Lewis v. Cook County Bureau of Human Resources
Filing
71
MEMORANDUM Opinion and Order signed by the Honorable Martha M. Pacold on 9/30/2022: For the reasons stated in the accompanying order, the motion for summary judgment 37 is granted as to Counts II and III. Count I is dismissed as withdrawn. Civil case terminated. Mailed notice. (as, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DELORES LEWIS,
Plaintiff,
v.
COUNTY OF COOK,
Case No. 17-cv-08802
Judge Martha M. Pacold
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff Delores Lewis worked for Defendant Cook County’s Bureau of
Human Resources until she was terminated in 2015. Lewis sued her former
employer, alleging race and age discrimination, as well as a violation of the consent
decrees entered in Shakman v. Democratic Organization of Cook County, No. 69-cv02145 (N.D. Ill.) (“Shakman Decrees”). The County moves for summary judgment
on all claims [37]. Lewis has withdrawn her race discrimination claim (Count I)
and requested that the court dismiss the claim; Count I is dismissed on that basis.
For the reasons below, the court grants the County’s summary judgment motion as
to Counts II (age discrimination) and III (violation of Shakman Decrees).
BACKGROUND
I.
The Shakman Decrees
The court begins with a brief recap of the history of the Shakman consent
decrees. In 1969, Michael Shakman and another plaintiff brought a suit in the
Northern District of Illinois challenging political patronage in the City of Chicago
and Cook County. Shakman v. Democratic Org. of Cook Cnty., 481 F. Supp. 1315,
1320–21 (N.D. Ill. 1979), vacated sub nom. Shakman v. Dunne, 829 F.2d 1387 (7th
Cir. 1987). In 1972, the Shakman defendants entered into a consent decree
prohibiting them from “conditioning, basing or knowingly prejudicing or affecting
any term or aspect of governmental employment, with respect to one who is at the
time already a governmental employee, upon or because of any political reason or
factor.” O’Sullivan v. City of Chicago, 396 F.3d 843, 848 (7th Cir. 2005) (discussing
history of Shakman decrees). Subsequently, another decree was entered to
eliminate political influence over hiring practices. Id. at 848–49. As a result,
except for certain exempt positions, it is unlawful for Cook County to take political
considerations into account in any employment actions, such as recruitment, hiring,
promotions, terminations, or transfers. Shakman v. Democratic Org. of Cook Cnty.,
569 F. Supp. 177 (N.D. Ill. 1983). 1
A Supplemental Relief Order (“SRO”) in the Shakman litigation established a
process for investigating and adjudicating claims of political discrimination or
retaliation reported by county employees. See Lanahan v. Cnty. of Cook, No. 16-cv11723, 2018 WL 1784139, at *1 (N.D. Ill. Apr. 13, 2018) (summarizing the SRO).
The SRO provides that the Cook County Office of Independent Inspector General
(“OIIG”) will investigate claims arising after February 2, 2007. Id. at *1 & n.1.
The OIIG issues findings to the Shakman compliance administrator (who oversees
the SRO on behalf of the Shakman district court) and others. Id. at *1. The SRO
allows claimants to seek a settlement conference with Cook County and, if the
settlement conference is unsuccessful, to pursue arbitration. Id.
II.
Factual Background
In deciding Cook County’s motion for summary judgment, the court views the
evidence in the light most favorable to Lewis. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). The following facts are undisputed unless
otherwise noted. Lewis is a former Human Resources Assistant II for the Cook
County Bureau of Human Resources (“BHR”). Pl.’s Resp. DSOF, [43] ¶ 1. 2 Lewis
began working for the County in 1992, working first as a tax examiner through
April 2000, and then in the highway department through 2013. Def.’s Resp. PSOF,
[45] ¶ 1.
In 2010, Lewis sued the County for, among other things, alleged violations of
the Shakman Consent Decrees. See Lewis v. Cnty. of Cook, No. 10-cv-01313, 2011
WL 839753 (N.D. Ill. Feb. 24, 2011). In 2011, Lewis entered into a settlement
agreement with the County. Under that agreement, she received her human
While this case was pending, the Seventh Circuit dissolved the 1972 Shakman decree as it
applies to the Governor of Illinois, based on evidence of that office’s substantial compliance
with the terms of the decree, and principles of federalism. Shakman v. Pritzker, 43 F.4th
723, 732 (7th Cir. 2022). That decision was limited to the Office of the Governor. Id.
(vacating “the 1972 consent decree as it applies to the Governor of Illinois”). That decision
does not affect the application of the decrees to Cook County. The Seventh Circuit also
recently affirmed a decision declining to vacate the decrees as applied to certain other
government actors. Shakman v. Clerk of Cook Cnty., 994 F.3d 832, 835 (7th Cir. 2021).
1
Bracketed numbers refer to docket entries and are followed by page and / or paragraph
citations. Page numbers refer to the CM/ECF page number. Citations to the parties’ Local
Rule 56.1 Statements of Fact are identified as follows: “Pl.’s Resp. DSOF” for Lewis’s
Response to the County’s Statement of Undisputed Facts, [42], and “Def.’s Resp. PSOF” for
the County’s Response and Objections to Lewis’s Statement of Additional Material Facts,
[45]. (Both responses replicate the statements to which they respond, so for ease of
reference the court cites the responses.)
2
2
resources assistant job title. Def.’s Resp. PSOF [45] ¶ 2. In 2013, the County
dissolved the highway department and transferred Lewis to the BHR. Id.
In May 2014, Rebecca Strisko became BHR’s Deputy Chief, and Lewis
reported to Strisko. Pl.’s Resp. DSOF [42] ¶¶ 8, 10. Later that year, Lewis’s job
description was modified from mirroring her previous role in the highway
department, to reflect that she now had a primary duty of conducting criminal
background checks for new employees. Id. ¶ 11; Def.’s Resp. PSOF [45] ¶ 4. In
February 2015, Lewis filed a complaint with the OIIG, in which she alleged that
another BHR employee heard Strisko say that Lewis and two other employees
“have to go.” Strisko was notified about the complaint and provided a statement to
the OIIG. Def.’s Resp. PSOF [45] ¶ 8.
In October 2015, the County informed Strisko that she would need to make
personnel cuts to implement a Reduction in Force (“RIF”). Pl.’s Resp. DSOF [42] ¶
13. BHR issued countywide layoffs, including within BHR. Id. ¶ 14. Martha
Martinez, the interim Chief of BHR, told Strisko to cut two BHR positions. Def.’s
Resp. PSOF [45] ¶¶ 3, 11. On October 6, Strisko recommended that Martinez
eliminate the EEO Investigator I position (held by Susan Pracht) and Lewis’s
position, Human Resources Assistant II. Id. ¶¶ 115. Martinez approved the
recommendation. Pl.’s Resp. DSOF [42] ¶20. On October 9, Strisko and Martinez
met with Lewis and gave her a Notice of Layoff letter, which stated that she was
being laid off because of budget cuts, not her work quality. Id. ¶¶ 25–26. The letter
also explained how to apply to be on the recall list. Id. ¶ 26. Lewis was laid off on
November 30. Id. ¶ 36. She was approximately 50 years old at the time. See [38-2].
The Shakman compliance administrator’s office reviewed Lewis’s termination
and took no action. Pl.’s Resp. DSOF [42] ¶ 34. However, Strisko sent that office a
copy of Lewis’s highway department job description, rather than her updated BHR
job description. Def.’s Resp. PSOF [45] ¶ 34. The compliance office concluded in
part that “assuming that there is no other BHR job description for her position,
BHR complied with the policy regarding layoff decisions.” Id.
Lewis requested placement on the recall list. Pl.’s Resp. DSOF [42] ¶ 55. It
is County policy that all employees laid off for budgetary reasons may be placed on
this list if they timely apply. Def.’s Resp. PSOF [45] ¶ 22. Employees remain on
this list until they are re-employed or two years have passed, whichever comes first.
Id. If an employee is offered a position in the “same classification” and declines, the
employee is removed from the list. Id. Lewis’s recall expiration date was November
30, 2017. Id. ¶ 20. Strisko testified that an employee on the recall list can be
recalled only into a position with the same classification or title. [43-2] at 17.
Lewis’s eliminated position was the only one in its title and classification, and no
one was rehired to that position. Pl.’s Resp. DSOF [42] ¶¶ 55–57.
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III.
Procedural History
On October 29, 2015, Plaintiff filed a post-SRO complaint with the OIIG (i.e.,
a complaint filed after the SRO was entered, which is to be investigated according
to the SRO’s terms), alleging that her termination constituted retaliation and
political discrimination against her earlier involvement with the OIIG. Pl.’s Resp.
DSOF [42] ¶¶ 38–39. The OIIG conducted an investigation and issued a post-SRO
investigation report on July 25, 2017. Id. The OIIG concluded that “impermissible
political factors were not considered in any employment decision involving the
complainant,” and that there was no evidence that Lewis’s involvement with the
OIIG played a role in her termination. Id. ¶¶ 40–43.
Separately, on August 2, 2016, Lewis filed a charge of discrimination with the
Equal Employment Opportunity Commission (“EEOC”). Id. ¶ 3; see also [38-2].
In that charge, Lewis alleged that her termination was a result of race and age
discrimination. See [38-2] at 2. After the EEOC concluded its investigation and
issued a right to sue letter, Lewis brought this action. See [8] ¶ 3. The County
moved for summary judgment on Lewis’s race discrimination, age discrimination,
and Shakman violation claims. [37]. Lewis has withdrawn her race discrimination
claim and requested that the court dismiss the claim (Count I). See [41] at 8.
DISCUSSION
Summary judgment is proper where “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); see also Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986). 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). The substantive law controls which
facts are material. Id.
The party seeking summary judgment has the burden of establishing that
there is no genuine dispute as to any material fact. See Celotex, 477 U.S. at 323.
After a “properly supported motion for summary judgment is made, the adverse
party must set forth specific facts showing that there is a genuine issue for trial.”
Anderson, 477 U.S. at 250 (quotation and footnote omitted). Construing the
evidence and facts supported by the record in favor of the non-moving party, the
Court gives the non-moving party “the benefit of reasonable inferences from the
evidence, but not speculative inferences in [the non-moving party’s] favor.” White v.
City of Chicago, 829 F.3d 837, 841 (7th Cir. 2016) (internal citations omitted). “The
controlling question is whether a reasonable trier of fact could find in favor of the
non-moving party on the evidence submitted in support of and opposition to the
motion for summary judgment.” Id.
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I. Age Discrimination
The court begins with Lewis’s claim that the County discriminated against
her based on age. 3 Lewis appears to argue that both the County’s decision to fire
her and the County’s failure to subsequently rehire her were instances of age
discrimination. Regarding claims for age discrimination, under the Age
Discrimination in Employment Act (ADEA) and EEOC charges, the Seventh Circuit
has held that:
As a general rule, any claim that an ADEA plaintiff wishes
to pursue in federal court must first be presented to the
EEOC. This rule is designed to give the employer some
warning of the conduct about which the employee is
aggrieved, and it affords the EEOC and the employer an
opportunity to attempt conciliation without resort to the
courts. We have, however, recognized an exception to this
general rule. If a claim not asserted in an EEOC charge is
‘reasonably related’ to a claim that was included in the
EEOC charge, the plaintiff may pursue that claim in court.
We have held that a claim in a judicial complaint is
reasonably related to an EEOC charge if the claim in the
complaint can reasonably be expected to grow out of an
investigation of the allegations in the charge.
Sauzek v. Exxon Coal USA, Inc., 202 F.3d 913, 920 (7th Cir. 2000) (citations,
internal quotation marks, and brackets omitted).
The Seventh Circuit has also held that “a failure to rehire claim is not
reasonably related to a previously filed EEOC charge alleging a discriminatory
termination.” Id. (citing Oxman v. WLS-TV, 12 F.3d 652, 660–61 (7th Cir. 1993)).
In order to bring a claim based on both a termination and a failure to rehire, a
plaintiff must include “both allegations in charges with the EEOC.” Id. Lewis’s
August 2, 2016 EEOC charge relies only on her layoff and does not mention the
County’s subsequent failure to rehire her. See [38-2]. Accordingly, Lewis may
pursue an age discrimination claim based only on her termination.
Turning to the merits, the ADEA protects workers forty years and older and
prohibits employers from discriminating against an employee “with respect to his
compensation, terms, conditions, or privileges of employment, because of such
Plaintiff’s complaint alleges age discrimination under Title VII rather than the ADEA.
However, “[c]iting the wrong statute needn’t be a fatal mistake, provided the error is
corrected in response to the defendant’s motion . . . and the defendant is not harmed
by the delay in correction.” Hatmaker v. Mem. Med. Ctr., 619 F.3d 741, 743 (7th Cir. 2010).
Lewis has clarified that she is pursuing an age discrimination claim under the ADEA.
See [41] at 8. There is no dispute as to the proper legal framework.
3
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individual’s age.” 29 U.S.C. § 623(a)(1). Under the framework set forth in Ortiz v.
Werner Enterprises, Inc., 834 F.3d 760 (7th Cir. 2016), Lewis must point to evidence
that, “considered as a whole,” would allow a reasonable jury to find that her age
caused her termination. Id. at 765; see also Skiba v. Ill. Cent. R.R., 884 F.3d 708,
719 (7th Cir. 2018) (“Because plaintiff seeks to recover under a theory of disparate
treatment, [plaintiff] must prove, by a preponderance of the evidence, that age was
the but-for cause of the challenged adverse employment action.”) (internal quotation
marks omitted).
To meet this burden, Lewis relies on the burden-shifting approach
articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), which is
“a means of organizing, presenting, and assessing circumstantial evidence in
frequently recurring factual patterns found in discrimination cases.” Abrego v.
Wilkie, 907 F.3d 1004, 1012 (7th Cir. 2018) (quotation omitted). That framework is
not the only method a reasonable jury could use to find age discrimination. See
Volling v. Kurtz Paramed. Servs., Inc., 840 F.3d 378, 383 (7th Cir. 2016) (noting
that McDonnell Douglas provides “a common, but not exclusive, method of
establishing a triable issue of intentional discrimination”) (quotation omitted).
Accordingly, the court assesses Lewis’s discrimination claim under the McDonnell
Douglas framework but also considers the evidence “as a whole.” Ortiz, 834 F.3d at
765.
To establish a prima facie case of discrimination under McDonnell Douglas,
Lewis must show that (1) she is a member of a protected class; (2) her job
performance met the County’s legitimate expectations; (3) she suffered an adverse
employment action; and (4) the County treated another similarly situated employee
who was not a member of the protected class more favorably. See David v. Bd. of
Trs. of Cmty. Coll. Dist. No. 508, 846 F.3d 216, 225 (7th Cir. 2017). If Lewis can
establish a prima facie case, then the burden shifts to the County to provide a
legitimate, nondiscriminatory reason for the adverse action. Coleman v. Donahue,
667 F.3d 835, 845 (7th Cir. 2012). If the County successfully rebuts the prima facie
case, then the burden shifts back to Lewis, “who must present evidence that the
stated reason is a ‘pretext,’ which in turn permits an inference of unlawful
discrimination.” Id. (quoting McDonnell Douglas, 411 U.S. at 804).
A.
Similarly Situated Employees
The parties do not dispute that Lewis is a member of a protected class based
on her age, that she met the County’s job expectations, or that her termination
constituted an adverse action. However, the County argues that Lewis cannot show
that she was treated less favorably than similarly situated younger employees.
“Similarly situated employees must be directly comparable to the plaintiff in all
material respects, but they need not be identical in every conceivable way.”
Coleman, 667 F.3d at 846 (quotations omitted). This “flexible, common-sense, and
factual” inquiry considers “whether the employees (i) held the same job description,
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(ii) were subject to the same standards, (iii) were subordinate to the same
supervisor, and (iv) had comparable experience, education, and other
qualifications—provided the employer considered these latter factors in making the
personnel decision.” David, 846 F.3d at 225–26 (citations omitted).
Although Lewis was the only employee in her job title and classification, she
argues that her duties were similar to administrative assistant duties. To make
this argument, she relies on job descriptions. The “Administrative Assistant IV”
position had duties “related to processing and advising employees returning from
medical leave of absence” and “[f]ills in for the Administrative Assistant to the
Human Resources Bureau Chief on a regular basis.” Def.’s Resp. PSOF [45] ¶ 17.
The “Administrative Assistant V” position engaged in “highly specialized and
confidential work in the capacity of Executive Secretary to the Chief of the Human
Resources Bureau” and provided “assistance to Chief, Deputy Chief and other
Human Resource managers.” Id. Lewis argues that since these descriptions
include some duties similar to her own, employees in those positions are
appropriate comparators. However, she does not explain her reasoning further, and
these job descriptions differ in several respects from the description of Lewis’s
“Human Resources Assistant II” role, which required the employee to, for example,
“assist[] in the development and implementation of personnel policies and
procedures”; “prepare[] and maintain employee handbook and policies and
procedures”; coordinate responses to FOIA requests; assist with “research projects”;
and respond to inquiries from “operating departments, County employees,
candidates, and the general public.” See [43-7] at 2–3.
Lewis argues that the “most directly comparable” employee was Tamika
Brown, who was 31 years old in 2015. [41] at 9; see also Def.’s Resp. PSOF [45] ¶
32. Brown was hired as an “Administrative Assistant IV” on June 1, 2015. She was
within her probationary period at the time of Lewis’s layoff. Def.’s Resp. PSOF [45]
¶ 28. Lewis also argues that Nicole Riley is a comparable employee. After Lewis
was laid off, Riley took over Lewis’s previous background check duties. Riley was a
business manager, and her job duties did not include background checks until after
Lewis was laid off. Id. ¶ 18. In 2015, Riley was 36 years old. Id. ¶ 32.
With respect to both Brown and Riley, Lewis has not pointed to sufficient
evidence that would “allow a factfinder to conduct a ‘meaningful comparison.’”
McDaniel v. Progress Rail Locomotive, Inc., 940 F.3d 360, 369 (7th Cir. 2019)
(quoting Barricks v. Eli Lilly and Co., 481 F.3d 556, 560 (7th Cir. 2007)). It is
Lewis’s burden to provide “amplifying detail” of the similarly situated employees’
“qualifications or employment history that would allow” the court “to comfortably
conclude their hiring was the result of discriminatory motive rather than some
other explanatory variable.” Skiba, 884 F.3d at 723. In Skiba, the Seventh Circuit
held that comparator evidence consisting “solely of a table listing the names and
ages of the thirty-seven younger employees and the positions for which they were
hired” was insufficient to meet this standard, and affirmed the district court’s grant
7
of summary judgment to the defendant. Id. at 723, 726. Lewis has similarly
provided the court with “a chart outlining the names, year of birth, dates of hire and
positions for employees comparable to Plaintiff.” [41] at 7. Lewis does not develop
these comparisons further.
Lewis argues that both she and Brown performed administrative functions
and reported to a director level position, and that Riley eventually performed the
same background check duties Lewis had before her role was eliminated. However,
Lewis, Brown, and Riley had different job titles, job descriptions, and levels of work
experience. True, comparability turns on “real-world experience,” and differences
in job descriptions are not dispositive. See Parks v. Phillip Rock Ctr. & Sch., No. 18cv-1523, 2020 WL 1304751, at *7 (N.D. Ill. Mar. 19, 2020). But Lewis does not point
to any evidence about Brown’s substantive day-to-day job duties that would allow a
meaningful comparison between the two roles. Summary judgment is warranted in
the absence of evidence on this point. Grant v. Trustees of Ind. Univ., 870 F.3d 562,
568 (7th Cir. 2017). No reasonable factfinder could decide based on this record that
Lewis has established a prima facie case of age discrimination.
B.
Pretext
Even assuming that the proposed comparators had been similarly situated,
the County has offered a legitimate, nondiscriminatory rationale for terminating
Lewis. Strisko and Martinez had to eliminate two positions as part of the 2015 RIF.
Of course, “[p]retext may be shown by demonstrating that the reduction in force was
an excuse to get rid of workers belonging to the protected group.” Paluck v. Gooding
Rubber Co., 221 F.3d 1003, 1012 (7th Cir. 2000). Even though the parties do not
dispute that Lewis’s role was eliminated pursuant to a RIF, Lewis is entitled to
prove that the “specific reasons given for including her in the reduction were
pretextual.” Id. at 1013. In her memorandum to Martinez, Strisko explained that
Lewis’s position could be eliminated because it had duties that could be absorbed by
other employees. [43-10] at 2. This nondiscriminatory rationale shifts the burden
back to Lewis to present evidence showing that this was not the real reason her role
was eliminated. See Barnes v. Bd. of Trs. of Univ. of Ill., 946 F.3d 384, 389 (7th Cir.
2020). The Seventh Circuit has “repeatedly emphasized that when assessing a
plaintiff’s claim that an employer’s explanation is pretextual, we do not secondguess an employer’s facially legitimate business decisions. . . . An employer’s
reasons for firing an employee can be foolish or trivial or even baseless, as long as
they are honestly believed.” Lord v. High Voltage Software, Inc., 839 F.3d 556, 564
(7th Cir. 2016) (citations, internal quotation marks, and alterations omitted).
Lewis first argues that favorable treatment of similarly situated employees
can serve as evidence of pretext. See Barnes, 946 F.3d at 389 (noting that “the
prima facie and pretext inquiry often overlap”). This argument is not persuasive
because, as discussed above, Lewis has not identified evidence allowing a
meaningful comparison between herself and the proposed comparators.
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Next, Lewis argues that various inconsistencies undermine the stated
explanation of why she was terminated. Strisko testified that, in reaching the
decision to eliminate Lewis’s position, Strisko and Martinez evaluated duties and
roles to determine which positions had duties that other employees could take over.
Def.’s Resp. PSOF [45] ¶ 12. Strisko further testified that, in addition to the
positions that were eliminated, they considered eliminating a vacant training
coordinator position. [43-2] at 16. She could not specifically recall any other
position that was under consideration. [43-2] at 16. Strisko testified that she and
Martinez opted not to eliminate the vacant position because a robust training
function was a higher priority for human resources. Def.’s Resp. PSOF [45] ¶ 14.
However, Lewis argues that a chart of new hires shows that the vacant position was
not filled until May 2018, demonstrating that it could not have been a high priority.
Id.; [41] at 4. 4
Lewis contends that this is evidence of pretext. But this is really an
argument about the wisdom of the rationale. Lewis has not produced evidence
showing that at the time the decision was made, Strisko did not actually prioritize
training above the duties performed by Lewis. In Fairchild v. Forma Sci., Inc., 147
F.3d 567 (7th Cir. 1998), the plaintiff argued that the stated reason for his
termination—a reorganization—did not actually occur. The parties did not dispute
that the decisionmaker was “asked to reduce his budget.” Id. at 573. Given this
fact, Fairchild held that it made “little difference” to the age discrimination analysis
whether the decisionmaker implemented this mandate “through a ‘reorganization’
properly so called or through firing a couple people and temporarily redrawing
territorial lines.” Id. Fairchild observed: “[i]n a reduction in force, someone has to
go.” Id. The same is true here. Strisko was asked to eliminate two positions.
Lewis has not presented evidence suggesting that Strisko did not actually estimate
the relative need for different roles at the time, and the court cannot opine on
whether her analysis of BHR’s relative need for certain roles was wise in hindsight.
Lewis also notes that BHR hired Regina Crider as an “Administrative
Assistant V” on November 2, 2015. Def.’s Resp. PSOF [45] ¶ 29. She argues that
since Crider was hired to perform duties similar to Lewis’s, Crider’s hiring
undermines the credibility of Strisko’s explanation. But Crider was 54 years old at
the time, and thus older than Lewis. Id. ¶ 32; [8] ¶ 12. Lewis does not explain how
the hiring of Crider could support an inference of age discrimination. Additionally,
BHR hired Tiffany Sims as an “Administrative Assistant IV” on February 1, 2016.
Def.’s Resp. PSOF [45] ¶ 29. In 2015, Sims was 31 years old. Id. ¶ 32. As discussed
above, however, Lewis has not adequately developed any comparison between her
While the County denies that this claim is supported by the record, Def.’s Resp. PSOF,
[45] ¶ 14, it does not explain its objection further, argue that the chart is inaccurate, or
point to additional evidence showing that the vacant position was filled earlier. The court
expresses no view on this factual dispute, since it is ultimately immaterial to the analysis.
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role and the administrative assistant roles. Moreover, Lewis has pointed to two
post-termination administrative assistant hires and only one of them was younger
than Lewis. No reasonable factfinder could decide that this evidence supports an
inference of age discrimination.
Additionally, part of Strisko’s rationale for eliminating Lewis’s position was
Strisko’s belief that other employees already carried out some of Lewis’s job duties.
In her memorandum to Martinez, Strisko wrote, “BHR does not have a need for a
position at this level performing these duties. Many of these duties are already
performed by the Deputy Bureau Chief and the Director of Policy. For new
employee background checks, the printing and initial review of reports can be
transferred to administrative staff.” [43-10] at 2. Lewis argues that this rationale
was false, and that no one else performed her duties. But Lewis does not dispute
that Angela Thomas, the Director of Policy, performed her job duties when she was
on medical leave. Pl.’s Resp. DSOF [42] ¶ 9. Lewis also testified that Strisko had
performed background checks. [43-1] at 39. Strisko ultimately gave Lewis’s
background check duties to Riley, a business manager who had not previously done
background checks. Def.’s Resp. PSOF [45] ¶ 18. But this is not necessarily
inconsistent with Strisko’s memorandum, which stated that “many” of Lewis’s
duties were already performed by others, and suggested transferring background
check duties to employees who were presumably not already performing them. [4310] at 2.
Finally, Lewis points out that in February 2015, another BHR employee told
her that she overheard Strisko say that Lewis and two other employees “have to
go.” [43-1] at 37–38. “A party may not rely upon inadmissible hearsay to oppose a
motion for summary judgment.” Gunville v. Walker, 583 F.3d 979, 985 (7th Cir.
2009). Since Lewis is offering another employee’s statement (that was not made at
a trial or hearing) for the truth of the matter asserted—in other words, to show that
Strisko said Lewis and other employees “had to go”—this statement is hearsay.
In fact, it is hearsay within hearsay because Lewis only heard Strisko’s alleged
statement secondhand from the unnamed employee. See Fed. R. Evid. 801(c). Both
levels of hearsay would have to be overcome for this evidence to be considered at
summary judgment. Accordingly, the court will not consider this evidence at
summary judgment.
Taken together, Lewis’s cited evidence does not create a triable issue of fact
as to whether the County’s nondiscriminatory rationale for Lewis’s termination was
pretextual. Since Lewis has not carried her burden of showing that similarly
situated employees were treated more favorably or that the County’s rationale was
pretextual, Lewis cannot defeat summary judgment using the McDonnell Douglas
framework. Furthermore, the evidence as a whole does not support Lewis’s age
discrimination claim. See Ortiz, 834 F.3d at 766 (“all evidence belongs in a single
pile and must be evaluated as a whole”). Here, the totality of the evidence in the
record would not permit a reasonable factfinder to conclude that Lewis’s age caused
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her termination. Id. at 764. The county’s motion for summary judgment is granted
with respect to Lewis’s age discrimination claim.
II.
Shakman Violation
The County also moves for summary judgment on Lewis’s Shakman claim.
Lewis argues that Cook County violated the consent decrees in Shakman v.
Democratic Org. of Cook County, 481 F. Supp. 1315, 1358 (N.D. Ill. 1979), when it
terminated her and failed to subsequently rehire her. The Shakman decrees
“reflect one of the First Amendment’s proscriptions—that is, the general prohibition
of patronage-based employment decisions.” Houlihan v. City of Chicago, 871 F.3d
540, 548 (7th Cir. 2017). Unlike a constitutional tort claim under Section 1983, a
Shakman claim is “for civil contempt of court.” 5 Id. at 549. To prove a Shakman
violation, Lewis must “present clear and convincing evidence showing that ‘a
political reason or factor was the cause of [an] adverse employment action.’” Id.
(quoting Bonnstetter v. City of Chi., 811 F.3d 969, 973 (7th Cir. 2016)). “This kind of
‘but-for’ causation means that the alleged adverse action would not have occurred
absent the prohibited political considerations.” Pillows v. Cook Cnty. Recorder of
Deeds Office, No. 18-cv-7497, 2019 WL 2524149, at *3 (N.D. Ill. June 18, 2019).
To advance a Shakman claim, Lewis must point to an adverse employment
action. She argues that there were two: (1) the County decided to lay her off “based
on politics due to her Shakman history” and (2) the County failed to recall her to a
BHR position because it engaged in political patronage. [41] at 13. The court first
addresses the County’s decision to eliminate Lewis’s role and then turns to the
County’s failure to rehire Lewis.
A.
Reduction in Force
To prove a Shakman violation, Lewis must show that the County eliminated
her role for a political reason, meaning a reason related to her “political affiliations,
beliefs, or activities.” Bonnstetter, 811 F.3d at 974. Lewis contends that Strisko
and Martinez eliminated her role because she was involved in OIIG investigations.
A threshold issue, then, is whether Lewis’s OIIG complaints and involvement in
investigations were political activities. As under the First Amendment, Lewis must
Both parties cite cases involving First Amendment retaliation claims under 42 U.S.C.
§ 1983. Lewis asserts a claim under Shakman, not Section 1983. [8] at 7. And the only
defendant in this case is Cook County, which can be liable for constitutional injuries under
Section 1983 only if those injuries were caused by the County’s policy or custom.
See Monell v. Dept. of Social Services of City of New York, 436 U.S. 658, 694 (1978). Since
Lewis has not argued that there are any facts in the record supporting Monell liability, she
does not have a claim under Section 1983. While both Shakman and Section 1983
retaliation claims ultimately stem from the First Amendment, there are some differences
between these types of claims. See Smith v. City of Chicago, 820 F.2d 916, 917–18 (7th Cir.
1987) (discussing these differences).
5
11
“present evidence that [her] speech (or conduct) was constitutionally protected.”
Shanahan v. City of Chicago, 82 F.3d 776, 780 (7th Cir. 1996). If she does not, her
Shakman claim cannot succeed. See Rinella v. City of Chicago, No. 16-cv-04088,
2016 WL 7241185, at *4 (N.D. Ill. Dec. 14, 2016).
As discussed above, in February 2015, Lewis filed a complaint with the OIIG
that another BHR employee heard Strisko say that Lewis and two other employees
“have to go.” Strisko was notified about the complaint and provided a statement to
the OIIG. Lewis testified that she believes that the County retaliated against her
not only because she filed this complaint, but also because she participated in a
variety of OIIG investigations during her time at BHR. [43-1] at 13–14. While
Lewis did not know whether either Strisko or Martinez had been aware of her
involvement in any given investigation, she testified that she made it clear that if
she saw something, she “would say something.” [43-1] at 19. Lewis alludes to her
political nonaffiliation. See Hermes v. Hein, 742 F.2d 350, 353 n.3 (7th Cir. 1984)
(“It is undisputed that political nonaffiliation is a right protected under the first
amendment.”). But Lewis does not point to any facts in the record regarding her
political nonaffiliation and does not link her OIIG involvement to her politics.
None of this evidence shows that she was involved in OIIG investigations that
concerned politics, rather than interpersonal disputes.
However, Lewis also appears to argue that her involvement with the OIIG,
which was established in order to implement the Shakman consent decrees,
inherently involved political activities. To assess whether an employee’s speech
addresses a matter of public concern for First Amendment purposes, courts look
“to the content of the speech as a whole, as well as its form and context.” Lewis,
2011 WL 839753, at *9 (quotations and citation omitted); Connick v. Meyers, 461
U.S. 138, 147–48 (1983). As other courts in this district have held, “retaliating
against the plaintiff for exercising rights that were specifically granted to her by the
SRO” can implicate a matter of public concern under the First Amendment. Lewis,
2011 WL 839753, at *10; see also Fagbemi v. City of Chicago, No. 08-cv-03736, 2010
WL 1193809, at *13 (N.D. Ill. Mar. 19, 2010) (“The context surrounding the
Shakman consent decree—issued by a Federal District Court to ensure compliance
with the Court’s orders related to the City’s hiring and promotional practices—also
indicates that complaints to the Shakman Compliance Officer are likely to implicate
matters of public concern about the City’s promotional practices at large.”);
Lanahan v. Cnty. of Cook, No. 16-cv-11723, 2018 WL 1784139, at *8 (N.D. Ill. Apr.
13, 2018). Thus, while Lewis has provided scant details about the contents of the
OIIG complaints and investigations in which she participated, this may not
necessarily defeat her claim.
However, the court need not decide this question, because there is no
evidence that Lewis’s OIIG involvement caused Strisko and Martinez to eliminate
her position.
12
To show causation, Lewis points to several pieces of circumstantial evidence.
First, as discussed above, Strisko testified that she considered eliminating a vacant
training coordinator position, but could not specifically recall any other position
that was under consideration. Lewis argues that Strisko’s apparent failure to
consider eliminating any other roles shows that Strisko did not actually make her
decision based on BHR’s ability to absorb job duties. Second, Lewis again argues
that Strisko’s statement that the vacant training position was higher priority for
BHR than her role was a lie because the vacant position was not filled until May
2018. As discussed above, the court is not persuaded that these facts indicate
pretext. But even if these pieces of evidence could show that Strisko’s rationale was
pretextual, Lewis has not pointed to anything suggesting that the real rationale
was political. See Pillows, 2019 WL 2524149, at *5 (“[E]ven if we assumed the
falsity of the Recorder’s Office’s stated reason for laying off plaintiffs, this would not
affirmatively translate into an inference that the real reason for plaintiffs’
termination was their political affiliation.”). Third, as discussed above, BHR hired
Regina Crider as an “Administrative Assistant V.” Lewis argues that her role was
eliminated while Crider was hired into a similar role around the same time for
political reasons. But, as discussed above, Lewis has not pointed to any evidence in
the record supporting her claim that Crider’s role was similar enough to allow a
meaningful comparison. Moreover, even if Crider’s hiring was political, nothing in
the record connects that fact to Lewis’s termination.
Ultimately, Lewis’s only evidence of political retaliation is suspicious timing
between her 2015 OIIG complaint and interactions and her termination. This is
generally insufficient to show retaliation. See Kidwell v. Eisenhauer, 679 F.3d 957,
966 (7th Cir. 2012) (“[S]uspicious timing will rarely be sufficient in and of itself to
create a triable issue.”) (quotation marks omitted). For a plaintiff to rely on
suspicious timing alone to defeat summary judgment, the adverse employment
action must follow “close on the heels of protected expression,” and the
decisionmaker must have known about the protected conduct. Id. The evidence in
the record is insufficient to satisfy either requirement.
Lewis argues that her termination was retaliation for her general
involvement with the OIIG, but she has not put forward evidence that Strisko
specifically knew about much of this conduct. Strisko testified that she could not
recall Lewis participating in any OIIG investigations other than the 2015 complaint
against her. [43-2] at 30. When asked whether Strisko and Martinez knew about
her OIIG involvement, Lewis testified that she was “not sure.” [43-1] at 19.
“[S]heer speculation” about the decisionmaker’s knowledge cannot defeat summary
judgment. Consolino v. Towne, 872 F.3d 825, 830 (7th Cir. 2017) (assertion that
“the Sheriff would know the cases in which he has been accused” of a Shakman
violation was “speculation” that did not create a genuine issue of material fact).
The only evidence of Strisko’s knowledge concerns Lewis’s February 2015
OIIG complaint about Strisko. Strisko testified that she became aware of this
13
complaint sometime before the fall of 2015. [43-2] at 19. Lewis’s last OIIG meeting
was in August 2015. Pl.’s Resp. DSOF [42] ¶ 37.
Lewis’s termination did not follow close on the heels of any OIIG involvement
that Strisko knew about. Lewis asks the court to draw an inference of suspicious
timing based on Strisko’s knowledge of her OIIG complaint earlier in the year, and
the decision to eliminate her position in October. In Kidwell, the Seventh Circuit
explained that while the sufficiency of suspicious timing evidence is contextual,
courts “typically allow no more than a few days to elapse between the protected
activity and the adverse action.” 679 F.3d at 966. There, adverse actions “more
than two months later” and “approximately five weeks later” than the “act[s] of
purportedly protected speech” were not “close on the heels” of the speech. Id. at
966–67. Here, Lewis’s OIIG involvement in 2015 concluded several months before
her termination. On its own, this timeline does not allow enough of an inference of
suspicious timing to defeat summary judgment.
Moreover, where a “significant intervening event separates an employee’s
protected activity from the adverse employment action [the employee] receives,
a suspicious-timing argument will not prevail.” Id. at 967 (quotation marks and
internal alterations omitted). Here, Martinez and Strisko were required to
eliminate two positions in accordance with a RIF. Martinez did not tell Strisko to
implement the RIF until October. Pl.’s Resp. DSOF, [42] ¶ 13. Lewis argues that
while Martinez and Strisko were required to eliminate two positions, they chose to
eliminate her position because of her OIIG involvement. But regardless, the RIF
makes any inference based on timing alone weaker than it otherwise would have
been. Given that the RIF was a major intervening event in the timeline, and that
there was at least a gap of several months between Lewis’s OIIG involvement and
Lewis’s termination, this is not the “rare case where temporal proximity alone
creates a triable issue on causation.” Milligan v. Bd. of Trustees of S. Illinois Univ.,
686 F.3d 378, 390 (7th Cir. 2012).
B.
Failure to Rehire
Lewis separately contends that the County decided not to rehire her for
political reasons. Decisions not to rehire employees are within the scope of the
Shakman Consent Decrees. See Coleman v. Cnty. of Cook, No. 10-cv-02388, 2011
WL 2647891, at *13 (N.D. Ill. June 22, 2011), aff’d sub nom. Coleman v. Dunlap,
695 F.3d 650 (7th Cir. 2012). Lewis does not dispute that since 2016, she applied
for two positions (Ethics Investigator and Investigator II), and either withdrew from
consideration or was not qualified for the positions. Pl.’s Resp. DSOF, [42] ¶ 62. On
the other hand, since she was laid off for budgetary reasons, Lewis was on a county
list of employees eligible for recall in certain circumstances. Lewis argues that
regardless of whether she applied to a given role, she should have been recalled
pursuant to County policy. She contends that she was not for political reasons.
14
Lewis argues that Strisko misinterpreted the County policy on rehiring
employees on the recall list. As noted above, Strisko testified that an employee on
that list can only be recalled into a position with the same classification or title.
Since Lewis’s eliminated position was the only one in its title and classification,
Lewis was not eligible for recall. Strisko’s interpretation of the policy ensured that
Lewis was not considered for the positions Crider and Sims were hired for. But the
accuracy of Strisko’s interpretation is not itself evidence of a political consideration.
Since there is no evidence suggesting that Strisko’s testimony about her own
subjective interpretation is false, there is no evidence that political considerations
played a role in any decision not to recall Lewis. It is true that “[s]ignificant,
unexplained or systematic deviations from established policies or practices can
sometimes be probative of unlawful discriminatory intent.” Smith v. Chi. Transit
Auth., 806 F.3d 900, 907 (7th Cir. 2015) (quotation omitted). But since there is no
evidence that Strisko or anyone else at BHR interpreted the policy differently when
making other personnel decisions, there is no evidence of a deviation from
established policies or practices.
Finally, Lewis argues that BHR decided to hire Sims as an “Administrative
Assistant IV” instead of Lewis for political reasons. As noted above, BHR hired
Sims on February 1, 2016. Following an investigation in 2017, the OIIG
determined that BHR violated the Shakman Decrees when it subsequently decided
not to terminate Sims because of her political connections. It also determined that
Sims’s position was improperly classified as Shakman exempt. Def.’s Resp. PSOF
[45] ¶ 31; [43-19]. Lewis argues that this shows BHR did not consider her for Sims’s
position because of politics. This argument cannot succeed for numerous reasons.
First, there is no evidence in the record that Sims’s hiring—as opposed to
retention—violated the Shakman decrees. Second, even if BHR hired Sims for
improper reasons, that would not give rise to a reasonable inference that BHR
failed to hire Lewis for Sims’s role for improper reasons. As a result of Strisko’s
interpretation of County policy, Lewis was not eligible to be recalled into the role of
“Administrative Assistant IV.” There is no evidence that had Sims not been hired,
Lewis would have been hired instead. And finally, as with Lewis’s other proposed
comparators, Lewis has not developed a meaningful comparison between her role
and Sims’s role such that any differing treatment could provide evidence of
improper political considerations.
In sum, no reasonable factfinder could infer that Lewis’s involvement with
the OIIG or any political factor played a role in either the County’s decision to
eliminate Lewis’s role or any subsequent decision not to rehire her. Lewis has not
presented evidence from which a reasonable trier of fact could find that the County
violated the Shakman decrees. The County’s motion for summary judgment with
respect to this claim is granted.
15
CONCLUSION
The motion for summary judgment [37] is granted as to Counts II and III.
Count I is dismissed as withdrawn.
Date: September 30, 2022
/s/ Martha M. Pacold
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