Sabet v. City of North Chicago Illinois et al
Filing
94
MEMORANDUM OPINION AND ORDER Signed by the Honorable Robert M. Dow, Jr. on 2/20/2020. Before the Court are Plaintiff's and Defendants' respective cross-motions for summary judgment. 57 ; 64 . For the reasons set forth below, De fendants' motion for summary judgment 64 is granted in part and denied in part, and Plaintiff's motion for summary judgment 57 is denied. The case is set for further status on March 3, 2020 at 9:00 a.m. For further details see below. Mailed notice(cdh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RAMTIN SABET,
Plaintiff,
v.
THE CITY OF NORTH CHICAGO, et
al.,
Defendants.
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Case No. 16-cv-10783
Judge Robert M. Dow, Jr.
MEMORANDUM OPINION AND ORDER
Before the Court are Plaintiff’s and Defendants’ respective cross-motions for summary
judgment. [57]; [64]. For the reasons set forth below, Defendants’ motion for summary judgment
[64] is granted in part and denied in part, and Plaintiff’s motion for summary judgment [57] is
denied. The case is set for further status on March 3, 2020 at 9:00 a.m.
I.
Background
The Court takes the relevant facts from the parties’ Local Rule 56.1 statements of
undisputed material facts and supporting exhibits: [57-1]; [59]; [66]; [68]; [79]; [86]. The Court
construes the facts in the light most favorable to the nonmoving party on any given issue. The
following facts are undisputed unless otherwise noted. “When we cite as undisputed a statement
of fact that a party has attempted to dispute, it reflects our determination that the evidence cited in
the response does not show that the fact is in genuine dispute.” King v. Chapman, 2013 WL
6709623, at *3 (N.D. Ill. Dec. 16, 2013).
A.
Parties and Overview
Plaintiff Ramtin Sabet (“Plaintiff”) was a police officer with the North Chicago Police
Department (NCPD) from 2007 through 2017. [79 at 2, ¶ 3.] He also had a side job selling firearms.
See [Id. at 10, ¶ 23]. He immigrated to the United States from Iran in 1997, and is now an American
citizen. [Id. at 1, ¶ 1.] He is also a practicing Muslim. [79 at 1, ¶ 2.] Plaintiff’s race is white. [86 at
2, ¶ 3.] Plaintiff worked the late (“third”) shift for the NCPD, which ran from 9:30 p.m. until either
6:00 or 6:30 a.m. [Id. at 3, ¶ 9.] He claims that he was subject to persistent harassment on account
of his religion and national origin for his entire tenure at the police department. See [79 at 3, ¶ 6.]
Defendant James Jackson (“Jackson”) was the chief of police for the NCPD from October
16, 2012 through April 30, 2016, when he retired. [86 at 2, ¶ 5.] Defendant Richard Wilson took
over as chief of police on May 1, 2016. [Id. at 2-3, ¶ 7.] Prior to that, he was the deputy chief of
police for the NCPD (at least beginning in September 2013). [Id. at 2, ¶ 5.] There were at least two
layers of supervision between the deputy chief and officers such as Plaintiff: officers reported
directly to sergeants, and sergeants were below lieutenants. See [79 at 5, ¶¶ 10–11.] Defendants
argue that any harassment is aberrational given that the NCPD has adopted an anti-harassment
policy and conducts diversity and inclusion training at least once a year. [86 at 3, ¶ 8]; [68-7]; [681 at 31–32.] The chief of police underwent additional diversity training quarterly. [68-16, 11.]
Unrelated to the central allegations of discrimination at issue in this lawsuit, Plaintiff had
a professional rivalry with Sergeant Hartmann going back to 2009, when Hartmann tried to elicit
support in an internal political debate and Plaintiff refused to side with him. [79 at 18, ¶ 44.] Since
then, Plaintiff has always refused to side with Hartmann on internal matters. [Id.] Eventually,
Sergeant Hartmann was promoted over Plaintiff, because Hartmann passed the sergeant exam
whereas Plaintiff failed. [86 at 15, ¶ 43.] Officers Friel and Farrell, two of Plaintiff’s primary
adversaries on the third shift, were mentees of Hartmann. [Id. at 18–19, ¶ 45.] Officers sometimes
refused to respond to Plaintiff’s calls for backup. [79 at 19, ¶ 46]; [59-4 at 9]. It is unclear whether
2
the back-up problems are a manifestation of discrimination or an extension of the political rivalry
with Hartmann. See [59-4 at 9]; [79 at 19, ¶ 46.]
The parties agree on the outline of what precipitated this lawsuit. On January 5, 2016,
Plaintiff complained to his supervisor, Sergeant Val Nash (Nash) about harassment (discussed
more below). [86 at 4, ¶ 13.] Plaintiff then implored his third shift colleagues to stop making
derogatory comments. [Id. at 4–5, ¶¶ 13–14.] In response to his complaint, Jackson and Wilson
initiated some sort of investigation into harassment on the third shift, though the parties dispute
the scope and purpose of the investigation. [Id. at 5-6, ¶ 16.] Pursuant to this investigation, Plaintiff
was interviewed in February 2016. [Id. at 6, ¶ 17]; [79 at 20, ¶ 48.] On April 20, 2016, Plaintiff
filed an EEOC Charge of Discrimination alleging discrimination based on national origin and
religion. [86 at 6-7, ¶ 18.] Two days later, the initial investigation completed, concluding that there
was harassment on the shift, but that Plaintiff may not have been entirely forthcoming in the
interview. [Id. at 8-9, ¶ 24.] In response to the investigation, Wilson asked the NCPD to investigate
whether Plaintiff was untruthful in the interview. [Id. at 9, ¶ 25.] On November 2, 2016, Wilson
placed Plaintiff on paid, administrative leave pending the investigation. [Id. at 12, ¶ 34.] On
February 9, 2017, Plaintiff was fired; Defendants claim it is because he was not truthful during the
investigation and another subsequent investigation. [Id. at 15, ¶ 42.] Plaintiff was hired as an
officer for the Oakwood Hills Police Department. [79 at 26, ¶ 62.] Plaintiff was not decertified
from testifying in court. [Id.]; [59-3 at 35].
Plaintiff filed suit in November 2016. His operative complaint [17] lists ten counts against
the city and individual defendants: religious discrimination in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 2000 et seq., (Count I) [17, ¶¶ 73-78]; national origin
discrimination in violation of Title VII (Count II) [Id., ¶¶ 79-84]; retaliation in violation of Title
3
VII (Count III) [Id., ¶¶ 85-90]; failure to provide training opportunities in violation of Title VII
(Count IV) [Id., ¶¶ 91-97]; a violation of his Fourteenth Amendment equal protection rights
pursuant to 42 U.S.C. § 1983 (Count V) [Id., ¶¶ 98-106]; retaliation in violation of the Fourteenth
Amendment pursuant to § 1983 (Count VI) [Id., ¶¶ 107-118]; municipal liability under Monell
(Count VII) [Id., ¶¶ 119-130]; discrimination in violation of the Illinois Human Rights Act, 775
ILCS 5/1-101, et seq. (Count VIII) [Id., ¶¶ 131-34]; retaliation in violation of the Illinois Human
Rights Act (Count IX) [Id., ¶¶ 135-139]; and common law retaliatory discharge (Count X) [Id.,
¶¶ 140-51].
B.
Details of the Harassment
Plaintiff claims that he has long suffered harassment at the NCPD. [79 at 3, ¶ 6.] He filed
his first EEO complaint in 2012, but it went nowhere, in part because Jackson, then the chief of
police, fell asleep during the EEO interview. [Id.] Plaintiff was issued a right to sue letter, but
declined to do so at that time. [Id. at 3, ¶ 8.] Plaintiff highlights the following specific incidents1
of alleged harassment that have happened since then:
In 2013, some officers dismissed Plaintiff as a “falafel-head” and told him to, “[g]o eat
your falafel and hummus.” [Id. at 12-13, ¶ 30.]
1
Much of Plaintiff’s facts concerning his harassment come from his affidavit, submitted as Exhibit B to his
Local Rule 56.1 submission. Defendant argues that the Court should give no credence to these assertions
because they are “self-serving.” As the Seventh Circuit has “repeatedly emphasized over the past decade,
the term ‘self-serving’ must not be used to denigrate perfectly admissible evidence through which a party
tries to present its side of the story at summary judgment.” McKinney v. Office of Sheriff of Whitley County,
866 F.3d 803, 814 (7th Cir. 2017) (quoting Hill v. Tangherlini, 724 F.3d 965, 967 & n.1 (7th Cir. 2013)).
Defendants’ objections to Plaintiff’s facts on this ground alone constitutes a blanket denial, and thus all of
Plaintiff’s facts regarding his harassment are deemed admitted. See, e.g., Smith v. Lamz, 321 F.3d 680, 683
(7th Cir. 2003) (“[A] mere disagreement with the [] asserted facts is inadequate if made without reference
to specific supporting material.”) The Court views these facts in the light most favorable to the nonmovant
on the respective cross-motions for summary judgment.
4
In 2013, possibly at the same time, Officer Sain asked Plaintiff if he was eating “camel
balls.” [Id.]
In 2014, at a work training at the firing range, a group of officers, including Sergeant
Marquardt, Sergeant Rivera, and Detective Mueller, called Plaintiff a “fucking
terrorist” and repeatedly accused him of being a member of Al-Qaeda. [Id. at 7-8, ¶ 16.]
In 2014, at the same firearms training, Sergeant Hartmann, Officer Bogdala, and
Officer Wail repeatedly asked Plaintiff why he had moved to the United States. [Id. at
7–8, ¶ 16(d).]
Also in 2014, perhaps at the same time, a group of officers exclaimed that Plaintiff
“rides his goat to work” and wears a winter hat made of camel wool. [Id. at 13, ¶ 31.]
They then repeatedly asked him why he had moved to the United States. [Id.]
On May 18, 2015, an officer asked if Plaintiff ate “goat balls.” [Id. at 14, ¶ 32.]
On May 19, 2015, Officer Farrell asked if Plaintiff had ever eaten “camel balls.” [Id.
at 14, ¶ 33.]
On June 17, 2015, Officer Friel exclaimed that Plaintiff should never have gotten an
FBI permit to sell firearms. [Id. at 8, ¶ 17.]
On June 24, 2015, Officers Friel and Farrell called Plaintiff a “goat-fucker” in front of
their superior officers. [Id. at 14-15, ¶ 34.]
On July 2, 2015, Officer Friel accused Plaintiff of working for ISIS. [Id. at 8, ¶ 18.]
On the same day, Officer Farrell asked Plaintiff if he had ever eaten camel meat and
whether it had made him smarter. [Id. at 15, ¶ 35.]
On July 15, 2015, Detective Mueller accused Plaintiff of working for ISIS. [Id. at 8-9,
¶ 19.]
5
On July 17, 2015, during the Islamic holiday of Ramadan, Officer Farrell complained
that “Obama allowed Muslims to put a green light on the Empire State Building for
Ramadan.” When Plaintiff questioned him about why this was a problem, Farrell
responded that all Muslims kill Christians and provoke violence. [Id. at 9, ¶ 20.]
On the same day, Officer Farrell opined to Plaintiff that “Iran should be nuked and
wiped off the map.” [Id. at 15, ¶ 36.]
On the same day, Officer Farrell yelled “underjayee” at Plaintiff during the entirety of
their shift because he had heard another Muslim person say it. [Id. at 9, ¶ 21.]
On August 21, 2015, Officer Malak said that Plaintiff “eats sand for breakfast.” [Id. at
15, ¶ 37.]
On August 24, 2015, while out for a meal, Officers Farrell, Friel, and Malak asked
Plaintiff, “What’s with your people burning the American flag?” They then opined that
the United States should nuclear bomb Iran and that “American solders * * * should
just kill them all.” [Id. at 16, ¶ 38.]
On September 10, 2015, Officers Farrell and Friel repeatedly said that “all Muslims
kill Christians and provoke violence.”. [Id. at 9-10, ¶ 22.]
On the same day, Officers Farrell and Friel repeatedly taunted Plaintiff that
“Mohammed was a pimp and a child molester.” [Id.]
On the same day, Officer Friel told Plaintiff that all Muslims hate Jews. [Id.]
On November 12, 2015 Officers Friel and Farrell taunted Plaintiff that he was eating
“[c]amel’s ass.” [Id. at 16, ¶ 39.]
On November 13, 2015, Officer Farrell called Plaintiff a terrorist and asked why he
had been given a license to sell firearms. [Id. at 10, ¶ 23.]
6
On December 14, 2015, Plaintiff asked Officers Friel and Farrell to refrain from
discussing how the two officers had allegedly visited a brothel during a Fraternal Order
of Police convention. The officers replied by taunting Plaintiff about their perception
of the sexual mores in Iran and the Muslim world more generally. [Id. at 10, ¶ 24.]
On January 5, 2016, Plaintiff complained to Sergeant Nash about the harassment. [86
at 4, ¶ 13.] She, in turn, relayed the complaint to her supervisors, who initiated an
investigation into the alleged harassment. [Id. at 4–6, ¶¶ 13, 16.] Plaintiff addressed the
third shift, asking them to stop the mocking. [Id. at 4–5, ¶ 14.] Friel asked if Plaintiff
would stop making anti-Semitic comments (discussed more below), and Plaintiff
responded ambiguously. [Id. at 5, ¶ 15]; [59-4 at 11.]
On January 7, 2016, Officer Friel asked Plaintiff, hostilely, why Muslims are so violent
and why they hate Jews. Friel then identified himself as part-Jewish. [79 at 10-11, ¶ 25.]
That same day, Officer Friel again asked why Muslims hated Jews, and said explained
that he did not hate Muslims and merely though that “Islam is bullshit and provoked
violence.” [Id. at 11-12, ¶ 27.]
On the same day, Friel asked Plaintiff, “Why are your fucking people burning down
the Saudi Arabian embassy in Iran?” [Id. at 16, ¶ 40.] Even though Plaintiff asked Friel
to stop, he did not. [Id.]
On the same day, Officer Farrell again questioned how Plaintiff had been given a
license to sell firearms, and accused him of selling to terrorists. [Id. at 11, ¶ 26.]
On January 14, 2016, Sergeant Rivera and Detective Mueller teased Plaintiff that he
knew a particular Muslim pornographic actor. [Id. at 12, ¶ 28.]
7
On the same day, Sergeant Rivera and Detective Mueller told Plaintiff to “go fuck your
goats” and then publicly announced that “[Plaintiff] drinks goat milk and fucks his
goats before coming to work.” [Id. at 17, ¶ 41.]
On January 28, 2016, in front of their superior officer, Officers Farrell and Friel accused
Plaintiff of eating “goat balls,” told him to not eat goat, complained of the smell of
Plaintiff’s food, and yelled, “durka durka durka,” at him. [Id. at 17, ¶ 42.]
On February 12, 2016, Plaintiff was interviewed by Lieutenant Theis, Sergreant
Hartmann, and the city’s attorney Ben Gehrt. [Id. at 20, ¶ 48.]
In April 2016, a picture from the Sasha Baron Cohen movie “The Dictator,” featuring
Cohen in an outlandish beard, was posted to Plaintiff’s locker. [Id. at 12, ¶ 29.]
On April 20, 2016, Plaintiff filed an EEO complaint. [86 at 6–7, ¶ 18.]
On April 21, 2016, someone graffitied Plaintiff’s locker. The graffiti was explicit,
depicting, among other things, an erect penis ejaculating onto Sabet’s name and the
city’s seal, along with a puddle of ejaculate. [Id. at 7, ¶ 20]; see also [59-6 at 11].
On April 22, 2016, Gehrt concluded his investigation and found that Plaintiff’s
statements conflicted with those of several of his fellow officers. [86 at 8–9, ¶ 24.]
Wilson then decided to further investigate Plaintiff. [Id. at 9, ¶ 25.]
On July 12, 2016, Sergeant Rivera sent Plaintiff a notice that he was under investigation
and would have to testify to what he said in February. See generally [68-15.]
On July 31, 2016, Officer Florance opined that if Plaintiff were to get a tattoo, it would
say “Bomb!” because he looked Middle Eastern (the “tattoo incident”). [79 at 17-18,
¶ 43.] A third-party consulting firm, REM Management Services (REM), was hired to
investigate this incident. See [59-3 at 5–22].
8
On August 27, 2016, Officer Farrell suggested that Plaintiff’s Facebook profile picture
looked threatening because he is Muslim (the “Facebook incident”). See generally [6813]. REM was hired to investigate this incident. See generally [id.]
Plaintiff maintains that he was regularly taunted with slurs based on his religion and
national origin at the firing range during firearms training. [79 at 5, ¶¶ 10–11.] Sergeant Rivera
coordinated the outings, and Lieutenant Theis supervised the training. [59-1 at 33.] During these
trainings, Plaintiff was regularly ridiculed by Sergeants Rivera and Marquadt and Detective
Mueller. [Id.] Although Plaintiff repeatedly complained to Lieutenant Theis, Theis acknowledged
the harassment on only one or two occasions. [79 at 5, ¶ 11.] After a certain point, Plaintiff stopped
reporting the harassment, and would instead make knowing eye-contact with Theis as the
harassment was happening, and Theis would simply turn around and ignore it. [59-1 at 33–34.] It
is unclear whether Theis’s one-time intervention ended the harassment for good, or whether it
ended the harassment on that day, only to resume later. [79 at 5–6, ¶¶ 11–12.]
Defendants counter that the third shift had a “frat” dynamic. [86 at 4, ¶ 12.] As such, insofar
as any coarse joking or “ribbing” did occur, it was just good-natured teasing. See [id. at 3, ¶ 10].
Plaintiff participated in this culture; for example, he called Officer Farrell, who is male, a “little
lesbian.” [Id. at 11, ¶ 31.] Also, when Plaintiff asked his third-shift colleagues to stop harassing
him, Officer Friel accused Plaintiff of making anti-Semitic jokes.2 [Id. at 5, ¶ 15.] Plaintiff denies
these accusations. [86 at 5, 11, ¶¶ 15, 31.]
2
Defendants point to other specific instances where Plaintiff allegedly denigrated Officers Friel and Farrell.
But, they fail to cite any admissible evidence for these allegations; indeed, the sources they cite include
hearsay, see [66, ¶ 33 (citing Sergeant Diez’s testimony that Officer Friel made an out of court statement
about Plaintiff)], and post-hoc reports prepared while this litigation was pending, [id. at ¶ 30 (citing internal
memoranda, dated after Plaintiff had filed the instant lawsuit, that allege that Plaintiff mocked Officer
Farrell, based on Farrell’s out-of-court representations).] In his deposition, Plaintiff acknowledged making
a comment to Farrell about HIV, but denies that he intended to imply that Farrell had HIV or lacked sexual
9
C.
Details of the Investigations
Plaintiff faults the investigation into his January 2016 complaint. He claims that the normal
procedure for such investigations would be for him to be provided notice of a questioning, and the
opportunity to bring an advocate of his choice. [79 at 20–21, ¶¶ 48–49.] Instead, he was simply
told to report on February 12, 2016 to the chief’s office, where he was interrogated about his own
behavior. [Id. at 20, ¶ 48.] Rather than being allowed to choose his own advocate, his rival
Hartmann was his advocate. [Id. at 21, ¶ 49.] He was confronted with accusations that he
participated in the harassment of other officers, including that he made anti-Semitic comments to
Friel. [Id. at 20, ¶ 48.] When the investigation report came out, it did not recommend any further
action be taken against Plaintiff. [68-10 at 4,6.] Nonetheless, Wilson ordered an investigation into
Plaintiff, and whether he told the truth during the February interview. [86 at 9, ¶ 25.] Even though
Plaintiff identified Sergeant Rivera as one of his harassers, Rivera was tasked with investigating
Plaintiff; according to Plaintiff, his objections to this went unheeded. [59-2 at 6)].3
Defendants largely object to this characterization of the investigation of the January 2016
complaint. From their perspective, they were simply performing due diligence—when Plaintiff
complained about harassment, they talked to everyone on the third shift. [86 at 20–21, ¶ 48]; [6810 at 2.] And regarding Sergeant Rivera’s role in investigating Plaintiff, Wilson claims that he
acknowledged this concern and hired the external firm, REM, to ensure there were no conflicts of
prowess. See [59-2 at 7–8.] Plaintiff’s testimony is admissible, and the credence to be given to his denial is
a matter for a factfinder.
3
Plaintiff asserts that in June 2016, he was offered a deal to withdraw his April 20, 2016 EEO complaint
in exchange for not being fired. [79 at 22, ¶ 51.] The evidence of this, however, is inadmissible—he testified
that his union rep told him that Defendants told her the deal. [Id.] Plaintiff’s recitation of the rep’s out of
court statement, offered for the truth of the matter asserted, is hearsay; it therefore cannot be used at this
stage of litigation. Fed. R. Civ. P. 56. Moreover, Plaintiff attached an email from the union rep expressly
rejecting the possibility of bargaining over the outstanding EEO complaint. [59-9 at 14.]
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interest. [68-1 at 57–58.] Defendants also claim that they reacted promptly to Plaintiff’s April 20,
2016 EEO complaint, sending a memo to all sworn officers reminding them of the NCPD’s
harassment policy. [86 at 9–10, ¶¶ 26–27.] The memo, dated April 25, 2016, was read at each
shift’s roll call for five days in a row.4 [Id.]
Defendant hired REM to investigate the tattoo incident.5 During the investigation, Florance
said that the statement was taken out of context and that Plaintiff had baited him into saying the
word “bomb.” [59-3 at 8.] The investigation found that Plaintiff’s version of the story was more
plausible. See [Id.]; [79 at 17-18, ¶ 43.] It is undisputed that no corrective action was ever taken
against Florance. [79 at 17–18, ¶ 43.]
Finally, the NCPD (and later REM) investigated the Facebook incident. When Officer
Farrell mentioned Plaintiff’s Facebook picture, Plaintiff countered that his profile was private, but
then Farrell whipped out his phone and showed Plaintiff the Facebook picture. [68-13 at 6]; [id. at
18 (“When [Plaintiff] remarked that the Facebook page could only be seen by certain people,
Farrell proved [Plaintiff] wrong by opening the Facebook page himself.”)] Sergeant Rivera then
interviewed Plaintiff about this incident. [Id. at 8–13.] During the interview, Plaintiff reiterated his
confusion as to how Facebook’s privacy and search settings work:
Ramirez: When did you block it?
Plaintiff: Oh, it’s been blocked since…
Ramirez: Okay, so it’s not public?
Plaintiff: For some reason it has been poppin’ up because [Farrell] looked at it.
4
Plaintiff disputes that the memo was read regularly, but does not cite admissible evidence in support of
this objection, so it is deemed admitted.
5
Neither party has briefed the admissibility of the REM reports, which are presumably larded with hearsay.
That said, they may be admissible, at the very least, as evidence of their effect on third parties—Defendants
allegedly made personnel decisions based on their content and recommendations. For simplicity’s sake, the
content of the reports is presented plainly.
11
Ramirez: Okay.
Plaintiff: But if you go, like, I can login and show you my settings…
Ramirez: Your settings…
Plaintiff: …Everything private says friends-friends-friends-friends, so I’m not sure
why…
Ramirez: It’s popping up though.
Plaintiff: It’s popping up.
Ramirez: Okay
Plaintiff: And it’s even in Farsi so it’s not even in English, so I’m…
***
Ramirez: …you have it as blocked but it’s poppin’ up somehow.
Plaintiff: Yeah, I have it as blocked…
Ramirez: Okay.
Plaintiff: …but for some reason it’s poppin’ up.
[68-13 at 9.] REM subsequently investigated the Facebook incident, and concluded, among other
things, that Plaintiff made two “inaccurate and untrue” statements during the investigation: that
his Facebook profile was (a) private and (b) in Farsi. [Id. at 4.] REM accessed his Facebook page
and noted that some of the page is in Farsi but “many other posts by him are in English.” [Id.]
II.
Legal Standard
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A genuine dispute as to any material fact exists if “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). In determining summary judgment motions, “facts must be viewed in the light
most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.” Scott
12
v. Harris, 550 U.S. 372, 380 (2007). However, the Court will not draw inferences that are
“supported by only speculation or conjecture,” Williams v. Brooks, 809 F.3d 936, 944 (7th Cir.
2016) (quoting Argyropoulos v. City of Alton, 539 F.3d 724, 732 (7th Cir. 2008)) (internal citations
omitted), and “[c]onclusory allegations alone cannot defeat a motion for summary judgment.”
Thomas v. Christ Hosp. & Med. Ctr., 328 F.3d 890, 892 (7th Cir. 2003). The party seeking
summary judgment has the burden of establishing that there is no genuine dispute as to any material
fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).6
Summary judgment is proper where “the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled to a judgment as a matter of law.” Gibbs
v. Lomas, 755 F.3d 529, 536 (7th Cir. 2014) (quoting Jewett v. Anders, 521 F.3d 818, 821 (7th Cir.
2008)). “A party asserting that a fact cannot be or is genuinely disputed must support the assertion
by: (A) citing to particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations (including those made for
purposes of the motion only), admissions, interrogatory answers, or other materials; or (B)
showing that the materials cited do not establish the absence or presence of a genuine dispute, or
that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P.
56(c)(1). To the extent that a statement of fact contains a legal conclusion or otherwise unsupported
statement, including a fact that relies upon inadmissible hearsay, such a fact is disregarded.
Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir. 1997). “The court need consider only the
cited materials, but it may consider other materials in the record.” Fed. R. Civ. P. 56(c)(3).
6
Generally, the Court deals with cross-motions for summary judgment one at a time, construing all facts
and drawing all reasonable inference in favor of the non-moving party. Black Earth Meat Mkt., LLC v. Vill.
of Black Earth, 834 F.3d 841, 847 (7th Cir. 2016). To the extent that inferences could be made, the Court
has made inferences in favor of the non-moving party on each issue.
13
“Once a party has made a properly-supported motion for summary judgment, the opposing
party may not simply rest upon the pleadings but must instead submit evidentiary materials that
‘set forth specific facts showing that there is a genuine issue for trial.’ ” Harney v. Speedway
SuperAmerica, LLC, 526 F.3d 1099, 1104 (7th Cir. 2008) (quoting Fed. R. Civ. P. 56(e)); see also
Anderson, 477 U.S. at 250. A genuine issue of material fact exists if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. The
party seeking summary judgment has the burden of establishing the lack of any genuine issue of
material fact. See Celotex, 477 U.S. at 323. The Court construes all facts in the light most favorable
to the nonmoving party and draws all reasonable inferences in favor of the nonmoving party. Bell
v. Taylor, 827 F.3d 699, 704 (7th Cir. 2016).
III.
Analysis: Defendant’s Motion for Summary Judgment
Plaintiff brings three types of claims against Defendants: four claims under Title VII, three
claims under § 1983, and three claims under Illinois law. Defendants have moved for summary
judgment on all of them and seek to limit the applicability of punitive damages under two theories.
Each of these issues is discussed in turn. In analyzing Defendants’ motion, the Court interprets the
facts in the light most favorable to Plaintiff.
A.
Title VII Claims
Plaintiff has sued for four Title VII violations, many of which overlap. Counts I and II are
for discrimination (including a hostile work environment) based on religion and national origin,
respectively. Count III is for retaliation, and Count IV is for the denial of professional development
opportunities. Defendants rightly point out that denial of professional development opportunities
is not itself a cause of action. But, Plaintiff discussed the denial of trainings throughout the
complaint, which is incorporated by reference into Counts I and II, so the Court may consider them
14
there. Count IV is redundant, and Defendant is entitled to summary judgment on it. Before turning
to the substantive claims, however, the Court must first consider which parties are proper
defendants for the Title VII counts and the timeliness of the various Title VII claims.
1.
Individual Liability
Defendants Jackson and Wilson argue that they are entitled to summary judgment on the
Title VII counts because Title VII does not impose individual or supervisor liability; that is, only
an “employer” 7 meeting the statutory definition can properly be sued, and they do not fit that
definition. Plaintiff counters that this rule does not apply to Title VII cases and, in the alternative,
that the statutory definition of “employer” applies to the individual Defendants because it discusses
“agent[s]” of the employer or contemplates liability for supervisory employees.
As the Seventh Circuit has explained, “Title VII, the ADA, and the Age Discrimination in
Employment Act (‘ADEA’) use virtually the same definition of ‘employer,’ and that ‘[c]ourts
routinely apply arguments regarding individual liability to all three statutes interchangeably.’”
Williams v. Banning, 72 F.3d 552, 553–54 (7th Cir. 1995) (quoting U.S. E.E.O.C. v. AIC Sec.
Investigations, Ltd., 55 F.3d 1276, 1280 (7th Cir. 1995)) (footnote omitted). After reviewing the
definition of employer in all three statutes and the relevant caselaw, the Seventh Circuit held that
“individuals who do not otherwise meet the statutory definition of ‘employer’ cannot be liable
under the ADA.” AIC, 55 F.3d at 1282. It then extended the logic of this opinion to Title VII cases,
holding that the respective statutory definitions of employer were indistinguishable. Williams, 72
F.3d at 554. Thus, there is not independent individual liability for supervisors—at least when
plaintiffs do not bring any novel and persuasive distinguishing argument. Id.
7
“Title VII defines ‘employer’ as ‘a person engaged in an industry affecting commerce who has fifteen or
more employees ... and any agent of such a person[.]’” Williams v. Banning, 72 F.3d 552, 553 n.1 (7th Cir.
1995) (citing 42 U.S.C. § 2000e(b)).
15
Jackson and Wilson are not proper defendants for Counts I–III. Plaintiff’s arguments are
contrary to Williams and AIC. First, Williams extended AIC to Title VII cases, and refused to
distinguish the two definitions of employer. Id. Second, Williams parsed the “agent” language that
Plaintiff highlights and explained that that language provides an alternative basis for employer
liability, not employee liability. Id. at 555. Third, having hiring and firing authority or being at the
top of an organizational structure does not make someone an “employer.” Compare AIC, 55 F.3d
at 1279, 1282 (holding that a sole shareholder who ran the company “on a day-to-day basis” and
fired plaintiff is not an “employer”), with id. at 1280 n.2 (explaining that a “sole proprietor” is
conceivably an employer). Here, neither of the individual Defendants are employers and thus
cannot be sued under Title VII; they are thus entitled to summary judgment as to these three counts.
2.
Timeliness
Generally speaking, “Title VII claims must be filed within 180 or 300 days after the
allegedly discriminatory act, depending on the state. In Illinois, the charging period is 300 days.”
Groesch v. City of Springfield, Ill., 635 F.3d 1020, 1024 n.2 (7th Cir. 2011) (citations omitted).
Plaintiff’s operative EEOC complaint was filed on April 20, 2016. Defendant argues that any
evidence of discrimination that occurred before June 26, 2015 (300 days prior) should be
disregarded as time barred. Plaintiff counters that, at the very least, evidence of a hostile work
environment from before the 300-day window can be considered as part of an ongoing violation.
Although discrete adverse actions taken before June 26, 2015 are time barred, Plaintiff may
present evidence of harassment that occurred before then for the purpose of his hostile work
environment theory. As the Supreme Court explained:
A hostile work environment claim is composed of a series of separate acts that
collectively constitute one “unlawful employment practice.” 42 U.S.C. § 2000e–
5(e)(1). The timely filing provision only requires that a Title VII plaintiff file a
charge within a certain number of days after the unlawful practice happened. It does
16
not matter, for purposes of the statute, that some of the component acts of the hostile
work environment fall outside the statutory time period. Provided that an act
contributing to the claim occurs within the filing period, the entire time period of
the hostile environment may be considered by a court for the purposes of
determining liability.
National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002); see also Pruitt v. City of
Chicago, Illinios, 472 F.3d 925, 927–28 (7th Cir. 2006) (explaining that laches is the appropriate
defense to invoke when plaintiffs tarry in bringing hostile work environment claims). The case
that Defendants cite for the proposition that evidence of a hostile work environment outside of the
300-day window must be suppressed rested its holding on the fact that the plaintiff “failed to
provide any dates of these alleged discriminatory acts and instead simply indicated that they
occurred regularly and consistently,” so the court could not conclude that they were part of a single
employment practice. Zepeda v. Cook County, Ill., 980 F.Supp.2d 1015, 1029 (N.D. Ill. 2013).
Here, however, Plaintiff has provided an extensive inventory of specific instances during which
harassment occurred, dating back to 2013, and testified that he was regularly harassed during
firearms training, providing further continuity. Because the hostile work environment was an
ongoing violation, and many of the component acts occurred within the 300-day window, Plaintiff
may present older evidence of the hostile work environment. Morgan, 536 U.S. at 117.
3.
Denial of Training, Non-promotion, and Termination
“Title VII makes it unlawful for an employer to discharge or discipline an employee
because of that person’s race or sex, among other grounds.” Coleman v. Donahoe, 667 F.3d 835,
845 (7th Cir. 2012). Likewise, failure to promote claims are actionable, as are claims related to the
failure to provide access to professional development opportunities. See Borja v. Shulkin, 2018
WL 6725565, at *4 (N.D. Ill. Dec. 21, 2018); see also generally Johnson v. McDonald, 2020 WL
374679 (N.D. Ill. Jan. 23, 2020).
17
Preliminarily, neither party recites the proper standard for summary judgment in
employment discrimination cases. That is, four years ago, the Seventh Circuit revisited its
employment discrimination jurisprudence and rejected the “convincing mosaic” framework, along
with the accompanying requirement that “direct” and “indirect” evidence be considered separately.
See generally Ortiz v. Werner Enterprises, Inc., 834 F.3d 760 (7th Cir. 2016). The Seventh Circuit
has subsequently explained the proper standard:
“[T]he singular question that matters in a discrimination case is: ‘[W]hether the
evidence would permit a reasonable factfinder to conclude that the plaintiff’s race,
ethnicity, sex, religion, or other proscribed factor caused the discharge or other
adverse employment action.’ ” Johnson v. Advocate Health and Hosps. Corp., 892
F.3d 887, 894 (7th Cir. 2018) (quoting [Ortiz, 834 F.3d at 765]). To present this
evidence, a plaintiff may utilize the McDonnell Douglas “burden-shifting
framework.” David v. Board of Trustees of Cmty. College Dist. No. 508, 846 F.3d
216, 224 (7th Cir. 2017) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792,
93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). “Under this approach, the plaintiff must
show evidence that ‘(1) she is a member of a protected class, (2) she was meeting
the defendant’s legitimate expectations, (3) she suffered an adverse employment
action, and (4) similarly situated employees who were not members of her protected
class were treated more favorably.’ ” Skiba v. Illinois Cent. R.R. Co., 884 F.3d 708,
719 (7th Cir. 2018) (quoting Carson v. Lake County, Ind., 865 F.3d 526, 533 (7th
Cir. 2017)). “If the plaintiff meets each element of her prima facie case, ‘the burden
shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the
adverse employment action, at which point the burden shifts back to the plaintiff to
submit evidence that the employer’s explanation is pretextual.’ ” Id. at 719–20
(quoting Carson, 865 F.3d at 533).
Notably, the McDonnell Douglas framework is not the only method plaintiffs may
use to prove their claim. “[It] is merely one way of culling the relevant evidence
needed to demonstrate whether a reasonable factfinder could conclude that an
employer engaged in an adverse employment action based on the plaintiff’s” age
or another proscribed factor. Johnson, 892 F.3d at 894. “However the plaintiff
chooses to proceed, at the summary judgment stage the court must consider all
evidence to decide whether a reasonable jury could find that the plaintiff suffered
an adverse employment action because of her age.” Skiba, 884 F.3d at 720 (quoting
Carson, 865 F.3d at 533) (emphasis in the original). We therefore also assess the
evidence “as a whole, rather than asking whether any particular piece of evidence
proves the case by itself.” Ortiz, 834 F.3d at 765.
McDaniel v. Progress Rail Locomotive, Inc., 940 F.3d 360, 367–68 (7th Cir. 2019). Under the
Ortiz framework, summary judgment is inappropriate if a reasonable finder could find “either a
18
causal connection between [Plaintiff’s activity or status] and the adverse action he suffered or else
support an inference of retaliatory [or discriminatory] motive.” McDaniel, 940 F.3d at 371
(quoting Lewis, 909 F.3d at 871).
Here, Plaintiff alleges three discrete adverse actions—(a) the failure to provide adequate
professional development opportunities, (b) the failure to promote, and (c) his dismissal. Plaintiff’s
failure to provide trainings and failure to promote arguments are nonstarters. With regard to failure
to train, there is no evidence from which a reasonable fact-finder could conclude that Plaintiff was
not provided with adequate training opportunities because of his protected status. Indeed, Plaintiff
admits that he was denied training because of internal politics, not discrimination. [59-2 at 38,
¶ 37.] In light of this admission, no reasonable jury could conclude that Plaintiff’s lack of training
was actionable as religious or national-origin discrimination. Skiba, 884 F.3d at 720. Moreover, it
appears as though the denial of trainings claim is time barred. See [79 at 27, ¶ 67 (alleging that
Plaintiff complained in April 2015 of his lack of trainings).] And Plaintiff’s non-promotion claim
must fail as well, because it is undisputed that successful applicants must pass the sergeant’s exam,
and Plaintiff did not pass the exam, meaning that he did not meet the minimum threshold for
promotion. [86 at 15, ¶ 43]; [66-19 at 66:9–10 (“Q: Did you ever pass the sergeant exam? A: No.”)]
No reasonable jury could conclude that his non-promotion was actually because of his religion or
national origin. Skiba, 884 F.3d at 720.
His wrongful termination theory, however, may proceed. The Court begins (and ends) with
the McDonnell Douglas burden-shifting framework. Defendant only disputes two prongs of
Plaintiff’s prima facie case: (1) that he was treated less favorably than a similarly situated
employee and (2) that Plaintiff met his employer’s legitimate job expectations.
19
First, Defendant argues that Plaintiff cannot meet the similarly situated prong because he
cannot point to another similarly situated employee who lied during an investigation and was not
fired. “Although similarly situated employees need not be identical in every conceivable way, they
must be directly comparable to the plaintiff in all material respects.” McDaniel, 940 F.3d at 368–
69 (citations and quotation marks omitted). “In the usual case a plaintiff must at least show that
the comparators (1) ‘dealt with the same supervisor,’ (2) ‘were subject to the same standards,’ and
(3) ‘engaged in similar conduct without such differentiating or mitigating circumstances as would
distinguish their conduct or the employer’s treatment of them.’” Coleman, 667 F.3d at 847 (quoting
Gates v. Caterpillar, 513 F.3d 680, 690 (7th Cir. 2008)). “Whether a comparator is similarly
situated is typically a question for the fact finder, unless, of course, the plaintiff has no evidence
from which a reasonable fact finder could conclude that the plaintiff met his burden on this issue.”
Johnson, 892 F.3d at 895 (citations omitted). Here, Plaintiff can point to, at least, Officer Florance
as a similarly situated comparator who was treated more favorably than Plaintiff and subject to the
same standards as a member of the NCPD under Wilson’s command. A third party, REM,
investigated the tattoo incident and found that Plaintiff’s allegations were more plausible that
Florance’s version(s) of the story. Indeed, viewing the record in the light most favorable to
Plaintiff, Florance’s answers were evasive and shifted over time, meaning that at some point he
did not speak truthfully. Yet, no corrective action was taken against Florance for providing
inaccurate and misleading information during an investigation. [79 at 17–18, ¶ 43.] Thus, Plaintiff
has adduced evidence from which a reasonable jury could conclude that the two engaged in similar
conduct yet were treated differently. Johnson, 892 F.3d at 895.
Second, whether an employee meets his employer’s legitimate expectations often bleeds
into pretext. See, e.g., McKinney v. Office of Sheriff of Whitley County, 866 F.3d 803, 810–13 (7th
20
Cir. 2017) (interweaving analyses of (a) whether employee met employer’s expectations, (b)
employer’s supposed justifications for adverse action, and (c) pretext); Flores v. Preferred
Technical Group, 182 F.3d 512, 515 (7th Cir. 1999). That is, a Title VII defendant cannot point to
a pretextual reason for terminating the plaintiff to defeat a plaintiff’s prima facie case and thus
skirt the pretext analysis altogether. See Pilditch v. Board of Educ. of City of Chicago, 3 F.3d 1113,
1117 (7th Cir. 1993) (“But this alone cannot derail the plaintiff’s case at this stage, because anytime
an employer fired or demoted someone (as in every Title VII case of this kind), it would prove that
the employee was not meeting expectations; the requirement, then, would be meaningless.”) At
this stage in the burden-shifting process, the question is simply “whether the employee is able to
put on objective evidence that he is sufficiently competent to satisfy the legitimate expectations of
an employer.” Id.; see also McKinney, 866 F.3d at 813 (same). Here, Plaintiff has done so.
Preliminarily, he has shown that he was hired by another police department, see [59-3 at 35], which
may be enough to demonstrate his competence in and of itself. See Pilditch, 3 F.3d at 1117.
Moreover, Plaintiff has shown that his most recent supervisors praised his performance. [59-3 at
27 (explaining that Plaintiff scored well on one of the only recent performance evaluations)]; [6818, 18:10–13 (“Q: While you were his supervisor * * * were there complaints made against
[Plaintiff] by other officers? A: No.”); [id., 22:18–21 (“Q: [] Do you recall having any—or having
any performance issues with [Plaintiff]? A: No. I—[Plaintiff] was a good police officer. He—he—
his productivity was—was excellent.”)]. Thus, a reasonable jury could conclude that he satisfied
his employer’s reasonable expectations because he was viewed “a good police officer” by his
supervisor at NCPD at the time of termination. Finally, as explained above, there is at least some
other evidence that other officers lied, obfuscated, or stonewalled during investigations and had
no corrective taken, suggesting that he “was singled out for discipline based on a prohibited
21
factor.” See, e.g., Ismail v. Brennan, 654 Fed. Appx. 240, 243 (7th Cir. 2016) (quoting Curry v.
Menard, Inc., 270 F.3d 473, 477 (7th Cir. 2001)) (loosening the standard for demonstrating
competence when plaintiff presents evidence of being singled out).
Defendant holds up its end of the burden-shifting framework by pointing to facially nondiscriminatory reasons for his firing—his supposed lying during these investigations. So, the
burden shifts back to Plaintiff to show that this was pretexual. Pretext “means something worse
than a business error; pretext means deceit to cover one’s tracks.” Kulumani v. Blue Cross Blue
Shield Ass’n, 224 F.3d 681, 684 (7th Cir. 2000). Defendant’s supposedly legitimate justification
must be shown to be “a lie.” Widmar v. Sun Chemical Corp., 772 F.3d 457, 464 (7th Cir. 2014).
A plaintiff demonstrates pretext “directly by persuading the court that a discriminatory reason
more likely motivated the [defendant] or indirectly by showing that the [defendant’s] proffered
explanation is unworthy of credence.” Blise v. Antaramian, 409 F.3d 861, 867 (7th Cir. 2005)
(citing Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981)). To undermine the
credibility of a justification, a plaintiff “must identify such weaknesses, implausibilities,
inconsistencies, or contradictions in the defendant’s proffered reasons that a reasonable person
could find them unworthy of credence and hence infer that the defendant did not act for the asserted
non-discriminatory reasons.” Widmar, 772 F.3d at 465. “One can reasonably infer pretext from an
employer’s shifting or inconsistent explanations for the challenged employment decision.”
Hitchcock v. Angel Corps, Inc., 718 F.3d 733, 738 (7th Cir. 2013) (quoting Rudin, 420 F.3d at
726). Likewise, deviations from “normal practice” and “unexplained missing records” are
suggestive of pretext. See Baines v. Walgreen Co., 863 F.3d 656, 664–65 (7th Cir. 2017). That
said, the Court must not act as a “super-personnel department that second-guesses employer
22
policies that are facially legitimate,” and must therefore restrict its inquiry into whether the
proffered reasons for non-selection are pretextual. Widmar, 772 F.3d at 464.
A reasonable jury could conclude that the two supposed reasons for the firing—Plaintiff’s
alleged lies about making anti-Semitic comments and Plaintiff’s statements about his Facebook—
are pretextual. For starters, a reasonable jury could easily view the Facebook justification as
incredible. Even taking the REM report at face value, Plaintiff repeatedly acknowledged that
people outside of his friends and family could search for him and view the profile—that he kept
on “popping up.” Acknowledging that the profile is viewable by third parties (who presumably
searched for him in English) is consistent with the investigator’s findings that his profile was
public, and portions were in English. In fact, it is hard to square REM’s conclusion that Plaintiff
lied with the supposedly offending transcript. Moreover, the report was finalized in January 2017,
months after Plaintiff had filed suit. See [68-13 at 1.] Viewing the Facebook investigation in the
light most favorable to Plaintiff, a reasonable jury could easily conclude that Defendant “lied” that
this was why Plaintiff was fired. Widmar, 772 F.3d at 464.
Beyond the Facebook incident, there are other inconsistencies from which a factfinder
could infer pretext. First, the initial February 2016 interview—from which no records have been
uncovered—apparently deviated from normal protocols insofar as Plaintiff was not informed in
advance that he was under investigation for harassment and was not given his choice of advocate.
Defendant’s definitive reliance on such a non-conforming and undocumented interview is
suggestive of pretext. Baines, 863 F.3d at 664–65. Second, at least one other officer at the very
least stonewalled—if not lied—during an investigation into religious harassment, yet no corrective
action was taken, suggesting that full-blown investigations into inconsistencies is a deviation from
normal practice. Id.; cf. Hitchcock, 718 F.3d at 738. Third, relatedly, this suggests that by the
23
NCPD’s own standards, Plaintiff’s punishment was inconsistent. Widmar, 772 F.3d at 465. Fourth,
the initial investigation that uncovered the inconsistency regarding Plaintiff’s alleged antiSemitism did not call for further investigation of Plaintiff, suggesting that the decision to further
investigate his statements reached outside of normal protocols. Baines, 863 F.3d at 664–65. Fifth,
the decision to terminate Plaintiff because his supposed mendacity was so severe that no
progressive discipline could appropriately remedy the problem is inconsistent with the NCPD’s
failure to decertify him. Widmar, 772 F.3d at 465. That is, if he is a liar, then why continue to
allow him to testify in cases where criminal defendants’ lives and limbs are in jeopardy? Finally,
Defendant’s repeated reliance on the Facebook report suggests its explanations are generally
“unworthy of credence.” Blise, 409 F.3d at 867. In sum, Plaintiff may proceed with his
discriminatory termination theory.
4.
Retaliation
Title VII retaliation claims are similar to discrimination claims: Plaintiff may show that he
was retaliated against directly by showing evidence of causation, or indirectly under the
McDonnell Douglas framework. McDaniel, 940 F.3d at 370. Here, Plaintiff’s claims survive
summary judgment via the McDonnell Douglass framework for the reasons laid out above. He (a)
engaged in protected activity (complaining about the harassment); (b) suffered an adverse
employment action, (c) met his employer’s legitimate job expectations, and (d) was treated less
favorably than a similarly situated employee. Id. at 370–71; section III(A)(3), supra. Although
Defendant can point to Plaintiff’s alleged lies, a reasonable jury could find the firing pretextual for
the reasons explained above.
The Court notes, however, that the evidence of retaliation is, if anything, stronger than that
of discrimination. Here, there is evidence that NCPD higher-ups harbored retaliatory animus based
24
on Plaintiff’s prior EEO activity. [59-2 at 38, ¶ 38.]. A reasonable jury could also infer retaliatory
motive from the fact that two of the few times that Defendant ever took remedial action regarding
violations of NCPD policies was against the person who made the initial complaints,
notwithstanding the fact that both times the complaint was substantially sustained. Thus, Plaintiff
may proceed with his retaliatory discharge theory.
5.
Hostile Work Environment
To succeed on hostile environment8 claim, a plaintiff must demonstrate that: “(1) he was
subject to unwelcome harassment; (2) the harassment was based on race (or another protected
category); (3) the harassment was severe or pervasive to a degree that altered the conditions of
employment and created a hostile or abusive work environment; and (4) there is a basis for
employer liability.” Robinson v. Perales, 894 F.3d 818, 828 (7th Cir. 2018). Defendant argues that
the harassment was neither severe nor pervasive9 and there is no basis for employer liability.
Plaintiff counters that the harassment qualifies as offensive, severe, and pervasive.
First, a reasonable jury could conclude that the harassment was severe or pervasive. “The
requirement is disjunctive, not conjunctive; the standard may be met by a single extremely serious
act of harassment or by a series of less severe acts.” Robinson, 894 F.3d at 828. The severity and
8
Plaintiff has alleged a hostile work environment based on his religion and national origin. It is frequently
unclear whether and when a particular incident in this case counts as religious harassment, national-origin
harassment, or both. For example, Plaintiff was frequently called a terrorist, Al Qaeda leader, and ISIS
member—all of those could be plausibly interpreted as references to his religion or national origin.
Likewise, some taunts that reference religion (such as those related to the Muslim pornography actor) were
paired with others that seem to fall closer to national origin (calling Plaintiff a “goat-fucker.”) Accordingly,
the Court views the evidence of both in tandem. See Huri v. Office of the Chief Judge of the Circuit Court
of Cook County, 804 F.3d 826, 834 (7th Cir. 2015) (allowing national-origin (Saudi Arabia) hostile work
environment claim to proceed, although the harassment only explicitly discussed Islam).
9
Some cases look “instead for evidence that the workplace was both subjectively and objectively
offensive,” but in the end “the inquiry is the same.” Johnson, 892 F.3d at 900. Because Defendant frames
its arguments in terms of subjective offensiveness, the Court will address the extent to which the harassment
interfered with Plaintiff’s conditions of employment under the framework of subjective offensiveness as
well.
25
pervasiveness of harassment are highly context dependent, and factors include “‘the severity of
the alleged conduct, its frequency, whether it [wa]s physically threatening or humiliating (or
merely offensive), and whether it unreasonably interfere[d] with the employee’s work
performance.’” Gates v. Board of Education of the City of Chicago, 916 F.3d 631, 637 (7th Cir.
2019) (quoting Robinson, 894 F.3d 828). Accordingly, “[w]hether harassment was so severe or
pervasive as to constitute a hostile work environment is generally a question of fact for the jury.”
Johnson v. Advocate Health and Hospitals Corporation, 892 F.3d 887, 901 (7th Cir. 2018)
(citations omitted). Even work environments that are “a far cry from hellish” are actionable, but
“[o]ffhand comments, isolated incidents, and simple teasing” are not. Id. at 901, 902. Harassment
from one’s supervisors is more severe than that from one’s peers. Gates, 916 at 638–41 (collecting
cases and concluding that a supervisor’s use of the N-word multiple times could have created a
hostile work environment). Likewise, direct harassment (when the conduct is directed at the
plaintiff) is more severe than indirect harassment (a milieu in which people utter offensive things,
but not directly to the plaintiff). E.g., Russell v. Board of Trustees of University of Illinois at
Chicago, 243 F.3d 336, 343 (7th Cir. 2001).
Here, several reported incidents of harassment (including one of the most severe) came
from Plaintiff’s superior officers. Sergeant Rivera accused Plaintiff of bestiality in the context of
insinuating that Plaintiff knew a Muslim sex worker.10 This accusation crosses the line from merely
10
Defendant’s attempt to analogize this case to Filipovic v. K & R Express Systems, Inc., 1997 WL 790593
(N.D. Ill. Dec. 17, 1997), is unavailing. In Filipovic, the court only identified a handful of incidents of
harassment, one of which was that the plaintiff was called a “stupid asshole,” which the court disregarded.
Id. at *15. Filipovic also disregarded another insult, that the plaintiff was a “sheep fucker,” because it did
not clearly reference the plaintiff’s Yugoslavian heritage. Id. Even if the Court could apply such logic to
general accusations of bestiality here, the accusations of bestiality were paired with more explicit
invocations of national origin (camels) and religion (the Muslim pornographic actor), respectively,
permitting the inference that they were tied to protected status. Cole v. Board of Trustees of Northern Illinois
University, 838 F.3d 888, 896 (7th Cir. 2016) (explaining that “forms of harassment that might seem neutral
in terms of [protected status] can contribute to a hostile work environment if other evidence supports a
26
offensive to “humiliating,” especially as it came from Plaintiff’s supervisor. Gates, 916 F.3d at
637. Moreover, this particular comment came just a few weeks after Plaintiff begged his shift to
stop the harassment and formally complained—that is, during the investigation of Plaintiff’s
complaints. Of course, the fact that a supervisor made a series of humiliating jabs at Plaintiff soon
after he had publicly asked people to stop and while the NCPD was investigating harassment
suggests that harassment at the NCPD was sufficiently pervasive that an internal affairs
investigator would not even think twice about it. This was not the only incident of harassment from
Plaintiffs’ supervisors: Sergeants Marquardt and Rivera repeatedly called him a terrorist and AlQaeda operative at firearms training. In this context, Sergeant Harmann repeatedly asked why he
moved to the country, suggesting that Plaintiff did not belong in the United States and that he
ratified the other sergeants’ taunts. Plaintiff avers that these sergeants’ conduct has recurred over
years.
In terms of the other abuse, almost all of the alleged harassment was “direct,” further
suggesting workplace hostility. Russell, 243 F.3d at 343. These other incidents may not, on their
own, be so serious as to create a hostile environment, but taken together could permit a jury to
infer that Plaintiff was subject to severe or pervasive hostility. For example, the officers’ repeated
comments about killing all Iranians, combined with their penchant for blaming Plaintiff for stuff
other Iranians did, could be viewed as threatening, especially in light of some officers’ refusal to
back Plaintiff up. Gates, 916 F.3d at 637. And, the sexually explicit graffiti can be attributed to
religious or anti-Iranian animus, Cole, 838 F.3d at 896, and is on the more serious side of
workplace misconduct. Cf. Baskerville v. Culligan Intern. Co., 50 F.3d 428, 430 (7th Cir. 1995)
reasonable inference tying the harassment to the plaintiff’s protected status”). The decision in Filipovic
granting summary judgment for the employer is also inapposite—there were only four incidents of
harassment, and the most serious ones did not come from the plaintiff’s supervisors. See Filipovic, 1997
WL 790593 at *15.
27
(explaining that “obscene language or gestures [and] pornographic pictures” are actionable in and
of themselves, at least in sex discrimination cases). At some point short of the dozens of incidents
here—many of which involve vivid denigration of his religion, including that its ultimate prophet
is a “pimp” and “child molester,” and the regular accusations of terrorism and bestiality—give
way from a few “isolated incidents” of teasing to a hostile work environment. See, e.g., Vovillia v.
Illinois Department of Human Services, 2019 WL 2994533, at *8 (N.D. Ill. July 9, 2019).
Defendant argues in response that the harassment could not be severe and pervasive,
because Plaintiff was not subjectively offended, as evidenced by his participation in the ribbing.
Preliminarily, Plaintiff disputes whether (and to what extent) he made comments about other
officers; if the jury believes his testimony over that of his former coworkers, then Plaintiff never
said anything anti-Semitic in the first place. And, at least in this motion, Defendants have offered
meagre admissible evidence of Plaintiff’s allegedly rampant anti-Semitism. There is also evidence
from which a reasonable jury could conclude that Plaintiff was actually offended, and the
harassment materially altered the conditions of his employment. He filed at least three formal
complaints in 2016 and begged his coworkers to stop. He also sought counseling from his imam
on a bi-weekly basis.11 [59-2 at 24.] And between 2013 and late 2016—before he was fired—he
sought medical treatment for stress-related stomach pain, which intensified throughout the spring
of 2016. [79 at 32, ¶ 77]; [59-2 at 26–27.] Likewise, “the harassment interfered with [Plaintiff’s]
work performance by making it difficult for him to concentrate and by forcing him to devote time
to making verbal complaints to his supervisors, submitting [written complaints], and participating
11
Defendant argues that because Plaintiff never sought psychological counselling, he cannot prevail on his
hostile work environment claim. But, it is well established “that ‘Title VII comes into play before the
harassing conduct leads to a nervous breakdown.’” Cerros v. Steel Technologies, Inc., 288 F.3d 1040, 1046
(7th Cir. 2002) (Cerros I) (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993).
28
in investigations when he could otherwise have been performing his assigned duties.” Vovillia,
2019 WL 2994533, at *8.
Finally, neither party adequately addressed the proper standards for determining whether
there is a basis for employer liability. The standards differ based on the role of the harasser within
the organization: “If the harassing employee is the victim’s co-worker, the employer is liable only
if it was negligent in controlling working conditions. In cases in which the harasser is a
‘supervisor,’ however, different rules apply.” Vance v. Ball State University, 570 U.S. 421, 424
(2013). Defendant has not addressed the fact that some of the harassment came from Plaintiff’s
supervisors, which would generally impose strict liability. Id. Of course, there are exceptions to
this rule, see, e.g., generally Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and
“supervisor” is a term of art when determining employer liability. Vance, 570 U.S. at 431 (“We
hold that an employer may be vicariously liable for an employee’s unlawful harassment only when
the employer has empowered that employee to take tangible employment actions against the
victim, i.e., to effect a significant change in employment status, such as hiring, firing, failing to
promote, reassignment with significantly different responsibilities, or a decision causing a
significant change in benefits.”) (quotation marks and citation omitted). But Defendant has not
fleshed out arguments under any framework and has thus failed to meet its burden of demonstrating
that it is entitled to judgment as a matter of law.
Even if Sergeants and Detectives are considered coworkers, however, a reasonable jury
could still determine that Defendant was negligent in stemming and responding to Plaintiff’s
harassment. “An employer satisfies its legal duty in coworker harassment cases ‘if it takes
reasonable steps to discover and rectify acts of ... harassment of its employees.’” Cerros v. Steel
Technologies, Inc., 398 F.3d 944, 952 (7th Cir. 2005) (Cerros II) (quoting Parkins v. Civil
29
Constructors of Ill., Inc., 163 F.3d 1027, 1032 (7th Cir.1998)). “An employer’s adoption of an
effective anti-harassment policy is an important factor in determining” the reasonableness of its
actions. Hunt v. Wal-Mart Stores, Inc., 931 F.3d 624, 630 (7th Cir. 2019) (citation omitted)
(finding no basis for employer liability where policy included “robust” reporting measures and
employer promptly investigated reported conduct). The “mere existence of such a policy, however,
does not necessarily establish that the employer acted reasonably in remedying the harassment
after it has occurred or in preventing future misconduct.” Cerros II, 398 F.3d at 953 (citations
omitted); see also Hunt, 931 F.3d at 630 (“[P]revention should include close monitoring when an
employer has knowledge of prior harassment.”) Indeed, employees need not always follow the
exact reporting requirements in a policy—what matters is whether they complain about the
harassment in a way that should bring it to the employer’s attention. Cerros II, 398 F.3d at 953.
Here, Defendant’s anti-harassment policy was ineffective, and, in any event, Defendant
failed to adequately respond to prior reports of harassment. First, the anti-harassment policy, such
as it is,12 merely requires that any employee experiencing harassment or discrimination “to notify
promptly their supervisor or Human Resources. This may be done in writing or orally.” [68-7 at
4]; see also [id. at 2 (“Any employee with questions or concerns about any type of discrimination
in the workplace is encouraged to bring these issues to the attention of their supervisor or Human
Resources.”)]. Plaintiff repeatedly reported harassment to Lieutenant Theis, yet Theis did nothing.
If an employer can be liable for coworker harassment when the victim does not comply with a
policy’s reporting requirements, Cerros II, 398 F.3d at 953, then a fortiori the NCPD should be
liable here, where Plaintiff did comply with the policy. Moreover, Defendant does not dispute that
12
The policy is difficult to parse and appears to have been cobbled together from an older policy that did
not discuss religion and national origin. Section 1.7, the only full section of the policy provided to the Court
is entitled “Sexual Harassment.” See generally [68-7]. Except for one paragraph, the two-page policy
focuses exclusively on “harassment based on gender.” [Id. at 2.]
30
it had knowledge of Plaintiff’s 2012 complaint, yet it failed to monitor to ensure that the
harassment problems did not pop up again. This failure to monitor was especially problematic
given that the culture of harassment was well-known by the supervisory sergeants and Lieutenant
Theis; indeed, these facts are suggestive of a total breakdown of the anti-harassment program.
And, there is at least some suggestion that the officers’ refusal to back Plaintiff up was
discriminatorily motivated—perhaps an investigation into this dangerous personnel and public
safety problem would have uncovered further evidence of the dysfunction and harassment on the
third shift. In other words, viewing the evidence in the light most favorable to Plaintiff, a
reasonable jury could conclude that Defendant failed to take “reasonable steps to discover and
rectify acts of ... harassment” given that Plaintiff followed the anti-harassment policy to no avail,
and the existence of harassment was well known by staff and management alike. Cerros II, 398
F.3d at 952. Thus, Defendants are not entitled to summary judgment on this claim.
B.
Section 1983 Claims
Plaintiff brings two § 1983 claims against Jackson and Wilson in their individual and
official capacities for discrimination and retaliation in violation of the Fourteenth Amendment.
Plaintiff also has a Monell count for municipal liability. Defendants have moved for summary
judgment on the following grounds, which are addressed in turn: Plaintiff’s official capacity counts
against the individual counts are redundant; Plaintiff’s retaliation claim fails as a matter of law;
Jackson cannot be held personally liable under § 1983 because he retired and was not personally
involved in any discrimination; the city cannot be held liable under Monell; and the remaining
discrimination claim should be analyzed as similar to the Title VII claims.
31
1.
Official Capacity Claims
Defendants Jackson and Wilson move for summary judgment on the official capacity
claims brought against them on the grounds that they are redundant in view of the Monell claims.
That is, a suit against an “official in his or her official capacity is not a suit against the official but
rather is a suit against the official’s office.” Will v. Michigan Dept. of State Police, 491 U.S. 58,
71 (1989) (internal citations omitted). Because there is authority that such redundant claims should
be dismissed, Admiral Theatre v. City of Chicago, 832 F. Supp. 1195, 1200 (N.D. Ill. 1993), and
Plaintiff does not address Defendants’ arguments, Defendants Jackson and Wilson are entitled to
summary judgment as to the § 1983 claims against them in an official capacity.
2.
Retaliation Claim
Defendant has also moved for summary judgment on Count VI (Section 1983 Retaliatory
Termination under the Fourteenth Amendment) on the ground that Plaintiff has not put forward
any evidence of causation. But Plaintiff’s claim fails as a matter of law for a much simpler reason:
in the Seventh Circuit, there is no such thing as an equal protection retaliation claim. Boyd v.
Illinois State Police, 384 F.3d 888, 898 (7th Cir. 2004); see also King v. Kramer, 763 F.3d 635,
642 (acknowledging that “plaintiffs are not required to plead legal theories,” but when a new theory
entails “a jump shift” the complaint should be amended). Accordingly, Defendant is entitled to
summary judgment on Plaintiff’s Count VI.
Some of the briefing pivots to First Amendment retaliation, but the Court is skeptical that
Plaintiff can make out a First Amendment retaliation claim on these facts. To make out such a
claim, a plaintiff must show that the speech is constitutionally protected, that is, “that (1) he made
the speech as a private citizen, (2) the speech addressed a matter of public concern, and (3) his
interest in expressing that speech was not outweighed by the state’s interests as an employer in
32
promoting effective and efficient public service.” Kristofek v. Village of Orland Hills, 832 F.3d
785, 792 (7th Cir. 2016). “The Supreme Court has instructed that ‘when public employees make
statements pursuant to their official duties, the employees are not speaking as citizens for First
Amendment purposes, and the Constitution does not insulate their communications from employer
discipline.’” Id. 792–93 (7th Cir. 2016) (quoting Garcetti v. Ceballos, 547 U.S. 410, 421 (2006)).
Thus, an employee making internal complaints about other officers’ misconduct pursuant to an
anti-harassment policy is not speaking as a private citizen. Roake v. Forest Preserve District of
Cook County, 849 F.3d 342, 346 (7th Cir. 2017) (“A police officer’s duty to report official police
misconduct is a basic part of the job.”) And internal complaints about harassment intended to
improve the employee’s working conditions (as opposed to alerting the public) do not qualify as
speech addressed at a matter of public concern. Kubiak v. City of Chicago, 810 F.3d 476, 482–84
(7th Cir. 2016). Here, where Plaintiff complained internally about intra-office police misconduct
pursuant to internal policies and protocols, there is no indication that Plaintiff either spoke as a
private citizen or directed his speech to a matter of public concern.
3.
Jackson’s Motion for Summary Judgment
Section 1983 suits are predicated on individual liability—that is, each individual defendant
must have personally violated Plaintiff’s rights to be liable under § 1983. Colbert v. City of
Chicago, 851 F.3d 649, 657 (7th Cir. 2017). Jackson claims that he cannot be held liable for any
adverse employment actions because he was not personally involved in any discrimination. As
explained above, there are two operative actions for which Jackson could be liable: the hostile
work environment and Plaintiff’s termination.
First, Jackson was not sufficiently personally involved in the hostile work environment to
be subject to § 1983 liability. Preliminarily, there is no evidence that Jackson ever harassed
33
Plaintiff. And Plaintiff concedes that to survive summary judgment he must demonstrate “more
than mere negligence on the part of” Jackson. [71 at 16 (citation omitted).] Even viewing the
evidence in the light most favorable to Plaintiff, he cannot show that Jackson’s post-2012
management was anything more than negligent: Jackson required harassment trainings and
responded promptly when allegation of harassment did come across his desk in January 2016.
Perhaps he should have done more, but there is nothing in the record suggesting that Jackson was
anything more than negligent: there is no indication that Jackson knew of the third shift’s hostility
to Plaintiff or that some middle-managers failed to adhere to the harassment policy. All of the
cases Plaintiff cites to the contrary are thus inapposite because they all acknowledge that a
supervisor can only be liable in § 1983 when he is personally involved. See Duchesne v. Sugarman,
566 F.2d 817, 832 (2d Cir. 1977) (allowing a § 1983 case against a supervisor to go to a jury he
personally promulgated an unconstitutional policy); Hahn v. McLey, 737 F.2d 771, 773 (8th Cir.
1984) (explaining that supervisory liability in § 1983 did not lie when defendants did not condone
of constitutional violation—and, indeed, were not aware of it); Taylor v. Mayone, 574 F. Supp.
609, 614 (S.D.N.Y 1983) (implying that knowledge of an imminent constitutional violation is a
prerequisite for supervisory § 1983 claims); Williams v. Smith, 781 F.3d 319, 324 (2d Cir. 1986)
(refusing to grant summary judgment in light of factual dispute over supervisor’s personal
involvement). To the extent that these decades-old, out-of-circuit cases are relevant here, they all
suggest that Jackson cannot be sued under § 1983, because he did not turn a blind eye to an
imminent constitutional violation, was not personally involved, did not condone the harassment,
and did not promulgate an unconstitutional policy.
Likewise, Jackson cannot be held liable for Plaintiff’s termination. Indeed, the only things
that happened before Jackson’s retirement were (a) Plaintiff’s interrogation in February 2016, and
34
(b) the release of the report concluding that Plaintiff’s version of the facts were inconsistent with
others. Jackson therefore was not responsible for ordering an additional investigation of Plaintiff,
suspending Plaintiff, ordering further investigations into the Facebook incident, or ultimately firing
him. It is not even clear that Jackson was personally involved with selecting the interrogation
format and releasing the report; if not, he would not be liable under § 1983. Colbert, 851 F.3d at
657. Even if Jackson could be held liable for these actions, these two events did not, on their own,
“‘produce an injury or harm.’” Lewis v. Wilkie, 909 F.3d 858, 868 (7th Cir. 2018) (quoting
Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006)); compare id. at 868–
70 (holding that administrative errors, threats of future discipline, subjecting employee to
surveillance, and requiring that employee submit to questioning in front of witnesses are not,
without more, materially adverse), with Robinson, 894 F.3d at 833–934 (holding that increased
surveillance, when combined with multi-pronged effort to end an employee’s career, is materially
adverse). To the extent that there is any evidence of greater surveillance of Plaintiff, let alone a
conspiracy to end his career, it post-dates Jackson’s retirement. Plaintiff’s February interview
involved no greater surveillance or investigation than it did of his coworkers; it was merely a
questioning in front of witnesses, and thus not actionable under § 1983. Lewis, 909 F.3d at 868–
90. Accordingly, Jackson cannot be sued under § 1983, and is entitled to summary judgment on
these counts.
4.
Monell
Defendant next argues that Plaintiff cannot proceed with his municipal liability claim. See
generally Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). A Monell claim lies if Plaintiff’s
constitutional injury was caused by one of the following: “(1) the enforcement of an express policy
of the [municipality], (2) a widespread practice that is so permanent and well settled as to constitute
35
a custom or usage with the force of law, or (3) a person with final policymaking authority.” Wragg
v. Vill. of Thornton, 604 F.3d 464, 467 (7th Cir. 2010) (citations omitted).
At the very least, Defendant has not demonstrated that, as a matter of law, Wilson was not
a policymaker. “The determination of whether a person has policymaking authority is a question
of state law and is to be decided by the court.” Valentino v. Vill. of S. Chicago Heights, 575 F.3d
664, 675 (7th Cir. 2009) (citation omitted); but see Kujawski v. Board of Com'rs of Bartholomew
County, Ind., 183 F.3d 734, 739 (7th Cir. 1999) (letting a sub-issue within the policymaker inquiry
go to a jury). “In order to have final policymaking authority, an official must possess
‘[r]esponsibility for making law or setting policy,’ that is, ‘authority to adopt rules for the conduct
of government.’” Rasche v. Vill. of Beecher, 336 F.3d 588, 599 (7th Cir. 2003) (quoting Auriemma
v. Rice, 957 F.2d 397, 401 (7th Cir. 1992)). Although Monell policymaker liability is a question
of law, it is highly data intensive: among other things, courts must consider “positive law,
including ordinances, rules and regulations, [and] also the relevant customs and practices having
the force of law.” Valentino, 575 F.3d at 676 (citations omitted and internal quotation marks
omitted). Courts must then marshal this data to determine, inter alia, whether the official’s decision
was subject to meaningful review and whether the decision was made within the official’s grant
of authority. Id. (citations omitted).
Defendant’s argument is simple: the Seventh Circuit has held that in Illinois, police chiefs
are generally not final policymakers with regard to hiring and firing. Rather, the city council
generally acts as final policymaker. [65 at 22–23 (citations omitted).] “But to cite [these cases] for
the proposition that the [city council] * * * is the final policymaker on every policy decision is to
miss the fact that we look to various factors in determining whether a certain individual or group
has policymaking authority on any particular policy decision.” Wragg, 604 F.3d at 468.
36
Responsibilities such as policy-making authority regarding firing, can be delegated, Kujawski, 183
F.3d at 739, and Plaintiff cites to a town ordinance suggestive of such a delegation. [71 at 20–21.]
In contrast, Defendant has marshalled no law or evidence on the specific question of whether police
chiefs in North Chicago make firing policy. Thus, Defendant has not shown that it is entitled to
judgment as a matter of law. With that said, the Court will discuss with counsel at the next status
hearing whether the Monell claim (Count VII) should be bifurcated as a matter of prudent case
management.
5.
Discrimination Claim against Wilson
After all this winnowing, there is one more § 1983 claim left to deal with: Plaintiff’s § 1983
discrimination claims against Wilson. Defendants concede that the “standards for proving
discrimination under Title VII also apply equally to § 1983 claims.” [65 at 21 (citations omitted).]
As discussed above, a reasonable jury could conclude that Defendants fired Plaintiff in violation
of Title VII. According to Defendants’ own arguments, then, the § 1983 claim may proceed.
Next, Wilson argues that he is entitled to qualified immunity, because hiring and firing
decisions are discretionary, and such discretionary decisions are not grounds for money damages
“if they do not violate clearly established statutory or constitutional rights.” [65 at 25–26 (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)]. This argument in defense of qualified immunity,
though, goes to questions of fact that need to be decided by a jury, such as the actual reasons for
Plaintiff’s discharge. [65 at 25–26.] Taking the facts and evidence in the light most favorable to
Plaintiff, a reasonable jury could conclude that Plaintiff was fired for discriminatory reasons.
“Arbitrary religion-and nationality-based discrimination had long been illegal” by the time that
Plaintiff was fired, so firing him for those reasons was illegal under well-established law; Wilson
37
is not entitled to qualified immunity. See Huri, 804 F.3d at 835 (citing Reed v. Faulkner, 842 F.2d
960, 962 (7th Cir. 1988)). Thus, Wilson’s motion for summary judgment on this count is denied.
C.
State Law Claims
1.
Retaliatory Discharge
Defendant argues that the common law retaliatory discharge claim should be dismissed as
to both the municipal and individual defendants because all Defendants are immune. First,
municipalities are not immune from Illinois tort claims based on retaliatory discharge. Smith v.
Waukegan Park Dist., 231 Ill.2d 111, 116–117 (2008) (finding that public employers may not
invoke immunity in retaliatory discharge cases and overruling the case upon which Defendant
relied). Thus, this claim against the municipality may proceed.
But, the retaliatory discharge claims against the individual Defendants cannot proceed.
Preliminarily, Plaintiff did not respond to this aspect of Defendants’ motion at all. But even if he
had, the majority approach in Illinois state and federal courts applying Illinois law is to immunize
individuals from retaliatory discharge suits. See Consolino v. Dart, 2019 WL 4450498, *10–11
(N.D. Ill. Sept. 17, 2019) (reviewing cases under the Illinois Tort Immunity Act, 745 ILCS 10/2–
201); see also Sroga v. Preckwinkle, 2016 WL 1043427, *6 (N.D. Ill. March 16, 2016) (reviewing
the common law on retaliatory discharge).
2.
Illinois Human Rights Act Claims
Defendants concede that discrimination and retaliation claims brought pursuant to the
IHRA are evaluated under the same standards and tests as those brought under Title VII. [65 at
27–28.] Because the Court denied summary judgment for the Title VII claims, Defendants likewise
are not entitled to summary judgment on the IHRA claims as well.
38
D.
Punitive Damages
Defendant objects to the request for punitive damages in (a) the § 1983 counts (V and VI)
and (b) the IHRA counts insofar as they apply to the municipality. First, “a jury may be permitted
to assess punitive damages in an action under § 1983 when the defendant’s conduct is shown to be
motivated by evil motive or intent, or when it involves reckless or callous indifference to the
federally protected rights of others.” Smith v. Wade, 461 U.S. 30, 56 (1983); see also Alexander v.
City of Milwaukee, 474 F.3d 437, 454–55 (7th Cir. 2007) (upholding district court’s decision to
put punitive damages before the jury because the plaintiffs presented evidence that the defendants,
accused of discrimination, “knew about a problem, failed to act to control it, as the responsibility
of their office required them to do, and knowingly participated in its continuance”). Viewing the
summary judgment record in the light most favorable to Plaintiff, a reasonable jury could conclude
that Wilson acted recklessly with regards to Plaintiff’s constitutional rights. Indeed, the framework
of discriminatory termination suits, which require a showing that defendants either lied or fired
the employee because of a protected characteristic, almost implicitly requires at least recklessness.
Second, neither party recites the proper standard for imposing punitive damages against
the city in IHRA claims. Plaintiff ignores the argument, while Defendant cites a § 1983 case. See
[65 at 29 (citing City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981) for the
proposition that punitive damages cannot be imposed on municipalities “under the civil rights
laws”).] But § 1983 and the IHRA are different statutes. In any event, Illinois courts do not allow
punitive damages in IHRA suits against employers. E.g., Stratton v. Merrill Lynch Pierce Fenner
& Smith, Inc., 2012 WL 1533456, at *2 (N.D. Ill. April 25, 2012) (discussing Baker v. Miller, 159
Ill.2d 249, 262 (1994); Page v. City of Chicago, 299 Ill.App.3d 450, 464 (1st Dist. 1998)).
39
IV.
Analysis: Plaintiff’s motion for summary judgment
Plaintiff’s motion for summary judgment on Counts I through VI of his complaint is
denied. Plaintiff has failed to carry his burden of persuasion, and, in any event, to the extent that
the claims survive Defendants’ motion, each of the surviving claims is rife with issue of material
fact that must be submitted to a jury. First, Plaintiff does not accurately describe the standard for
summary judgment in his favor. According to him, “[t]he question is whether the evidence would
permit a reasonable factfinder to conclude that a plaintiff’s race or other impermissible factor
caused the discharge.” [58-1 at 3 (citing Ortiz, 834 F.3d at 765).] This is an accurate description
of the standard when evaluating Defendants’ motion for summary judgment, but the question is
flipped when evaluating Plaintiff’s motion for same: could a factfinder, viewing the evidence in
the light most favorable to Defendant, reasonably conclude that the adverse actions were caused
by a permissible factor? Here, Plaintiff makes no argument on that point, so his motion fails. Fed.
R. Civ. P. 56(a). Moreover, as discussed above, there is contradictory evidence regarding why
Plaintiff was fired and whether there was a hostile work environment. Viewing the evidence in the
light most favorable to Defendants, a reasonable jury could well conclude that Plaintiff was not
similarly situated to Florance; the justification for his termination was not pretextual; if there was
pretext, it was unrelated to religion or national origin; that the harassment was neither objectively
nor subjectively offensive; or the failure to contain the harassment did not constitute negligence.
V.
Conclusion
For these reasons, Defendants’ motion for summary judgment [64] is granted in part and
denied in part and Plaintiff’s motion for summary judgment [57] is denied. The case is set for
further status at March 3, 2020 at 9:00 a.m.
40
Dated: February 20, 2020
____________________________
Robert M. Dow, Jr.
United States District Judge
41
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