IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

DANIEL KOCH, ) 

) 

 Plaintiff, ) Case No. 12-cv-1224 

 ) 

v. ) Judge Robert M. Dow, Jr. 

 ) 

VILLAGE OF SCHILLER PARK, an ) 

Illinois Corporation; DANIEL SCHULZE, ) 

in his capacity as Chief of Police of the Village ) 

of Schiller Park, ) 

 ) 

 Defendants. ) 

MEMORANDUM OPINION AND ORDER 

 Before the Court is a motion for summary judgment [31], filed by Defendants Village of 

Schiller Park and Daniel Schulze. For the reasons stated below, the Court denies Defendants’ 

motion. This case is set for status hearing on 7/10/2014 at 9:00 a.m. 

I. Background 

 A. Statement of Facts 

 The Court has taken the relevant facts from the parties’ Local Rule (“L.R.”) 56.1 

statements. Local Rule 56.1 sets out the procedures by which parties are to put facts before the 

Court for consideration at summary judgment. The Rule requires a party moving for summary 

judgment to submit a statement of material facts as to which the movant contends there is no 

genuine issue and entitles the movant to judgment as a matter of law. The rule permits a movant 

to file up to 80 separately-numbered statements of undisputed facts. L.R. 56.1(a)(3). The Rule 

also requires the non-movant to file a concise response to a movant’s statement of facts 

containing “any disagreement, specific references to the affidavits, parts of the record, and other 

supporting materials,” (L.R. 56.1(b)(3)(A)), and to file up to 40 additional separately-numbered 
2 

facts (L.R. 56.1(b)(3)(C)). The Rule then permits the movant to submit a concise reply to the 

opposing party’s additional material facts in the same form as prescribed by L.R. 5.1(b)(3)(A). 

 Consistent with these directives, Defendants filed 27 statements of fact along with their 

summary judgment motion, to which Plaintiff responded pursuant to Section (b)(3)(A) of the 

Rule. Plaintiff also filed 35 additional facts, as prescribed by Section (b)(3)(C) of the Rule, and 

Defendants replied in kind. Regrettably, however, Defendants did not adhere to the Rule in the 

body of their motion itself, citing numerous facts not contained in the 56.1 statements. As 

Plaintiff argues, this is an impermissible method by which to set out facts at summary judgment 

and is insufficient to put issues before the Court. Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 

1313 (7th Cir. 1995); Malec v. Sanford, 191 F.R.D. 581, 594 (N.D. Ill. 2000). For that reason, 

and because of Defendant’s disregard of the Court’s prior Order on this precise issue, the Court 

will not excuse Defendants’ neglect of the Rule. 

 Defendants first filed a motion for summary judgment in this case on April 19, 2012. See 

[7]. The Court, however, struck Defendants’ motion without prejudice for failure to conform to 

Local Rule 56.1 and provide a separate statement of facts along with their motion. See [18]. 

The Court took the time in its Order to describe the import of L.R. 56.1, made explicitly clear 

that strict adherence is required, and cited numerous cases (many of the same ones that the Court 

cites below) explaining the consequences of non-compliance. Id. Even more remarkable than 

Defendants’ failure to comply with the Rule this time around is the final section of their reply 

brief, which argues that Plaintiff misinterprets the Rule and insists that L.R. 56.1 does not require 

a movant to include all material facts in a separate statement of facts. See [35] at 10. At this 

point, the Court has been more than charitable with Defendants, striking their initial motion 

without prejudice to refiling and providing ample forewarning as to the result of noncompliance 
3 

with the Rule. Defendants must now live with the consequences of their own shortcomings. 

 Here, Plaintiff had no duty (or opportunity, in light of the Rule) to respond to 

Defendants’ extraneous fact statements. And the Seventh Circuit has stressed that it is not the 

role of the Court to parse the parties’ exhibits to construct the facts to determine whether or not 

there is a genuine factual dispute. Judges are not “like pigs, hunting for truffles buried in briefs.” 

United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991). “Nor are they archaeologists 

searching for treasure.” Jeralds ex rel. Jeralds v. Astrue, 2010 WL 4942161, at *7 (N.D. Ill. 

Dec. 8, 2010) (citing DiLeonardi, 181 F.3d 865, 867 (7th Cir. 1999)). It simply is not the court’s 

job to sift through the record to find evidence to support or oppose a party’s claim. Davis v. 

Carter, 452 F.3d 686, 692 (7th Cir. 2006). Rather, it is “[a]n advocate’s job . . . to make it easy 

for the court to rule in his client’s favor . . . .” Dal Pozzo v. Basic Machinery Co., Inc., 463 F.3d 

609, 613 (7th Cir. 2006). The Seventh Circuit has “consistently and repeatedly upheld a district 

court’s discretion to require strict compliance with its local rules governing summary judgment.” 

Modrowski v. Pigatto, 712 F.3d 1166, 1169 (7th Cir. 2013); see also Ammons v. Aramark 

Uniform Services, Inc., 368 F.3d 809, 817 (7th Cir. 2004) (noting that the Seventh Circuit has 

“repeatedly held that a district court is entitled to expect strict compliance with Rule 56.1.”). 

Therefore, the Court will only consider the statements contained in the parties Rule 56.1 

statements. Material facts cited for the first time in Defendants’ motion for summary judgment – 

namely, all citations to Exhibit J (Schulze’s deposition transcript) and Exhibit K (Schulze’s 

affidavit), with the sole exception of ¶ 14 in Exhibit K, which Defendants cite in their statement 

of facts1

 – will be disregarded.2 

																																																								

1

 To be clear, though, Defendants citations to portions of Exhibits J and K in their reply to Plaintiff’s 

additional facts will be considered in determining whether genuine issues of material fact exist. The Rule 

permits the moving party to “submit a concise reply in the form prescribed in [section (b)]. All material 
4 

B. Facts 

Plaintiff Daniel Koch joined the Village of Schiller Park Police Department in 1986. Pl. 

Resp. to Def. SOF ¶ 7. At the conclusion of the two-year probationary period that followed 

Koch’s hiring, he was certified as a member of the Department “with the permanent rank of 

Patrolman.” Id. at ¶ 9. Schiller Park’s Police Department is divided into two divisions: a patrol 

division and a detective division. Id. at ¶ 14. No matter his division, though, a member of the 

police department is formally classified as a “patrolman.” Id. at ¶ 15. The Police Chief, 

responsible for the direction and performance of all department functions, assigns the 

department’s patrolmen at his discretion to either the patrol or detective division. Id. at ¶ 16-17. 

But promotions within the police department are governed by the Rules and Regulations of the 

Board of Fire and Police Commissioners. Id. at ¶ 13. 

 On May 4, 1998, Koch was assigned by former-Police Chief Peter Puleo as a Community 

Policing Officer. Id. at ¶ 10. In December 2001, Koch was moved into the Detective Division 

by then-Police Chief Robert Radak. Id. at ¶ 19. The parties disagree over the characterization of 

this move; Koch describes the switch to detective as a “promotion,” while Defendants insist that 

Koch was merely “reassigned” to his new role. Id. Regardless of the appropriate term, the 

parties agree that Koch’s switch to detective was not governed by the department’s Rules and 

Regulations concerning promotions – Rules 4-21 through 4-35. Id. at ¶ 20. And regardless of 

how the job change is characterized, Koch’s rank (Patrolman) remained the same. Id. at ¶ 21, 30. 

																																																																																																																																																																																		

facts set forth in the statement filed [by the non-movant] pursuant to section (b)(3)(c) will be deemed 

admitted unless controverted by the statement of the moving party.” 

2

 Plaintiff urges the Court to disregard Defendants’ references to “Exhibit E” on pages 8 and 9 of their 

motion, as well, arguing that Defendants failed to cite to Exhibit E in their statement of facts. The Court 

notes, however, that Defendants did cite to Exhibit E, the Rules and Regulations of the Board of Fire and 

Police Commissioners, in statement of fact no. 12, and the specific regulations at issue in fact no. 13. As 

such, the Court will not strike references to Exhibit E in Defendants’ motion. 
5 

Koch asserts that along with his new title came a salary increase, additional pension 

contributions, an end to weekend work, increased schedule flexibility, and the ability to wear 

“plain clothes” on the job and drive an unmarked car. Def. Reply to Pl. SOF ¶ 2. Defendants 

dispute that Koch received increased pension benefits and contend that detectives receive a $200 

stipend each month that non-detectives do not receive (a fact which may or may not be intended 

to refute Koch’s claim of a salary increase). Id. 

 In January 2006, Koch had a heart attack. Pl. Resp. to Def. SOF ¶ 22. After a brief 

absence from work, Koch returned to “light duty” until his doctor cleared him to return to full 

duty as a detective without restriction, which he did on March 20, 2006. Id. at ¶ 23-25; Def. 

Reply to Pl. SOF ¶ 4. Koch remained a detective with the Schiller Park Police Department for 

almost five more years until January 2011, when he was reassigned (as Defendants characterize 

it) to the patrol division by Police Chief Daniel Schulze. Pl. Resp. to Def. SOF ¶ 28. Again, 

though, Koch’s rank remained – as it had always been – that of “patrolman.” Id. at ¶ 29-30. 

 Koch contends that Chief Schulze demoted (Koch’s verb) him from the detective division 

to the patrol division because of his heart condition. Id. at ¶ 17. Koch maintains that, upon his 

return to work in March 2006, he informed his superiors that he had coronary artery disease, and 

that he spoke with Schulze about his heart attack four or five times prior to his January 2011 

transfer from detective to patrol division. Def. Reply to Pl. SOF ¶ 4-5. Moreover, Defendants 

concede that Schulze was aware of two subsequent heart-related incidents that Koch 

experienced. Id. at ¶ 6. During the first, Schulze walked Koch to an ambulance after Koch 

complained of chest pains. Id. And Schulze was informed of Koch’s second episode, which 

occurred during the Spring of 2009, after Koch was again taken by ambulance to the hospital, 

where Koch was informed that his blood pressure was “extremely high.” Id. 
6 

 On April 7, 2010, Koch testified at a worker’s compensation arbitration hearing about his 

2006 heart attack. Id. at ¶ 8. During the arbitration, Koch testified (a) that his duties as a 

detective are very stressful and (b) that the duties of detectives are more stressful than those of 

patrolmen. Id. Schulze was appointed Police Chief around December 15, 2010. Id. at ¶ 15. In 

January 2011, about a month later, Schulze called Koch into his office, where – in the presence 

of their colleague Detective Henn – Schulze told Koch that he had been provided a copy of the 

transcript from Koch’s arbitration hearing. Id. at ¶ 8, 16. According to Koch, Schulze informed 

him that his testimony about the stressfulness of his job “put [Schulze] in a damning position,” 

and, consequently, Schulze said: “I’m taking you out of detectives and putting you in patrol so 

your job is less stressful.” Id. at ¶ 17, 35. Koch understood Schulze to be saying that, based on 

Koch’s testimony, Schulze believed that Koch’s weak heart could not handle the stress of being 

in the detective unit. Id. at ¶ 17. For that reason, Koch contends, Schulze – without referring to 

Koch’s medical records or doctor notes – moved Koch from the detective unit to the patrol 

division. Id. at ¶ 28-29. According to Schiller Park Police Sergeant William Strieby, just 

minutes before the January 2011 meeting, Schulze asked Strieby if he had read Koch’s 

arbitration transcript. Id. at ¶ 30. When Strieby acknowledged that he had, Schulze told Strieby 

that he thought Koch “perjured himself” and asked rhetorically, “what would Leslie do?” Id. at ¶ 

31-33. Strieby understood the question to mean: what would Koch’s wife, Leslie, do if 

something happened to her husband? Id. at ¶ 33. 

 According to Koch, his transition to the patrol division decreased his pay, reduced his 

pension benefits, changed his title from “detective” to “officer,” returned him to a uniform from 

street clothes, and required him to drive a marked car and work weekend shifts. Id. at 20. 

Additionally, it became more difficult for Koch to earn overtime pay, since patrolmen do not 
7 

earn overtime until they complete a 12-hour shift, whereas detectives begin earning overtime at 

the completion of an 8-hour shift. Id. at ¶ 21. And, Koch contends, only detectives act as the 

lead investigators on cases, handle crime scenes, and consult with state’s attorneys on approval 

of felony charges. Id. (Defendants dispute Koch’s use of the word “only,” and maintain that a 

patrolman may sometimes lead a crime scene, depending on the scene’s severity. Id.) 

 Defendants tell a different story of what took place in that January 2011 meeting. They 

maintain that Schulze never told Koch that the reason for his reassignment out of the detective 

division was his 2006 heart attack. Def. SOF ¶ 32-33. Defendants deny that Schulze made any 

of the statements that Koch alleges that Schulze made during the meeting, and they deny that 

Schulze made the alleged statements to Strieby just before the meeting. Def. Reply to Pl. SOF ¶ 

35. Further, Defendants insist that Koch’s “reassignment” was not technically a demotion, and 

point out Koch’s admission that during the entirety of his career, from 1986 until present, his 

rank has always been that of “patrolman.” Def. SOF ¶ 29. Defendants also note that two other 

Schiller Park detectives, Robert Izruto and Russ Klug, suffered heart attacks and that neither was 

reassigned out of the detective division. Id. at ¶ 31; Pl. SOF ¶ 24-25. However, the parties agree 

that Izruto’s heart attack occurred in 1998, well before Schulze had authority as police chief to 

remove him from the detective, and that Klug (whose heart attack occurred between 1998 and 

2003) was the Department’s “school resource officer,” a position that rarely required case 

investigation or patrol work. Def. Reply to Pl. SOF ¶ 24-25. 

 In Koch’s statement of facts, he adds that Schulze administered Koch’s May 2009 

performance evaluation, on which he scored a rating of “acceptable” or “superior” in every 

category except for the “subjective attitude” category. Def. Reply to Pl. SOF ¶ 9. Schulze 

claims that a complaint by Koch’s colleague, detective William Martin, in addition to verbal 
8 

complaints received from the public, led Schulze to rate Koch’s attitude as “unacceptable” in that 

evaluation. Id. at ¶ 10. Schulze testified, however, that he considers Koch’s 2009 review, on the 

whole, to be “acceptable.” Id. at ¶ 12. And Detective Martin testified that Koch has a “positive 

reputation” within the patrol division and that he considers Koch’s attitude to be “positive and 

productive.” Id. at ¶ 10-11. 

II. Summary Judgment Standard

Summary judgment is proper 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). To avoid summary judgment, the opposing party must go beyond the pleadings and “set 

forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 250 (1986) (quotation omitted). A genuine issue of material fact exists if 

“the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

at 248. The party seeking summary judgment has the burden of establishing the lack of any 

genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 

Summary judgment is proper against “a party who fails to make a showing sufficient to establish 

the existence of an element essential to that party's case, and on which that party will bear the 

burden of proof at trial.” Id. at 322. The party opposing summary judgment “must do more than 

simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. 

Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “The mere existence of a 

scintilla of evidence in support of the [opposing] position will be insufficient; there must be 

evidence on which the jury could reasonably find for the [opposing party].” Anderson, 477 U.S. 

at 252. 
9 

No heightened standard of summary judgment exists in employment discrimination 

cases, nor is there a separate rule of civil procedure governing summary judgment in 

employment cases. Alexander v. Wisconsin Dept. of Health and Family Servs., 263 F.3d 673, 

681 (7th Cir. 2001) (citing Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir. 

1997)). However, intent and credibility frequently are critical issues in employment cases that in 

many instances are genuinely contestable and not appropriate for a court to decide on summary 

judgment. See id. The Court must resolve all evidentiary conflicts in Plaintiff’s favor and 

accord him the benefit of all reasonable inferences that may be drawn from the record. O’Leary 

v. Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2013). “It is not for courts at summary 

judgment to weigh evidence or determine credibility of [a witness’s] testimony.” Id. (quoting 

Berry v. Chicago Transit Auth., 618 F.3d 688, 691 (7th Cir. 2010)). Nevertheless, summary 

judgment in favor of the defendant “is hardly unknown or, for that matter rare, in employment 

discrimination cases.” Wallace, 103 F.3d at 1396.

III. Discussion 

Koch’s complaint alleges that Defendants committed three distinct legal violations for 

which he is entitled to relief. Count I alleges that Defendants violated Title II of the Americans 

with Disabilities Act by demoting him from the detective division to the patrol division based on 

a perceived disability. Count II alleges that Defendants violated 42 U.S.C. § 1983 “via the 

Americans with Disabilities Act” for the same reason. Count III is a Monell claim based on 

Schiller Park’s alleged policy of discriminating against persons that it believes to be disabled. 

Defendants argue that they are entitled to summary judgment on each of these counts. 

The Americans with Disabilities Act (“ADA”) prohibits discrimination “against a 

qualified individual on the basis of disability in regard to job application procedures, the hiring, 
10 

advancement, or discharge of employees, employee compensation, job training, and other terms, 

conditions, and privileges of employment.” 42 U.S.C. § 12112(a). The ADA defines 

discrimination as “limiting, segregating, or classifying a job applicant or employee in a way that 

adversely affects the opportunities or status of such applicant or employee because of the 

disability of such applicant or employee.” 42 U.S.C. § 12112(b)(1). And disability is defined as 

“(A) a physical or mental impairment that substantially limits one or more major life activities of 

such individual; (B) a record of such an impairment; or (C) being regarded as having such an 

impairment.” 42 U.S.C. § 12102(1). “An individual meets the requirement of ‘being regarded as 

having such an impairment’ if the individual establishes that he or she has been subjected to an 

action prohibited under [the ADA] because of an actual or perceived physical or mental 

impairment whether or not the impairment limits or is perceived to limit a major life activity.” 

42 U.S.C. § 12102(3)(A). “The purpose of the ‘regarded as’ definition of a ‘disability’ is to 

‘cover individuals rejected from a job because of the myths, fears and stereotypes associated 

with disabilities.’” Amadio v. Ford Motor Co., 238 F.3d 919, 925 (7th Cir. 2001) (quoting 

Sutton v. United Airlines, Inc., 527 U.S. 471, 489-90 (1999)). To prove his “regarded as” claim, 

Plaintiff must show either that “(1) a covered entity mistakenly believes that a person has a 

physical impairment that substantially limits one or more major life activities, or (2) a covered 

entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more 

major life activities.” Id. 

 In their motion for summary judgment, Defendants suggest that Koch has the burden of 

establishing a prima facie case of ADA discrimination, and that if he carries that burden, then the 

burden would shift to Defendants to offer a legitimate nondiscriminatory reason for the 

employment action taken, which, if done successfully, would flip the burden back to Plaintiff to 
11 

show that there is a genuine issue of material fact concerning whether the proffered reason is 

pretextual. This is a misstatement of the law and the burdens of proof. The Seventh Circuit has 

been clear that “Federal Rule of Civil Procedure 56 imposes an initial burden of production on 

the party moving for summary judgment to inform the district court why a trial is not necessary.” 

Modrowski, 712 F.3d at 1168 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). “[T]he 

movant’s initial burden ‘may be discharged by showing – that is, point out to the district court – 

that there is an absence of evidence to support the nonmoving party’s case.” Id. Upon such a 

showing, the nonmovant then must “make a showing sufficient to establish the existence of an 

element essential to that party’s case.” Id. Put another way, the nonmovant must “go beyond the 

pleadings (e.g., produce affidavits, depositions, answers to interrogatories, or admissions on file) 

to demonstrate that there is evidence ‘upon which a jury could properly proceed to find a verdict’ 

in [his] favor.” Id. at 1169 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986)). 

 In an ADA discrimination case, a nonmovant plaintiff can do this in one of two ways. 

First, a plaintiff can put forth “direct evidence” of discrimination. See DeLuca v. Winer 

Industries, Inc., 53 F.3d 793, 797 (7th Cir. 1995). Alternatively, a plaintiff can submit “indirect 

evidence” of unlawful ADA discrimination by way of the McDonnell Douglas burden-shifting 

rubric, originally established for Title VII cases. Id.; Fleishman v. Continental Cas. Co., 698 

F.3d 598, 604 (7th Cir. 2012) (“[W]e have continued to apply the McDonnell Douglas burdenshifting framework in summary judgment cases that proceed under the indirect method of proof . 

. . .”). Defendants’ articulation of the burden-shifting test, therefore, applies only if Koch relies 

on the indirect method of proof in establishing his discrimination claim. See id.; see also 

Antonetti v. Abbott Laboratories, 563 F.3d 587, 591 (7th Cir. 2009) (“Under [the indirect] 

approach . . . . If Plaintiffs can demonstrate [a prima facie case of discrimination], the burden 
12 

shifts to the employer to articulate some legitimate, nondiscriminatory reason for the adverse 

action. If [the employer] satisfies this burden of production, Plaintiffs must then establish that 

there is an issue of material fact as to whether the employer’s proffered reasons are merely 

pretext for unlawful discrimination . . . in order to survive summary judgment.”) (internal 

quotations and citations omitted). But if Koch submits direct evidence of discrimination such 

that a jury could properly find a verdict in his favor – that is, that genuine issues of material fact 

exist with respect to each element he will be required to prove at trial – that’s the end of the 

inquiry, and Defendants’ summary judgment motion must be denied. See Bunn v. Khoury 

Enterprises, Inc., ---F.3d---, 2014 WL 2198557, at *5 (7th Cir. May 28, 2014). 

 Defendants argue that they are entitled to summary judgment on the two discrimination 

counts because, they contend, Koch cannot prove that he suffered an adverse employment action. 

As a backstop, they argue that, even if Koch did suffer an adverse employment action, the action 

was the result of poor job performance rather than because of a perceived disability. Finally, 

Defendants argue that Koch cannot prove his Monell claim, contending that he has failed to 

produce any evidence of a custom, policy, or practice by Schiller Park of discriminating against 

those with actual or perceived disabilities. 

A. Adverse Employment Action 

The Seventh Circuit has defined adverse employment actions “quite broadly.” Oest v. Ill. 

Dept. of Corr., 240 F.3d 605, 612 (7th Cir. 2001) (quoting Smart v. Ball State Univ., 89 F.3d 

437, 441 (7th Cir. 1996)). However, “adverse actions must be materially adverse to be 

actionable, meaning more than a ‘mere inconvenience or an alteration of job responsibilities.’” 

Id. (quoting Crady v. Liberty Nat’l Bank & Trust Co., 993 F.2d 132, 136 (7th Cir. 1993)). A 

“materially adverse change might be indicated by a termination of employment, a demotion 
13 

evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, 

significantly diminished material responsibilities, or other indices that might be unique to a 

particular situation.” Id. (quoting Smart, 89 F.3d at 441). 

Defendants insist that Koch “cannot possibly prove” that his reassignment from detective 

to the patrol division was an adverse employment action within the meaning of the ADA, 

because it is undisputed that Schulze’s decision to move Koch to the patrol division did not 

invoke Rules 4-21 through 4-35 of Schiller Park’s “Rules and Regulations of the Board of Fire 

and Police Commissioners,” and therefore, his rank of “patrolman” remained unchanged. Rules 

4-21 through 4-35 outline the procedures that must be followed when promoting or demoting an 

officer (i.e., when changing an officer to an inferior or superior rank). This is the reason that 

Defendants object to Koch’s characterization of his job change as a “demotion” and cling to the 

term “reassignment.” But no matter the label, Koch has highlighted a number of meaningful 

changes caused by his removal from the detective division, including lower pay, smaller pension 

contributions, rotating weekend work, the commencement of overtime pay after a 12-hour shift 

instead of an 8-hour shift, and a relegation from lead investigator on cases to a subordinate role. 

Koch also complains that, in the patrol division, he could no longer drive an unmarked car and 

wear plain clothes. Defendants concede that Koch’s reassignment came with rotating weekend 

work and the obligation to wear a uniform and drive a marked car, and that those in the detective 

division begin to earn overtime after an 8-hour shift while patrolmen cannot earn overtime until a 

shift’s 12-hour mark. And although Defendants attempt to refute Koch’s claim that his 

reassignment resulted in lower pay and decreased pension contributions, Defendants do so 

mostly with facts that were not included in their L.R. 56.1 statements. As discussed above, the 

Court will not consider factual assertions from Schulze’s deposition transcript, unless they 
14 

appear in the parties’ 56.1 statements. And even if the Court were willing to consider all of 

Schulze’s contradictory claims, his deposition testimony does nothing more than underscore the 

existence of genuine factual disputes: Koch contends that his pay and pension decreased when 

he moved to the patrol division, and Schulze disagrees. 

Here, a reasonable jury certainly could find that Koch suffered a material adverse 

employment action. Koch alleges numerous changes to the material conditions and benefits of 

his employment that resulted from his reassignment. Defendants concede the accuracy of several 

of Koch’s claims and, at most, introduce the existence of a factual dispute on the others. Taking 

the evidence (that is, Koch’s deposition testimony) in the light most favorable to Plaintiff, 

Koch’s removal from the detective division, while perhaps not a technical loss in “rank,” resulted 

in decreased compensation, significantly diminished job responsibilities, and a loss of other 

material benefits, such as the absence of weekend work and more limited access to overtime pay. 

Each of these consequences has been recognized by the Seventh Circuit as an example of a 

materially adverse change in one’s employment. See Oest, 240 F.3d at 612. For that reason, the 

Court easily determines that a reasonable jury could find that Plaintiff experienced an adverse 

employment action within the meaning of the ADA. 

B. Causation 

Defendants argue that, even if Koch’s reassignment did constitute an adverse 

employment action, they reassigned him because of poor work performance, not because than a 

perceived disability. They contend that “Plaintiff has produced no evidence whatsoever that his 

reassignment was caused by his employer’s alleged perception that he was disabled.” That 

contention is contradicted by Koch’s deposition transcript, which provides direct evidence in 

support of his claim. According to Koch, Schulze told him that his testimony at his worker’s 
15 

compensation hearing about the stressfulness of his job “put [Schulze] in a damning position.” 

Koch says that Schulze explicitly told him: “I’m taking you out of detectives and putting you in 

patrol so your job is less stressful.” Though Schulze denies making these statements, a 

reasonable jury could credit Koch’s testimony and understand Schulze’s statements in the same 

way that Koch did – that Schulze believed that Koch’s weak heart could not handle the stress of 

being in the detective unit and that Schulze was reassigning Koch to the patrol division on 

account of this perceived disability. In other words, a reasonable jury could conclude that 

Schulze transferred Koch because Schulze regarded Koch as having a physical impairment that 

substantially limited a major life activity (a “disability,” as defined by 42 U.S.C. § 12102(1)). 

Although Defendants characterize Koch’s deposition statements as “self-serving” (a claim, the 

Court notes, that equally could be made about Schulze’s deposition testimony and affidavit), it is 

not for the Court to weigh evidence or determine credibility at summary judgment. Berry, 618 

F.3d at 691. Instead, the Court must resolve all evidentiary conflicts in Plaintiff’s favor. 

Evidence of discrimination “‘is direct when, if believed, it would prove the fact in 

question without reliance on inference or presumption.’” Argyropoulos v. City of Alton, 539 

F.3d 724, 734 (7th Cir. 2008) (quoting Mannie v. Potter, 394 F.3d 977, 983 (7th Cir. 2005)). 

Under the direct method of proof, “a plaintiff can present either direct or circumstantial evidence 

to meet [his] burden.” Dickerson v. Bd. of Trs. of Cmty Coll. Dist. No. 522, 657 F.3d 595, 601 

(7th Cir. 2011); Winsley v. Cook Cnty, 563 F.3d 598, 604 (7th Cir. 2009) (“Under the “direct 

method,” [Plaintiff] must present direct or circumstantial evidence that creates a ‘convincing 

mosaic of discrimination’ on the basis of race.”). “But direct evidence, which might take the 

form of an admission of discriminatory intent by the relevant decisionmaker within the defendant 

employer’s ranks, is understandably rare in ADA cases.” Bunn v. Khoury Enterprises, Inc., ---
16 

F.3d---, 2014 WL 2198557, at *5 (7th Cir. May 28, 2014). Here, Koch has presented both types 

of “direct” evidence: a “rare” admission by an employer of his intent, coupled with direct 

circumstantial evidence. The admission, of course, is presented by way of Koch’s testimony 

concerning the statements that Schulze made to him in their January 2011 meeting. Defendants 

discount this evidence as self-serving, but Schulze’s alleged statements nevertheless are 

admissions of a party opponent that would be admissible at a trial. On these statements alone a 

reasonable jury could find that Koch was reassigned because of his heart condition. Moreover, 

this evidence is accompanied by a slew of circumstantial evidence. 

The type of circumstantial evidence that a plaintiff may produce to survive summary 

judgment under the direct method of proof includes: “(1) suspicious timing; (2) ambiguous 

statements or behavior towards other employees in the protected group; (3) evidence, statistical 

or otherwise, that similarly situated employees outside of the protected group systematically 

receive better treatment; and (4) evidence that the employer offered a pretextual reasons for an 

adverse employment action.” Dickerson, 657 F.3d at 601. Here, the timing is suspicious in so 

far as Schulze became Police Chief in December 2010, empowered for the first time with the 

discretion to reassign officers between divisions, just one month before he removed Koch from 

the detective division in January 2011. This explains why Schulze did not reassign Koch closer 

in time to his April 2010 worker’s compensation arbitration. Moreover, Sergeant Strieby’s 

affidavit states that, shortly before Schulze’s January 2011 meeting with Koch, Schulze asked 

Strieby if he had read Koch’s transcript, suggesting that Schulze had just read it himself and/or 

had just made the decision to reassign Schulze on its basis. Schulze informed Strieby that he was 

going to move Koch to the patrol division and asked rhetorically, “what would Leslie do?” 

Strieby understood Schulze’s statement to make reference to Koch’s wife, Leslie, and to ask 
17 

what she would do if something (i.e., another heart attack) happened to Koch on the job. 

Schulze’s statements to Strieby – again, admissible statements of a party opponent (Schulze) – 

arguably can be characterized as additional direct evidence of Schulze’s discriminatory intent. 

But at the very least, they are circumstantial evidence that the purported reason Defendants now 

offer for reassigning Koch (poor job performance) is pretextual. 

Defendant’s summary judgment motion tries to counteract Koch’s evidence with citations 

to Schulze’s deposition transcript and affidavit, none of which they included in their L.R. 56.1 

statements or in their responses to Plaintiff’s additional 56.1 statements. Again though, by citing 

to the portion of Schulze’s testimony where he denies making the January 2011 statements that 

Koch alleges, Defendants do nothing more highlight that this is a credibility contest with genuine 

factual disputes to be decided at trial. Defendants’ arguments as to why the Court (and/or a jury) 

should not find Koch’s evidence persuasive achieve that same end. For example, Defendants 

argue in their reply brief that it was only natural for Schulze to make personnel changes after a 

month on the job, only then having had the chance to survey his subordinates’ strengths and 

weaknesses. They also argue that the Court should discount Koch’s deposition testimony, since 

he failed to bolster it with corroborating testimony from Detective Henn, who was also present 

during the January 2011 meeting and whose deposition was not taken. Arguments attacking the 

weight of Plaintiff’s evidence such as these are perfectly legitimate for trial, but they implicitly 

urge the Court to read the facts in the light most favorable to Defendants, which is the opposite 

of what the Court is required to do at summary judgment. And their attempt to present evidence 

of Koch’s alleged history of poor job performance falls on deaf ears, as they included none of 

these facts in their 56.1 statements. 
18 

As Defendants acknowledge, to survive summary judgment “[P]laintiff must present 

evidence from which the jury could reasonably find for him.” Regardless of whether the Court 

considers Schulze’s claims concerning Koch’s past job performance, a reasonable jury – based 

on the direct evidence that Koch has presented – still could find that Schulze reassigned Koch 

because of his heart condition. Given that, the Court need not address Defendants’ arguments 

concerning Koch’s failure to meet his burden under the indirect method of proof. 

Accordingly, the Court denies Defendant’s summary judgment motion as to Counts I and 

II. 

C. Monell Claim

To establish municipal liability pursuant to Monell v. Dep’t of Soc. Servs., 436 U.S. 658 

(1978), and its progeny, “a plaintiff must show the existence of an ‘official policy’ or other 

governmental custom that not only causes but is the ‘moving force’ behind the deprivation of 

constitutional rights.” Teesdale v. City of Chicago, 690 F.3d 829, 833 (7th Cir. 2012). “A 

plaintiff can establish an official policy through ‘(1) an express policy that causes a constitutional 

deprivation when enforced; (2) a widespread practice that is so permanent and well-settled that it 

constitutes a custom or practice; or (3) an allegation that the constitutional injury was caused by 

a person with final policymaking authority.’” Id. (quoting Estate of Sims v. Cnty. of Bureau, 506 

F.3d 509, 515 (7th Cir. 2007)). 

In their motion for summary judgment, Defendants make one argument for the dismissal 

of Plaintiff’s Monell claim. Defendants argue that “Plaintiff has utterly failed to produce any 

evidence” of a Monell claim, because “an isolated incident of alleged disability discrimination 

directed only towards him [cannot] amount[] to a custom, policy or widespread practice under 

Monell.” Koch makes a single argument in response, contending that Schulze’s status as a “final 
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policymaking authority” (that is, the Chief of Police, with the discretion to reassign employees 

without any higher approval) buoys his claim. Because Defendants fail to address that theory of 

Monell liability in their motion, Koch argues, summary judgment should be denied. Attempting 

to answer that challenge in their reply brief, Defendants implicitly concede (by their silence) that 

Schulze is a “final policymaking authority” within the meaning of Monell, and instead argue that 

reassigning Koch cannot support municipal liability because Schiller Park’s overarching “policy” 

governing reassignments is not itself unconstitutional. In Defendants’ words: “the reassignment 

of patrolmen to various divisions within the police department is not only quite common and has 

been practiced for many years by various Chiefs of Police prior to Schulze’s tenure, it is also not 

an unconstitutional policy.” They go on: “There is insufficient evidence to establish that this 

‘policy’ is causally connected to Plaintiff’s alleged constitutional deprivation since the record 

clearly shows that there were other police officers within the Detective Division who also 

suffered heart attacks but were not reassigned out of the division.” Defendants miss the mark 

here. 

Koch’s allegation is that Schulze’s decision to reassign him violated his constitutional 

rights and subjects Schiller Park to Monell liability because, as a final policymaking authority, 

Schulze was acting on behalf of the municipality when he discriminated against Koch in that 

way. Defendants seem to confuse and conflate the three ways in which a plaintiff may prove a 

Monell claim, cutting and pasting (without the use of quotation marks) a large section from the 

29-year-old Supreme Court case City of Oklahoma City v. Tuttle, 471 U.S. 808 (1985), in (as 

best the Court can tell) an attempt to demonstrate that Koch has failed to allege a widespread 

unconstitutional “policy” of discrimination. But Koch is expressly advancing the third (not the 

first or second) theory of municipal liability, and Defendants never actually address either of the 
20 

two components of Koch’s particular brand of Monell claim: (1) that a final policymaking 

authority (2) caused him a constitutional injury. See Pembaur v. City of Cincinnati, 475 U.S. 

469, 479-80 (1986) (holding that because “Monell reasoned that recovery from a municipality is 

limited to acts . . . which the municipality has officially sanctioned or ordered . . . it is plain that 

municipal liability may be imposed for a single decision by municipal policymakers under 

appropriate circumstances); see also Milestone v. City of Monroe, Wis., 665 F.3d 774, 780 (7th 

Cir. 2011) (reiterating that “a decision by a municipal agent with ‘final policymaking authority’ 

can support municipal liability under Section 1983”). 

As discussed earlier, Federal Rule of Civil Procedure 56 imposes an initial burden of 

production on the party moving for summary judgment to inform the Court why a trial is not 

necessary. Modrowski, 712 F.3d at 1168 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 

(1986)). By failing to address either element of Plaintiff’s Monell claim, Defendants have not 

carried their initial, minimal burden, and the Court will not make Defendants’ arguments for 

them. For that reason, their motion for summary judgment is denied as to Count III . 

IV. Conclusion 

For the reasons stated above, the Court denies Defendants’ motion for summary 

judgment [31]. This case is set for status hearing on 7/10/2014 at 9:00 a.m. 

 

Dated: June 17, 2014 _______________________________ 

 Robert M. Dow, Jr. 

 United States District Judge