harassment was based on her race; (3) the harassment was so severe or pervasive as to alter the
conditions of her working environment by creating a hostile or abusive situation; and (4) there is

a basis for employer liability. See Williams v. Waste Management of Illinois, Inc., 361 F.3d

1021, 1029 (7th Cir. 2004). The abusive working environment must qualify both subjectively
and objectively. See Silk, 194 F.3d at 788. An objective hostile work environment is one that a

reasonable person would find hostile and abusive. See Harris v. Forklift Systems, Inc., 510 U.S.

17, 21 (1993)). In short, the plaintiff must show that her work environment was “hellish.” See
Rogers v. City of Chicago, 320 F.3d 748, 752 (7th Cir. 2003).

When considering these issues, the court may look at conduct beyond that which falls
within the relevant statutory period, provided that at least one act contributing to the claim

occurs within the filing period. See Nat’l. R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117

(2002). Because the very nature of a hostile work environment claims involve repeated
instances of conduct, thus making them different in kind from discrete acts, a single act of
harassment may not be actionable on its own. See id. at 115-117. However, when combined

with a series of acts occurring over a period of time, the cumulative effect of these actions may

constitute one unlawful employment practice. See id, at 117 (citing Harris, $10 U.S. at 21).

In this case, the City objects to Tovar producing evidence of discrimination going beyond
the 300-day limitation period set by Title VII. However, Tovar has identified various discrete
acts which fall within this period. As such, for purposes of deciding whether the City is entitled
to summary judgment on Tovar’s hostile work environment claim, the court may consider all of
the conduct that Tovar alleges encompasses the racially hostile work environment, including any
conduct going dating back to 1996. See Morgan, 536 U.S. at 118. However, Tovar has provided
no admissible evidence of any acts which occurred prior to the 300-day period.

19


to establish that the City’s refusal to transfer her constitutes an adverse employment action. See
Hermreiter, 315 F.3d at 745 (finding no adverse employment action where a field investigator
was reassigned to an inside auditing position despite his purely subjective preference for the
investigation position); see also Hill, 218 F.3d at 645 (finding that a failure to transfer to a lateral
position is not an adverse employment action).

Moreover, the City provides evidence which shows that Sergeant Mahon was not
responsible for staffing the 911 Security positions. These positions are staffed by Commander
Jerry Robinson (male, African-American), Deputy Director Steward (male, African-American),
and Sergeant Bratek (male, Caucasian). Tovar claims that only Sergeant Mahon discriminated
against her because of her race. To establish that Sergeant Mahon made the decision not to send
her to the 911 Security detail, Tovar relies on a statement by Officer Braxton made to an Internal
Affairs investigator. In his statement, Braxton stated that he heard rumors in the cafeteria that
Sergeant Mahon said that Tovar was not to be assigned to the 911 Security detail. See Pl.’s
Resp. to Def.’s LR 56.1 Stmt. of Mat. Facts | 69. Such an unreliable statement based on a rumor
is inadmissable hearsay, see Fed. R. Evid. 802, and also lacks the necessary foundation to show
that it is based on Braxton’s personal knowledge. See Fed. R. Evid. 602.

Tovar also cannot show that similarly situated employees were treated more favorably.
Tovar admits that she does not know whether there were any available positions in the 911
Security detail when she applied. She also fails to provide evidence showing who obtained these
positions when her application was denied. Further, Officer Braxton stated in his statement to
IAD that at the time of her request, the makeup of officers in the 911 Security detail position was
“about 50/S0 of white and black officers.” Pl.’s Resp. to Def.’s LR 56.1, Ex. 1, at 2. Thus,
Tovar cannot show that other similarly situated non-African-American police officers were

13



complications associated with her pregnancy, Sergeant Mahon informed her that she needed to
change her medical roll status.

Tovar returned from maternity leave on August 6, 2001. Upon return, Tovar was not
assigned to work any administrative position within ARS. In September 2001, Tovar requested
to work on the 911 Security Detail. At that time, she did not know whether there were any
available positions. Tovar’s request was denied.

On November 7, 2001, Tovar filed a CR accusing Sergeant Mahon of race and gender
discrimination and harassment. Tovar’s CR stated that she believed Sergeant Mahon was
discriminating against her because she was an African-American female. Specifically, Tovar
complained that Sergeant Mahon’s decisions to not allow her to work in administrative positions
within ARS and to deny her assignment to the 911 Security Detail were based upon her race and
gender. Additionally, Tovar also complained of Sergeant Mahon’s conduct toward her while on
maternity leave.

B. Procedural Framework

On November 19, 2001, Tovar filed a charge with the Equal Employment Opportunity
Commission (“EEOC”), alleging that she was discriminated against on the basis of her race and
gender, as well as retaliated against for filing an internal complaint of discrimination. The
EEOC issued Tovar a Notice of Right to Sue letter on March 29, 2002. On June 28, 2002, Tovar
then filed this present suit, within the 90 day period mandated by 42 U.S.C. § 2000e-16(c).

Tovar filed a Second Amended Complaint on May 6, 2003, alleging that she was
discriminated against on the basis of her gender and race, as well as retaliated against for filing

an internal complaint of discrimination, in violation of Title VII of the Civil Rights Act of 1964,


In an attempt to support her hostile work environment claim, Tovar reiterates all of her
claimed discrete acts of discrimination and further asserts that she endured a racially hostile and
abusive work environment manifested by disparate treatment with respect to discipline and work
assignments. Specifically, Tovar claims that she was treated less favorably than other non-
African-American officers, often by being addressed in a humiliating manner and denied
favorable work assignments. Tovar further claims that Sergeant Mahon repeatedly supervised
her work performance more closely than he supervised other non-African-American officers.
Additionally, Tovar asserts that African-American officers in general were treated less favorably
than other officers. As discussed above, much of the evidence Tovar cites in support of her
position consists of general conclusory allegations. Tovar provides no details of the statements,
instead discussing the issue in broad generalities. Further, Tovar does not provide dates or even
a time frame of when many of the statements occurred. It is well-settled that “conclusory
statements, not grounded in specific facts, are not sufficient to avoid summary judgment.” Lucas

y. Chicago Transit Authority, 367 F.3d 714, 726 (7th Cir. 2004) (citing Albiero v. City of
Kankakee, 246 F.3d 927, 933 (7th Cir. 2001)). In sum, there is simply no evidence from which a

reasonable jury could conclude that the City subjected Tovar to a hostile work environment.

Accordingly, summary judgment is granted as to Tovar’s hostile work environment claim.

20


Under the indirect methodology, Tovar must first present evidence sufficient to establish
a prima facie case that the City retaliated against her in violation of Title VII. See id. In this
case, a prima facie case is established if Tovar can demonstrate that: (1) she engaged in
statutorily protected activity; (2) she performed her job according to the City’s legitimate
expectations; (3) despite meeting the City’s legitimate expectations, she suffered a materially
adverse employment action; and (4) she was treated less favorably than similarly situated

employees who did not engage in statutorily protected activity. See id.; see also Stone v. City of

Indianapolis Pub. Util. Div., 281 F.3d 640, 644 (7th Cir. 2002). If Tovar fails to establish any
element of the prima facie case, her retaliation claim fails and cannot survive summary
judgment. See id.

Tovar alleges that just two days after she filed the internal complaint, she was talking to
Officer Braxton at his workstation when Sergeant Mahon approached, started yelling at her and
instructed her that she could not leave her seat. Tovar also indicates that Officer Braxton was
present and witnessed this exchange. Officer Braxton’s account of this exchange is instructive
with regard to Tovar’s claim of retaliation. In his deposition testimony, Officer Braxton stated
that Sergeant Mahon informed Tovar that she was supposed to be at her workstation, stating:
“You are not supposed to be over here. I expect you to be at your workstation working.” Def.’s
Local 56.1(a) Statement of Undisputed Material Facts, Braxton Dep. at 29. When Officer
Braxton was questioned with respect to what occurred and Sergeant Mahon’s demeanor, the
following dialogue took place:

Counsel for City: Okay. Sergeant Mahon, did he yell at Officer Tovar?

Off. Braxton: No, no.

Counsel for City: Did he say anything else that you can recall?
Off. Braxton: No.



To prove race or gender discrimination, Tovar must present either direct or indirect

evidence of her claims. See Krchnavy v. Limagrain Genetics Corp., 294 F.3d 871, 875 (7th Cir.

2002); see also Robin v. Espo Engineering Corp., 200 F.3d 1081, 1088 (7th Cir. 2000). If the

plaintiff cannot present direct evidence to establish the discrimination claim, she may attempt to
prove her case indirectly with circumstantial evidence using the familiar McDonnell Douglas

burden-shifting method. See Krchnavy, 294 F.3d at 875 (citing McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 801-03 (1973)).

The McDonnell Douglas method of proof entails three steps. See Robin, 200 F.3d at
1088. First, the plaintiff must establish a prima facie case of employment discrimination. See
id. If the plaintiff successfully presents a prima facie case, a presumption of discrimination
arises and the burden then shifts to the defendant to offer evidence of a legitimate,
nondiscriminatory reason for taking an adverse employment action against the plaintiff. See id.
“{Tjhe plaintiff must then have an opportunity to prove by a preponderance of the evidence that
the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for

discrimination.” Baron v. City of Highland Park, 195 F.3d 333, 339 (7th Cir. 1999) (citing

Wilson v. AM Gen. Corp., 167 F.3d 1114, 1119-20 (7th Cir. 1999)).

In this case, Tovar offers no direct evidence of race or gender discrimination. As such,
the court will analyze Tovar’s Title VI claims under the McDonnell Douglas burden-shifting
method. See Krchnavy, 294 F.3d at 875. To establish a prima facie case of race or gender
discrimination under Title VII, Tovar must show that: (1) she was a member of the protected
class; (2) she was meeting her employer’s | egitimate job expectations; (3) she suffered an
adverse employment action; and (4) similarly situated employees outside the protected class
were treated more favorably. See, e.g., Traylor v. Brown, 295 F.3d 783, 788 (7th Cir. 2002),

9


American Hoechst Corp., 24 F.3d 918, 922-23 (7th Cir. 1994). Under this standard,
“{cJonclusory allegations alone cannot defeat a motion for summary judgment.” Thomas v.
Christ Hosp. and Medical Center, 328 F.3d 890, 893-94 (7th Cir. 2003) (citing Lujan v. Nat’l
Wildlife Federation, 497 U.S. 871, 888-89 (1990).
B. Northern District of Illinois Local Rule 56.1

The parties must also comply with Northern District of Illinois Local Rule 56.1, Motions
for Summary Judgment. The purpose of Local Rule 56.1 is to assist the court in identifying
undisputed and disputed facts in order to determine the need for a trial. Local Rule 56.1 is

designed to conserve judicial time and resources. See Bordelon v. Chicago School Reform Bd.

of Trustees, 233 F.3d 524, 527 (7th Cir. 2000) (stating that “[t]hese rules assist the court by
organizing the evidence, identifying undisputed facts, and demonstrating precisely how each side
proposed to prove a disputed fact with admissible evidence” (citation omitted)); Waldridge, 24
F.3d at 922 (stating that the courts are not “obliged in our adversary system to scour the record
looking for factual disputes and may adopt local rules reasonably designed to streamline the
resolution of summary judgment motions”). The importance of complying with Local Rule 56.1
has been the subject of so many opinions of the United States District Court for the Northern
District of Illinois and the Seventh Circuit that further elaboration is not required. See, e.g.,
Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003); Malec v. Sanford, 191 F.R.D. 581, 582-87
(N.D. Ill. 2000). Given the importance of Local Rule 56.1, the Seventh Circuit has consistently
and repeatedly upheld a district court’s discretion to require strict compliance with its local rules
governing summary judgment. See, e.g., Waldridge, 24 F.3d at 922 (collecting cases).
Compliance with Local Rule 56.1 requires “a statement of material facts as to which the
moving party contends there is no genuine issue and that entitle the moving party to a judgment

6


42 US.C. § 2000¢ ef seg. The City responded with the instant motion for summary judgment,
which is fully briefed and before the court.
Il. STANDARD OF DECISION

A, Summary Judgment Standard

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.” Fed. R. Civ. P. 56(c). The moving party has the initial burden to prove that no
genuine issue of material fact exists. See Matsushita Elec. Indust, Co.. Ltd. vy. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). Once the moving party shows that there is no genuine issue of
material fact, the burden shifts to the non-moving party to designate specific facts showing that
there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The
non-moving party cannot rest on the pleadings alone, but must identify specific facts that raise
more than a mere scintilla of evidence to show a genuine triable issue of material fact. See

Murphy v. ITT Technical Services, Inc., 176 F.3d 934, 936 (7th Cir. 1999); see also Fed. R. Civ.

P, 56(e).

In deciding a motion for summary judgment, the court can only consider evidence that
would be admissible at trial under the Federal Rules of Evidence. See Bombard v. Fort Wayne
Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996). When the defendant moves for summary
judgment, the court must view the record and all inferences in a light most favorable to the

plaintiff. See Ameritech Benefit Plan Comm. v. Communication Workers of Am., 220 F.3d 814,

821 (7th Cir. 2000). However, the inferences construed in the plaintiff's favor must be drawn
from specific facts identified in the record that support the plaintiffs position. See Waldridge v.

5


Id. at 29-30. Beyond this November 9, 2001 exchange, Tovar presents no evidence of any other
instances of allegedly retaliatory conduct.

Retaliatory harassment by co-workers or a supervisor can rise to the level of a materially
adverse employment action if it is severe enough to cause a significant change in the plaintiff's
employment status. See Stutler_v. Illinois Dept. of Corrections, 263 F.3d 698, 703 (7th Cir
2001). However, the single isolated exchange relied upon by Tovar to support her claim of
retaliation did not cause a significant change in her employment status. Compare Knox _v.
Indiana, 93 F.3d 1327, 1334 (7th Cir. 1996) (upholding a jury verdict in favor of a plaintiff
whose co-workers embarked on a campaign of vicious gossip and profanity aimed at making
“her life hell” in response to her complaints that a supervisor sexually harassed her). Such a
trivial exchange, as indicated by the deposition testimony of Officer Braxton, cannot establish
any adverse employment action, and Tovar’s claim fails as a matter of law.

C. Hostile Work Environment

Lastly, Tovar alleges that while she was detailed to ARS, she was subjected to a hostile
work environment in violation of Title VII. Tovar asserts that upon being assigned to ARS in
1996, while she was under the command of Sergeant Mahon and Sergeant Bratek, she endured a
racially hostile and abusive work environment. Specifically, Tovar claims that she was treated
less favorably than other non-African-American officers, often by being addressed in a
humiliating manner and denied favorable work assignments. Tovar further claims that Sergeant
Mahon repeatedly supervised her work performance more closely than he supervised other non-
African-American officers.

To establish a hostile work environment based on race, and survive a motion for
summary judgment, Tovar must show: (1) she was subject to unwelcome harassment; (2) the

18



record, or additionally, by referencing a fact that does not refute the fact submitted by the City.
See, e.g., Pl.’s LR 56.1(b)(3)(A) $f 14, 19, 21, 23, 26-27, 31, 38, 40, 47, 54-64, 69-73, 81-82, 88,
94-95. Tovar’s 56.1(b)(3)(B) statement of additional facts is similarly not in compliance with
Local Rule 56.1. It bears emphasis that Local Rule 56.1 was created to assist the court by
relieving a court from the necessity of sifting through the record in search of genuinely disputed
material facts and to prevent a plaintiff from progressing to trial by creating confusion regarding
the pertinent facts and the evidence. Local Rule 56.1 requires Tovar to come forth with specific
evidence to support any of her denials and thus show that any disputes are genuine, and the
failure to do so results in the City’s statement being admitted. See Local Rule 56.1. Therefore,
the court shall take Tovar’s 56.1(b)(3)(A) response as it was submitted and shall treat the
numbered responses as they are written and shall deem any facts admitted as is appropriate under
Local Rule 56.1.
Ill. DISCUSSION

Tovar alleges three theories of liability under Title VII: (1) she was subjected to various
discrete acts of discrimination based on her race and gender; (2) she was retaliated against for
complaining about the discriminatory conduct; and (3) she was subjected to a racially hostile
work environment. The court will address each of these claims separately.
A. Discrete Acts of Discrimination

Tovar alleges several discrete acts of discrimination which fail within the 300-day
limitation period. Specifically, Tovar alleges that the following constitute adverse employment
actions she suffered based upon her race and/or gender: (1) she was not placed in any
administrative positions within ARS; (2) she was denied a transfer to the 911 Security Detail; (3)
she received lower proficiency ratings; and (4) she was called at home while on maternity leave.

8


Minute Order Form (06/97)

yt

United States District Court, Northern District of INinois

wNamcotamanasuee | Charles R. Nongle | Stn Jefe
CASE NUMBER 02 C 4656 DATE 8/27/2004
CASE Tovar vs, City of Chicago
TITLE

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

MOTION: of the motion being presented. ]
Defendant’s Motion for Summary Judgment
DOCKET ENTRY:
(1) o Filed motion of [ use listing in “Motion” box above.]
(2) oO Brief in support of motion due
(3) oO Answer brief to motion due___. Reply to answer brief due.
(4) oO Ruling/Hearing on eset for___—s att
(5) Qo Status hearing[held/continued to] (set for/re-set for]on___——sset for___at
(6) o Pretrial conference[held/continued to] [set for/re-set for]on__setfor__—— ss at__
aM a Trial[set for/re-set for]on___at
(8) oO [Bench/Jury trial] [Hearing] held/continued to___at
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
QFRCP4(m) O Local Rule 41.1 OIFRCP41(a)(1) [1 FRCP41(a)(2).
(10) Ml [Otherdocketentry] Before the court is Defendant’s Motion for Summary Judgment. Defendant’s
motion is granted, terminating this action. It is so ordered.

dl) [For further detail see order attached to the original minute order.] 147

No notices required, advised in open court.

No notices required.
umber of notices

Notices mailed by judge’s staff.

Notified counsel by telephone.

{Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

dave mailed notice
courtroom

deputy’s
initials

Date/time received in 4

central Clerk’s'Oftiée. mailing deputy initials



(2) cases in which a nominally lateral transfer without a change in financial terms
significantly reduces the employee’s career prospects by preventing [her] from
using the skills in which [she] is trained and experienced; and

(3) ‘cases in which the employee is not moved to a different job or the skill
requirements of his present job altered, but the conditions in which [sJhe works
are changed in a way that subjects [her] to a humiliating, degrading, unsafe,
unhealthful, or otherwise significantly negative alteration in [her] workplace
environment-an alteration that can fairly be characterized as objectively creating a
hardship, the classic scase being that of the employee whose desk is moved into a
closet.’

Tart v. Illinois Power Co., 366 F.3d 461, 475 (7th Cir. 2004) (quoting Herrnreiter v. Chicago

Housing Authority, 315 F.3d 742, 744-45 (7th Cir. 2002)).

Tovar produces no evidence to support her position that the City’s refusal to place her in
an administrative position falls into any of these three categories of adverse employment actions.
The evidence shows that call takers answer telephone calls, conduct investigations over the
telephone, and write reports. These duties were not significantly different than those required of
the administrative positions, which also involved answering telephone calls and completing
reports. Officer Tovar received the same pay, benefits, and rank regardless of which position
she filled. Additionally, all positions are sedentary and capable of being performed by officers
on limited-duty status. Although due to the high volume of calls received the call taker position
may be viewed as more stressful than the administrative positions, this difference alone is not
enough to establish a materially adverse change in employment. See Smart v. Ball State
University, 89 F.3d 437, 441 (7th Cir. 1996) (stating that not every action which displeases an
employee is actionable under Title VII). As such, Tovar has failed to establish the third element

of her prima facie case. See Hill v. American General Finance, Inc., 218 F.3d 639, 645 (7th Cir.

2000) (finding that a failure to transfer to a lateral position is not an adverse employment action).

11


Tovar satisfies the first two elements of her prima facie case. She is a member of the
protected class, as she is African-American and female. Additionally, although the City disputes
that Tovar was meeting its legitimate job expectations, she has produced evidence showing that
she was given satisfactory performance ratings throughout her employment with CPD. As such,
viewing the record in the light most favorable, Tovar has satisfied the second element of her
prima facie case for summary judgment purposes. Thus, the court’s discussion of whether Tovar
has established a prima facie case of employment discrimination under Title VII is limited to the
last two factors within the McDonnell Douglas burden-shifting method, Therefore, for each
discrete adverse employment action alleged, the court will determine whether Tovar has shown
that she suffered an adverse employment action and whether similarly situated employees
outside the protected class were treated more favorably.

1. Administrative Positions in ARS

Tovar asserts that the City’s decision to deny her an administrative position within ARS
was based upon her race and gender. Tovar fails to establish a prima facie case of employment
discrimination on this issue for two reasons.

First, she cannot show that she suffered an adverse employment action as a result of the
City’s action. Although Tovar asserts that the administrative positions within ARS were
generally more desirable than the call taker positions, she has not shown that the differences
between the two positions were severe enough to establish an adverse employment action. The
Seventh Circuit has established three categories of cases in which they have found materially
adverse employment actions:

(1) cases in which the employee’s compensation, benefits or other financial terms
of employment are diminished, including cases where employment is terminated;


as a matter of law.” Local Rule 56.1(a)(3). The statement of material facts is comprised of
“short numbered paragraphs, including within each paragraph specific references to the
affidavits, parts of the record, and other supporting materials relied upon to support the facts set
forth in that paragraph.” Local Rule 56.1(a). The non-movant is correspondingly obligated to
submit, “a response to each numbered paragraph in the moving party’s statement, including, in
the case of any disagreement, specific references to the affidavits, parts of the record, and other
supporting materials relied upon....” Local Rule 56.1(b)(3)(A). The non-moving party is also
required to file a material statement of additional facts and the moving party is required to
respond in a likewise fashion. See Local Rule 56.1(a) & (b)(3)(B).

The court will deem any fact admitted in the opponent’s statement of facts unless the fact
is properly denied by the opposing party. See Local Rule 56.1(a) & (b)(3)(B); see also McGuire
vy. United Parcel Service, 152 F.3d 673, 675 (7th Cir. 1998) (“An answer that does not deny the
allegations in the numbered paragraph with citations to supporting evidence in the record
constitutes an admission.”). A denial is improper if the denial is not accompanied by specific
references to admissible evidence or at least evidence that represents admissible evidence. See

McGuire, 152 F.3d at 675; Malec, 191 F.R.D. at 585; see also Jankovich v. Exelon Corp., 2003

WL 260714, at *5 (N.D. Ill. Jan, 31, 2003) (Kocoras, C.J.) (indicating that evasive denials are
improper and thus the contested fact is deemed to be admitted pursuant to Local Rule 56.1).
Inthe instant case, Tovar submitted a response to the City’s Local Rule 56.1(a)(3)
statement of material facts. The City devotes a substantial amount of its reply brief in support of
the motion for summary judgment pointing out all of the deficiencies contained in Tovar’s Local
Rule 56.1(6)(3)(A) response. For example, Tovar denies numerous facts contained in the City’s
Local Rule 56.1(a)(3) statement without properly supporting those denials by reference to the

7


IV. CONCLUSION
For the foregoing reasons, the City’s Motion for Summary Judgment is granted.
IT IS SO ORDERED.

ENTER:

CHARLES RONALD NORGIZ, Judge
United States District Court

DATED: “iy oy

21


stolen automobiles and license plates, interacting with the police districts, and compiling
statistics from the various watches.

During his tenure with ARS, Sergeant Mahon did not select any officers for the time
keeper or tape room positions. Only Sergeant Bratek and Deputy Director Steward assigned
police officers to these positions. Sergeant Mahon, along with other supervisors assigned to
ARS, did have the authority to select police officers for the watch secretary and Ad Desk
positions. The number of officers assigned to the second watch in ARS has ranged from a low
of 69 to a high of 112 during Sergeant Mahon’s tenure in ARS. In addition to staffing the
positions within ARS, the unit is also required to staff security positions at the City’s 911 Center
(“911 Security Detail”). Officers are selected from each watch to serve on the 911 Security
Detail. Four of those positions are on the second watch.

While assigned to ARS, Tovar worked primarily as a call taker on the second watch.
Tovar received satisfactory performance ratings throughout her employment; however, on two
occasions her proficiency rating were lowered, though not to a level that would affect her
employment. In addition to working as a call taker, Tovar received training in the watch
secretary and Ad Desk positions, On various occasions, Tovar asked to be assigned to work in
these administrative positions; however, these requests were often refused.

In the spring of 2001, Tovar went on maternity leave. During this time, Sergeant Mahon
was assigned to investigate a CR number in which a citizen accused Tovar of inappropriate
conduct. A CR is a complaint filed against a department member which alleges a violation of
CPD rules or regulations. As part of his investigation, Sergeant Mahon was required to
interview Tovar. Sergeant Mahon telephoned Tovar at home and requested that she come into
the station. After Tovar explained that she was placed on bed rest by her doctor for

3


treated more favorably. Therefore, Tovar fails to establish a prima facie case on her claim that
the City discriminated against her by not placing her in a 911 Security detail position.

3. Proficiency Ratings

Tovar also alleges that Sergeant Mahon’s decision to lower her proficiency ratings on at
least two separate occasions was based upon her race and gender. Specifically, Tovar asserts
that her performance ratings were unfair in that she received lower ratings than other non-
African-American male officers despite the fact that she believes she was more productive. CPD
had a policy which required supervisors to evaluate police officers on a semi-annual basis. The
supervisor, usually the supervising sergeant, would complete a Proficiency Report giving the
officer a rating between 0 and 100. A rating above 72 was considered acceptable and did not
require substantial documentation; but a rating below 72 did require substantial documentation
because it would prevent the officer from receiving a pay raise. The supervisor who signs the
Proficiency Report is the person who presents the officer with the rating. Proficiency ratings are
no longer performed within CPD.

Initially, Tovar’s claim fails because she has not produced evidence of when these
actions involving lower proficiency ratings occurred. She admits that she cannot recall the
specific dates or general time periods for which she received the lower ratings. Therefore, she
has failed to show that these actions fell within the 300-day limitation period. Additionally,
Tovar cannot show that any proficiency rating she received from Sergeant Mahon constituted a
materially adverse employment action. Tovar only recalls one period in which she received a
rating of 85. This rating is well above the score of 72 which would have prevented her from
receiving a pay raise. Absent an appreciable diminution in employment status, Tovar’s lower
efficiency rating does not constitute an adverse employment action. See Oest v. Illinois Dep’t of

14



Tovar’s claim fails for two reasons. First, a telephone call to an employee’s home to
inquire on her work status does not constitute a tangible job consequence actionable under Title
VII. See Oest, 240 F.3d at 612-13 (stating that material adverse actions must be more than a
mere inconvenience). Second, Tovar produces no evidence of any non-African-American or
male police officers who were treated more favorably. She cannot rebut Sergeant Mahon’s
testimony that there were no other circumstances where he was assigned to investigate a CR
number involving another officer who was on pregnancy or medical leave. As such, Tovar’s
disparate treatment claim regarding Sergeant Mahon’s telephone call fails.

B. Retaliation

Next, Tovar alleges that Sergeant Mahon retaliated against her for filing an internal
complaint of discrimination against him on November 7, 2001. According to her complaint,
Tovar alleges that after she filed the internal complaint of discrimination, she was subjected to
“open hostility, verbal abuse, embarrassment, and offense [sic.] conduct.” Pl.’s Second Am.
Compl., § 10. Specifically, Tovar alleges that Sergeant Mahon spoke to her in a derogatory
manner on more than one occasion.

Title VII prohibits an employer from retaliating against an employee who has “opposed
any practice made an unlawful employment practice by this subchapter or ... has made a charge,
testified, assisted, or participated in any manner in an investigation, proceeding, or hearing”
under the statute. See 42 U.S.C. § 2000e-3(a). As with other Title VII claims, a plaintiff seeking
to prove such a violation may present either direct or indirect evidence of the employer’s intent.
See Hilt-Dyson v. City of Chicago, 282 F.3d 456, 465 (7th Cir. 2002). Tovar seeks to establish

her claim by the indirect burden-shifting method.


The command structure of ARS is as follows: the Deputy Director of OEC, Non-
Emergency Services; the Commander of Communications Division-Administration; and the
ARS Project Manager. Morris Steward (male, African-American) served as Deputy Director
from approximately 2000 to 2003, when he retired. Lieutenant Robert Weisskopf (male,
Caucasian) has served as the Commanding Officer since Steward’s departure. Sergeant William
Bratek (male, Caucasian) served as Project Manager for all times relevant to this case. To deal
with the day-to-day operations, the ARS command staff assigns additional supervisory personnel
to the unit. Sergeant John Mahon (male, Caucasian) was assigned to ARS in 1996. Since 1997,
Sergeant Mahon has served primarily as the second watch supervisor. In addition to Sergeant
Mahon, various other sergeants work in ARS on the second watch.

ARS has several different positions for police officers. The majority of police officers
assigned to ARS fill the position of call taker. A call taker is responsible for accepting and
dispatching calls that come through the police non-emergency line, conducting telephonic
investigations, and completing case reports or other police reports if necessary. In addition to
call taker, there are several administrative positions available for police officers assigned to
ARS. These administrative positions include one unit secretary, one watch secretary, as many as
three time keeper positions, as many as three tape room positions, and two administrative desk
(“Ad Desk”) positions. The unit secretary reports directly to the commanding officer in charge
of ARS. The watch secretary completes time and attendance sheets for the watch to which they
are assigned, as well as assisting with other administrative duties. The watch secretary also
completes a report based on the activity of the previous watch. An officer assigned to the Ad

Desk performs a variety of tasks including tracing unlisted numbers, doing computer entry for


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

EASTERN DIVISION
CAROLYN TOVAR, )
)
Plaintiff, )
) No. 02 C 4656
vs. ) Judge Charles R. Norgle
)
CITY OF CHICAGO, )
)
Defendant. ) NOCKETED

OPINION AND ORDER AUG 3 4 2004

CHARLES R. NORGLE, District Judge.

Plaintiff Carolyn Tovar brings this action for race and gender discrimination pursuant to
Title VII, 42 U.S.C. § 2000e et seq. (“Title VII”) against her employer the City of Chicago
(“City”). The City moves for summary judgment pursuant to Federal Rule of Civil Procedure
56. For the following reasons, the City’s motion is granted.

I. BACKGROUND

A. Facts

Carolyn Tovar (female, African-American) joined the Chicago Police Department
(“CPD”) as a police officer in June 1992. In 1996, the City placed Tovar on limited-duty status
due to medical problems associated with her back. While on limited-duty, the City assigned
Tovar to CPD’s Alternate Response Section (“ARS”). The ARS is a component of the Office of
Emergency Communications (“OEC”) and is responsible for answering and processing non-
emergency telephone calls from citizens who utilize the City’s 311 Non-Emergency Response
System. Tovar’s assignment with ARS ended in July 2003, when she was transferred to the

Record Services Division.

52D


Second, Tovar has not established that other similarly situated employees were treated
more favorably. She identifies three officers who were assigned to administrative positions-
Officers Corcoran, Nytko and Foley. However, Tovar cannot dispute the City’s evidence which
shows that during this period, more than 30 officers who are African American, the majority of
whom were women, had served in the administrative positions. Thus, Tovar fails to establish a
prima facie case on her claim that the City discriminated against her by not placing her in an
administrative position.

2. 911 Security Detail

Tovar asserts that the City’s denial of her application to the 911 Security detail in
September 2001 was also based upon her race.' However, much like her claim based upon the
City’s refusal to place her in an administrative position, this claim fails because Tovar cannot
show that she has suffered an adverse employment action or that similarly situated employees
were treated more favorably.

Tovar provides no evidence to establish the working conditions at the 911 security detail;
however, even if she had, it is not likely that the differences between the security position and
the call taker position are significant enough to reach the level of a materially adverse
employment condition which is actionable under Title VII. Both positions provide the same pay
and benefits, are non-supervisory positions, and can be performed by officers assigned to
limited-duty. Also, both are performed at the same time, during the second watch. Although

Tovar would prefer to work on the 911 Security detail, her subjective belief alone is not enough

‘Tovar admits that she does not believe she was refused a transfer to the 911
Security Detail because of her sex. See PI.’s Response to Def.’s LR 56.1 Statement of
Mat. Facts [ 66, Therefore, the court will only decide whether Tovar has established a
prima facie case of racial discrimination as to this specific employment action.

12


Corrections, 240 F.3d 605, 613 (7th Cir. 2001) (finding that unfavorable performance
evaluations alone do not constitute adverse employment actions); see also Silk v. City of
Chicago, 194 F.3d 788, 801-03 (7th Cir. 1999) (same).

Moreover, Tovar has not shown that similarly situated non-African-American or male
police officers were treated more favorably. She only identifies one instance in which a non-
African-American male call taker received a more favorable performance evaluation. In her
deposition, Tovar stated that Officer Banks (male, Caucasian) received a 93 on his proficiency
rating, while she only received an 85. Although Tovar claims that she did many more case
reports than Officer Banks during this period, she provides no evidence of the other factors
which are considered in a performance evaluation. As such, Tovar is unable to show that their
respective ratings were undeserved. Tovar fails to show that there is a genuine issue of material
fact as to why her proficiency rating was lower than Officer Banks. As such, she cannot
establish a prima facie case of employment discrimination as to this issue.

4. Telephone Call to Tovar’s Home while on Maternity Leave

Finally, Tovar claims that Sergeant Mahon’s telephone call to her at home while she was
on maternity leave was based upon her race. In 2001, Sergeant Mahon was assigned to
investigate a CR number in which a citizen accused Tovar of failing to complete a case report.
Because Sergeant Mahon was required to interview Tovar personally, he telephoned the CPD
Medical Section to determine her medical roll status. Sergeant Mahon then telephoned Tovar at
home to determine when she was coming back to work. After Tovar informed Sergeant Mahon
that she was placed on bed rest by her doctor, Sergeant Mahon advised her to notify the Medical
Section to change her medical roll status. Except for this telephone call, Sergeant Mahon took
no further action to interview Tovar while she was on maternity leave.

15