Chief Schultz or put it in his office or handed it to his aide, because employment applications were
always forwarded to Chief Schultz. (Wiseman Dep. at 25-27, 29, 44-45; Lynn Dep, at 26.) See also
Wiseman Dep. at 36-37; Def.’s LR Resp. § 25; Pl.’s LR Resp. 7 6; Pl.’s LR Sumt. 7 22. Also, Lynn
testificd that he believed Schultz received the application based on a conversation between them in
which Schultz acknowledged Lynn’s comment that Simmons scemed like a “pretty good guy.”
(Lynn Dep. at 29.) Moreover, there is evidence to show that Chief Schultz was aware of the fact that
Simmons had applied for a position and was in fact considering him for the position. For example,
Simmons testified that Chief Schultz asked him in the parking lot if he would be available to work
weekends and holidays (Simmons Dep. at 40-41, 59), and Sims and Wiseman testified that Schultz
told Simmons at that time that he was going to hire him (Sims Dep. at 23-24; Wiseman Dep. al 38-
39). In addition, according to Wiseman, Schultz had left a message for Simmons regarding his
application, and Simmons testified that he was told by Schultz that he would be hired after some

badges came back. (Wiseman Dep. at 28, 46; Simmons Dep. at 43, 59).

Conversely, Willow Springs has presented very little evidence to show that Simmons didnot
apply for the job — or could not be considered for the job — merely because he gave his applications
to Wiseman instead of submitting them to the clerk’s office. Willow Springs cites Limas’ testimony
for the point that applications had to be filed with the clerk’s office, but Limas testified that such a
requirement is not even sct out in writing. (Limas Dep, at 18.) There is simply no evidence that
applicants were precluded from consideration if they did not file their applications with the clerk’s

office. Indeed, Chief Schultz testified on the issue as follows:

Q. And was there a certain place that the applicant had to return the application
to or certain individual?

19



moving party’s] position will be insufficient; there must be evidence on which the jury could

reasonably find for the [non-moving party].” Anderson, 477 U.S. at 252.

DISCUSSION
Willow Springs bases its motion for summary judgment on two arguments: (1) that
Simmons’ complaint is untimely; and (2) that no evidence exists to support Simmons’ Title VII

claim. (Def.’s Mot. at 1-2; Def.’s Mem. at 3-5.)"

A, Timeliness of the EEOC Charge and Complaint

Willow Springs argues that the filing of Simmons’ complaint on December 24, 2002 was
untimely. (Def.’s Mem. at 3.) In support of its argument, Willow Springs incorrectly asserts that
Simmons had 300 days from the date of the alleged unlawful employment action within which to
file his lawsuit, and that more than 300 days had elapsed. (/d.) Willow Springs identifies January
14, 2002 as the date of the alleged unlawful employment action, which is the date that Simmons

submitted his second application." In its Reply brief, Willow Springs asserts that “January 2002”

8 Willow Springs also asserted a third argument in its motion for summary judgment,
namely, that Simmons could not maintain suit against the “Village of Willow Springs Police
Department,” as that entily is a municipal department which cannot be sued apart from the
Village of Willow Springs. (Def.’s Mot. at 2; Def.’s Mem. at 5-6.) In response, Simmons filed a
motion to amend the pleadings to name the “Village of Willow Springs” as the defendant, which
the court granted on February 4, 2004, [Dkt 22, 23.] Based on the court’s order allowing that
amendment, Willow Springs withdrew its argument thal the defendant was an entity that could
not be sued, (Def.’s Reply at 1.)

‘’ More specifically, Willow Springs identifics January 14, 2002 as the date on which
Simmons “alleged activities by the Defendant in conjunction with an application of his for
employ [sic] with the Defendant.” (Def.’s Mem. at 3.)

13



presumption.” Davis v. Con-Way Transp. C. Express, Inc., 368 F.3d 776, 783 (7° Cir, 2004)
(quoting Ceruiti v. BASF Corp., 349 F.3d 1055, 1061 (7" Cir. 2003); see also Volovsek v, Wisconsin
Dept. of Agriculture, 344 F.3d 680, 689 (7" Cir. 2003) (quotation omitted); Rogers, 320 F.3d at 753.
Direct evidence “essentially requires an admission by the decision-maker that his actions were based
upon the prohibited animus.” Rogers, 320 F.3d at 753 (quotation omitted); Venturelli v. ARC
Community Servs., lnc. 350 F.3d 592, 599 (7" Cir. 2003); see also Troupe v. May Dept. Stores Co.,
20 F.3d 734, 736 (7" Cir. 1994). A proffer of direct evidence “must not only speak directly to the
issue of discriminatory intent, it must also relate to the specific employment decision in question.”
Grace, 61 ¥. Supp. 2d at 792 (quoting Cowan v. Glenbrook Sec. Servs., Inc., 123 F.3d 438, 443 (7"
Cir, 1997)), “[I]nappropriate but isolated comments that amount to no more than ‘stray remarks’ in
the workplace will not do.” Venters v. City of Delphi, 123 F.3d 956, 973 (7" Cir. 1997); see also
Gorence v. Eagle Food Ctrs., Inc., 242 F.3d 759, 762 (7 Cir. 2001) (explaining that a “stray
remark” is a derogatory remark unrelated to the employment decision at issue). Rather, “isolated
comments must be contemporaneous with the adverse action or causally related lo the applicable
decision-making process.” Conley v, Village of Bedford Park, 215 F.3d 703, 711 (7" Cir. 2000).
This type of evidence is rare. Volovsek, 344 1'.3d at 689; Rogers, 320 F.3d at 753; Venturelli, 350

F.3d at 599; Grace, 61 F, Supp. 2d at 791."

A plaintif can also prevail under the direct method of proof by constructing a “convincing

mosaic” of circumstantial evidence that “allows a jury to infer intentional discrimination by the

'8 Some cases also hold that “[r]emarks and other evidence that reflect a propensity by
the decisionmaker to evaluate employees based on illegal criteria will suffice as direct evidence
of discrimination cven if the evidence stops short of a virtual admission of illegality,” See
Sanghvi v. St. Catherine's Hosp., Inc., 258 F.3d 570, 574 (7" Cir. 2001) and cases cited therein.

23



Ex. C, Michael Simmons Dep. at 25, 28.) Simmons gave the application to Officer Wiseman,
whom he had met during a priorjob. (Simmons Dep. at 18, 26-27; Wiseman Dep. at 45.) Wiseman
testified that Simmons included the necessary diplomas with his application. (Wiseman Dep. at 25,
47.) Wiscman further testificd that he (Wiscman) took the employment application to Chief
Schultz’s office and “hand[ed] it to him.” (P].'s LR Stmt. 4 22; Wiseman Dep. at 25-27, 44-45.)

Wiseman testified that Chief Schultz later told Wiseman that he (Schultz) had left a message
for Simmons regarding his application. (Wiseman Dep. at 28, 45-46.) Some time thereafter,
Simmons advised Wiseman that he had not heard anything regarding his application. (/d. at 28.)
When Wiseman advised him that Chief Schultz had left a message for him, Simmons replied that
he had not received any messages from Schultz. (/d. at 28.) Wiseman told Simmons that he would
check into the matter with Schultz. (/d. at 28-29.) Wiseman later asked Schultz what was going
on with Simmons’ application, and Schultz indicated that he had either misplaced it or lost it. (/d.

at 29.)°

(on Simmons’ Second Application for Employment

On approximately January 14, 2002, Simmons filled out a second application for part-time
employment with Willow Springs. (P1.’s LR Resp. { 4; Simmons Dep. at 29-30; Wiscman Dep. at
36-37; Def.’s Mem. at 1.) Simmons did not tender his application directly to Schultz. (PI.’s LR

Resp. {| 6.) Instead, he again submitted it to Wiseman in the lobby of the Willow Springs police

> Willow Springs admits that Wiseman testified as set forth above, but denies that Chief
Schultz ever reccived Simmons’ application. (Def.’s LR Resp. § 22.)

® Willow Springs denies that statement, but without citing any contradictory evidence.
(Def.’s LR Resp. 4] 23.)



A. Well, if they returned it to the Village of Willow Springs at 8156 Archer, it
would be given to the police department, And if it was brought to the police
department, it would be brought — given to my secretary.

Q Would your secretary then forward it to you?
A. Yes.

(Schultz Dep. at 44.) See alyo Lynn Dep, at 26. The evidence supports the conclusion that an
applicant would not be precluded from consideration simply because he gave his application to an
officer to forward to the Chief or submitted it somewhere other than the clerk’s office. Rather, the
evidence indicates that regardless of where or to whom an application was submitted, it would be

forwarded to and considered by the Chief.

In addition, Willow Springs has not presented sufficient evidence to preclude a finding that
Schultz was a “decisionmaker” with respect to the hiring of part-time officers, It is undisputed that
Chief Schultz alone determined whether an applicant was “qualified” or not, and that only
“qualified” applicants were recommended to the Village Board for final determination. (PI.’s LR
Stmt. J 34, 37-38.) In other words, if Chief Schultz did not recommend an applicant, that applicant
could not be hired. Morcover, there is testimony that the Chief's recommendations to the Board
were basically “rubber stamp[ed].” (Carr Dep. at 21-22.) Indeed, it is undisputed that none of
Schultz’s recommendations during his six years as Chicf were ever rejected by the Village Board.
(Def.’s LR Resp. 39; Schultz Dep. at 52-53; Wiseman Dep, al 33.) Under Seventh Circuit case
law, that evidence tends to show that Schultz was in fact an actual decisionmaker. See Rogers v. City
of Chicago, 320 F.3d 748, 754 (7" Cir, 2003) (stating that “[a] decisionmaker is the person

responsible for the contested decision,” and “if there were competent evidence that the [official

20



a convincing mosaic of discrimination against the plaintiff,” which “may allow [him] to surpass the
summary judgment hurdle” on the issue of whether he was not hired because of his race. Hasham,

200 F.3d at 1044.

Although Schultz denies making the alleged statements (and his denials are supported by
Lynn’s and Limas’ testimony), and the credibility and motive of the officers who provided the
evidence of Schultz’s discriminatory intent may be at issue, it is inappropriate to weigh conflicting
deposition testimony on summary judgment. Payne v. Pauley, 337 F.3d 767, 772-73 (7" Cir. 2003).

Whether the statements were actually made, and the import of those statements, is for a jury to
decide. Volovsek, 344 ¥.3d at 690. Thus, summary judgment cannot be granted based on Simmons’
evidence under the direct method of proof. See id. (reversing grant of summary judgment based on
circumstantial evidence under direct method of proof where decisionmaker made derogatory
comment closc in time and in substance to the alleged act of discrimination); Emmel v. Coca-Cola
Bottling Co. of Chicago, 95 F. 3d 627, 632 (7" Cir. 1996) (finding that comments made by top
policymakers in company corroborated plaintiff's case under direct method of proof); Venters, 123
F,3d at 973-74 (holding that remarks made constituted direct evidence of discrimination); Perry v.
Community Action Servs., 82 F. Supp. 2d 892, 895 (N.D. Ill. 2000) (denying summary judgment
where a “reasonable trier of fact could conclude that [decisionmaker’s] statement, which dealt
explicitly with employment and was made by an aggressive Chairperson who was admittedly taking
a more active role in the management of CASI, was probative of discrimination”); Grace, 61 F.
Supp. 2d at 792-93 (finding that plaintiff's evidence of discrimination was sufficient to defeat
summary judgment under the direct method); King, 2002 WL 1559629 at *2-3 (denying summary

judgment where plaintiff had direct evidence of discrimination); EEOC v. Williams klectronics

26



resolved by the jury.

Viewing the evidence in the light most favorable to Simmons, a reasonable jury could
conclude that Simmons did apply for a position as a part-time officer, that his application was
considered by a decisionmaker, and that there were part-time police officer positions available at the
time he submitted his application. Accordingly, the court will consider whether there is cvidence

of discrimination in the Village’s failure to hire Simmons.
2. Proof of Discrimination

Willow Springs denies any discrimination on the basis of race, See, ¢.g., Def.’s LR Resp.
1 40-42. From the briefs, it was not entirely clear whether Simmons intended to rely on the direct
or indirect method of proof to prove his claim of race discrimination. At oral argument, however,

Simmons’ attorney stated that Simmons was proceeding under the both direct and indirect methods.
(a) Direct Method of Proof

To prevail on his claim of discrimination under the “direct” method of proof, Simmons must
show, by way of either direct or circumstantial evidence, that Willow Springs’ decision not to hire
him was motivated by an impermissible purpose, such as his race. Rhodes v. Ilinvis Dept. of
Transp., 359 F.3d 498, 504 (7" Cir, 2004); Huff v. UARCO, Inc., 122 F.3d 374, 380 (7" Cir. 1997),

Grace y. Ansul, Inc., 61 F. Supp. 2d 788, 791 (N.D. Ill. 1999); Rogers, 320 F.3d at 754.”

Direct evidence of discrimination “is evidence that, if believed by the trier of fact, would

prove discriminatory conduct on the part of the employer without reliance on inference or

” Although this method is often referred to as the “direct” method of proof, a plaintiff
may produce evidence of either the direct or circumstantial kind under this method. Rogers, 320
F,3d at 754; Grace, 61 F. Supp. 2d at 791 n. 5,

22



in Willow Springs’ decision not to hire him, Hennessy v. Penril Datacomm Networks, Inc., 69 F.3d
1344, 1350 (7th Cir. 1995). In addition, under either method Simmons must show that he applied
foran available position as a part-time officer. Ifhe did not apply for such position, or such position
was not available, he could not possibly prevail on his failure to hire claim. See Dominicak-Brutus
v. Urban Prop. Servs. Co., 217 F. Supp. 2d 911, 919 (N.D. Tl. 2002) (analyzing as initial matter in
discriminatory failure to promote case whether plaintiff sought position al issue and whether there
were any such positions available); King v. Village of Gilberts, No. 01 C 1901, 2002 WL 1559629
at *3 (N.D. Ill. July 16, 2002) (Kennelly, J.) (noting that “the absence of any vacant positions can
protect an employer from [a failure to hire] discrimination claim”); Morgan y. Federal Home Loan
Mortgage Corp., 172 F. Supp. 24 98, 109 (D.D.C. 2001) (“Absent a vacancy, plaintiff simply cannot
argue that he was the victim of discrimination.”). Those threshold issues will be addressed before

moving on to discuss the parties’ evidence under the direct or indirect methods,

1. Whether Simmons Applied for a Position as a Part-time Officer and Whether
Any Such Positions Were Available

(a) Simmons’ Application

Willow Springs argues that Simmons cannot establish that he actually “applicd” for a
position with the Willow Springs police department, arguing: (1) that by merely asking an officer
with the police department (Wiseman) to forward his resume to Chief Schultz, Simmons did not
follow “the appropriate avenue to submit [an] application,” and (2) that Schultz is not responsible
for the hiring of new officers, i.¢., Schultz is not the “decisionmaker.” (Def.’s Mem. at 4-5, 6) (citing

Def.’s LR Stmt. ff 4, 13-14.) Regarding the first point, Willow Springs argues thal applications

17



testified that he is not aware of any Altican American police officers who worked for Willow
Springs between 1970 and 2002, (/d.§ 12.) Chief Schultz testified that, other than Simmons, during
his tenure as Chicf between 1996 and 2002 only two African Americans ever applied for a position
with the Willow Springs police department, onc who later withdrew from consideration, and another
who accepted a position clsewhere before being interviewed. (Def.’s LR Stml. { 17; Schultz Dep.
at 74-76.)

F, Other Evidence of Alleged Discriminatory Conduct"

Wiseman and Sims provided affidavits stating that they once heard Schultz say “J will never
hire a Nigger.” (P1.’s LR App, Ex. H, Phillip Wiseman AIF. at 1; Pl.’s LR App. Ex. I, Bobby Sims
Aff. at 1; Pl.’s LR Stmt. ff 40-41; Wiseman Dep. at 54.) Wiseman asserted that he had heard the
comment approximately four years carlicr; Sims asserted that he had heard the comment
approximately one year earlier (which would have been about eight months after Simmons submitted
his applications). (Wiseman Aff. at 1; Sims Aff. at 1.) Sims also testified that Schultz had
commented, on several occasions, that his officers should be “careful pulling over ghetto cruisers,”
which Sims interpreted to mean that they should target African Americans. (Sims Dep. at 40, 57;
Pl.’s LR Stmt. 43; Wiseman Dep. at 55,71.) Wiseman lestified that Schultz once told his officers
to “make sure you’re careful with a car full of coal,” which he interpreted to mean a car full of

African Americans, (Wiseman Dep, at 55, 71; Pl.’s LR Stmt. 9 44.) Carr provided an affidavit

"" The court recognizes that some of the statements attributed to Chief Schultz are of a
deeply offensive nature, and that Chief Schultz vehemently denies making those statements.
They are reluctantly quoted here only because the court believes that an appropriate analysis of
the defendant’s motion requires consideration of the actual unvarnished evidence.

9



despite the unavailability of direct evidence.’”).””

Lon Willow Springs’ Request To Strike

Finally, in its Local Rule Response, Willow Springs made an off-handed “motion” to strike
a statement made by Lisa Gardner at her deposition, which was included by Simmons in his Local
Rule 56.1 Statement of Additional Facts. (See Pl.’s LR Stmt. | 48; Def.’s LR Resp. § 48.) The
statement at issue is: “Officer Gardner is of the opinion that Chief Schultz is racially insensitive and
that he would discriminate against African Americans.” (P].’s LR Stmt. 48) (citing Gardner Dep.
at 54.) In its Response, Willow Springs admitted that Gardner made the statement at her deposition,
but denicd its veracity and relevance, and “moved to strike it” as unqualified expert opinion

testimony. (Def.’s ’s LR Resp. § 48.)

Asa threshold matter, an off-handed “motion” buried in a Local Ruleresponse is not a proper

vehicle to bring any matter to the court’s attention. All of the parties are warned that any motion

® Tt should be noted, however, that there is a significant question whether Simmons
could have established all of the elements of the prima facie case under the McDonnell Douglas
burden-shifting analysis; particularly, whether Simmons could have established the fourth
element, ie., that Willow Springs filled the position with someone outside Simmons’ protected
class or continued to seek applicants from persons of Simmons’ qualifications, Although
Simmons argues that at least two Caucasian individuals were hired as part-time officers after he
submitted his applications (P1.’s Mem. at 7), he does not have any evidence regarding who was
hired (indeed, he admits to never inquiring as to whether any part-time officers were hired after
he applied (P1.’s LR Resp. j 8), and his evidence as to when those unidentified individuals were
hired is weak, at best. In contrast, Willow Springs has provided evidence indicating that Schult
did not hire any part-time officers after November 2001, which was before Simmons applied for
the job. (Limas Dep. at 35,) See Venturelli, 350 F.3d at 603 (applicant failed to establish fourth
element of prima face casc in discriminatory failure to hire case); Katial v. Massachusetts Mut.
Life Ins. Co., No. 99-CV-2593, 2002 WL 1632556 at *6-7 (N.D. Ill. July 22, 2002) (McKeague,
J.) (same).

29



Schultz, as well as Lieutenant Lynn. (Simmons Dep. at 36-37, 59; Wiseman Dep. at 36.) As he was
leaving the building, Simmons ran into the Chief again in the parking lot. (Simmons Dep. at 39-40.)
Lynn and Wiseman were also there, along with Bobby Sims, another Willow Springs police officer.
(Simmons Dep. at 40; Wiseman Dep. at 38-39; Pl.’s LR Stmt. 27.) According to Simmons, during
their encounter, Schultz asked Simmons whether he would be available to work weekends and
holidays. (Simmons Dep. at 40-41, 59.) Simmons responded that he would be available. (/d. at 42.)

Sims testified that he heard Schultz tell Simmons in the parking lot that he was “going to
hire him.” (PI.’s LR App. Ex. F, Bobby Sims Dep. at 23.) Wiseman similarly testified that Schult
told Simmons in the parking lot that he intended to hire him and would call him, (Wiseman Dep.
at 38-39.) Willow Springs disputes that testimony, arguing that Simmons never even had a formal
interview with Schultz. (Simmons Dep. at 80, 85-86; Def.’s LR Resp. | 27.)

Simmons testified that approximarely one week after the tour, he called Schultz to check on
the status of his application. (P1.’s LR Resp. 6; Simmons Dep. at 42-43.) He was advised by Chief
Schultz that he would be hired after some badges “come in.” (PL’s LR Resp. { 6; Simmons Dep.
at 43, 59.) Simmons told Schultz that he would check back with him, and proceeded to call him
again approximately one month later, (Simmons Dep, at 44-46.) During that conversation, Schultz
told Simmons that some of his full-time officers were going to be moved into part-time slots. (/d.
at 47-48, 60.)° Simmons responded that he would check back with Schultz again, but admits that
he never did. (/d. at 48, 60.) During that time period, Wiseman also followed up with Schultz, and

Lynn regarding Simmons’ application. (Wiseman Dep. at 41-43.) He testified that he made

8 Schultz subsequently testified that his goal had been to “do away” with part-time officer
positions but that that goal had been “shelved” and part-time positions were still considered
“desirable” after he met Simmons. (PI.’s LR Stmt. 21; Schultz Dep. at 60-61.)

6



station. (/d. 45; Simmons Dep. at 29-30, 35-36.) ‘The application was then handed to Lieutenant
John Lynn. (Pl.'s LR Resp. 4] 4; Def.’s LR Resp. { 24; Simmons Dep. at 38; Pl.’s LR App. Ex. D,
John Lynn Dep. at 25.)’ According to Wiseman, Lynn reviewed the application and concurred that
the documents which were needed to show state certification were present. (Wiseman Dep. at 47,
50.) Lynn testified that he then either “handed it to [Chief Schultz] personally or put Jit] in his office
or... handed it to his aide to put it in his office, onc or the other, because [employment applications]
were all forwarded to |Chief Schuliz’s] office.” (Def.’s LR Resp. 925; Lynn Dep. at 26; Wiseman
Dep. at 36-37.)

Willow Springs admits that Lynn testified that he gave Simmons’ application to Chief
Schultz, but denies that Chief Schultz ever received the application. (Def.’s LR Resp, § 25.) Schultz
testified that he never “receive[d] an application for either part-time or full-time employment of
Michael Simmons” and has no recollection of “the name of Michael Simmons on any application.”
(Def.’s LR Stmt. § 16; Schultz Dep. at 71-72.) Schultz further testified that he does not recall ever
being approached by Lynn regarding Simmons. (Schultz Dep, at 72; Def.’s LR Stmt. § 28.) Lynn
believes Schultz received Simmons’ application based on a conversation betwecn them wherein
Lynn commented that Simmons seemed like a pretty good guy and Schultz “acknowledged what [he]
said.” (PI.’s LR Stmt. | 26; Lynn Dep, at 29-30.)

Wiseman then took Simmons on a tour of the police department building. (Simmons Dep.

at 36; Wiseman Dep. at 32.) Wiseman and Simmons state that during this tour, Simmons met Chief

? Although Lynn testified that it was Wiseman who handed him the application,
Wiseman testified that it was Simmons who handed Lynn the application. (Wiseman Dep, at 30-
31.) Thus, while both Lynn and Wiseman agree that the application was handed to Lynn, they do
not agree who actually handed it to Lynn. That is not a material issue.

5



were to be filed with the clerk’s office, which Simmons did not do. (Def.’s Reply at 2) (citing Limas
Dep. at 18.) Regarding the second point, Willow Springs argues that “although the chief played a
large role in the [application] process, the procedure did not begin and end on his desk;” rather, “the

hiring decision was made by the Village Board and Mayor.” (Jd.) (citing Limas Dep. at 11-12, 41.)

Simmons responds that both of his employment applications were forwarded to, and
ultimately reached, Schultz — the first one by Wiseman, and the sccond one by Lieutenant Lynn.
(Pl.’s Mem. at 5) (citing Pl.’s LR Stmt. 4] 22-26.) Simmons also disputes Willow Springs’
contention that Chief Schultz was not a decisionmaker, pointing out that Schultz designated
applicants “qualified” or not qualified (and applicants were only recommended to the Village Board
if they received the recommendation of “qualified”), and Schultz told Simmons in the parking lot
that he would be hired. (/d. at 6 (citing Pl.’s LR Stmt, { 47-50); Sims Dep. at 23-24.) The parties
agree that it was Chief Schultz alone who made recommendations to the Village Board regarding

applicants, (PI.’s LR Stmt. 38; Def.’s LR Resp. 4 38.)

Simmons has provided sufficient evidence to allow a reasonable jury to conclude that he
applied for a part-time officer position. The cvidence indicates that there were no written procedures
with respect to applying for part-time officer positions and that Simmons’ submission of his
application io Wiseman would not preclude him from being considered for employment. Inaddition,
although Willow Springs argues that Schultz never received Simmons’ applications (see Def.’s LR
Stmnt. [ff 16, 22, 25; Schultz Dep. at 71-72), there is evidence to support the finding that Simmons’
applications did in fact reach Chief Schultz. For example, Wiseman testified that he took the
employment application to Chief Schultz and “hand[ed] it to him” and that Schultz later indicated

he had either misplaced or lost it, and Lynn testified that he either handed Simmons’ application to

18



at a company called Consolidated Freight, which appears to be a trucking company. (Simmons Dep.

at 14, 61-62; Wiseman Dep. at 37.)

EK Hiring of Other Police Officers

Simmons admits that has no direct knowledge as to whether any part-time officers were hired
after he submitted his applications for cmployment because he never inquired into that issue.
(Simmons Dep. at 75; P1.’s LR Resp. 48; Def.’s LR Stmt, 48.) He asserts, however, that he learned
from some unidentified “other officers” that at least five other police officers were hired after he
submitted his applications. (P1.’5 LR Resp. § 8; P1.’s LR App. Ex. C, Letter from Simmons dated
Aug. 31, 2002 at 1.) He does not state whether those officers were part-time or full-time. Wiseman
testified that at least three part-time officers were hired several months after Simmons submitted his
applications and that all of them were Caucasian. (Wiseman Dep. at 41-42.) He testified that he
“had no idea that the other applicants were in the pipeline to come through.” (/d. at 43.) Chief
Schultz testified that he believed two part-time police officers had been hired during the time period
in which Simmons applied, although he could only pinpoint that time frame as being sometime after
August 2001. (Pl.’s LR Resp. § 8; Schultz Dep. at 61-62.) Chris Limas, the Village Administrator
for Willow Springs who worked with Schultz for two and a half years prior to Schultz’s retirement
in December 2002, testified that he recalls only one part-time officer being hired by Schultz after he
(Limas) came on board in 2000, and stated that that person was hired around November 2001.
(Def.’s Reply Ex. E, Chris Limas Dep. at 5, 35-37, 40; Schultz Dep. at 9.)

When Chief Schultz became Chicf of the Willow Springs police department in 1996, there

were no African American police officers in the department, (PI.’s LR Resp. J 11.) Chief Schultz



decisionmaker.” Rhodes, 359 F.3d at 504 (quoting Troupe, 20 F.3d at 737); see also Volovsek, 344
F.3d at 689; Rogers, 320 F.3d at 753. That circumstantial evidence “must point directly to a
discriminatory reason for the employcr’s action.” Rhodes, 359 F.3d at 504 (quoting Adams v. Wal-
Mart Stores, Inc., 324 F.3d 935, 939 (7" Cir, 2003)). It must also be “directly related to the

employment decision.” Venturelli, 350 F.3d at 602 (quotation omitted).

Ifa plaintiff can show that an illegal criterion such as race was a motivating factor in the
adverse employment action (here, failure to hire), the burden shifts to the employer to demonstrate
that it would have made the same decision even if the illegal criterion had not been considered.
Venters, 123 F.3d at 973 (citing Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)). “The
persuasiveness of that showing will normally be for the finder of fact to assess, unless the court can
say without reservation that a reasonable finder of fact would be compelled to credit the employer’s
case on this point.” /d. However, even if the employer succeeds in proving that it would have made
the same decision absent the illegal consideration, the plaintiff may still obtain declaratory and
injunctive relief and attorney’s fees. Jd. at973 n. 7. Thus, “once the plaintiff has presented evidence
reasonably suggesting that [his] ., , race .. , played a motivating role in [the adverse employment

action], summary judgment will rarely (if ever) be appropriate.” Id.
(b) Simmons’ Evidence Under the Direct Method

Simmons asserts that “Chief Schultz’s discriminatory intent in this case is evident in his use
of racial epithets within the work environment, especially as it relates to the hiring process.” (Pl.’s
Mem. at 8.) As discussed above, Simmons described those alleged remarks and epithcts with

specificity. See Pl.’s Mem, at 8; see also Pl.’s LR Stmt. ff 40-44, 46-47; Wiseman Aff. at 1; Sims

24



Minutt Order Form (06M)

United States District Court, Northern District of Ilinois

wie Mugitrae Juage | __octaldine Soat Brown “than Assigned Judge

CASE NUMBER 02 C 9379 DATE 9/9/2004
CASE Michacl Simmons vs. Village of Willow Springs
TITLE

[In the following box (a) indicate the party Filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motiun being presented. ]

MOTION:

DOCKET ENTRY:

ql) o Filed motion of [ use listing in “Motion” box above.]

(2) im) Brief in support of motion due

(3) o Answer brief to motion due______. Reply to answer briefdue

(4) Oo Ruling/Hearing on set fort

(5) Oo Status hearing|held/continued to] [set for/re-sct for]on__—setfor_ at.
(6) oO Pretrial conference[held/continued to] [sct for/re-set for]on__—_sset for at

(7) QO Trial[set for/re-set for] on ___at

(8) oO (Bench/Jury trial] [Hearing] held/continued to___at

(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}

OFRCP4(m) CLocal Rule 41.1 COFRCP41(a\(1) OC FRCP41(a}(2).

(10) | [Other docket entry] For the reasons set out in the Memorandum Opinion and Order, Defendant’s
Motion for Summary Judgment [18-1] is denied. Status in this matter is set for 9/24/04 at 9:30 a.m.

Enter Memorandum Opinion and Order. hu nthe dont Brverrn

(11) @f [For further detail see order attachcd to the original minute order.]

No notices required, advised in open court.

No notices required ner of

EP 1 0 2004

Notified counsel by telephone. date gacketed

Notices mailed by judge’s staff.

raat

v Docketing to mail notices,

Mail AQ 450 form.

Copy to judge/magistrute judye. des gf
courtroam or
yp deputy’s alte fad "SHES

initials

Date/time received in
dentral,Glrk’s Office

‘mailing deputy inital



All of the officers who testified that Schultz made racially demeaning comments (Wiseman,
Sims, Carr and Gardner) have or had their own lawsuits pending against Chief Schultz, Willow
Springs, or both. (Limas Dep, at 29-31; Gardner Dep. at 29, 37.) Schultz testified that there had
been “animosity” between himself and Carr, Wiseman, and Sims for some time. (Schultz Dep. at
69-70.) Lynn corroborated that testimony, stating that, in his opinion, Wiseman and Sims “hated”

Chief Schultz, and there was “animosity” between Carr and Schultz. (Lynn Dep. at 32, 33.)

G. Simmons’ EEOC Charge and Complaint

On September 3, 2002, Simmons filed a charge of discrimination with the Equal Employment
Opportunity Commission (EEOC). (Def.’s Answer J 5.) {[Dkt 6.] The parties initially agreed that
the EROC issued a nolice of right to sue on December 10, 2002. (/d..6.)'? On December 24, 2002,
Simmons filed this lawsuit requesting among other relief, compensatory and punitive damages,
attomney’s fees and costs, and an injunction enjoining Willow Springs from engaging in racial
harassment and discrimination. (Compl. at 2-3.) [Dkt 1.] In its answer to the complaint, Willow
Springs did not admit that Simmons had timely filed his charge with the EEOC (Answer § 5), but
did admit that “[a]ll conditions precedent (o the institution of this lawsuit have been fulfilled in that
it is timely and that plaintiff has exhausted all administrative remedies.” (/d. |7). Willow Springs

has now moved for summary judgment on Simmons’ complaint. [Dkt 18.]

"2 Willow Springs admitted that in its answer to the complaint. See Def.’s Answer 4 6.
However, no notice of right to sue dated December 10, 2002 was included in any of the parties’
exhibits. Instead, a notice of right to suc dated October 24, 2003 — 10 months after Simmons
filed his complaint — was included in the exhibits. (See Pl.’s LR App. Ex. L, Notice of Right to
Suc.) For reasons which will be discussed further herein, the date on which the right to sue
notice was issued does not affect the outcome in this case.

11



stating that Schultz had told him that fees were assessed in conjunction with cmployment
applications in order to “keep the UPS (United Postal Service) Niggers out of here.” (P1.’s LR App.
Ex. J, Gary Carr Aff. at 1; Pl.’s LR Stmt. | 42.)'' Schultz denied making any of those statements.
(Schultz Dep. at 77-78, 83; Def.’s LR Resp. ff] 40-44.) In addition, Sims testified that he belicved
Chief Schultz encouraged and/or condoned racial profiling. (Sims Dep. at 64.) Lisa Gardner, a
Willow Springs police officer, testified that she believed it was Schultz’s intent to have African
American individuals in Willow Springs arrested. (P1.’s LR App. Ex. K, Lisa Gardner Dep. at 7, 52;
PI.’s LR Stmt. ] 46.) Schultz denied that, as well. (Schultz Dep. at 80-84; Def.’s LR Resp. 4 46.)
Gardner further testified that Schultz once stated that “those type of people are not going to disrupt
my town,” which she interpreted to mean African Americans. (Gardner Dep, at 45, 53; Pl.’s LR
Stmt. | 47.) Willow Springs disputes Gardner’s interpretation of that statement. (Def.’s LR Stmt.
| 47.) Limas testified that he is unaware of Schultz ever having stated that he would never hire an
African American or making any other comment that would demean somcone’s race. (Limas Dep.
at 32, 40.) Lynn similarly testified that he never heard Schultz say that he “would never hire a
nigger” or use a term like that. (Lynn Dep. at 21.) He further testified that he never heard Schultz.
make a comment regarding “keep[ing] the UPS niggers out of here” or any other racial remarks, and
he believed that Schultz had no racial animus towards African Americans, (Jd. at 21, 22, 32.)
Simmons testified that he has no knowledge of Willow Springs having ever engaged in any racial

discrimination or racial profiling. (Simmons Dep. at 57.)

1 There was testimony to the effect that a UPS facility was located near the Willow
Springs police department, and that a number of African Americans were employed there.
(Schultz Dep. at 81-83; Wiseman Dep. at 55.) Schultz denied that there was a proportionately
large number of African Americans who worked at the UPS facility or that he paid attention to
the percentage of African Americans who worked there. (Schultz Dep. at 82.)

10



must be properly noticed and presented, so that the court and the opposing party may have an
opportunity to address it properly. A reference to “moving to strike” in a response is not sufficient
to preserve any objection. However, in ruling on Willow Springs’ motion for summary judgment,
the court disregarded Gardner’s opinion testimony as to whether Chief Schultz was racially
insensitive. Therefore, Willow Springs’ “ motion” to strike is denied as moot. See Randall v.
Unitech Sys., Inc., 243 F. Supp. 2d 822, 825 n. 2 (N.D. Ill. 2003) (denying as moot a motion to strike
because “[i]n granting the defendant’s motion for summary judgment, the court did not consider this

evidence”).

CONCLUSION

For the reasons discussed above, Willow Springs’ Motion for Summary Judgmentis denied.

IT IS SO ORDERED.

Geraldine Soat Brown
United States Magistrate Judge

September 9, 2004

30



approximately twelve inquires regarding Simmons’ application—six to Lynn and six to Schultz. (/d.
at 43; Pl.’s LR Stmt. { 29.)° According to Wiseman, “every time [he| tried to inquire with the chief,
he never had time.” (Wiseman Dep. at 41-42; Pl.’s LR Stmt. § 28.)

Simmons concedes that he has no direct knowledge that Chief Schultz ever received his
employment applications. (PI.’s LR Resp. § 6.) Simmons also concedes that he never had a formal
interview with the Willow Springs police department. (/d. | 7.) He asserts, however, that he had
an informal interview with Chief Schultz during his tour of the facility with Wiseman. (P1.’s LR
Stmt. § 15.) Wiseman, however, who was with Simmons during that meeting, testified that
Simmons did not have a formal interview with the Chief that day, and that it was basically just a
“meet and greet.” (Wiseman Dep. at 37-38.) Likewise, Chief Schultz testified that he never
conducted an interview of Simmons, although he testified regarding an informa] face-to-face meeting
they had in his office, (Def.’s LR Stmt. ¥ 15; Schultz Dep. at 55-56, 71.)

D. Simmons’ Background and Qualifications

Simmons became certified to be a police officer in Illinois in 1997, after attending the
Northeastern Metropolitan Regency Training Agency for a year. (Def.’s LR Resp. 9§ 18, 19;
Simmons Dep. at 14-15.) He began working as a part-time police officer with the Village of Summit
at that time. (Simmons Dep. at 14.) Prior to that, Simmons had worked for two years as a part-time
police officer with the Robbins police department, (Def.’s LR Resp. J 19; Simmons Dep. at 15-16.)

At the time he submitted his employment applications with Willow Springs, Simmons was

still working as a part-time police officer with the Village of Summit, and was also working full time

° Willow Springs disputes that statement, but without citing any contradictory evidence.
(Def.’s LR Resp. § 29.)



decisionmaker] had acted as [the recommender’s] ‘cat’s-paw’ and rubber-stampcd his

recommendation, we would consider [the recommender] to be the decisionmaker”).

Thus, as an initial matter, Simmons has provided sufficient evidencc to allow a reasonable
jury to find that he applied for a position as a part-time officer, and that his application was received

by the decisionmaker.
(b) Availability of Part-time Police Officer Positions

Willow Springs also argues that it was not seeking applications (or there were no “opcnings”)
for part-time officer positions at the time Simmons submitted his resume to Wiseman. (Def.’s Mem.
at 5,6.) In response, Simmons points to testimony from Wiseman and Schultz that there was “a lack
of manpower” and that part-time positions were “desirable” and available on a “continual” basis.
(Pl.*s Mem. at 7) (citing Def,’s LR Resp. 21.) For instance, Wiseman testified that the Chief was
“constantly bringing in part-time police officers . . . to fill in voids” and that ihere was no “set
number of positions.” (Wiseman Dep. at 21-22, 33.) Wiseman further testified that he had
encouraged Simmons to apply for the job afier becoming aware “that the chief was again looking for
part-time patrol officers.” (Wiseman Dep. at 24) (emphasis added.) In addition, Willow Springs
admits that applications were accepted ona rolling basis, and Wiseman testified that positions were
offered based on “whom [the Chicf] wanted.” (Def.’s LR Resp. 20; Wiseman Dep. at 33.)
Morcover, as discussed above, there is evidence that Simmons was actually being considered fora
part-time officer position, indicating further that such positions were available. See, e.g.,Simmons
Dep. at 40-41, 43, 59; Wiseman Dep. at 28,46. Because there is evidence in the record to establish
that part-time positions may have been available (and applications for such positions considered) on
a continual basis, whether or not there were any “official” openings, this is a dispute that must be

21



Games, Inc., 930 F. Supp. 1209, 1213 (N.D. Ill. 1996) (denying motion for partial summary
judgment where cvidence was sufficient to support applicant’s direct evidence case of

discrimination).

(c) Whether Willow Springs’ Would Have Made the Same Decision Even if
Titegal Criterion was not Considered

As mentioned above, because Simmons has presented evidence of a discriminatory motive
under the direct method of proof, Willow Springs may demonstrate that it would have taken the same
action (i.¢., not hired Simmons) even if the proscribed criterion had played no role in the decision.
Venters, 123 F.3d at 973. If it succeeds in this task, Simmons’ relief would be limited, although
Simmons could still obtain declaratory and injunctive relief and attorney’s fees. Jd. at 973 n. 7.
Willow Springs stated that it did not hire or consider Simmons for employment because he did not
formally submit an application (that is, he submitted his application to Wiseman rather than to the
clerk’s office), and Schultz never received Simmons’ application. (Def.’s Mem. at 1-2, 4-6; Def.’s
Reply at 2; Pl.’s LR Resp. § 6.) At oral argument, Willow Springs further asserted that it did not hire
Simmons because Schultz’s goal had been to “do away” with part-time officers due to budgetary

constraints.

While Willow Springs’ argument that Simmons was not hired for a non-discriminatory
reason is not without support, including the fact that Simmons never followed up with Schultz after
their last conversation, the dearth of Simmons’ cvidence regarding whether any other part-time
officers were hired around the time that Simmons applied (as discussed in more detail below), and
Schultz’s vehement denials that he ever made any of the alleged discriminatory comments, Willow

Springs has not eliminated material questions of fact. The court cannot say “without reservation”

27



Police and Fire Committee (Schultz Dep. at 47-49; Def.’s LR Resp. 34), who, in turn, would make
a recommendation to the Village Board based on Schultz’s recommendation. (Schultz Dep. at 49;
Pl.’s LR Stmt. 36.)’ According to Schultz, he alone had the authority to make recommendations
with respect to candidates. (Def.’s LR Resp. 38; Schultz Dep. at 47-48, 51-52.) If Schultz did not
deem an individual to be qualified (and thus did not give his recommendation), that person’s
application would not be forwarded to the Police and Fire Committee or, in turn, to the Village
Board, and therefore the applicant could likely never be offered a position. (Def.’s LR Resp. 37;
Schultz Dep. at 50; Def.’s Mem. at 6.) Gary Carr, a former Willow Springs police officer, testified
that when the Chief made a recommendation to the Board regarding hiring, that recommendation
was basically “rubber stamp[ed].” (P1.’s LR App. Ex. G, Gary Carr Dep. at 21-22.) However,
Schultz testified that the Police and Fire Committee (whose Chairman is part of the Village’s Board
of Trustees) was the entity ultimately responsible for the hiring of part-time officers. (Def.’s LR

Stmt. 14; Schultz Dep. at 41, 48; Wiseman Dep. at 34.)*

B. Simmons’ First Application for Employment
In December 2001, Simmons submitted an application for part-time employment with the

Willow Springs police department, (P1,.’s LR Resp. 3, 13; Pl.’s LR App. Ex. A & Def.’s LR App.

3 Willow Springs disputes that statement (although it accurately reflects Schultz's
testimony), and relies instead on other testimony by Schultz that his recommendation would “go”
to the Chairman of the Police and Fire Committee. (Def.’s LR Resp. § 36.) The court will
construe this fact and draw all reasonable and justifiable inferences in favor of the non-moving
party, Simmons.

* As will be discussed further herein, Simmons asserts that Chief Schultz, not the Village
Board, made the final hiring decisions regarding police officers. (PI.’s LR Resp. 4 10)

3



(and not necessarily January 14, 2002) is the appropriate date from which the 300-day count should
begin. (Def.’s Reply at 1.)

It is well-settled that Title VII plaintiffs must comply with two filing deadlincs: first, an
EEOC charge must be filed within 180 days (or, in deferral states like Illinois which have their own
agencies with the authority to administer these complaints, 300 days) of the alleged unlawful
employment practice; and, second, a complaint must be filed in court within 90 days of recciving a
tight to sue notice from the EEOC, 42 U.S.C. § 2000e-5(e)(1), (f)(1); see also Gilardi v, Schroeder,
833 F.2d 1226, 1229-30, 1233 (7 Cir. 1987) (discussing 300-day and 90-day requirements); EEOC
y. Harvey L. Walner & Assocs., 91 F.3d 963, 968-70 (7 Cir, 1996) (discussing 300-day
requirement); Speer v, Rand McNally & Co., 123 F.3d 658, 662 (7" Cir. 1997) (discussing 300-day
requirement); Threadgill v. Moore U.S.A., Inc., 269 F.3d 848, 849-50 (7" Cir. 2001) (discussing 90-
day requirement); Brown v. [linois Dept. of Public Aid, No. 02 C 7781, 2004 WL 1157820 at *2
(N.D. Ill. May 21, 2004) (Bucklo, J.) (discussing 90-day requirement). Notably, the 300-day period
begins to run on the date that the adverse employment decision was made and communicated to the
plainti(f. See Cada y. Baxter Healthcare Corp., 920 F.2d 446, 450 (7" Cir. 1990); Warnick v. Flex-
N-Gate Corp., No. 03-CV-578-LJM-VSS, 2004 WL 828224 at *3 (S.D. Ind. Mar. 12, 2004)
(McKinney, J.); see also Delaware St. College v, Ricky, 449 U.S, 250, 257-58 (1980) (holding that
claim accrued at time employee was denied tenure).

Under that authority, it is clear that Simmons’ EEOC charge was timely filed. Simmons
submitted his second application for employment on approximately January 14, 2002. (PL.’s LR
Resp. § 4; Simmons Dep. at 28-30; Wiseman Dep. at 29, 36-37; Def.’s Mem. at 1.) Simmons”

EEOC charge, filed on September 3, 2002, would have been timely even if the period began to run

14



now, as Simmons’ receipt of the EEOC right to sue notice “after the complaint had been filed, but
before it had been dismissed, effectively cured the deficiency” in the complaint. Jd. (citations
omitted). See also Peters v. Renaissance Lotel Oper. Co., 307 F.3d 535, 551 (7" Cir. 2002); Degen
v. American Assn. of Oral & Maxillofacial Surgeons, No. 93 C 4879, 1994 WL 13754 al *2 (N.D.
Ill. Jan. 14, 1994) (Moran, J.).

‘Thus, neither the filing of the Simmons’ EEOC charge on September 3, 2002 , nor the filing
of his complaint in federal court on December 24, 2002 is a basis for granting Willow Springs

summary judgment.'®

B. Simmons’ Discrimination Claim

Title VII of the Civil Rights Act of 1964 provides: “It shall be an unlawlul employment
practice for an employer--to fail or refuse to hire or to discharge any individual, or otherwise to
discriminate against an individual with respect to his compensation, terms, conditions, or privileges
of employment because of such individual’s race, color, religion, sex, or national origin, ,..” 42
U.S.C. § 2000e-2(a). A plaintiff may meet his burden of proof under Title VII by offering either
direct proof of discriminatory intent or by proving disparate treatment through the indirect,
burden-shifting method outlined by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973), Contreras v, Suncast Corp., 237 F.3d 756, 759 (7th Cir, 2001), See also Hasham
y. California State Bd. of Equalization, 200 F.3d 1035, 1044 (7th Cir. 2000). Under either method,

Simmons must produce sufficient evidence to allow a jury to infer that race was a motivating factor

'S At oral argument, Willow Springs essentially conceded that its argument regarding the
timeliness of the complaint was without meril, and explained that it had asserted the argument
based on a mistaken understanding of the facts.

16



Phillip Wiseman, testified that openings for part-time officer positions at Willow Springs are
“continual” and that the Chief of Police, Jerome Schultz, was “constantly bringing in part-time
police officers .. . to fill in voids” caused by “a lack of manpower.” (PI.’s LR App. Ex. E, Phillip
Wiseman Dep. at 21-22; Pl.’s LR Stmt. 20.)’ Wiseman stated that part-time positions were offered
not on the basis of how many were open, but on the basis of “whom [the Chief] wanted,” because
there was no “set number of positions.” (Wiseman Dep. at 33.)

The first step in applying for a part-time police officer position, according to Chicf Schultz,
was to fill out an application. ( Schultz Dep, at 42-43.) Due to the “financial bind” Willow Springs
was in, the police department preferred applicants who had received state certification and prior
training. (Schulz Dep. at 45; Pl.’s LR Stmt. J 17; Def.’s LR Resp. 17.) After an application was
submitted, it was forwarded to Chief Schultz, regardless of whether it had been dropped off at the
village hall or the police department. (Schultz Dep. at 44.) Next, either Schultz or someone on his
staff would conduct a background/criminal check of the applicant. (Schultz Dep. at 44-46; Def.’s
LR Resp. ¥ 31.) In addition, if the applicant had taken any of the tests required for applicants for
full-time employment, such as agility, general aptitude, or physical fitness tests, those scores would
be verified. (Schultz Dep. al 38-39, 45.) After the background check, if the candidate was still
eligible, Schultz would set up and conduct an interview of the candidate. (/d. at 46; Def.’s LR Resp.
4 32.)

Following the interview, Schultz would determine if the candidate was “qualified” or not.

(Schultz Dep. at 47.) Ifthe candidate was “qualified,” Schultz would recommend the person to the

? Chief Schultz was the Chief of Police from 1996 to approximately December 2002.
(PJ.’s LR App. Ex. B & Def.’s LR App. Ex. D, Jerome Schultz Dep. at 9-10, 52.) Schultz will be
referred to herein as “Schultz,” “Chief Schultz,” or “the Chief.”

2



Aff. at 1; Carr Aff. at 1; Wiseman Dep. at 54, 55, 71; Sims Dep. at 40, 57; Gardner Dep. at 45, 52-

53.

Although some of the comments at issue could be characterized as nothing more than “stray
remarks,” at least two of the alleged statements relate specifically to the hiring of African Americans.
The “I will never hire a [racial epithet]” comment was allegedly made on two separate occasions,
once prior to Simmons’ applications, and once eight months after Simmons submitted his second
application. (Wiseman Aff. at 1; Sims Aff. at 1.) The comment regarding “keep[ing] the UPS
[racial epithet] [from applying]” was made approximately 16 months prior to Simmons’ applications.
(Carr Aff. at 1.) In addition, all of the discriminatory statements were allegedly made by Chief
Schultz, the decisionmaker. See Cheek v. Peabody Coal Co,, 97 F.3d 200, 203 (7" Cir. 1996)
(stating that direct evidence “must relate to the motivation of the decision maker responsible for the
contested decision”); Rogers, 320 F.3d at 754 (stating that a decisionmaker may include individuals

whose recommendations are merely “rubber-stamped”).

Chief Schultz denied making any of those remarks See Def.’s LR Resp. 4 40-44, 46-47;
Schultz Dep, at 77-78, 80-83. Other witnesses supported Schultz’ denial. See Limas Dep. at 32, 40;
Lynn Dep. at 21.) However, there is corroborative evidence from persons other than the plaintiff
regarding the statements. For example, more than one officer attested to having heard Schultz say
that he would “never hire a [racial epithet];” Gardner testified that she believed Schultz intended to
have African Americans arrested; and Sims testified that Schultz had made comments regarding
“ghetto cruisers,” which he took to mean vehicles containing African Americans, (Gardner Dep. at
45, 52-53; Pl.’s LR Stmt. J] 40-44, 46-47; Wiseman Aff. at 1; Sims Aff. at 1; Wiseman Dep. at 54-

55,71; Sims Dep. at 40, 57; Carr Alf. at 1.) The totality of the evidence, at a minimum, “compos[es]

25



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION DOCKETED

MICHAEL SIMMONS,
Case No. 02 C 9379 ISEP 10 2004

Plaintiff,

v.

Magistrate Judge Geraldine Soat Brown

VILLAGE OF WILLOW SPRINGS,
Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff Michael Simmons (“Simmons”) brought this action against Defendant Village of
Willow Springs (“Willow Springs”) alleging that Willow Springs discriminated against him on the
basis of his race (African American) when it (ailed to hire him as a part-time police officer in
violation of Title VII, 42 U.S.C. § 2000e-5(£)(3). (Compl. { 1 [dkt 1]; Pl.’s LR Resp. 4 1 [dkt 26].)
Willow Springs has moved for summary judgment. [Dkt 18.] The parties have consented to the
jurisdiction of a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). [Dkt 12, 13.] For
the reasons set forth below, Willow Springs’ motion for summary judgment is denied.

FACTUAL BACKGROUND!

A. The Application Process with the Willow Springs Police Department

Applications for employment with the Willow Springs police department are accepted ona

rolling basis. (Def.’s LR Resp. § 20.) One officer with the Willow Springs police department,

' The following facts are taken from the parties’ responses to the respective statements of
fact filed pursuant to Local Rule 56.1, which are cited herein as: “PI.’s LR Resp. ]__” [dkt 26],
‘Def.’s LR Resp. | __” [dkt 28], and from the exhibits submittcd with those statements or
responses to those statements, which are cited herein as: “Pl.’s LR App. Ex.” [dkt 26] and
“Def.’s LR App, Ex.” [dkt 19].

ay



that a reasonable finder of fact would be compelled to credit Willow Springs’ position on this point.
Venters, 123 F.3d at 973. Simmons presented evidence on the issues of whether he “applied” by
submitting his application to Wiseman rather than the clerk's office, and whether his application was
received by Schultz. There is also evidence to cast doubt on Willow Springs’ argument that it did
not hire or consider Simmons for employment because of budgetary constraints. Although Schultz
testified that although his goal had been to “do away” with part-time officer positions, he also
lestified that goal had been “shelved” at the time he met with Simmons, and part-time positions were
still considered “desirable.” (P1.’s LR Stmt. 21; Schultz Dep. at 60-61.) In addition, Simmons
testified that Schultz had told him that he would be hired after “some badges came back,” (P1.’s LR
Resp. ¥ 6; Simmons Dep. at 43, 59-60.) Thus, summary judgment is not appropriate in this case.
See Venters, 123 F.3d at 973 n. 7 (stating that “once the plaintiff has presented evidence reasonably
suggesting that [his]... race . . . played a motivating role in [the adverse employment action],

summary judgment will rarely (if ever) be appropriate”).

Because summary judgment for Willow Springs is precluded by the evidence that Simmons
has presented under the direct method of proof, there is no need to address the parties’ arguments
under the McDonnell Douglas burden-shifting analysis. See Lang v. Illinois Dept. of Children &
Family Servs., 36) F.3d 416, 421 (7" Cir. 2004); Anderson v. Ba. of Edue. of City of Chicago, No.
01 C 3634, 2003 WL 21468628 at *4 n. 2 (N.D. Ill. June 20, 2003) (Gettleman, J.); see also Trans
World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985) (T]he McDonnell Douglas test is
inapplicable where the plaintiff presents direct evidence of discrimination. The shifting burdens of

proof set forth in McDonnell Douglas are designed to assure that the ‘plaintiff [has] his day in court

28



LEGAL STANDARD

The court may properly grant summary judgment “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter
of law.” Fed. R. Civ. P. 56(c). A genuine issue of material fact exists “if the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). In determining whether a genuine issue of material {act exists, the court
must construe all facts and draw all reasonable and justifiable inferences in favor of the non-moving
party. Jd. at255. The moving party bears the initial burden to demonstrate the absence of a genuine
issue of material fact and that judgment as a matter of law should be granted in the moving party's
favor. Celotex Corp. v. Catrett,477 U.S. 317, 323 (1986). Once the moving party has met the initial
burden, the non-moving party must designate specific facts showing that there is a genuine issue for
trial. /d. at 324. The non-moving party must support its contentions with admissible cvidence and
may not rest upon the mere allegations in the pleadings or conclusory statements in affidavits. /d.
See also Winskunas v. Birnbaum, 23 F.3d 1264 (7th Cir, 1994) (non-moving party is requircd to
present evidence of “evidentiary quality” (i.¢., admissible documents or attested testimony, such as
that found in depositions or in affidavits) demonstrating the existence of a genuine issue of material
fact). “[N]either ‘the mere existence of some alleged factual dispute between the parties’... nor the
existence of ‘some metaphysical doubt as to the material facts,’ is sufficient to defeat a motion for
summary judgment.” Chiaramonte v, Fashion Bed Group, Inc., 129 F.3d 391, 395 (7th Cir. 1997)
(quoting Anderson, 477 U.S, at 247 and Matsushita Elec. Indus. Co., Lid. v. Zenith Radio Corp., 475

U.S. 574, 586 (1986)). Thus, “[t}he mere existence of a scintilla of evidence in support of the [non-

12



on January 14, 2002. Specifically, 300 days from January 14, 2002 is November 10, 2002.
However, the 300-day period began running sometime affer January 14, 2002, because Simmons
could not reasonably have known on the very date that he submitted his application that he would
not be hired. In fact, construing the facts in favor of Simmons, the opposite is true as Simmons was
allegedly given the impression that he would be hired on the day he submitted his application. See
Simmons Dep. at 40-42, 59. In any event, Simmons’ EEOC filing was timely.

Simmons’ complaint was also timely filed. As mentioned, Simmons was required to file his
complaint within 90 days from the date on which he received the right to sue notice from the EEOC.
In its answer to the complaint, Willow Springs admitted an allegation that the EEOC issued a notice
of right to sue on December 10, 2002. (Answer 6.) Based on that date, Simmons would have been
well within the 90-day filing requirement, since he filed his complaint on December 24, 2002. In
fact, only 14 days would have passed.

However, the record reveals (and the parties admitted at oral argument on the present motion)
that although Simmons’ attorney requested a right to sue notice on November 13, 2002, the EEOC
did not issue a right to sue notice until October 24, 2003. (Pl.’s LR App. Ex. IL, Right to Sue
Request at 1-2.)'* ‘Thus, Simmons actually filed his suit before he received a right to sue notice from
the EEOC. Because he did, his complaint “may have been subject to dismissal at any time prior to
[his] receipt of [the] right to sue letter.” Perkins v. Silverstein, 939 F. 2d 463, 471 (7" Cir. 1991);

see also Worth v, Tyer, 276 F.3d 249, 259 (7" Cir. 2001) (same). However, it is too late for that

'S The EEOC issued a “Determination” on December 10, 2002, inviting the parties to
reach resolution of the matter by participating in conciliation efforts with the EEOC. (Pl.’s LR
App. Ex. Q, Determination at 1-2.) However, it did not issue a right to suc notice in conjunction
with that Determination on that date.

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