In sum, even when construed in a light most favorable to
O'Neal, the evidence here cannot establish that O’Neal suffered a
legally-cognizable adverse employment action. The Court does not
doubt that O’Neal experienced the transfer as adverse and found the
return to the duties of a beat sergeant Unpleasant. However,

subjective distaste for a different job position is not enough to

support a claim under Title VII, or, correspdne
inti

aah

or 1983. Because the Court finds that

ngly, Sections 1981

here is no adverse
employment action, it need not address Defendants’ other grounds
for summary judgment.
CONCLUSION
For the reasons set forth aboyé ehdants’ Motion for

Summary Judgment is GRANTED.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court

Date: fiery hve!

-13-


F.2d 107, 110 (7th Cir. 1990); Schroeder v. Lufthansa German
Airlines, 875 F.2d 613, 620 (7th Cir. 1989). The nonmovant “must
do more than simply show that there is some metaphysical doubt as
to the material facts.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). In the employment
discrimination context, summary judgment against a plaintiff is
warranted where “the evidence, interpreted favorably to the
plaintiff, could [not] persuade a reasonable jury that the employer
had discriminated against the plaintiff.” Palucki v. Sears,
Roebuck & Co., 879 F.2d 1568, 1570 (7th Cir. 1989).
B. Title VII

Title VII makes it unlawful for an employer to terminate or
otherwise to discriminate against an employee based on race, color,
religion, sex, or national origin. 42 U.S.C. § 2000e-2(a). A
plaintiff may prove unlawful employment discrimination through
either direct evidence or via the indirect burden shifting approach
set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Here, Plaintiff proceeds under the indirect method and therefore
must first establish a prima facie case of discrimination by
demonstrating that she (1) was a member of a protected class, (2)
performed her job according to Defendants’ legitimate expectations,
(3) suffered an adverse employment action, and (4) was treated less
favorably than similarly situated employees outside of her

protected class. See, e.g., Markel v. Bd. of Regents of the Univ.


another.” Jd. at 745. Specifically, an “auditor’s job is not
objectively inferior to an investigator’s job that has identical
financial terms; nor is an accountant who is transferred from
investigations to audits deprived of the opportunity to use the
skills for which he is trained. . . .” Id. (emphasis added).
Moreover, the “use of a company car and being excused from having
to sign in or out of an office might be preferred by some
employees, but not having to run around all day might be considered
by others ample compensation for giving up those particular perks.”
Id. The Seventh Circuit concluded that the “two jobs were
equivalent other than in idiosyncratic terms that do not justify
trundling out the heavy artillery of federal antidiscrimination
law.“ Id. Finally, the Seventh Circuit noted the policy reasons
supporting its dismissal of plaintiff’s claim: “otherwise every
trivial personnel action that an irritable, chip-on-the-shoulder
employee did not like would form the basis of a discrimination
suit . . . [and] serious complaints would be lost among the
trivial.” Id. (citations omitted).

Herrnreiter controls here and disposes of most - if not all -
of O’Neal’s claim of adverse employment action. Like the plaintiff
in Herrnreiter, the transfer at issue here did not result in any
tangible financial change, given that the two jobs have essentially
the same pay and benefits. An administrative sergeant may have

greater opportunities for overtime work, but this appears to be a


In contrast, O’Neal claims that the transfer was effectively
a demotion, resulting in “a lower-paid and less prestigious”
position. See Pl. Resp. at 2. O'Neal points to the various ways
in which the duties of a beat sergeant are allegedly less favorable
than those of an administrative sergeant, including: less
opportunity for overtime pay, lower job prestige, fewer
responsibilities,’ less flexible hours, less predictability in
assignments, greater monitoring by superiors, and greater physical
demands. See id. at 5-6. O’Neal also alleges that the transfer
effectively validated rumors that she dated a corrupt police
officer, thereby causing her to suffer a “tarnished reputation that
will affect her future ability to receive a promotion.” See id.
Thus, the parties appear to agree on the following: (1) there is
no separate rank for an “administrative sergeant” and (2) there is
no difference in base pay and benefits, although there may be
greater opportunities for overtime work for administrative
sergeants. See Pl. Resp. Def. Local Rule 56.1(b) Statement of
Facts, @4 36,37.

Under Title VII law, an “adverse employment action” must be,
at a minimum, “materially adverse” and “more disruptive than a mere
inconvenience or an alteration of job responsibilities.” Crady v.
Liberty Nat’l Bank & Trust Co. of Ind., 993 F.2d 132, 136 (7th Cir.
1993). “[A]n employee must show that material harm has resulted

from ... . the challenged actions.” Traylor v. Brown, 295 F.3d



of Wisc. Sys., 276 F.3d 906, 910 (7th Cir. 2002); Gordon v. United
Airlines, Inc., 246 F.3d 878, 885-86 (7th Cir. 2001). If Plaintiff
can show that “there is some evidence from which one can infer that
the employer took adverse action against the plaintiff on the basis
of a statutorily proscribed criterion,” Leffel v. Valley Fin.
Servs., 113 F.3d 787, 793 (7th Cir. 1997), a presumption of
discrimination arises, and Defendants must produce evidence of a
legitimate, nondiscriminatory reason for O’Neal’s termination.
Gordon, 246 F.3d at 886.
DISCUSSION

The parties agree that all claims in O’Neal’s complaint fall,
for summary judgment purposes, under Title VII law. See Def. Mem.
at 2; Pl. Resp. at 3; Forrester v. White, 846 F. 2d 29, 32 (7th
Cir. 1988). Defendants initially argue that O’Neal cannot make a
prima facie case under Title VII because the undisputed facts show
that there was no adverse employment action. In support of this,
Defendants allege that the Chicago Police Department does not
distinguish between administrative and beat sergeants. That is,
the applicable rank for both positions is “sergeant,” and a
sergeant performing administrative duties has no authority over a
beat sergeant. See id. Defendants also state that there are no
differences in base salary, benefits or other privileges between
administrative and beat sergeants. Thus, O’Neal’s transfer was a

“lateral reassignment [and] not a demotion.” See id.


construed in a light most favorable to O'Neal can place O’Neal’s
claim into the category of cases recognized by the Seventh Circuit
to constitute cognizable adverse employment actions.

Although neither party cites to Herrnreiter, its facts and
holding heavily instruct this Court in the present case. In
Herrnreiter, an accountant initially employed in the auditing
division of the Chicago Housing Authority (“CHA”) was transferred
to the investigation division. See id. at 743. The accountant
greatly preferred his newfound work in the investigation division,
finding it more interesting and challenging than his prior work.
See id. His new job also provided him with a car and the freedom
to sign in and out of the office. See id. However, after six
months, the CHA transferred him back to the auditing division. See
id. Following the transfer, he claimed that his transfer (and
subsequent firing) were motivated due to his race and national
erigin. See id. The Seventh Circuit affirmed the district court's
grant of summary judgment for defendant, noting that an adverse
employment action requires “a significant change in employment
status, such as hiring, firing, failing to promote, reassignment
with significantly different responsibilities, or a decision
causing a significant change in benefits.” Id. at 744, quoting
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761 (1998).
In contrast, the Seventh Circuit held that the case before it

represented “purely subjective preference for one position over


Minute Order Form (06/97)

United States District Court, Northern District of Ilinois

Name of Assigned Jud; 7 Sitting Judge if Othe:
ye Magistrate Jule Harry D. Leinenweber than Assigned Judge
CASE NUMBER 02 C 8451 DATE 1/22/2004
CASE Brenda O’Neal vs. City of Chicago et al
TITLE

{In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant. 3rd party plaintiff, and (b) stat
of the motion being presented]

je briefly the nature

MOTION:

DOCKET ENTRY:

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

(2) Qa Brief in support of motion due

3) oO Answer brief to motion due___. Reply to answer brief due___.

(4) a Ruling/Hearing on setfor___—_—_at

(5) o Status hearing[held/continued to} [set for/re-set for]on__—_—sset for at

(6) Qa Pretrial conference[held/continued to} [set for/re-set for]on = setfor_ at
(7) Oo 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]

QFRCP4(m) CO Local Rule 41.1 OFRCP4I(a\(1) O FRCP41(a)(2).

for Summary Judgment is GRANTED. Trial date stricken.

(11) [For further detail see order attached to the original minute order.]

an [Other docket entry} ENTER MEMORANDUM OPINION AND ORDER: Defendants’ Motion

No notices required, advised in open court.

No notices required.
jo notices requires umber of notices

Document
Number

Notices mailed by judge's staff.

daM 986 wialany

date dockered

Notified counsel by telephone.

wo | Docketing to mail notices.

v Mail AO 450 form,

Copy to judge/magistrate judge.

hy po pen ee 7
courtroom 6224 NY AZ BYP A dave ied nie
WAP deputy's
initials GG: :
“Uepabetiind ledkived in
central Clerk’s Office iting deputy iat

3\



distinguish the ample case law cited by Defendants on the grounds
that such case law did not “involve[] a lower status of the new
position verified by coworkers and the employer’ supervisor.” Pl.
Resp. at 6. Setting aside the issue of whether O’Neal’s evidence
can support the claim of “lower prestige,” ‘the more immediate issue
is whether such purported “lower prestige” ican - by itself ~ amount
to an adverse employment action. O’Neal fails to cite any case law
holding that a transfer to a purportedly lower prestige job -
without any material adverse change in either compensation or work
conditions - constitutes an adverse employment action. See Pl.
Resp. at 4-5. Indeed, the case law cited by O’Neal uniformly holds
that some objective material adverse change in working conditions
or terms must occur. See, e.g., Dahm v. Flynn, 60 F.3d 253, 257
(7th Cir. 1994) (noting the “dramatic downward shift in skill
level”); Collins v. State of I1l., 830 F.2d 692, 703-04 (7th Cir.
1987) (noting that plaintiff was transferred to a new department
with uncertain responsibilities and authority).

Although it does not appear that the Seventh Circuit has
squarely addressed this issue, the District of Columbia Circuit
recently held that a plaintiff “could not establish an adverse
action on the basis that the reassignment deprived him of prestige”
or otherwise rely on “purely subjective harms.” See Forkkio v.

Powell, 306 F.3d 1127, 1131 (D.C, Cir. 2002). The Seventh Circuit

has subsequently cited Forkkio with approval. See Johnson v.

-11-



function of the greater hour demands of the administrative
sergeant. It is also a speculative financial outcome, which
depends on the hours worked, and O’Neal makés no showing that the
administrative job necessarily entails overtime pay. In addition,
all of the additional benefits that O'Neal claims are inherent in
an administrative sergeant position (i.e., flexible hours and
assignments, freedom from supervision, use of a car, parking space,
cell phone, and pager, and freedom from uniform and heavy
equipment) fall under the types of “perks” and “idiosyncratic
terms” that are a “purely subjective preference” for some
employees. See Herrnheiter, 315 F.3d at 745. The duties and
responsibilities of a beat sergeant do not differ significantly in
skill, responsibility, or compensation from those of an
administrative sergeant. Moreover, O'Neal cannot show that a
return to beat duty after four months in administrative duty will
result in a deprivation of her skills: she is. a trained police
officer with extensive experience in the field. Accordingly, the
transfer cannot qualify as an adverse employment action on this
basis. See id.; Williams v. Bristol-Myers Squibb, 85 F.3d 270,
273-74 (7th Cir. 1996).

O’ Neal, however, also alleges that the title and
responsibilities of a beat sergeant carry “lower prestige” than
those of an administrative sergeant. This claim, arguably, does

not fall squarely under the Herrnheiter analysis. 0O’Neal seeks to

~10-


783, 788 (7th Cir. 2002) (internal quotation marks omitted). The
Seventh Circuit has provided examples of potential materially
adverse job actions, including “termination of employment, a
demotion evidenced by a decrease in wage or salary, a less
distinguished title, a material loss of benefits, significantly
diminished material responsibilities, or other indices that might
be unique to a particular situation.” Crady, 993 F.2d at 136.
More recently, the Seventh Circuit categorized the types of
cases that can potentially include “materially adverse employment
action[s].” See Herrnreiter v. Chicago Housing Authority, 315 F.3d
742, 744 (7th Cir. 2002). Under Herrnreiter’s classification, the
present case best fits under the category of “[c]ases in which a
nominally lateral transfer with no change in financial terms
significantly reduces the employee’s career prospects by preventing
him from using the skills in which he is trained and experienced,
so that the skills are likely to atrophy and his career is likely
to be stunted.” See id, (citations omitted). The Seventh Circuit
went on to caution, however, that these types of cases “are to be
distinguished from ‘a purely lateral transfer, that is, a transfer
that does not rise to the level of a materially adverse employment
action. A transfer involving no reduction in pay and no more than
a minor change in working conditions will not do either.’” See
id., quoting Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 274

(7th Cir. 1996). The issue, then, is whether the evidence



O'Neal cannot sustain her Section 1981 and Section 1983 claims and
that Defendant Robinson is entitled to qualified immunity.)

LEGAL STANDARDS

A. Summary Judgment

Summary judgment is appropriate 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.” Feb. R. Civ. P. 56(c). A fact
is “material” if it could affect the outcome of the suit under the
governing law; a dispute is “genuine” where 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).

The burden is initially upon the movant to demonstrate the
absence of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). In assessing the movant’s
claim, the court must view all the evidence and any reasonable
inferences that may be drawn from that evidence in the light most
favorable to the nonmovant. Miller v. Am. Family Mut. Ins. Co.,
203 F.3d 997, 1003 (7th Cir. 2000). Once the moving party has met
its burden, the nonmoving party “may not rest upon the mere
allegations” contained in its pleading, but rather “must set forth
specific facts showing that there is a genuine issue for trial.”

Fep. R. Civ. P. 56(e); Becker v. Tenenbaum-Hill Assoc., Inc., 914

-3-



promoted to sergeant. In February 2002, O'Neal was assigned to an
administrative “desk job” in the Narcotics and Gang Investigations
section (the “Narcotics Section”) of the Organized Crime Division.
In late May 2002, approximately four months into her new position,
O'Neal was involuntarily transferred back to a beat sergeant
position (i.e., uniformed supervisory duty “on the streets”).

The parties differ in their views of both the nature and
motivating reasons of the transfer. O’Neal characterizes the
transfer as effectively a demotion. Defendants characterize it as
a lateral transfer. O’Neal claims that the transfer was motivated
by gender and race-based discriminatory animus. Defendants claim
that O’Neal was transferred because of security concerns after they
were informed that O’Neal had purportedly dated a former police
officer who was subsequently convicted of selling narcotics.

Defendants base their motion for summary judgment primarily on
two arguments. First, Defendants contend that O’Neal cannot state
a prima facie case under Title VII because there is no evidence of
either an adverse employment action or that any similarly situated
individuals outside of O’Neal’s protected class received more
favorable treatment. Second, Defendants claim that even if O’Neal
could establish a prima facie case, she cannot establish that
Defendants’ proffered legitimate, non-discriminatory reasons for

transferring O’Neal were pretextual. {Defendants also argue that



IN THE UNITED STATES DISTRICT cours! LE
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION JAN 2 2 2004
, JUDGE
BRENDA 0’ NEAL, HAR
us, Distr P. COURT NMEBER
Plaintiff, GE

Case No. 02 C 8451
v.
Hon. Harry D. Leinenweber
CITY OF CHICAGO and POLICE
CHIEF JERRY ROBINSON,

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff Brenda O’Neal (“O'Neal”) filed a five-count
complaint against Defendants City of Chicago and Police Chief Jerry
Robinson alleging gender and racial discrimination based on her
involuntary transfer from an administrative sergeant to a beat
sergeant position for the City of Chicago. Plaintiff's claims
arise under Title VII of the Civil Rights Act of 1964, as amended,
42. U.S.C. § 2000 et seq., 42. U.S.C. § 1981 (“Section 1981”), and
42 U.S.C. § 1983 (“Section 1983”). Before the Court is Defendants’
Motion for Summary Judgment filed pursuant to Fep. R. Civ. P. 56.

BACKGROUND

O’Neal, an African-American woman, has been a police officer
for the City of Chicago for more than eleven years. In June 1991,
she was hired by City of Chicago as a probationary police officer.
After serving a one-year probationary period, O'Neal attained the

career service position of police officer. In May 2001, O’Neal was

3



Cambridge Industries Inc., 325 F.3d 892, 899 (7th Cir. 2003)
(approving, without relying on, Forkkio’s holding that adverse
employment actions “cannot be established by showing job

+ Grayson v. City of

Chicago, 317 F.3d 745, 750 (7th Cir.. 2003) ‘iting Forkkio's holding

f fdah
that “an employee cannot establish an dvegse action on the basis

|
that a reassignment deprives him of pr tiga”). Thus, a bare claim

of loss of prestige or status, without on}detive material adverse
changes in employment, is insufticacne es establish an adverse
employment action under Title VII.

Finally, O’Neal’s claim of a “tarnished reputation” can be
quickly addressed. Assuming arguendo that O’Neal’s evidence can
support this claim of “tarnished reputation,” O’Neal cites no
authority - and this Court finds no controlling authority - for the
proposition that a “tarnished reputation” is sufficient for
establishing an adverse employment action. That is, to sustain a
Title VII action, O’Neal’s must tether her “tarnished reputation”
claim to a materially adverse change in the nature or terms of
work. As noted above, there is no evidence here to support such a
finding. (This is not to say that reputational harm cannot
constitute potential damages for an adverse employment action.

See, e.g., Williams v. Pharmacia, Inc., 137 F.3d 944, 954 (7th

Cir. 1998) .)

- 12 -