On June 27, 2000, plaintiff made two more attempts to requalify under Petrone’s supervision.
(Def,’s LR 56.1(a) Stmt. | 26.) Plaintiff says she scored 80% on each attempt, while Petrone said
she scored 68% and 48%, respectively on those rounds. (Def.’s LR 56.1(a) Stmt. J 27; Pl.’s LR
56.1(b)(3)(A) Stmt. $27). There is no dispute, however, that Petrone scored the rounds by counting
the bullet holes in the silhouettes at which plaintiff shot, that he refused to give plaintiff those
silhouettes “because they were property of the County” and that there is no policy forbidding
instructors from giving silhouettes to officers after they have been scored. (Def.’s Resp. Pl.’s LR
56.1(b)(3)(B) Stmt. ff] 19, 25-26.) It is also undisputed that Assistant Chief Cunningham said he
independently scored the silhouettes, after obtaining them from Petrone, and agreed that plaintiffhad
failed. (Id, ]{] 32-33.) Petrone, however, said that he discarded the silhouettes after grading them.
(id. 734.)

Cunningham’s apparent ratification of Petrone’s alleged conduct is not the only evidence that
suggests plaintiff's gender may have motivated the treatment she received. Plaintiff testified, for
example, that Cunningham, on more than on occasion, made comments about her physique. (Pl.’s
LR 56.1(b)(3)(B) Stmt. 4] 79, 81.) Moreover, one of plaintiff's supervisors, Everett Harris, heard
Cunningham say plaintiff has “a nice big butt” and has heard many female employees complain that
Cunningham is overly flirtatious.® (1d, 4] 83-84.) These facts suggest that Cunningham may have
viewed plaintiff more as a sex object than a probation officer, and thus, treated her differently than

her male counterparts,

‘The County contends that this evidence is inadmissible hearsay. Because plaintiff does not
offer the out-of-court statements for the truth of the matters asserted, however, the hearsay rule does
no bar them.

~13-


After this requalification session, plaintiff again spoke to Cunningham. (Pl.’s LR
56.1(b)(3)(B) Stmt. | 42.) She told him that Petrone was incorrectly scoring her shoots and lying
on her training record. (Id.) She told Cunningham that she wanted other instructors present when
she was qualifying. (Id.) Plaintiff also submitted a grievance about the situation to her union on
August 12, 2000, (Id. 9 45.)

Cunningham obtained permission for plaintiff to take another remedial training program and
to take two more requalification tests. (Def.’s LR 56.1(a) Stmt. 32.) On August 16, 2000, plaintiff
once again attended remedial training under the supervision of Fred Hill, Cindy Komar and Matt
Sobieski. (Id. 35.) After what plaintiff viewed as an excessive number of practice rounds, she
shot two qualifying rounds, scoring 58% and 48%, respectively. (Id, | 36; Pl.’s LR 56.1(b)(3)(B)
Stmt. 749.) Plaintiff says the instructors made her shoot those qualifying rounds, despite the fact
that the prolonged practice sessions had impaired her ability to shoot. (PI.’s LR 56. 1(6)(3){B) Stmt.
W951, 53.)

In mid-September 2000, Cunningham met with plaintiff and her union representatives.
(Def.’s LR 56.1(a) Stmt. | 38.) Cunningham explained that, as a result of her failure to requalify to
carry a weapon, plaintiff would be involuntarily transferred to a non-weapon carrying unit, which
would result in a decrease in plaintiff's pay, for one year. (Id. 1] 39-40; Pl.’s LR 56.1 (b)(3)(B) Stmt.
1158.) After the year was up, she could once again try to qualify to carry a gun. (Def.’s LR 56.1{a)
Stmt. { 41.) Cunningham told her that she would be transferred to the Domestic Violence Unit
because of her background in social work and psychology. (Id. § 43.) Plaintiff was transferred

October 10, 2000. (Id. | 44.)



2000. (PI.’s LR 56.1(b)(3)(A) Stmt. ff 36, 44.) That transfer was a “discrete discriminatory act” on

which an EEOC charge could reasonably have been based. National R.R. Passenger Corp, v.

Morgan, 536 U.S. 101, 113 (2002). Because plaintiff did not file an EEOC charge within 300 days
of that transfer, her weapon requalification and delay of transfer claims are time-barred.

That leaves plaintiff's claims that she was discriminatorily transferred out of the Probation
Unit in August 2002. Having no direct evidence of discrimination, plaintiff must satisfy the
McDonnell Douglas burden-shifting method of proof if she is to defeat the County’s motion on these
claims. To do so, she must first establish a prima facie case of discrimination. Chiaramonte v.
Fashion Bed Group, 129 F.3d 391, 396 (7th Cir. 1997) (citations omitted). Once established, the
prima facie case creates a rebuttable presumption of discrimination. Id, at 398. The burden of
production then shifts to the County to articulate a legitimate, nondiscriminatory reason for the
challenged employment decision. Id, If the County carries its burden, the presumption of
discrimination disappears and plaintiff must show that the proffered reasons for the challenged
employment decision are merely a pretext, Id.

To establish a prima facie case on her claims, plaintiff must show that she: (1) is a member
of a protected class; (2) she was meeting the County’s legitimate expectations; (3) she suffered an
adverse employment action; and (4) the County treated similarly situated employees outside the
protected class more favorably. Hoffman-Dombrowski v. Arlington Int’! Racecourse, Inc,, 254 F.3d
644, 650 (7" Cir. 2001) (sex discrimination); Foster v. Arthur Andersen, LLP., 168 F.3d 1029, 1035
(7th Cir. 1999) (race discrimination). The County contends that plaintiff cannot make a prima facie

case on these claims because the evidence establishes that she did not meet its legitimate expectation


Today, plaintiff remains employed by the County in a non-weapon carrying unit. (Id., Ex.

1, Flanagan Dep. at 209-10.)

Discussion

Inher second amended complaint, plaintiff alleges that the County discriminated against her
on the basis of her sex and race when it: (1) refused to requalify her to carry a weapon in 2000,
precipitating her transfer to the Domestic Violence Unit; (2) delayed her transfer from the Domestic
Violence Unit to the Probation Unit from November 2001 until August 2002; and (3) transferred her
out of the Probation Unit in August 2002 because it deemed her psychologically unfit to carry a
weapon. The County says that the first category of claims are beyond the scope of her EEOC charge,
which states:

I was hired by the Respondent on February 16, 1999. I am employed as a Probation

Officer. In mid November 2001 Respondent informed me that I would not receive

a transfer to Division 5. On or about August 5, 2002, I was transferred to Division

5. On August 27, 2002, I was informed that I would be transferred from Division 5,

effective August 28, 2002, and I would be assigned to Division 7, which will result

in a corresponding reduction in pay.

T believe that I have been discriminated against on the basis of my race, Black, and
sex, female, in violation of Title VII of the Civil Rights Act of 1964, as amended.

(Def.’s LR 56.1(a) Stmt,, Ex. 1, EEOC Charge.)
The Court disagrees, Though plaintiff “cannot bring claims in [this) lawsuit that were not
included in her EEOC charge,” a claim can fall within the scope of a charge without being explicitly

mentioned in it, Cheek v. Western & S. Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994). A claim

falls within an EEOC charge “if there is a reasonable relationship between the allegations in the

charge and the claims in the complaint, and the claim[s] in the complaint can reasonably be expected

-6-


In November 2001, plaintiff passed the weapons requalification test and requested a transfer
to the Intensive Probation Services Unit (“Probation Unit”), a weapon-carrying unit. (Id, 53.) The
County told her that there were no positions available in the Probation Unit at that time. (Pl.’s LR
56,1(b) Stmt., Ex. 1, Flanagan Dep. at 193-94).

In July 2002, plaintiff was notified that she was going to be transferred to the Probation Unit.
(Def.’s- LR 56.1(a) Stmt. ¥ 61.) The notification said her transfer was contingent on “meeting all
position qualifications criteria, includ[ing] but not limited to training, receiving a recommended
training [sic] on the psychological battery and passing the urine screening.” (Id., Ex. 18, 7/29/02
Letter to Flanagan from Vaughan.) When plaintiff asked why she had to have another psychological
evaluation, she was told that it was the County’s practice to require any employee who had been out
of a weapon-carrying unit for a year or more to undergo such a test before being transferred back in.
dd. $59.)

In August 2002, plaintiffhad a psychological evaluation. (Pl.’s LR 56.1(b)(3)(B) Stint. 66.)
Later that month, she was told that she had not passed the evaluation, and thus, would be transferred
out of the Probation Unit to a non-weapon carrying unit. (Def.’s LR 56.1(a) Stmt. {{] 65, 67.)

Dr, Diane Goldstein, the psychologist who evaluated plaintiff, said she withheld a positive
recommendation on plaintiff pending the County’s investigation of plaintiff's complaints about her
treatment during the requalification process, (P1.’s LR 56.1(b)(3)(B) Stmt. {4 70-71.) Goldstein also
said that she suggested the County send plaintiff back for another evaluation after its investigation
was complete. (Id. § 71.) The County did not, however, send plaintiff back to Dr. Goldstein for a

follow-up evaluation. (Pl.’s LR 56.1(b) Stmt., Ex, 8, Goldstein Dep. at 80.)


arises when there is an “express, openly espoused policy [that is] alleged to be discriminatory.” Id,
at 121. The third arises when there is a pattern of covert conduct such that the plaintiff only
belatedly recognizes its unlawfulness. Id.

Plaintiff's weapon requalification and transfer delay claims do not fall into any of those
categories. Rather, plaintiff seems to be arguing that because she continued to feel the effects of the
discrimination she suffered during the 2000 weapon requalification process until August 2002, when
she was finally transferred into the Probation Unit, the County’s Title VII violation continued until
that point. But continuing violation theory contemplates that some illegal activity occurred within

limitations period. Hardin, 167 F.3d at 344. In this case, the only event that occurred during the

limitations period is the transfer delay. That delay may have perpetuated the effects of the earlier
discrimination, but there is no evidence to suggest that it was independently discriminatory.”
Because there is no evidence that plaintiff suffered discrimination — as opposed to the effects of
discrimination — during the limitations period, continuing violation theory does not apply. See

Dasgupta v. University of Wis. Bd. of Regents,121 F.3d 1138, 1140 (7" Cir. 1997) (“{A]n untimely

Title VII suit cannot be revived by pointing to effects within the limitations period of unlawful acts
that occurred earlier.”).

Thus, plaintiff preserved these claims only if she filed timely EEOC charges on them. The
record establishes that she did not. It is undisputed that plaintiff failed at her last attempt to requalify

on August 16, 2000 and, as a result, was transferred to the Domestic Violence Unit on October 10,

?Though plaintiff says three non-black or male employees were transferred into the Probation.
Unit before her (Pl.’s LR 56.1(b) Stmt., Ex. 1, Flanagan Dep. at 194-95), the County says those
transfers were approved months before plaintiff became eligible to transfer (Def.’s LR 56.1(a) Stmnt.,
Ex. 33, Vaughan Dep: at 147-49), an explanation that stands unrebutted.

-8+


Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Tomcot anime ues | Paul E. Phunkett | Stig dr omer

CASE NUMBER 02 C9190 DATE 7112/2004
CASE Kimberly Flanagan vs. Cook Co. Adult Probation Dept. et al.
TITLE

[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintif£, and (b) state briefly the nature

MOTION: of the motion being presented.]

DOCKET ENTRY:

() im) Filed motion of [ use listing in “Motion” box above.]

(2) Oo Brief in support of motion due

(3) a Answer brief to motion due___. Reply to answer briefdue__—_.

@ oO Ruling/Hearing on setfor______ at

(5) oO Status hearing[held/continued to] [set for/re-set for] on__setfor__—_att

(6) a Pretrial conference[held/continued to] [set for/re-set for]on__—ssetfor_—sat_

(7) o Trial{set for/re-set for]on__at

(8) oO [Bench/Jury trial] [Hearing] held/continuedto__—__aat

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

QFRCP4(m) OLocal Rule 41.1 OO FRCP41(a)(1) OO FRCP41(a)(2).

ao ff [Other docket entry} | Enter Memorandum Opinion and Order. Defendant’s motion for summary
judgment (18-1) is granted in part and denied in part..
ai) [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required.

Notices mailed by judge's staff.
Notified counsel by telephone.
Docketing to mail notices. °

Mal AO 0 form qunoo idiisia “sn
wista

Copy to judge/magistrate judge.
cw cour) 3G Hd] 21 TAC N07

initials 1G3 J GsIW 3 Date/time received in

central Clerk’s Office.



returned to a weapon-carrying unit* after a two-year hiatus. (Id., Ex. 5, Wilson Dep. at 6-8, 23-24;
Def.’s LR 56.1(a) Stmt., Exs. 24 & 25, County Weapon Policies.)

There is also evidence to suggest that the County treated plaintiff differently than another
officer whose psychological evaluation had the same results. Dr. Goldstein, the psychologist who
examined plaintiff, testified that she withheld a final recommendation on plaintiff pending the
County’s investigation into plaintiff's complaints, (PI.’s LR 56.1(b) Stmt., Ex. 8, Goldstein Dep.
at 80-82.) Goldstein also said that she told the County to send plaintiff back for a follow up
evaluation after its investigation was complete. (Id, at 80.) It is undisputed, however, that the
County did not send plaintiff back to Goldstein for further testing. (Id,) It is also undisputed that
Ramon Ibarra, a Hispanic male, received an inconclusive on a psychological evaluation he took
while assigned to a weapon-carrying unit. (Def.’s Resp. Pl.’s LR. 56, 1(6)(3)B) Stmt. J 72.) Unlike
plaintiff, however, Ibarra was sent back for a follow up evaluation, instead of being deemed unfit
to carry a weapon. (Id.)

Taken together, that evidence is sufficient to raise a genuine issue on the legitimacy of the
County’s requirements that plaintiff take and unqualifiedly pass a psychological exam before being
eligible to transfer to a weapon-carrying unit.

But the record does not suggest that plaintiff received different treatment because of her race.

Plaintiff has no evidence to suggest that the County has a pattern of treating African-American

‘The County says there is no evidence to suggest that the Skokie Investigations Unit, where
Wilson spent his two-year hiatus, is a non-weapon carrying unit. The County’s weapons policies,
however, which plaintiff cites, state that only sworn personnel assigned to Intensive Probation
Supervision, Home Confinement, Intensive Drug Program, Sex Offender Program and Gang
Intervention Unit shall be authorized to carry firearms. (Def.’s LR 56.1(a) Stmt., Exs. 24 & 25.)
Thus, it is reasonable to infer, given its absence from that list, that the Skokie Investigations Unit is
@ mon-weapon carrying unit. :

-11-



that she be psychologically fit to carry a weapon, a requirement for employment in the Probation
Unit.

Plaintiff admits that the County did not deem her qualified to carry a weapon, but contends
that the qualification process itself was discriminatory. According to plaintiff, the County: (1) does
not require all employees who have been out of a weapon-carrying unit for one year to submit toa
psychological evaluation before being requalified; and (2) does not deem unqualified all employees
whose psychological evaluations have inconclusive results. In other words, she says that the
County’s expectations were not actually legitimate. When a Title VII plaintiff argues that the
defendant’s expectations are illegitimate, the issues of legitimate expectations and pretext merge.
See Brummett v, Lee Enter., Inc., 284 F.3d 742, 745 (7 Cir. 2002) (if legitimate expectations are
themselves pretextual, the prima facie case is subsumed into the question of pretext). Thus, we will
analyze them together.

There is some evidence to suggest that the County selectively enforces its psychological
evaluation rule. Donna Vaughan, the County’s Director of Human Resources, and James
Cunningham, its Assistant Chief, testified, respectively, that “an[y] individual” and “any officer”
who has been out of a weapon-carrying unit for a year or more must submit to a psychological
evaluation before they will be returned to a weapon-carrying unit. (P1.’s LR 56.1(b) Stmt., Ex. 2,
Cunningham Dep. at 33; id., Ex. 4, Vaughan Dep. at 116.) Yet, it is undisputed that Guy Wilson,

an African-American male,’ was not required to undergo any psychological testing before he

3Plaintiff asserts that Wilson is white because he “appears” to her to be white. (See 6/25/04
Flanagan Aff. ¥ 5.) Plaintiff's belief about Wilson’s race, however, is immaterial. What matters is
what the County believes. According to Human Resources Director Vaughan, the County believes
Wilson is African American. (See 6/15/04 Vaughan Aff. § 3.)

-10-


to grow out of an EEOC investigation of the allegations in the charge.” Id, Such is the case with
the claims arising from the 2000 weapon qualification process. The only reason plaintiff was
seeking a transfer back to the Probation Unit in November 2001 was because of the County’s
allegedly discriminatory administration of the weapon requalification tests the previous year.
Though not mentioned in her charge, the weapon qualification claims are so closely related to her
discriminatory transfer claims that they would inevitably have grown out of the EEOC’s
investigation into plaintiff's charge. Consequently, the scope of the charge doctrine does not bar
them.

Even if they are within the scope of the charge, the County says that the weapon qualification
and transfer delay claims, which are based on conduct that occurred more than 300 days before
plaintiff filed her charge on August 28, 2002, are time-barred. See 42 U.S.C. § 2000¢-5(e)(1)
(stating that Title VII claimants must file a charge with the EEOC within 300 days of the allegedly
discriminatory event to preserve their right to sue). Plaintiff contends that those claims are saved
by the continuing violation doctrine.

The continuing violation doctrine “is designed to accommodate plaintiffs who can show that
there has been a pattern or policy of discrimination continuing from outside the limitations period
into the statutory limitations period, so that all discriminatory acts committed as part of this pattern

or policy can be considered timely.” Hardin v. §.C. Johnson & Son., Inc., 167 F.3d 340, 344 (7th

Cir. 1999) (internal quotation marks, alterations and citation omitted). Our court of appeals
recognizes three kinds of continuing violations. The first arises when the unlawful conduct, like a
hiring decision, “takes place over a period of time, making it difficult to pinpoint the exact day the

‘violation’ occurred.” Stewart v. CPC Int’l, Inc., 679 F.2d 117, 120 (7th Cir. 1982). The second

-7-


Plaintiff says that, after some practice rounds, Petrone told her the next one would be her
qualifying shoot, (Id. 17.) Plaintiff says she scored 80% on the next round, prompting Petrone to
say that he couldn’t believe a woman could shoot that well. (Id, {J 17-18.) When Petrone told her
to shoot again, plaintiff says, she scored 90%. (Id. ] 19.) At that point, Petrone told her all of that
day’s rounds would be considered practice. (Id. { 20.)

On June 27, 2000, plaintiff made two more attempts to requalify under Petrone’s supervision.
(Def.’s LR 56.1(a) Stmt. $ 26.) Plaintiff says she passed, having achieved scores of 80% on each
attempt. (P].’s LR 56.1(b)(3)(A) Stmt. 27.) Petrone, however, recorded her scores as 68% and
48%, respectively, (Def.’s LR 56.1(a) Stmt. 127.) Petrone told her that she could not keep the copy
of her silhouettes showing her scores because they were County property, though there is no policy
forbidding instructors from giving silhouettes to officers after they have been scored, (PI.’s LR
56.1(b)(3)(B) Stmt. J] 25-26.)

Plaintiff complained about the requalification session to Assistant Chief Cunningham. (Id.
4/28.) Cunningham talked to Petrone, who said that plaintiff had not requalified on June 27, and that
the 80% and 90% rounds she shot on June 19 were just practice shots. (id. { 29.) Cunningham
testified that he independently scored the silhouettes from plaintiffs June 27 rounds and concluded
that she had failed. (id, { 33.) Petrone, however, said that he destroyed those silhouettes after
grading them. (Id. { 34.)

The weapons requalification protocol gives officers five attempts to requalify. (Def.’s LR
56.1(a) Stmt, | 28.) Plaintiff took her fifth try on July 21, 2000, again under Petrone’s supervision.
(Id, { 29.) Though Petrone recorded her score as 56%, plaintiff says she actually scored over 80%

on this attempt. (1d, 130; Pl.’s LR 56.1(b)(3)(A) Stmt. ] 30,)

-3-


Though it is not overwhelming, the evidence offered by plaintiff is sufficient to raise a triable
issue of fact on her claim that she was transferred out of the Probation Unit in 2002 because of her

sex. The County’s motion for summary judgment on that claim is, therefore, denied.

Conclusion

For the reasons set forth above, defendant’s motion for summary judgment is granted as to:
(1) plaintiff's discrimination claims related to the 2000 weapon requalification process and her
consequent transfer out of the Probation Unit; (2) plaintiff's discrimination claims related to the
November 2001 to August 2002 delay in her transfer back into the Probation Unit; and (3) her race
discrimination claim related to her 2002 transfer out of the Probation Unit. The County’s motion
is denied as to plaintiff's sex discrimination claim related to her 2002 transfer out of the Probation
Unit, which is the only claim that remains in this suit.

ENTER:

ITED STATES DISTRICT JUDGE

patep: _ JUL 12 7004

-14-


evidence and draw all inferences in favor of the non-moving party. Michas v. Health Cost Controls

of IIL, Inc., 209 F.3d 687, 692 (7th Cir, 2000). Summary judgment is appropriate only when the

record as a whole establishes that no reasonable jury could find for the non-moving party. Id.

Background’

Plaintiff, an African-American woman, was hired by the County to work as an adult
probation officer in its Home Confinement Unit on February 16, 1999, (Def.’s LR 56.1(a) Stmt. {]
3-4.) Adult probation officers assigned to that unit are required to carry firearms. (Id. | 6; Pl.’s LR
56.1(b)(3)(B) Stmt. | 2.) To qualify to do so, however, they must first complete classroom, field and
weapons training and pass psychological and drug tests. (Def.’s LR 56.1(a) Stmt. 7-9.) After she
was hired, plaintiff successfully completed all training and tests. (Id, { 10.)

On April 20, 2000, plaintiff was notified that she had to attend mandatory annual weapon
requalification. (id, ] 13.) Plaintiff attended the requalification program on May 9, 2000. (id. 115.)
Her requalification supervisors were Guy Wilson, Steve Glazier and Rich Martin. (1d, ¥ 16.)
Plaintiff did not achieve a passing score of 70% on either of her two attempts to requalify. (1d. { 18.)

According to the annual weapons requalification protocol, an officer who fails her first two
attempts to requalify must attend remedial weapons training. (Id, 21.) Plaintiff attended remedial
training on June 19, 2000, where she received instruction from firearms instructor Frank Petrone.
(id. 24; Pl.’s LR 56.1(b)(3)(A) Stmt. 4 24.) Usually, the third and fourth requalification attempts

are made on the same day as the remedial training. (Pl.’s LR 56.1(b)(3)(B) Stmt. { 15.)

1Unless indicated otherwise, the following facts are undisputed.

-2-


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DOCHETED

KIMBERLY FLANAGAN, ) JUL 1 3 2004
)
Plaintiff, )
)

v. } No. 02 C 9190
) Paul E. Plunkett, Senior Judge

OFFICE OF THE CHIEF JUDGE )
OF THE CIRCUIT COURT OF )
COOK COUNTY, ILLINOIS, )
)
Defendant. )

(EMO) D OPINION 8)

Kimberly Flanagan has sued the Office of the Chief Judge of the Circuit Court of Cook
County (“the County”) for its alleged violations of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seg. The County has filed a Federal Rule of Civil Procedure (“Rule”) 56(c)
motion for summary judgment. For the reasons set forth below, the motion is granted in part and

denied in part.

The Legal Standard
To prevail on a summary judgment motion, “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, [must] 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). At this stage, we do not weigh evidence or determine the truth

of the matters asserted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). We view all



employees less favorably than employees of other racial or ethnic groups or that any of her
supervisors harbors anti-black sentiments. The only evidence plaintiff has offered to support an
inference of racial discrimination is that Ibarra, who is Hispanic, was sent for a follow up
psychological evaluation when his first evaluation was inconclusive. Standing alone, however, the
fact that the County treated one non-black employee differently than plaintiff does not suggest that
its actions were racially motivated. Consequently, plaintiff has not raised a triable issue of fact on
her race discrimination claim.

The situation is different, however, for her sex discrimination claim. There are some facts
in the record, like those concerning plaintiff's June 2000 attempts to requalify, that suggest the
County may have treated her differently because of her gender.’ It is undisputed, for example, that
temedial weapon training and requalifying shoots are generally done on the same day and that
practice shoots are generally not scored, (Def.’s Resp. Pl.’s LR 56.1(b)(3)(B) Stmt. 99 15, 30.) It
is also undisputed that plaintiff received remedial training from Petrone on June 19, 2000 and that
he gave her passing scores on two rounds. (Id, 420.) After she shot the first passing round, plaintiff
says, Petrone told her he could not believe a woman could shoot so well and instructed her to shoot
again. (Pl.’s LR 56.1(b)(3)(B) Stmt. { 18.) Moreover, there is no dispute that after plaintiff shot,
and Petrone scored, a second passing round, Petrone told her that the day’s rounds were only practice
and she would have to take her qualifying shoot on another day. (Def.’s Resp. Pl.’s LR 56.1(b)(3)(B)

Stmt. $20.)

°Though plaintiff may not recover damages for her time-barred claims, she may “us{e] the
prior acts as background evidence in support of [her] timely claim{s].” Morgan, 536 U.S. at 113.

-12-