mere scintilla of

evidence” in support of the nonmoving party’s case. Estate of Escobedo v. Martin,
702 F.3d 388, 403 (7th Cir. 2012). Thus, judgment should be entered where the
evidence “is so one-sided that one party must prevail as a matter of law.” Anderson,
477 U.S. at 251-52.

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II.

Discussion
A.
Plaintiff’s 42 U.S.C. § 1983 discrimination and retaliation
claims against the Office of the Cook County Public Defender
(Claims 5 and 6)
Although the Supreme Court’s ruling in Monell v. Department of Social

Services of New York, 436 U.S. 658 (1978), subjects local governmental units to suit
under 42 U.S.C. § 1983, respondeat superior does not suffice to impose liability.
McTigue v. City of Chicago, 60 F.3d 381, 382 (7th Cir. 1995). The municipality’s
policy, not employees, must be the source of the discrimination. Id.; Auriemma v.
Rice, 957 F.2d 397, 399 (7th Cir. 1992) (“Municipalities are answerable only for
their own decisions and policies; they are not vicariously liable for the constitutional
torts of their agents.”). In other words, “a municipality can be liable under Section
1983 only for acts taken pursuant to its official policy, statement, ordinance,
regulation or decision, or pursuant to a municipal custom.” Mootye v. Dotson, 73 F.
App’x 161, 171 (7th Cir. 2003); Rice ex rel. Rice v. Corr. Med. Servs., 675 F.3d 650,
675 (7th Cir. 2012) (“Municipal liability under § 1983 attaches where—and only
where—a deliberate choice to follow a course of action is made from among various
alternatives by municipal policymakers.”) (quotations omitted).
An official policy or custom may be established by means of: (1) an express
policy; (2) a widespread practice which, although unwritten, is so entrenched and
well-known as to carry the force of policy; or (3) the actions of an individual who
possesses the authority to make final policy decisions on behalf of the municipality
or corporation. Rice, 675 F.3d at 675; Thomas v. Cook Cty. Sheriff’s Dep’t, 604 F.3d

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293, 303 (7th Cir. 2010). Here, even when viewed in the light most favorable to
Plaintiff, the evidence at the close of Plaintiff’s case-in-chief fails to support a
reasonable finding under any of these theories.
First, the express policy theory only applies, as the name suggests, “where a
policy explicitly violates a constitutional right when enforced.” Calhoun v. Ramsey,
408 F.3d 375, 379 (7th Cir. 2005).

The Calhoun court provided the following

example:
[I]f [a county jail] had a policy that directed the sheriff’s
personnel to throw away all prescription medications
brought in by detainees or prisoners without even reading
the label and without making alternative provisions for
the affected individuals, the County would be liable
assuming that such a policy would, on its face, violate the
Eighth Amendment (or the Due Process clause, for pretrial detainees).
Id. Under this type of claim, “one application of the offensive policy resulting in a
constitutional violation is sufficient to establish municipal liability.” Id. at 379-80.
Here, evidence of such an explicit unlawful policy was wholly absent at trial.
Instead, Plaintiff presented evidence that individual Defendants Hirschboeck,
Marchigiani, and Williams drafted the interview questions posed to Grade IV
applicants by using a template from a prior, unrelated promotion panel. Tr. [156]
440:11-17, 449:2-451:9.

Plaintiff also introduced evidence that, beginning in

January 2013, Grade III attorneys were restricted from first-chairing murder trials,
and that second-chairs were chosen on an individual basis by the first-chair Grade
IV attorney assigned to the case. See id. at 460:19-461-2. With no readily apparent

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unconstitutionality, these items of evidence are a far cry from policies that expressly
violate a constitutional right.
Plaintiff fares no better under an unlawful “widespread practices” theory.
Such practices “are not tethered to a particular written policy,” and thus require
“more evidence than a single incident to establish liability.” Calhoun, 408 F.3d at
380. Although declining to adopt “any bright-line rules” as to “how frequently such
conduct must occur to impose Monell liability,” the Seventh Circuit has made it
clear “that it must be more than one instance, or even three.” Thomas, 604 F.3d at
303; see also Jones v. City of Chicago, 787 F.2d 200, 204 (7th Cir. 1986) (“[T]he
isolated act of an employee generally is not sufficient to impose municipal
liability.”); Palka v. City of Chicago, 662 F.3d 428, 435 (7th Cir. 2011) (“[T]wo
alleged instances of discrimination do not constitute a widespread pattern or
practice.”); Estate of Moreland v. Dieter, 395 F.3d 747, 760 (7th Cir. 2005) (“[Three]
incidents do not amount to a widespread practice that is permanent and well settled
so as to constitute an unconstitutional custom or policy[.]”). The Seventh Circuit
has also found four instances to be inadequate. See, e.g. Grieveson v. Anderson, 538
F.3d 763, 773 (7th Cir. 2008); Jenkins v. Bartlett, 487 F.3d 482, 493 (7th Cir. 2007).
Here, Plaintiff once again fell far short of the governing standard. Plaintiff’s
evidence of allegedly unlawful conduct focused almost entirely on a single promotion
panel that convened in the spring of 2013.

Plaintiff’s counsel indicated during

opening statements that the evidence would show other discriminatory promotion
decisions.

Tr. [153] 169:16-19.

Specifically, Plaintiff’s counsel claimed that

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Plaintiff’s former supervisor, David Dunne, would testify that he had been
previously been “passed over for a promotion” and believed that “men were
discriminated against.” Id. at 170:9-13. Plaintiff, however, failed to make good on
this promise. When called, Dunne merely testified that “at times some more women
got promoted” than men, but acknowledged that he was unaware of the candidates’
relative qualifications.

Tr. [156] 501:15-24, 502:21-25.

This is not enough to

establish any illegality, much less a widespread practice under Monell.
Finally, Plaintiff’s evidence attempted to show the establishment of an
unlawful policy or custom through the actions of policymaker. Generally, “when a
particular course of action is directed by those who set municipal policy, the
municipality is responsible under section 1983, even if the action in question is
undertaken only once.” Valentino v. Vill. of S. Chicago Heights, 575 F.3d 664, 675
(7th Cir. 2009).

Here, Plaintiff argued that liability should attach because

Defendants Hirschboeck, Marchigiani, and Williams purportedly made the ultimate
decision to deny him a promotion because of his gender. Even assuming that the
individual Defendants were decision makers on promotion, however, does not
necessarily make them policymakers on that issue.

See Valentino v. Vill. of S.

Chicago Heights, 575 F.3d 664, 675 (7th Cir. 2009).

The “mere unreviewed

discretion to make hiring and firing decisions does not amount to policymaking
authority. There must be a delegation of authority to set policy for hiring and
firing, not a delegation of only the final authority to hire and fire.” Kujawski v. Bd.
of Comm’rs of Bartholomew County, Ind., 183 F.3d 734, 739 (7th Cir. 1999)

8

(emphasis added). Plaintiff introduced no such evidence here; if anything, he did
the opposite.

According to the deposition testimony of Defendant Hirschboeck

admitted into evidence, the individual Defendants submitted their interview
questions for internal review and approval prior to their use by the promotion
board. Tr. [156] 450:16-451:9. Once again, Monell demands more.
In sum, even when viewed in the light most favorable to Plaintiff, the
evidence did not support a reasonable finding that there was a policy or custom of
discriminating against males on the basis of gender or retaliating against those
engaging in protected speech. As a result, Plaintiff could not establish municipal
liability against the Office of the Cook County Public Defender.
B.
Plaintiff’s 42 U.S.C. § 1983 retaliation claim against Defendant
Williams (Claim 4)
In order to succeed on an individual capacity claim under 42 U.S.C. § 1983
against Defendant Williams, Plaintiff was required to show that Williams was
personally involved in his alleged constitutional deprivation. See Palmer v. Marion
Cty., 327 F.3d 588, 593 (7th Cir. 2003); Potts v. Moreci, 12 F. Supp. 3d 1065, 1072
(N.D. Ill. 2013).

Plaintiff identified the following retaliatory acts that he

purportedly suffered after complaining about Defendants’ discriminatory promotion
process: (1) transfer to other courtrooms with higher caseloads; (2) reduction in
office space; (3) issuance of a subpoena against him; (4) being told by his supervisor,
Brandi Brixy, that Defendants would “replace him with a skinny female,” or words
to that effect; (5) non-assignment to murder trials, either as a first or second chair;

9

and (6) denial of training opportunities that would improve his chances for
promotion. See Tr. [156] 573:20-574:8.
Even assuming these allegations were true, Plaintiff failed to establish
Defendant Williams’ personal involvement in any of the purported hardships.
Throughout the alleged retaliatory period, Plaintiff was assigned to the Public
Defender’s Felony Trial Division located at 26th Street and California Avenue in
Chicago. See Pl.’s Exs. 27-28. During that time, however, Defendant Williams
served as Chief of the Public Defender’s Office in Bridgeview. Tr. [156] 455:17-20.
In that capacity, Defendant Williams never had any contact with Plaintiff, nor did
she otherwise supervise him or exert any control over the acts of alleged retaliation.
Id. at 457:18-21; Tr. [154] 410:11-21. On such facts, a reasonable fact finder could
not, as a matter of law, conclude that Defendant Williams had any personal
involvement in the assignment of Plaintiff’s courtroom, office, caseload, or training.
The dearth of evidence regarding Defendant Williams stood in stark contrast
to

the

other

individual

Defendants,

Stephanie

Hirschboeck

and

Crystal

Marchigiani. At the time of Plaintiff’s courtroom transfers, for example, he fell
under the direct command of Defendant Hirschboeck, who was serving as Chief of
the Felony Trial Division. Tr. [156] 448:21-25. Indeed, David Dunne testified that
he actually consulted with Defendant Hirschboeck prior to Plaintiff’s transfer from
Judge Linn to Judge Ford.

Id. at 489:7-14.

Similarly, Plaintiff testified that

Defendant Hirschboeck was physically present in Plaintiff’s office immediately prior
to the relocation of Plaintiff’s desk and the comment by Plaintiff’s supervisor that

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the office was replacing him “with a skinny female.” Id. at 243:15-245:4. Finally,
Defendants Hirschboeck and Marchigiani each served as supervisors to Kelly
McCarthy and Ruth McBeth, respectively, two of the Assistant Public Defenders
who issued the subpoena against Plaintiff in December of 2013. Tr. [157] 605:4-12.
Unlike Defendant Williams, these facts, while attenuated, nevertheless provided
sufficient evidence for a reasonable fact finder to infer Defendants Hirschboeck and
Marchigiani’s personal involvement in the purported retaliatory activity.
III.

Conclusion
Defendants’ motion for judgment as a matter of law as to Plaintiff’s 42 U.S.C.

§ 1983 discrimination and retaliation claims against the Office of the Cook County
Public Defender (Claims 5 and 6), as well as Plaintiff’s 42 U.S.C. § 1983 retaliation
claim against Defendant Williams (Claim 4), was granted for the reasons stated
above.
Dated: August 14, 2017

Entered:

____________________________
John Robert Blakey
United States District Judge

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