IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS

ALVIN CAMPBELL )

)

Plaintiff, ) No. 12 C 1165

)

v. )

) Judge Elaine E. Bucklo

THE CITY OF CHICAGO )

)

Defendant. )

)

MEMORANDUM OPINION AND ORDER1

Plaintiff Alvin Campbell filed a one-count complaint against

defendant the City of Chicago alleging that defendant retaliated

against him in violation of 42 U.S.C. § 1981. Defendant moves

for summary judgment, and for the following reasons that motion

is denied.

I.

Alvin Campbell has been a police officer for the Chicago

Police Department’s 18th District for approximately twelve years. 

Prior to the assignment that is the impetus for this litigation,

Campbell worked as a relief pool officer.

The Chicago Police Department (“CPD”) and the Chicago

Housing Authority (“CHA”) have an inter-governmental agreement

requiring CPD to provide dedicated police service to CHA

properties in need of additional police assistance. In an effort

to mitigate violence across Chicago’s public housing, CPD

implemented a CHA Initiative, and on April 10, 2009, pursuant to

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that Initiative, the 2nd Watch of the 18th District was directed

to assign two police officers to a fixed post located at 364 and

365 West Oak, at the time part of the Cabrini Green housing

project. The purpose of this new assignment was to assist the

private security personnel at the two buildings and generally to

provide a constant police presence in and around the buildings. 

This new “beat” assignment was designated as “Beat 1822F,” and it

was implemented on April 11, 2009. 

As a “fixed post,” Beat 1822F required officers to obtain

face-to-face relief at all times, including for lunch and

personal breaks. This meant that the officers assigned to the

beat could not leave the post until other officers physically

came to the post to relieve them. It became known to at least

some of the officers in the 18th District as “the punishment

car.” The decision regarding who to assign to Beat 1822F on a

day-to-day basis was made by the Watch Commander. The CPD is

organized into districts, and each district is headed by a

District Commander. Each district is further organized into

three watches, supervised by a Watch Commander. The Watch

Commander reports to the District Commander.

At the time of the inception of Beat 1822F, the Watch

Commander for the 2nd Watch was Captain Randall Zawis (“Zawis”). 

When Zawis was on medical leave between May 2009 and November

2009, Lieutenant Paul Mack (“Mack”) was the Acting Watch

Commander for the 2nd Watch. In April 2009, the District

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Commander was Deputy Chief Steve Georgas (“Georgas”). Georgas

was replaced by Kenneth Angarone (“Angarone”) in August 2009. 

The Watch Commander had discretion to make assignments on a dayto-day basis, but was accountable to the District Commander.

On April 11, 2009, the day of its implementation, plaintiff

was assigned to Beat 1822F. Plaintiff was also assigned to the

beat on April 17. On April 24, Beat 1822F became plaintiff’s

regular assignment, an assignment he shared with Officer Brian

Corcoran (“Corcoran”) after that date. Plaintiff worked the beat

for approximately nine months.

On April 11, 2009, the same day plaintiff was assigned to

Beat 1822F with Officer Alvin Greenup (“Greenup”), Greenup told

plaintiff that Sargent Kelly Braithwaite (“Brathwaite”), a

supervising sergeant, referred to plaintiff as a “miserable

fuck.” In response to an exchange Braithwaite had with Campbell

in the parking lot of the 18th District, Braithwaite asked

Greenup: “How do you work with that miserable fuck?” Then around

April 13, 2009, Corcoran told plaintiff that Braithwaite had

referred to plaintiff as a “fat lazy nigger.” 

That same day, plaintiff went to speak with Zawis. He

requested to speak with the Watch Commander “off the record” but

Zawis informed Campbell that Zawis would be obligated to report

anything serious. After a general conversation about plaintiff

not wanting to work under Braithwaite’s supervision, plaintiff

reported Braithwaite’s remarks to Zawis. Plaintiff also told

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Zawis that several weeks earlier he had overheard Braithwaite

refer to Corcoran and another officer as “Irish pieces of shit.” 

After plaintiff left his office, Zawis called the Independent

Police Review Authority (“IPRA”) and obtained a log number to

initiate a formal complaint. Zawis also prepared a Complaint

Register (“CR”) Initiation Report. Plaintiff was named as the

complainant in the IPRA investigation and in a memo from Zawis to

Georgas.

Plaintiff’s claims of retaliation stem from the initiation

of the investigation into Braithwaite’s comments. According to

plaintiff, he and Corcoran were subject to “intentional, severe,

and humiliating retaliatory action” by Zawis, Braithwaite,

Sargent Brian Byrne (“Byrne”), and Georgas, among others. 

Primarily, plaintiff alleges that Zawis assigned him and Corcoran

to Beat 1822F on a permanent basis as “punishment,” due to the

location and the restrictive nature of the assignment. According

to plaintiff, certain aspects of Beat 1822F became more

restrictive over time. During the summer of 2009, the beat

temporarily was changed from a car assignment to a foot post. In

January 2010, restrictions were placed on the Beat 1822F car

regarding how officers could refill the gas tank or obtain car

washes. Plaintiff also received two Summary Punishment Action

Responses (“SPARs”) during the summer of 2009, one of which was

expunged by Angarone.

Plaintiff, Corcoran, and a number of other officers were

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questioned as part of the IPRA investigation into Braithwaite’s

comments. During their interviews, both plaintiff and Corcoran

stated that they believed they were being retaliated against in

response to the initiation of the investigation. The IPRA

investigation concluded with a finding that Braithwaite had acted

unprofessionally when she called plaintiff a “miserable fuck,”

but other allegations against her were dismissed. The IPRA

investigation also found that Corcoran had failed to report the

racial slur he allegedly overheard from Braithwaite. Greenup was

also cited for misstating Braithwaite’s comments. The IPRA

investigation did not make any findings regarding the allegations

of retaliation.

II.

Summary judgment is granted 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). 

I must view all facts and reasonable inferences in the light most

favorable to the nonmoving party. Turner v. The Saloon, Ltd.,

595 F.3d 679, 683 (7th Cir. 2010). However, “there is no issue

for trial unless there is sufficient evidence favoring the

nonmoving party for a jury to return a verdict for that party.” 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct.

2505 (1986).

III.

Section 1981 prohibits race-based discrimination in “the

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making, performance, modification, and termination of contracts.” 

42 U.S.C. § 1981. Litigants often “invoke § 1981 to assert their

rights to be free from discrimination while making and enforcing

employment contracts.” Pourghoraishi v. Flying J, Inc., 449 F.3d

751, 756 (7th Cir. 2006). “The Supreme Court has held that §

1981 authorizes claims for retaliation, if one person takes

action against another for asserting the right to substantive

contractual equality provided by § 1981.” Smith v. Bray, 681

F.3d 888, 896 (7th Cir. 2012) (“Bray”) (citing CBOCS West, Inc.

v. Humphries, 553 U.S. 442, 445, 128 S.Ct. 1951 (2008)). 

“[U]nlawful retaliation occurs when an employer takes an adverse

employment action against an employee for opposing impermissible

discrimination.” Id. (citation omitted). “The substantive

standards and methods of proof that apply to claims of racial

discrimination and retaliation under Title VII also apply to

claims under § 1981.” Id.

Plaintiff argues that he has presented sufficient evidence

of retaliation under both the direct and indirect methods of

proof, but because I have determined that plaintiff has presented

enough evidence under the direct method, I will discuss only the

direct method. To avoid summary judgment under the direct

method, plaintiff “must present direct evidence of (1) his

statutorily protected activity; (2) a materially adverse action

taken by [defendant]; and (3) a causal connection between the

two.” Bray, 681 F.3d at 896 (citing Coleman v. Donahoe, 667 F.3d

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835, 859 (7th Cir. 2012)).

The evidence demonstrates that plaintiff has raised genuine

disputes of material fact relating to all three prongs of the

direct method test. The record reveals that plaintiff complained

to Zawis, the Watch Commander for the 2nd Watch, about a

supervisor’s use of racial/ethnic slurs, that the complaint led

to a formal investigation, and that plaintiff participated in

that investigation. As defendant recognizes, the test is not

whether Braithwaite did, in fact, violate § 1981. See Pickett v.

Sheridan Health Care Ctr., 610 F.3d 434, 441 (7th Cir. 2010) (“We

have repeatedly held that a plaintiff need not prevail on her

Title VII discrimination claim or have opposed an action that in

fact violated Title VII to win a retaliation claim.”) Instead,

plaintiff need only present evidence that he “reasonably believed

in good faith that the practice [he] opposed violated Title VII.” 

Id. (internal quotation marks and citation omitted). Contrary to

defendant’s argument, plaintiff did not complain about a single

or “stray” remark. He complained only after he believed

Braithwaite had made two discriminatory remarks, one of which was

allegedly used to describe plaintiff. Under an objective

“reasonable belief” standard, plaintiff has presented sufficient

evidence to create a genuine dispute of material fact.

As for the second prong, an action is “materially adverse”

for purposes of claims of retaliation if it “would ‘dissuade a

reasonable employee from making or supporting a claim of

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discrimination.’” Hobbs v. City of Chicago, 573 F.3d 454, 463

(7th Cir. 2009) (quoting Burlington N. and Santa Fe Ry. Co. v.

White, 548 U.S. 53, 57, 126 S.Ct. 2405 (2006)). In the

discrimination context, a “materially adverse” action can include

situations in which “the conditions in which [an employee] works

are changed in a way that subjects him to a humiliated,

degrading, unsafe, unhealthful, or otherwise significantly

negative alteration in his workplace environment---an alteration

that can fairly be characterized as objectively creating a

hardship[.]” Herrnreiter v. Chicago Hous. Auth., 315 F.3d 742,

744 (7th Cir. 2002) (emphasis in original). The record

demonstrates that after plaintiff complained to Zawis about

Braithwaite, plaintiff and Corcoran were assigned on an on-going

basis to Beat 1822F, which some of the evidence suggests was

known as the “punishment car.” And, among other things, the

evidence also suggests that plaintiff and Corcoran’s car was

taken away from them though they worked in a dangerous area and

that the conditions of Beat 1822F became more onerous over time. 

Plaintiff has carried his burden in presenting evidence that he

suffered a materially adverse action.

Finally, plaintiff has submitted sufficient evidence of a

causal connection between his allegedly protected activity and

the alleged adverse actions to defeat summary judgment. 

Plaintiff presents evidence that he was not assigned to Beat

1822F on a permanent basis until shortly after complaining about

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Braithwaite’s comments, that the assignment was known as the

“punishment car,” and that the requests of other officers to be

taken off of Beat 1822F were accommodated by Zawis. Here, the

temporal proximity alone is enough to create a genuine issue of

material fact regarding the causal connection between plaintiff’s

purported protected activity and the allegedly retaliatory

actions, but plaintiff has presented more.1

Whether plaintiff can hold the City liable for retaliation

under Monell is a closer question. Liability in a § 1981 action

against a local government is constrained by the remedial

provisions of § 1983. Jett v. Dallas Indep. Sch. Dist., 491 U.S.

701, 733-34, 109 S.Ct. 2702 (1989). This means that in order to

state a claim under § 1981 against a local government entity or

municipality, a plaintiff must establish municipal liability

under Monell v. Dept. of Soc. Servs. of the City of New York, 436

U.S. 658, 98 S.Ct. 2018 (1978). See Jett, 491 U.S. at 735-36,

109 S.Ct. 2702 (“[T]o prevail on his claim for damages against

the school district, petitioner must show that the violation of

his ‘right to make contracts’ protected by § 1981 was caused by a

custom or policy within the meaning of Monell and subsequent

cases.”); see also Smith v. Chicago Sch. Reform Bd. of Trustees,

165 F.3d 1142, 1149 (7th Cir. 1999) (“[Monell] identifies an

element of a plaintiff’s claim, so the burden is on the plaintiff

 In light of the foregoing discussion and considering the 1

record, I also conclude that defendant has not presented enough

evidence to prevail on its mixed-motive affirmative defense. 

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to demonstrate the essential policy or custom.”).

“Municipal entities cannot be held vicariously liable for

the acts of their employees under Section [1981] on a respondeat

superior theory.” Phelan v. Cook Cnty., 463 F.3d 773, 789 (7th

Cir. 2006). “Liability for unauthorized acts is personal; to

hold the municipality liable, Monell tells us, the agent’s action

must implement rather than frustrate the government’s policy.” 

Auriemma v. Rice, 957 F.2d 397, 400 (7th Cir. 1992). To

establish municipal liability under Monell a plaintiff must

produce evidence of “an express policy causing the loss, a

widespread practice constituting custom or usage that caused the

loss, or causation of the loss by a person with final

policymaking authority.” Kujawski v. Bd. of Comm’rs or

Bartholomew Cnty, Indiana, 183 F.3d 734, 737 (7th Cir. 1999)

(citation omitted).

Plaintiff asserts that he can establish liability under the

second and third methods, but because he has presented evidence

to defeat summary judgment on the second method, that is the only

method I will discuss. Under the second method, “[i]f the same

problem has arisen many times and the municipality has acquiesced

in the outcome, it is possible (though not necessary) to infer

that there is a policy at work.” Calhoun v. Ramsey, 408 F.3d

375, 380 (7th Cir. 2005). This case falls somewhere between the

prototypical case, in which a policy has been applied to a number

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of individuals, and the less common case described in Phelan, in

which a single series of events directed at one person could,

theoretically, demonstrate a widespread policy. See Phelan, 463

F.3d at 789. Both plaintiff and Corcoran were assigned on an ongoing basis to Beat 1822F following plaintiff’s complaint about

Braithwaite, and plaintiff has pointed to evidence showing that

the assignment was known afterward as the “punishment car.” 

Still, plaintiff has not presented evidence of retaliation

outside of the series of actions directed at plaintiff and

Corcoran.

The takeaway from the Seventh Circuit’s law on this issue is

an “acknowledgment that the word ‘widespread’ must be taken

seriously” and that “what is needed is evidence that there is a

true municipal policy at issue, not a random event.” Phelan, 463

F.3d at 790. Similarly, under Phelan, where alleged bad acts are

directed at isolated individuals, a plaintiff must still

“demonstrate that repeated actions directed at [the plaintiff]

truly evince the existence of a policy.” Id. at 789-90. In

short, plaintiff must present evidence that the City acquiesced

in Zawis’s alleged retaliation to such an extent so as to evince

the existence of a “permanent and well settled” policy. Id. at

789 (quoting Roach v. City of Evansville, 111 F.3d 544, 548 (7th

Cir. 1997)).

Plaintiff has met that standard. Unlike the plaintiff in

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Phelan, plaintiff here has presented evidence that the series of

unified actions taken against him and Corcoran were part of a

municipal policy. The plaintiff in Phelan alleged that various

co-workers, including at least one supervisor, had sexually

harassed her while she was employed in two different units of the

same department. She argued that the record showed that various

supervisory officials knew of and condoned the harassment, and

that this demonstrated the existence of a widespread policy. The

Seventh Circuit concluded that she “failed to weave [the]

separate incidents [of harassment] together into a cognizable

policy. Phelan, 463 F.3d 773, 790. By contrast, here, the

record suggests that the incidents of retaliation were

attributable to the decision of a single individual, Zawis, and

that two District Commanders and the IPRA acquiesced in his

action.

For instance, there is evidence that the Beat 1822F

assignment was used as a “punishment” assignment and that Zawis

assigned plaintiff and Corcoran to that beat in retaliation for

reporting Braithwaite’s comments. Plaintiff and Corcoran

repeatedly asked to be taken off of the Beat 1822F assignment but

were refused by their superiors, including Georgas (who was the

District Commander and to whom Zawis reported). And though

plaintiff and Corcoran complained to Angarone (who had by then

taken over as District Commander) that they were assigned to Beat

1822F by Zawis as a punishment, Angarone refused to take them off

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of the assignment. Further, the record demonstrates that both

plaintiff and Corcoran reported the alleged retaliation to IPRA

investigators, but the IPRA never made any findings regarding the

reported retaliation. A reasonable jury could conclude from the

evidence that those complaints were ignored. There is therefore

evidence suggesting that two District Commanders and the IPRA

acquiesced in Zawis’s allegedly retaliatory assignment of

plaintiff and Corcoran to Beat 1822F. This evidence, alone,

raises an issue for trial as to whether there was “a true

municipal policy” of retaliation.

Additionally, the record demonstrates that the subsequent

actions of Zawis, Georgas, and multiple supervisory officers

placed restrictions on the plaintiff and Corcoran’s assignments

that made Beat 1822F more onerous and, arguably, dangerous over

time. Whether each of these actions was retaliatory is, as I

have already determined, an issue for trial. If a jury

determines that the additional restrictions and punitive actions

were retaliatory, a jury could also conclude that these actions

were taken as part of a widespread policy.

IV.

For the foregoing reasons, defendant’s motion for summary

judgment is denied.

Date: August 21, 2009 _ 

Hon. Elaine E. Bucklo, US District Judge

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