COOPER v. THE CITY OF INDIANAPOLIS

Filing 58

ORDER - Presently before the Court is Defendant's Motion for Summary Judgment, dkt. 43 ,which the Court DENIES for the reasons that follow. (SEE ORDER). Because Ms. Cooper has established a prima facie case for discrimination, and because genuine issues of triable fact exist regarding the City's proffered reasons for not promoting her, the Court DENIES Defendant's Summary Judgment Motion. Signed by Judge Jane Magnus-Stinson on 10/31/2011. (JKS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
WENDY COOPER,
Plaintiff,
vs.
THE CITY OF INDIANAPOLIS
Defendant.

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1:10-cv-00804-JMS-DKL

ORDER
Presently before the Court is Defendant’s Motion for Summary Judgment, [dkt. 43],
which the Court DENIES for the reasons that follow.
I.
STANDARD OF REVIEW
A motion for summary judgment asks that the Court find that a trial based on the
uncontroverted and admissible evidence is unnecessary because, as a matter of law, it would
conclude in the moving party’s favor. See Fed. R. Civ. Pro. 56. To survive a motion for
summary judgment, the non-moving party must set forth specific, admissible evidence showing
that there is a material issue for trial. Fed. R. Civ. Pro. 56(e); Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986).
As the current version Rule 56 makes clear, whether a party asserts that a fact is
undisputed or genuinely disputed, the party must support the asserted fact by citing to particular
parts of the record, including depositions, documents, or affidavits.

Fed. R. Civ. Pro.

56(c)(1)(A). A party can also support a fact by showing that the materials cited do not establish
the absence or presence of a genuine dispute or that the adverse party cannot produce admissible
evidence to support the fact. Fed. R. Civ. Pro. 56(c)(1)(B). Affidavits or declarations must be

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made on personal knowledge, set out facts that would be admissible in evidence, and show that
the affiant is competent to testify on matters stated. Fed. R. Civ. Pro. 56(c)(4).

Failure to

properly support a fact in opposition to a movant’s factual assertion can result in the movant’s
fact being considered undisputed, and potentially the grant of summary judgment. Fed. R. Civ.
Pro. 56(e).
The Court need only consider the cited materials, Fed. R. Civ. Pro. 56(c)(3), and the
Seventh Circuit Court of Appeals has “repeatedly assured the district courts that they are not
required to scour every inch of the record for evidence that is potentially relevant to the summary
judgment motion before them,” Johnson v. Cambridge Indus., 325 F.3d 892, 898 (7th Cir. 2003).
Furthermore, reliance on the pleadings or conclusory statements backed by inadmissible
evidence is insufficient to create an issue of material fact on summary judgment. Id. at 901.
The key inquiry, then, is whether admissible evidence exists to support a plaintiff’s
claims or a defendant’s affirmative defenses, not the weight or credibility of that evidence, both
of which are assessments reserved to the trier of fact. See Schacht v. Wis. Dep’t of Corrections,
175 F.3d 497, 504 (7th Cir. 1999). And when evaluating this inquiry, the Court must give the
non-moving party the benefit of all reasonable inferences from the evidence submitted and
resolve “any doubt as to the existence of a genuine issue for trial . . . against the moving party.”
Celotex, 477 U.S. at 330.
II.
BACKGROUND
The facts viewed in the light most favorable to the non-moving party are as follows.
Plaintiff Wendy Cooper, a forty-two year old African American woman, is currently employed
by the City of Indianapolis (“City”) as a Senior Project Manager with the Department of
Metropolitan Development (“DMD”).

[Dkt. 44 at 1.] In spring of 2008, Ms. Cooper’s direct
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supervisor resigned from her position as Assistant Administrator, and Ms. Jennifer Fults assumed
the duties of the vacant position while the City sought a replacement. [Dkt. 44 at 3-4.] Ms. Fults
was the lead hiring official during the interviewing and replacement process. [Id at 5.]
During the summer of 2008, a grievance was filed against Ms. Cooper by a local citizen.
[Dkt. 51 at 2.]

According to Ms. Cooper, Ms. Fults never informed her of the grievance’s

allegations; rather, Ms. Fults only told her that following an investigation, the allegations were
found to be untrue. [Id.] Ms. Cooper was never disciplined about the grievance. [Id. at 3.]
During the hiring process for the vacant Assistant Administrator position, Ms. Cooper
was selected for an initial interview but was not afforded a second interview. [Dkt. 44 at 7-8.]
The City ultimately hired Ms. Jenna Saunders, a twenty-six-year-old Caucasian woman and
recent college graduate, to fill the Assistant Administrator position. [Dkt. 44 at 10-11.]
III.
DISCUSSION
Ms. Cooper has brought claims against her employer, the City of Indianapolis, alleging
race discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§
2000(e)(2) et seq., and age discrimination in violation of the Age Discrimination in Employment
Act, 29 U.S.C.S. § 621 et seq. [Dkt. 1-3 at 3-4.] The City now seeks summary judgment. [Dkt.
43.]
A. The City’s Evidentiary Objection to its EEOC Statements
Before reaching the merits of the City’s summary judgment motion, the Court will first
address the City’s objection to evidence Ms. Cooper designates in opposition to the motion. In
its reply brief, the City challenges Ms. Cooper’s introduction of its prior statements to the Equal
Opportunity Employment Commission (“EEOC”), arguing that those statements should be
“stricken as inadmissible hearsay.” [Dkt. 56 at 5.] The Court overrules the objection for multiple
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reasons. First, because Ms. Cooper is offering the EEOC statements for impeachment purposes,
not to prove the truth of any matter asserted within it, the statements do not fall under the
definition of hearsay. FRE 801(c). Furthermore, even if the statements were hearsay, they
would be admissible as statements by a party opponent under FRE 801(d)(2).1
The City argues against the reliability of an attorney-prepared statement written under its
instruction, claiming that “the drafting attorney was not in any manner involved in the decision.”
[Dkt. 56 at 5.] On summary judgment, however, the Court is not permitted to make credibility
determinations, and it is the non-moving party who is entitled to the benefit of all reasonable
inferences. Ms. Cooper has offered admissible evidence, and that is all she is required to do.
The amount of weight to afford the EEOC statements is a determination reserved for the trier of
fact.

Schacht, 175 F.3d at 504. The Defendant’s objection is not one properly raised at

summary judgment, and the Court therefore overrules it.
B. Ms. Cooper’s Discrimination Claim
Ms. Cooper alleges that the City discriminated against on the basis of age and race by not
promoting her to the position of Assistant Administrator. [Dkt. 51 at 1.] To establish a prima
facie case for discrimination, Ms. Cooper points to her qualifications and the fact that the person
ultimately hired was not a member of either of the protected groups to which she belongs. [Dkt.
51 at 7.]
1. Prima Facie Showing and Burden-Shifting Analysis
A failure-to-promote claim can be established through either the direct method of proof
or the indirect, McDonnell Douglass burden-shifting method. Fischer v. Avanade, 519 F.3d 393,
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The City also attempts to challenge the authenticity of its own EEOC statements. However,
such statements are self-authenticating under FRE 902, and the Court is puzzled by the City’s
decision to challenge the authenticity of its own document, lest the City suggest it
misrepresented itself to the EEOC.
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401 (7th Cir. 2008) (referencing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). The
direct method requires a showing that the discriminatory conduct was related directly to the
employment decision in question. Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487, 491 (7th
Cir. 2007). Here, Ms. Cooper presents no direct evidence of race or age discrimination, nor does
she contend that any exists. Therefore, she must prove her discrimination claim using the
indirect method. Patterson v. Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir. 2002).
When using the indirect method to establish a prima facie case in a failure-to-promote
context, an employee must show:
(1)
(2)
(3)
(4)

[s]he belongs to a protected class;
[s]he applied for and was qualified for the position sought;
[s]he was rejected for the position; and
the employer granted the promotion to someone outside the protected group and not
better qualified than the plaintiff.

Fischer, 519 F.3d at 402.
Once the employee establishes a prima facie case, the burden then shifts to the employer
to present a legitimate non-discriminatory reason for the decision not to promote. Id. If the
employer offers such an explanation, the burden then shifts back to the employee to show that
the given reason was a mere pretext for unlawful discrimination. Id.
To establish pretext, the employee must show either that the employer was motivated by
a discriminatory reason or that the employer’s proffered reason is unworthy of credence.
Zaccagnini v. Chas. Levy Circulating Co., 338 F.3d 672, 676 (7th Cir. 2003) (internal citations
omitted). Evidence that calls truthfulness into question precludes summary judgment.

Id.

(internal citations omitted). The Seventh Circuit has held that when an employer offers shifting
reasons for the adverse employment action at issue, it may thereby create genuine issues of fact
concerning pretext. Id.
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A. Prima Facie Case
Ms. Cooper has established her prima facie case for discrimination. It is undisputed that
at the time of the hiring decision, Ms. Cooper was a forty-two-year-old African American
woman and Ms. Saunders was a twenty-six-year-old Caucasian woman. [Dkts. 1-3 at 2 ¶ 11; 44
at 12, 14.] At issue between the parties is the fourth prong of the prima facie case – whether Ms.
Cooper was as qualified as Ms. Saunders for the Assistant Administrator position.
Although the City points to Ms. Saunders’ experience managing a budget of 2.7 million
dollars, Ms. Cooper asserts that she had experience managing a budget of 3.3. million [dkt. 51 at
6], challenging the City’s contention that she exhibited “reluctance to assume and perform the
financial or budgetary duties” of the position and “lacked the necessary skill and desire” to
perform the position’s duties. [Dkt. 44 at 15.] Furthermore, Ms. Cooper points to Ms. Fults
concession that Ms. Saunders lacked experience with local government in support of her position
that Ms. Saunders was not a better qualified candidate. [Dkt. 51 at 6.] Allowing Ms. Cooper the
benefit of all reasonable inferences, the Court concludes that she has made a prima facie case for
discrimination.
B. Legitimate, Nondiscriminatory Reason
Since Ms. Cooper has shown sufficient evidence to make a prima facie case of
discrimination under the indirect method, the City of Indianapolis next carries the burden of
articulating a legitimate, nondiscriminatory basis for hiring Ms. Saunders. In its statements to
the EEOC, the City states that its decision not to promote Ms. Saunders was due to a grievance
filed against her. [Dkt. 50-1 at 6.] In its brief supporting its motion for summary judgment,
however, the City sets forth different reasons, including Ms. Cooper’s management style,
community interaction skills, and reluctance to perform financial or budgetary duties. [Dkt. 44

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at 15.] Regardless of the City’s lack of consistency in its explanation, it has proferred legitimate,
nondiscriminatory reasons for its decision not to promote Ms. Cooper, thus satisfying its burden.
C. Pretext
Following the City’s proffer of a nondiscriminatory basis for its hiring decision, Ms.
Cooper now bears the additional burden of demonstrating the potentially pretextual nature of the
City’s proferred reasons. Fischer, 519 F.3d at 402. She has satisfied that burden here.
Ms. Cooper points to the City’s additions and changes to its proferred explanations for
not promoting her as evidence suggesting pretext. [Dkt. 51 at 7-8.] Specifically, Ms. Cooper
draws attention to the City’s initial explanation to the EEOC that Ms. Saunders was “the most
qualified of the remaining applicants,” [dkt. 50-1 at 7], because Ms. Cooper’s supervisor had
received a grievance about her and “because of this specific performance issue, [Ms. Cooper]
was not the most qualified for the position.” [Dkt. 50-1 at 6.] Ms. Cooper then highlights the
changes in the City’s reasoning by its motion for summary judgment, in which it contends that
Ms. Cooper “was not afforded a second interview based on her management style, community
interaction skills, and reluctance to assume and perform the financial or budgetary duties and
obligations of the Assistant Administrator position,” and that she “lacked the necessary skill and
desire to adequately and competently perform.” [Dkt. 44 at 15.]
The City argues that its changing reasons do not preclude summary judgment because its
“EEOC statement did not in any manner state or remotely intimate that [its] reason for not
promoting Cooper was limited or based solely to this single issue [sic],” [dkt. 56 at 3]. However,
the Court finds this argument unavailing because the inconsistencies here are not mere
supplements of earlier statements, but rather unrelated, additional reasons not previously
articulated to the EEOC. See Johnson v. Nordstrom, Inc., 260 F3d. 727 (7th Cir. 2001) (finding

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no pretext where an employer "simply supplemented its explanations in the context of EEOC
charges and litigation . . . [and none of] its reasons [were] inconsistent or conflicting"). Indeed,
the City’s failure alone to fully address until summary judgment why Ms. Cooper did not receive
the position raises credibility concerns. See Fischer, 519 F.3d at 407 (reversing a grant of
summary judgment in part because Defendant failed to disclose its later-proffered reasons at an
earlier opportunity to do so).
Finally, the reason initially provided by the City to the EEOC conflicts with Ms.
Cooper’s testimony about the resolution of the grievance filed against her. While the City
initially stated that, “because of this specific performance issue,” [dkt. 50-1 at 6], Ms. Cooper
was not considered the most qualified for the position, Ms. Cooper maintains that the City
concluded the allegations within the grievance were untrue, and neither counseled nor
disciplined her on the matter. [Dkt. 51 at 2-3.] Ms. Cooper’s testimony poses a direct challenge
to the credence of the City’s initially proferred reason, further supporting her argument that the
City’s stated reasons are pretextual. Zaccagnini, 338 F. 3d at 676.
For those reasons, the Court finds that the City’s shifting reasons have given rise to
genuine issues of fact concerning pretext. Id.; see also O'Neal v. City of New Albany, 293 F.3d
998, 1005-06 (7th Cir. 2002) (finding that the changed reasoning of the employer was sufficient
to preclude summary judgment because a trier of fact could reasonably infer from that evidence
that the defendants’ proffered reasons were pretextual). Ms. Cooper has produced enough
evidence to call into question the City’s proferred justifications, and as a result the Court finds
that a jury could determine the City’s reasoning to be pretextual. Accordingly, Ms. Cooper’s
claim survives summary judgment.

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IV.
CONCLUSION
Because Ms. Cooper has established a prima facie case for discrimination, and because
genuine issues of triable fact exist regarding the City’s proffered reasons for not promoting her,
the Court DENIES Defendant’s Summary Judgment Motion. [Dkt. 43.]

10/31/2011

_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana

Distribution by ECF only:
Cherry Malichi
LEE COSSELL KUEHN CROWLEY & TURNER LLP
127 East Michigan Street
Indianapolis, IN 46204
[e-mail]
Gregory P. Gadson
LEE COSSELL KUEHN CROWLEY & TURNER LLP
127 East Michigan Street
Indianapolis, IN 46204
[e-mail]
Alexander Phillip Will
CITY OF INDIANAPOLIS, CORPORATION COUNSEL
200 E. Washington Street
1601 City-County Building
Indianapolis, IN 46204
[e-mail]
Jennifer Lynn Haley
CITY OF INDIANAPOLIS, CORPORATION COUNSEL
200 E. Washington Street
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1601 City-County Building
Indianapolis, IN 46204
[e-mail]
Mark John Pizur
CITY OF INDIANAPOLIS, CORPORATION COUNSEL
200 E. Washington Street
1601 City-County Building
Indianapolis, IN 46204
[e-mail]

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