CONCLUSION
Plaintiff has failed to establish that Defendant’s legitimate, nondiscriminatory reason for
not interviewing or promoting Plaintiff is pretextual. Plaintiff has also failed to state a prima
facie case of retaliation. Further, Plaintiff does not state a valid claim for § 1981 relief. There is
no genuine issue of material fact and Defendant CMS is entitled to judgment as a matter of law.

Accordingly, Defendant’s motion for summary judgment is granted.

Dated: November 9, 2004 ENTERED:

United States District Court Judge

19


A. Plaintiff Fails To State A Prima Facie Case Of Discrimination For Her Claim
That Defendant Retaliated Against Her By Failing To Promote Her

Regarding Plaintiff's claim that Defendant failed to promote her in retaliation for filing a
charge of discrimination, Plaintiff cannot establish that CMS subjected her to an adverse
employment action after she filed her EEOC charge. Plaintiff filed her first EEOC charge on
December 7, 2001, after CMS promoted Luis Davila to the lieutenant position in October of
2001. Defendant could not have retaliated against Plaintiff for filing a charge that Plaintiff had
not yet filed and that Defendant did not know she intended to file the charge. Accordingly,
Defendant’s motion for summary judgment with regard to this claim is granted.

B. Plaintiff Fails To State A Prima Facie Case Of Discrimination For Her Claim
That Defendant Retaliated Against Her By Taking Her Badge And Weapon

Plaintiff also fails to state a prima facie case of discrimination for her claim that
Defendant retaliated against her by taking away her badge and weapon. While an adverse
employment action is not limited to loss or reduction of pay or monetary benefits, not everything
that makes an employee unhappy is an actionable adverse action. Smart v. Ball State Univ., 89
F.3d 437, 441 (7 Cir. 1996). “Otherwise, minor and even trivial employment actions that an
irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination
suit.” Id. (quotations and citation omitted). Requiring Plaintiff to turn in her badge and weapon
while not on active duty during her injury leave of absence does not constitute an adverse
employment action.

Even if this action did amount to an adverse employment action, Plaintiff cannot
establish that other similarly situated employees who did not file an EEOC charge were not
forced to turn in their badge and weapon. Plaintiff admitted that the CMS police had a practice
of requiring officers to turn in their equipment while on extended leaves of absence and that

13



stated that if applying for the position would result in a promotion and the applicant did not have
a current grade for that title, the applicant must submit a yellow competitive promotional
application, form CMS 100B, to Room 500 of the Stratton Office Building. id.) Room 500 of
the Stratton Building, the Examining and Counseling Division of CMS, did not have any
responsibility or role in the posting of the open lieutenant position or in accepting bid forms
from interested applicants. (/d. at 157.) Furthermore, an applicant could request promotion
grades at any time regardless of whether there was an actual opening for a particular position.
(Id. at | 58.)

CMS also used a “bid form” in the promotional process. (Id. at 19.) This form directed
applicants seeking a specific open promotion to submit the form to Room 519 of the Stratton
Building. (/d.) It further informed applicants that if they did not yet have a promotional grade
for the open position, they must also complete a CMS 100B yellow form to receive such a grade.
(Id) In order to receive an interview, an applicant must have submitted a completed application
and a bid form. (id. at { 60.)

Once CMS received the applications in Room 519 of the Stratton Building, it listed the
names of the applicants and the date of receipt on a sheet of paper. (R. 42-1, Def.’s Resp. to
Pl.’s Add’l Stmt. of Facts § 41.) Chris Valentine, an interviewer for CMS Personnel in
Springfield, Illinois, received this list and ensured that the applicants had the appropriate grade.
(Id.) If the applicant had the appropriate grade, Mr. Valentine called him to schedule an
interview. (Id.; R. 37-1, Pl.’s Resp. to Def.’s Stmt. of Facts, Ex. B 21-22.) If Room 519 of the
Stratton Building received an application after the posted date, CMS marked the application late
in the upper portion of the application form. (R. 42-1, Def.’s Resp. to Pl.’s Add’l Stmt. of Facts
442.) CMS’s stated procedure was to interview only those applicants who submitted their

4


an interview after she followed Defendant’s application procedures and by interviewing Luis
Davila even though his bid form did not indicate that he received a grade prior to his interview.'°

Of these arguments, only Plaintiff's contention that CMS denied Hope Swanson-Johnson
an interview after she allegedly followed the appropriate application procedure is relevant to
whether Defendant’s proffered nondiscriminatory reason had no basis in fact, and was, therefore,
pretextual. The mere fact that Mr. Valentine received Plaintiff's application does not negate the
fact that Plaintiff sent her application to the wrong room. Although it may seem odd for CMS to
deny someone an interview for not sending an application to the correct address even though it
may have had notice of the application before the deadline, this is not sufficient to demonstrate
the reason was pretextual. See Jordan v. Summers, 205 F.3d 337, 343 (7° Cir. 2000) (stating that
even if a defendant’s nondiscriminatory reasons were “mistaken, ill considered or foolish, so
long as [the defendant] honestly believed those reasons, pretext has not been shown”).
Furthermore, Plaintiff cannot rely on the possibility that Defendant interviewed Mr. Davila
without the appropriate promotional grade to demonstrate that Defendant’s proffered
nondiscriminatory reason is not based in fact because Mr. Davila sent his application to the
appropriate location within the stated time limits.

In support of her argument that CMS denied Ms. Swanson-Johnson an interview even
though she followed its application procedures, Plaintiff relies on portions of Ms. Swanson-
Johnson’s deposition. Ms. Swanson-Johnson’s deposition testimony does not, however, support

Plaintiff's assertion that Ms, Swanson-Johnson correctly followed the application procedures.

'° Plaintiff also argues that Defendant’s nondiscriminatory reason was pretextual because
Plaintiff allegedly followed the same application procedure in 2001 as she did in 1998, which in
1998 resulted in an interview. Plaintiff does not, however, offer any evidence in the record to
support this assertion.

17


ANALYSIS

Plaintiff filed a complaint alleging violations of Title VII of the Civil Rights Act of 1964
and 42 U.S.C. § 1981 on December 30, 2002. Plaintiff alleges Defendant violated these acts by
denying her an interview for the lieutenant position, failing to promote her to the lieutenant
position, holding her to different standards of performance, and disciplining her because she is a
woman. Plaintiff further alleges that Defendant retaliated against her for filing a charge of
discrimination by taking away her badge and weapon, disciplining her for no reason, and failing
to promote her.

Defendant moves for summary judgment on all claims. First, Defendant argues that it is
entitled to judgment as a matter of law on Plaintiff's claims that it held Plaintiff to different
standards of performance and gave discipline without reason because these claims are beyond
the scope of Plaintiffs charges that she filed with the Equal Employment Opportunity
Commission (“EEOC”). Second, Defendant asserts that the Court should dismiss Plaintiff's §
1981 claim because the State of Illinois and its agencies are entitled to immunity under the
Eleventh Amendment of the United States Constitution from such claims. Third, Defendant
claims that Plaintiff has not established a prima facie case of either discrimination or retaliation.
Finally, Defendant argues that Plaintiff has not established that Defendant’s legitimate,
nondiscriminatory reason for not interviewing or promoting Plaintiff was pretextual.

1 Portions Of Plaintiff's Claim Are Beyond The Scope Of Her EEOC Charge

A plaintiff cannot bring a discrimination claim against a defendant when she failed to
include such claims in her EEOC charge. Cheek v. Western & Southern Life Ins. Co., 31 F.3d
497, 500 (7" Cir. 1994). “An aggrieved employee may not complain to the EEOC of only
certain instances of discrimination, and then seek judicial relief for different instances of

9


application. (/d. at { 99.) Mr. Valentine did, however, receive Plaintiff's application. (R. 42-1,
Def.’s Resp. to Pl.’s Add’! Stmt. of Facts § 46.)

After the interviews, Plaintiff communicated to Chief Dorothy Campbell that she did not
receive an interview for the lieutenant position. (R. 37-1, Pl.’s Resp. to Def.’s Stmt. of Facts J
100.) Plaintiff showed Chief Campbell her certified mail teceipt, and they faxed a copy of the
receipt to Mr. Valentine. (/d.) Mr. Valentine explained to Chief Campbell that Plaintiff did not
receive an interview because CMS Personnel did not receive an application from her. (Ud. at J
101.) Plaintiff did not raise the issue again to anyone else at CMS. (Id. at ¢ 103.) The parties
dispute whether Mr. Valentine told Plaintiff that CMS would grant her an interview for the
position if she faxed Mr. Valentine the return receipt card. (R. 42-1, Def.’s Resp. to Pl.’s Add’1
Stmt. of Facts 35.)

Cc. Other applicants

1. Luis Davila

Luis Davila interviewed for the lieutenant position on May 2, 2001, and CMS promoted
him to that position in October of 2001. (R. 37-1, Pl.’s Resp. to Def.’s Stmt. of Facts {1 80,
105.) Mr. Davila’s bid form, submitted February 9, 2001, indicates that he did not have a
Promotional grade at the time of his application, but that he had submitted promotional
application CMS 100B for a grade. (R. 42-1, Def.’s Resp. to Pl.’s Add’ Stmt. of Facts 760; R.
37-1, Pl.’s Resp. to Def.’s Stmt. of Facts, Ex. J.) The parties dispute the facts surrounding Luis
Davila’s promotional grade application. Plaintiff offers two promotional employment CMS
100B applications submitted to CMS by Luis Davila— one dated February 9, 2001 and the other
dated October 8, 2001. (R. 42-1, Def.’s Resp. to Pl.’s Add’l Stmt. of Facts 51.) Defendant
denies that Mr. Davila’s application for the lieutenant position, as opposed to his application for

6



applications by the closing deadline.’ (R. 37-1, Pl.’s Resp. to Def.’s Stmt. of Facts § 77; R. 37-1,
PL.’s Resp. to Def.’s Stmt. of Facts, Ex. B 25.)

Mr. Valentine was involved in conducting eight interviews for the open lieutenant
position on May 2, 2001 at the IRTC. (R. 37-1, Pl.’s Resp. to Def.’s Stmt. of Facts 78.) In
October, CMS promoted Luis Davila to the open lieutenant position. (id. at J 105.)

B. Plaintiff's Application For The Lieutenant Position

On February 13, 2001, Plaintiff completed a CMS 100 application for the position and
sent it overnight by certified mail to Room 500 of the Stratton Office Building in Springfield,
Illinois.‘ (R. 37-1, Pl.’s Resp. to Def.’s Stmt. of Facts ff 90, 92, 94; R. 42-1, Def.’s Resp. to
PI.’s Add’! Stmt. of Facts, Ex. G.) Plaintiff received an “A” promotional grade and qualified for
the lieutenant position. (R. 37-1, Pl.’s Resp. to Def.’s Stmt. of Facts 4 93.) An “A” grade
indicates that an applicant is “well qualified” for the position based on the position’s minimum
requirements. (Jd. at ] 18.) Plaintiff did not receive a response or an interview from CMS
regarding her application. (Id. at {] 95-97.)

On the day CMS conducted other interviews, Plaintiff spoke with Chris Valentine. (Id. at

98.) Mr. Valentine told her that Room 519 of the Stratton Building had not received her

3 Plaintiff denies this fact, and in support of her denial she asserts that Mr. Valentine has
no personal knowledge of the February 7, 2001 job posting or whether any of the applications
were late or on time because he was not the person making those determinations. (See R. 37-1,
Pl.’s Resp. to Def.’s Stnt. of Facts 477.) The Court acknowledges that Mr. Valentine testified
that he did not personally see when the applications came in and would not know when they are
late. (R. 37-1, Pl.’s Resp. to Def.’s Stmt. of Facts, Ex. B 20-21, 51.) Mr. Valentine did,
however, testify that he was familiar with the procedures followed in Room 519 of the Stratton
Building and that he looked for applications that were not late for inclusion in the interview
process. (/d. at 20-22, 25.) Accordingly, the Court will consider Mr. Valentine’s testimony
regarding the normal course of business in Room 519 of the Stratton Building.

‘ Plaintiff objects to this statement of fact on the grounds that it is conclusory. The Court
disagrees, ‘


Ms. Swanson-Johnson states she sent a “yellow application” to Room 500 of the Stratton
Building before February 14, 2001. (R. 37-1, Pl.’s Resp. to Def.’s Stmt. of Facts, Ex. C 80-81.)
The record indicates that the CMS 100B grade promotional application, not the bid form or the
CMS 100 application form, was a yellow form. (R. 37-1, Pl.’s Resp. to Def’s Statement of
Facts, Ex. I.) (stating “If you are applying for a position that would result in a promotion and do
not have a current grade for this title, you must submit the yellow competitive promotional
application (CMS 100B), to Central Management Services, Room 500 Stratton Office Building,
Springfield, IL.[sic] 62706”). Then on February 26, 2001, twelve days after the deadline for
applications, Ms. Swanson-Johnson sent another yellow form and a bid form to Room 519 of the
Stratton Building. (R. 37-1, Pl.’s Resp. to Def.’s Stmt. of Facts, Ex. C 81-84.) Ms. Swanson-
Johnson testified that Mr. Valentine informed her that she did not receive an interview because
his office received her application late. (Jd. at 86.) Ms. Swanson-Johnson also testified that Mr.
Valentine informed her that she sent her “application/bid form” to the wrong room and that the
correct room was Room 500 of the Stratton Building. (Jd. at 41.) This is consistent with the
testimony above, which indicates that Ms, Swanson-Johnson sent her promotional grade
application to Room 519 instead of Room 500.

Even viewing this testimony in the light most favorable to Plaintiff, it supports rather
than refutes Defendant’s assertion that it denied interviews to applicants who sent application
materials in late and to the incorrect room. Plaintiff has not provided any evidence that
Defendant’s reason for not granting her an interview or a promotion was pretextual,

Accordingly, Defendant’s motion for summary judgment is granted.

18



Ms. Swanson-Johnson’s deposition indicates that she initially sent a yellow form to
Room 500 of the Stratton Building before February 14, 2001. (R. 37-1, Pl.’s Resp. to Def.’s
Stmt. of Facts, Ex. C 81-82.) After this first mailing, Ms. Swanson-Johnson testified that she
submitted another yellow application and a bid form to Room 519 of the Stratton Building no
earlier than February 26, 2001. (dd. at 81, 84.) The envelope in which Ms. Swanson-Johnson
testified she sent these documents contained a cancelled stamp date of March 3, 2001. (Id. at 42, ,
85.)

LEGAL STANDARDS

Summary judgment is proper when “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 triable fact exists only if “the evidence
is such that a reasonable jury could return a verdict for the nonmoving party.” Pugh v. City of
Aitica, 259 F.3d 619, 625 (7 Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986)). The party seeking summary judgment has
the burden of establishing the lack of any genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). A party will
successfully oppose summary judgment only if it presents “definite, competent evidence to rebut
the motion.” Equal Employment Opportunity Comm’n v. Sears, Roebuck & Co., 233 F.3d 432,
437 (7" Cir. 2000) (quotations and citation omitted). Courts consider the evidentiary record in
the light most favorable to the nonmoving party, and draws all reasonable inferences in her

favor. Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7 Cir. 2002).


whe

Mine Orr Foren (097)
: United States District Court, Northern District of Minois
seaminge| Amys suze | Siete
CASE NUMBER 02 C 9492 DATE 11/9/2004
CASE Simmons vs. Dept. of Central
TITLE
{In the following box (a) indicate the party filing the motion, e.g., plaintifY, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.)
DOCKET ENTRY:
(1) a Filed motion of [ use listing in “Motion” box above.]
Q) Qa Brief in support of motiondue
8) a Answer brief to motion due___. Reply to answer briefdue___.
(4) a Ruling/Hearing on setfor_ at
(5) a Status hearing[held/continued to] [set for/re-set for]on__—_—ssetfor__—_at
(6) a Pretrial conference[held/continued to] [set for/re-set for]on__——ssetfor at
(7?) o Trial[set for/re-set for]on___at
(8) Qo {Bench/Jury trial] [Hearing] held/continued to at
Q) Qa This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to)
OOFRCP4(m) CLocal Rule 41.1 OFRCP41(a)(1) CIFRCP41(a)(2).
(0) = [Other docket entry] | Enter Memorandum Opinion and Order. Defendant's motion for summary

judgment (R. 25-1) is granted. Defendant's motion to strike (R. 44-1) is denied as moot. Status hearing

set for 12/1/04 is stricken.

(ay!

al) @ [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. Ok
Notified counsel by telephone. NOV 19 1
V | Docketing to mail notices.
Mail AO 450 f
7 MAA em Wyage Lapesia “sn
Copy to judge/magistrate judge. ~ oy 7
J courtroom L129 Md 6- AGNAGUC
TH deputy's
initials —
Date/time teccivied ini <4
central Clerk's Office



claims in the complaint, “the EEOC charge and the complaint must, at a minimum, describe the
same conduct and implicate the same individuals.” Id. at 501 (citing Rush, 966 F.2d at 1110)
(emphasis in original). Plaintiff fails the first part of the test because being denied an interview
and a promotion and being held to different standards of performance or being disciplined
involve different standards of conduct. Accordingly, the Court grants Defendant’s motion for
summary judgment as to Plaintiff's claims that 1) Defendant held Plaintiff to different standards
of performance because she is a woman while not grading male officers on the same standards of
performance, and 2) Defendant disciplined Plaintiff without giving any reasons in violation of
Defendant’s policy because of her sex and in retaliation for raising concerns of discrimination.‘

IL. Defendant Is Entitled To Summary Judgment With Respect To Plaintiff's § 1981
Claim

Defendant argues that it is entitled to immunity from claims pursuant to § 1981 under the
Eleventh Amendment of the United States Constitution. Defendant is correct. Eleventh
Amendment immunity shields states and their agencies from liability under § 1981. Hearne v.
Board of Educ. of City of Chicago, 185 F.3d 770, 776 (7* Cir. 1999); Rucker v. Higher Educ.
Aids Bd., 669 F.2d 1179, 1184 (7 Cir. 1982), Plaintiff concedes to the dismissal of any § 1981
claims. Accordingly, Defendant’s motion for summary judgment is granted with respect to

Plaintiff's § 1981 claims.

§ Even if these claims were within the scope of Plaintiff's EEOC charges, there are no
genuine issues of material fact supporting either claim. Plaintiff stated in her Additional
Statement of Facts that she was never disciplined or suspended. (R. 42-1, Def.’s Resp. to Pl.’s
Add’! Stmt. of Facts 4 19.) Further, Plaintiff graded herself the same as her supervisor in all
categories but one on her yearly performance evaluations in 2001land 2002. (R. 37-1, Pl.’s Resp.
to Def.’s Stmt. of Facts f[ 153, 154.) Her disagreement with her evaluations does not constitute
a materially adverse employment action. Smart v. Ball State Univ., 89 F.3d 437, 442 (7" Cir.
1996) (unfavorable performance evaluations alone do not constitute an adverse employment
action).

11


discrimination.” Rush v. McDonald’s Corp., 966 F.2d 1104, 1110 (7" Cir. 1992). This
limitation gives an employer notice of its employee’s grievance and gives the EEOC and the
employer an opportunity for settlement. Id.

Plaintiff filed two separate EEOC charges. In the first charge, filed on December 7,
2001, Plaintiff alleged that CMS denied her an interview and promotion for the lieutenant
position in 2001 based on her sex. (R. 42-1, Def.’s Resp. to Pl.’s Statement of Facts, Ex. B.) On
March 25, 2002, Plaintiff filed a second charge claiming Defendant forced her to surrender her
badge and weapon in retaliation against her for filing the first EEOC charge, (R. 42-1, Def.’s
Resp. to Pl.’s Statement of Facts, Ex. C.) Defendant argues that Plaintiffs claims that CMS 1)
held her to different standards of performance while not grading male officers by the same
standards, and 2) disciplined her without giving reasons because of her sex and in retaliation for
her first EEOC charge are beyond the scope of either EEOC charge. Plaintiff agrees to dismiss
her claim that Defendant retaliated against her by ordering her to surrender her badge and
weapon. Plaintiff argues, therefore, that Defendant’s argument that these claims fall outside the
scope of her second EEOC charge is moot. Plaintiff further claims that her December 7, 2001
EEOC charge wholly supports her remaining claims.

A Title VII plaintiff does not have to allege every fact that forms the basis of each claim
in her EEOC complaint because most EEOC charges are completed by laypersons rather than
lawyers. Cheek, 31 F.3d at 500. The test for determining whether a plaintiff’s claims are within
the scope of her EEOC charge is whether 1) “there is a reasonable relationship between the
allegations in the charge and the claims in the complaint” and 2) “the claim in the complaint can
reasonably be expected to grow out of an EEOC investigation of the allegations in the charge.”
Id. For a reasonable relationship to exist between the allegations in the EEOC charge and the

10


a promotional grade, was dated October 8, 2001, but Defendant does not provide any support for
its general denial that there are two CMS 100B forms dated in February and October of 2001.
ia.)
2. Hope Swanson-Johnson

The parties also dispute the facts surrounding Hope Swanson-Johnson’s application for
the lieutenant position. Plaintiff contends that Defendant denied another female applicant, Hope
Swanson-Johnson, an opportunity to interview for the lieutenant position. (R. 42-1, Def.’s Resp.
to Pl.’s Add’] Stmt. of Facts 11 > Ms. Swanson-Johnson testified that she was originally
assigned an interview but Mr, Valentine did not interview her. (id, at 712.) She further testified
that Mr. Valentine told her that he would not interview her because she sent the application to
the wrong location. (Jd. at { 13.) Although Ms. Swanson-Johnson believes she correctly sent a
bid form and application to Mr. Valentine’s office before February 14, 2001, Mr. Valentine
informed Ms. Swanson-Johnson that Room 500 of the Stratton Building was the correct address
to send the documents for consideration for promotion. (id.) Defendant denies these facts and

supports its denial with Mr. Valentine’s affidavit. °

5 In his deposition, Mr. Valentine stated that he did not have an. independent recollection
of whether several of the listed applicants, not including Hope Swanson-Johnson, filed their
applications or bid forms late. (R. 37-1, Pl.’s Resp. to Def.’s Stmt. of Facts, Ex. B 74-75.) Mr.
Valentine also testified that he did not review any documents other than those in Exhibit E5,
which consisted of Mr. Martin’s late bid form and an employee bid form from the Department of
Corrections. (Id. at 70-73.) Instead, Mr. Valentine testified that Assistant Attomey General
Hayes told him the names of the individuals who filed their applications or bid forms late.
Plaintiff moves to strike this portion of Mr. Valentine’s affidavit because it is not based on Mr.
Valentine’s personal knowledge. Mr. Valentine never testified that he did not have an
independent recollection of Hope Swanson-Johnson’s, Clarence Cushing’s, or Tracey Grantlen’s
applications or bid forms being late. The Court, therefore, will let the statement stand as to these
applicants.


Cc. Plaintiff's Work Performance

Defendant never disciplined or suspended Plaintiff. (R. 42-1, Def.’s Resp. to Pl.’s Add’!
Stmt. of Facts J 19.) In Plaintiff's May 2001 performance review, Lt. Berger gave Plaintiff the
same grades that Plaintiff gave herself in all categories except in “Human Relations.” (R. 37-1,
Pl.’s Resp. to Def.’s Stmt. of Facts J 153.) Plaintiff graded herself as “Exceeding Expectations”
in “Human Relations,” but Lt. Berger gave her a grade of “Meeting Expectations.” (/d.) In
Plaintiff's May 2002 performance review, Lt. Berger again gave Plaintiff the same grades that
Plaintiff gave herself in all categories except in “Human Relations.” (Id. at 154.) Plaintiff
graded herself as “Meeting Expectations,” but Lt. Berger gave her a grade of “Needing
Improvement.” (Id.)
I. Procedure For The Promotion Of CMS Officers

A The 2001 Lieutenant Position And Interviews

On February 7, 2001, CMS began inviting applications for a vacant police lieutenant
position. (R. 42-1, Def.’s Resp. to PI.’s Add’! Stmt. of Facts ] 26.) All CMS officer ranks in
2001 were eligible to apply for the lieutenant position if the officers met the minimum
requirements. (R. 37-1, Pl.’s Resp. to Def.’s Stmt. of Facts 52.) CMS posted the request for
applications for the lieutenant position on a bulletin board on the third floor of the IRTC outside
of the CMS Personnel Office. (id. at ] 65.) The last date to apply for the position was February
14, 2001. (Id. at ] 64.) The posting stated that employees interested in applying for the position
should complete application form CMS 100 and mail it to Room 519 of the Stratton Office

Building in Springfield, Llinois within the posted time limits. (Id. at ¢ 70.) The posting also

2 Plaintiff denies this statement of fact, but her cited documents do not support her denial.
The Court, therefore, deems the statement admitted for summary judgment purposes.

3


Chief Campbell enforced this practice throughout her tenure as Chief at CMS. (R. 37-1, Pl.’s
Resp. to Def.’s Stmt. of Facts ff 111, 114.) Plaintiff also admits that Chief Campbell and

several other officers, including male officers, surrendered their weapons and badges while on
extended leaves of absence. (/d. at [¥ 127,130, 133, 137, 138.) Accordingly, the Court grants
Defendant’s motion for summary judgment with regards to all of Plaintiff's retaliation claims.

IV. Defendant Is Entitled To Summary Judgment With Respect To Plaintiff’s
Discrimination Claims

Defendant argues that Plaintiff cannot establish a prima facie case of discrimination for
her claims that Defendant denied Plaintiff an interview and failed to promote her because of her
sex. Defendant also asserts that it has a legitimate, nondiscriminatory reason for not
interviewing or promoting Plaintiff, which Plaintiff cannot demonstrate is pretextual.

A. Plaintiff Establishes A Prima Facie Case Of Gender Discrimination

Like a claim for retaliation, a plaintiff can establish a prima facie case of discrimination
by either offering direct evidence of discriminatory intent or by proceeding under the burden-
shifting method set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct.
1817, 1824, 36 L. Ed. 2d 668 (1973). Millbrook v. IBP, Inc., 280 F.3d 1169, 1174 (7* Cir.
2002). Plaintiff may only attempt to prove her claim of discrimination by using the burden-
shifting method because there is no direct evidence that Defendant discriminated against her?
To establish a prima facie case of discrimination, Plaintiff must show that: 1) she is a member of
a protected class; 2) she applied for and was qualified for the open lieutenant position; 3)
Defendant did not grant her an interview or the promotion despite her qualifications; and 4)

Defendant promoted and interviewed a member of the nonprotected class who was not more

* Plaintiff agrees that no one told her that she did not receive an interview because she is
a woman. (R. 37-1, Pl.’s Resp. to Def.’s Stmt. of Facts { 102.)

14



B. Plaintiff Has Not Demonstrated That Defendant’s Nondiscriminatory Reason
For Not Interviewing Or Promoting Plaintiff Was Pretextual

Because Plaintiff has established a prima facie case, the burden shifts to Defendant to
offer a legitimate, nondiscriminatory reason for its employment decision. Millbrook, 280 F.3d at
1174. Once this burden is met, any inference of discrimination disappears, and it is Plaintiff's
burden to demonstrate that Defendant’s nondiscriminatory reason was pretextual. Jd. Pretext
“means a lie, specifically a phony reason for some action.” Jd. at 1175 (quoting Russell v. Acme-
Evans Co., 51 F.3d 64, 68 (7* Cir, 1995)). “A pretext for discrimination means more than an
unusual act; it means something worse than a business error; pretext means deceit used to cover
one’s tracks.” Grube v, Lau Indus., Inc., 257 F.3d 723, 730 (7" Cir. 2001) (quotations and
citation omitted). To demonstrate pretext Plaintiff must demonstrate that Defendant’s
nondiscriminatory reason for denying her an interview and the promotion either: “1) has no basis
in fact; 2) was not the real reason; or 3) was insufficient to motivate the action.” Hoffman-
Dombrowski v. Arlington Int'l Racecourse, Inc., 254 F.3d 644, 652 (7* Cir. 2001).

Defendant asserts that it denied Plaintiff an interview because she failed to properly
submit her application for the lieutenant position when she mailed her application to Room 500
of the Stratton Building instead of Room 519. Plaintiff argues that Defendant’s asserted
nondiscriminatory reason is pretextual because Mr. Valentine testified that he received
Plaintiff's application. Plaintiff also asserts that Defendant’s reason is pretextual because

Defendant did not follow its stated application procedures by denying Hope Swanson-Johnson

plaintiff was clearly better qualified for the position at issue.” Jd. (quotations and citation
omitted). Defendant’s proffered non-discriminatory reason for denying Plaintiff an interview is
not that it selected the most qualified candidate, so evidence of the applicants’ competing
qualifications is not evidence of pretext or of Plaintiff's failure to establish a prima facie case of
discrimination.

16



Def.’s Sut. of Facts 13, 33.) CMS also has its own police force responsible for patrolling
and policing various properties owned and maintained by the State of Illinois. (/d. at $21.) In
Chicago, Illinois, the CMS police force polices the James R. Thompson Center (“JRTC”) and the
State of Illinois Building (now the Bilandic Building) among other sites. (/d. at 22.) In 2001,
the available ranks on the CMS police force included Police Officer I, Police Officer II, Police
Officer III, Lieutenant, Deputy Chief, and Chief. (d. at § 26.)

B. Plaintiff Dorothy Simmons

Plaintiff started working for the State of Illinois in 1971 with the Department of Mental
Health (“DMH7”) in a clerical position. (R. 37-1, Pl.’s Resp. to Def.’s Stmt. of Facts 32.) In
1984, when the DMH police merged into the newly created CMS, Plaintiff began working as a
Clerk-Stenographer III. (7d. at ]33.) In 1993, Plaintiff applied for a police officer position with
the CMS police force. (/d.) After CMS accepted her application, she trained for a year and
became a Police Officer I on May 1, 1994. (Id. at ] 36; R. 25-1, Def.’s Stmt. of Facts, Ex. D 16.)
Plaintiff was injured in February 2001, and CMS placed her on an injury leave of absence from
October 24, 2001 to November 1, 2002. (R. 25-1, Def.’s Stmt. of Facts, Ex. D 20-21.) The
CMS police had a practice of requiring officers to turn in their equipment while on an extended
leave of absence, and on February 7, 2002, Plaintiff's supervisor, Lieutenant Tony Berger, called
Plaintiff at home and informed her that she had to turn in her badge and weapon. (R. 37-1, Pl.’s
Resp. to Def.’s Stmt. of Facts ff 111, 116.) Plaintiff complied with his request that same
afternoon. (Jd. at { 120.) Plaintiff never returned to active duty and retired on November 1,

2002. (Id. at 99 44, 45.)



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

EASTERN DIVISION
DOROTHY SIMMONS, )
)
Plaintiff, )
) No. 02 C 9492
v. )
)
DEPARTMENT OF CENTRAL MANAGEMENT ) DOCKETED
SERVICES, } NOV 10 2008
Defendant. »)

MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Court Judge:

Plaintiff Dorothy Simmons claims that Defendant Department of Central Management
Services of the State of Illinois (“CMS”) failed to promote her based on her sex and retaliated
against her for filing a charge of discrimination. Defendant moves for summary judgment. As
detailed below, the undisputed facts demonstrate that Defendant is entitled to judgment as a
matter of law. Accordingly, Defendant’s motion for summary judgment is granted.

FACTUAL BACKGROUND'
IL Plaintiff's Employment With Central Management Services

A. Central Management Services

Created in 1984, CMS is responsible for drafting, disseminating, collecting and
reviewing bids and applications for promotions and promotional grades for the government

employees of all of the state’s agencies as well as for its own employees. (R. 37-1, Pl.’s Resp. to

' Defendant has submitted a motion to strike paragraphs 7, 18, 20, 70, 72, 73, 79, 80 and
96 of Plaintiff's Add’! Stmt. of Facts Pursuant to Local Rule 56.1. Plaintiff also moves the
Court to strike those portions of Chris Valentine’s affidavit where he testified to matters outside
of his personal knowledge. Those portions of Mr. Valentine’s affidavit and either party’s
statement of facts that are irrelevant, contain hearsay, lack foundation, lack factual support, and
are not based on personal knowledge are not considered here.



Ii. Defendant Is Entitled To Summary Judgment With Respect To Plaintiff's
Retaliation Claims

Plaintiff's remaining retaliation claims are that Defendant took her badge and weapon
and failed to promote her. Defendant asserts that Plaintiff fails to state a prima facie case of
retaliation for either allegation. Plaintiff concedes to dismiss her claim of retaliation for being
ordered to surrender her badge and weapon, but it is unclear whether Plaintiff is also conceding
her claim that Defendant failed to promote her in retaliation for her filing of the first EEOC
charge, Consequently, the Court will address each remaining retaliation claim in turn.

To establish a prima facie case of retaliation under Title VII, a plaintiff must provide
either direct evidence of retaliation or use a burden-shifting approach. Fyfe v. City of Fort
Wayne, 24) F.3d 597, 601 (7* Cir. 2001). Using the burden-shifting approach, which Plaintiff
must because Plaintiff offers no direct evidence of retaliation,’ Plaintiff must demonstrate that:
1) CMS subjected her to an adverse employment action after she filed her EEOC charge; 2) she
was performing her job satisfactorily at the time; and 3) CMS did not subject similarly situated
employees who did not file a charge to an adverse employment action. Hudson v. Chicago
Transit Auth., 375 F.3d 552, 560 (7 Cir. 2004); Stone v. City of Indianapolis Pub. Utils. Div.,
281 F.3d 640, 642 (7" Cir. 2002). If Plaintiff establishes a prima facie case, the burden then
shifts to Defendant to express a legitimate, non-retaliatory reason for the challenged action.
Russell v. Board of Trs. of the Univ. of linois, 243 F.3d 336, 344 (7 Cir. 2001). Upon such a
showing, the burden shifts back to Plaintiff to provide evidence that the stated reason is

pretextual. Id.

7 Chief Campbell gave Plaintiff the only explanation for the recovery of her badge and
weapon. She told Plaintiff that she was enforcing the practice of recovering weapons and
credentials as to all officers on extended leaves of absence. (R. 37-1, Pl.’s Resp. to Def.’s Stmt.
of Facts 4] 128, 129.)

12



qualified. Grayson v. City of Chicago, 317 F.3d 745, 748 (7* Cir, 2003). Of these three
elements, only the fourth is at issue.

Plaintiff asserts that she has established her prima facie case of discrimination because
Luis Davila, the man promoted to the lieutenant position, was not more qualified for the
position. Specifically, she asserts that Mr. Davila was less qualified for the position because he
failed to obtain an “A” promotional grade before he interviewed for the lieutenant position. In
support of her argument, Plaintiff points to Mr. Davila’s bid form, which indicates that he did
not have a promotional grade at the time he submitted his bid form for the lieutenant position.
Plaintiff also points to two promotional grade applications -- one dated February 9, 2001 and the
other dated October 8, 2001. From these two applications, Plaintiff infers that Mr. Davila did
not receive the appropriate promotional grade before he was interviewed and offered the job, and
that he submitted the October paperwork several days prior to his assumption of his lieutenant
duties to complete the missing paperwork. Defendant offers no explanation for the October 8,
2001 promotional grade application, and only asserts that Mr. Davila timely submitted his bid
form and followed the requirements of the job posting. Because the Court must consider the
evidentiary record in the light most favorable to the nonmoving party and draw all reasonable
inferences in her favor, the Court finds the presence of the two promotional grade applications
sufficient to raise a question of material fact as to Mr. Davila’s qualifications for the job.

Consequently, the Court finds Plaintiff has established a prima facie case of discrimination.®

° Defendant cites Millbrook v. IBP, Inc., 280 F.3d 1169, 1180 (7" Cir. 2002) for the
ptoposition that Plaintiff must establish that she was the best applicant for the position to present
a prima facie case of discrimination. Defendant’s reliance on Millbrook is misplaced. Millbrook
states that “where an employer’s proffered non-discriminatory reason for its employment
decision is that it selected the most qualified candidate, evidence of the applicants’ competing
qualifications does not constitute evidence of pretext unless those differences are so favorable to
the plaintiff that there can be no dispute among reasonable persons of impartial judgment that the

15