situated to her because he worked as an officer at O'Hare for only part of 2001, and thus not all of
his overtime came from the same airport. Thus, Cisneros fails to show that substantially younger
similarly situated employees were treated more favorably.

Even if Cisneros established a prima facie case of age discrimination, the City articulated a
legitimate, non-discriminatory reason for denying her overtime on the dates that Cisneros has
identified. Namely, the City states that Cisncros was denied overtime because, pursuant to the
CBA procedures regarding distribution of overtime, Cisneros already had worked overtime the
days directly before or after the dates in question. Because Cisneros worked a substantial amount
of overtime compared to other officers on her watch, it is not surprising that the City would offer
overtime to other officers before her. Once the City articulated its non-discriminatory reason for
denying her overtime, the burden shifts to Cisneros to persuade the Court either directly that a
discriminatory reason more likely motivated the action or indirectly that the employer’s articulated
reason for the employment action is unworthy of credence and is but a mere pretext for intentional
discrimination, sce Franzoni, 300 F.3d at 772. When deciding a grant of summary judgment,
however, the only question before the court is whether the plaintiff has provided evidence from
which a rational trier of fact could infer that the employer’s stated reasons for taking the adverse

action were lies. Guerrero v. Ashcroft, 253 F.3d 309, 313 (7th Cir. 2001); see also Bell v. E.P.A.,

232 F.3d 546, 550 (7th Cir. 2000) (“If the only reason an employer offers for [taking adverse
action against] an employee is a lie, the inference that the real reason was a forbidden one... may
reasonably be drawn. This is the common sense behind McDonnell Douglas.”) (citations omitted).
Thus, it is up to Cisneros not only to cast doubt on the veracity of the City’s reasons, but also to

prove that the real reason was discrimination.

-13-



Union. The relevant portion of the CBA provides that:

(a) A teasonable amount of overtitme and/or premium time shall be a condition of
continued employment. Overtime and/or premium time referred in this Agreement,
shall be offered first to the employee doing the job. Thereafter, overtime and/or
premium time at the location shall be offered by seniority in the employee["]s job
classification, provided the most senior employee has the then present ability to
perform the job to the Employer’s satisfaction without further training... .

(b) Those employees in any classification who have been given the option to work the
overtime and/or premium time, whether the option was accepted or rejected, will
not be afforded the option to work subsequent overtime and/or premium time until
all employees in the classification have been afforded the opportunity,

While there are substantial opportunities for overtime work, working overtime during the time
period at issue (2000-2001) was voluntary.

Sgt. Christopher DiSandro (“DiSandro”) is the administrative sergeant in the second watch.

He assigns second watch officers overtime hours based on the officers’ completion of the
“Officer’s Request to Work Overtime (6th Day Only) Form” (the “Form”), In completing the
form, an officer aleris her command sergeant that she is available to work on her 6th day, which
would be the officer’s first off day of the week, DiSandro collects these forms from officers who
seek to work overtime in the months before the overtime is sought. DiSandro determines, by
seniority, who gets any available overtime that exists the month before the schedule is completed?
He then notifies officers of approved overtime days. An officer, like Cisneros, can list multiple
days that she is available to work on her 6th day on any given month, but she is not guaranteed

overtime hours on her 6th day. Depending on the available overtime for the next month, officers

submitting multiple dates usually would get at least one day approved. On the dates that the 6th

2 Cisneros disputes that DiSandro assigns overtime by seniority because, according to
her personal calendar for June 2001, DiSandro gave more 6th day overtime to Officer Weidel,
who had less seniority than Cisneros.

-4.



benefit of Jaber and Bulatovic, is conclusory and lacks evidentiary support; 4) In paragraph 9, the
phrase that states the reason Cisneros was crying in the bathroom--"because she was not being
offered overtime after she had requested it and Officers Jaber and Bulatovic received it”-- is
conclusory and hearsay; 5) Paragraph 11, in which Dancy asserts that Cisneros’s overtime hours
declined after she filed her EEOC claim, is conclusory and lacks evidentiary support; and 6)
Paragraph 12, in which Dancy states that Cisneros received “more bad assignments” than other
officers after filing her EEOC claim, is conclusory and lacks evidentiary support. This Court
declines to strike these portions of Cisneros’s and Dancy’s affidavits only because even when this
Court considers these allegations, Cisneros cannot survive summary judgment. The City’s motions
to strike portions of the affidavits are therefore denied as moot.
B. Motion for Summary Judgment

Cisneros’s action consisis of an age discrimination claim and a retaliation claim. In Count
I, Cisneros alleges that the Depariment of Aviation consistently distributed overtime hours in a
discriminatory fashion by denying her requests for overtime and giving those hours to coworkers
younger than 40 years old. In Count Il, Cisneros alleges that the Department of Aviation retaliated
against her for filing an EEOC charge on August 8, 2000 by continuing to deny her requests for
overtime up to and including February 9, 2001. The City argues that its motion for summary
judgment should be granted in its favor on both counts. This Court addresses each count in turn.
1. Count 1 - Age Discrimination Claim

Cisneros, who is a 58-year old female, claims that the Department of Aviation
discriminated against her on the basis of her age when, she requested to work overtime hours,
overtime hours were available, and those hours were given to her coworkers under the age of 40

instead of her. Cisneros, having no direct evidence to support these assertions, must proceed on

9.



the denial of overtime began in January 2000. The EEOC issued a Right to Suc letter to Cisneros

on September 26, 2000. Cisneros was denied overtime hours that were available on February 1

and 17, 2000, May 2, 9, 17, and 18, 2000, July 5, 6, 9, 12, 17, 19, 20, 25, 2000. Cisneros was

denied further overtime on August 19, 2000, February 8, 2001, and April 11, 2001, which she

alleges was in retaliation to her August 8, 2000 EEOC charge.° These overtime hours were given

to three other officcrs--Officers Haddon, Jaber, and Bulatovic--all of whom were under the age of

40.

Cisneros's time sheet reflects that she often worked overtime hours on the days directly

before or after the dates she was denied overtime. The following table indicates the dates that

Cisneros was denied overtime and the dates that she worked overtime:

Dates that Cisncros was denied overtime
February 1, 2000

May 2, 2000

May 9, 2000

May 18, 2000

July 5, 2000

July 9, 12, 17, 19, 2000

July 25, 2000

Surrounding dates with worked overtime
January 27, 28, 29, 2000

April 28, 30, 2000

May 5, 8, 2000

May 19, 2000

June 29, 30, and July 4, 2000

July 24, 28, 2000

© Cisneros also alleges that she and Dancy observed that Cisneros received more “bad
assignments” than other officers after she filed her EEOC charge, including posts at which the
work was more difficult when the weather was extreme.

6+



day request was not approved, the officer would advise DiSandro whether she or he would be
available for work if the need should arise.

Lt. Louis Mills (“Mills”) is the shift supervisor for the third watch. He assigns second
watch officers to work overtime on the third watch in the event a third watch officer is unable to
work his or her shift. [If an employee scheduled to work the third watch calls in sick, Mills or
another lieutenant on duty is responsible for finding a replacement. Mills will first ask the officer
on the second watch (who is working the same post that will be vacant during the third watch) if
she or he is available to work overtime.’ If that officer is not available, the option to work
overtime on the third watch will be extended to everyone on the second watch based on seniority.
If more than one officer seeks the overtime, seniority will be used. If an officer with more
scniority already had been afforded the opportunity to work overtime, that officer is ineligible for
the overtime,.*

On August 8, 2000, Cisneros filed a charge of discrimination against the City with the

BEOC on the basis of age, religion, and national origin.’ In the EEOC charge, Cisneros claims that

3 Cisneros disputes that Mills followed this procedure all of the time. She testified that,
on more than one occasion, Mills did not ask her to work overtime when the person on the
third watch who had the same post as Cisneros called in sick. Further, she and Officer Dancy
testify that the seniority clause in the CBA was ignored “on more than five occasions” to
benefit Jaber and Bulatovic.

* Cisneros identifies another procedure used to distribute overtime among the officers at
O’Hare, When overtime was available, an announcement was made over the Department of
Aviation’s radio frequency. If officers were interested in working overtime, they would call back
and state their interest. However, this was not an additional procedure uscd; rather this was the
process Mills employed when he extended an offer to everybody to work overtime.

* Before Cisneros went to the EEOC, Dancy observed her crying in the women’s
bathroom “on almost a daily basis” because she was not being offered overtime after she had
tequested it.

-5-



on her notes, which indicate that Jaber worked with her in 2000. The 2001 audit report reveals that
Jaber received $5,882.46 more overtime pay than Cisneros in 2001.

II. Discussion
A. Motions to Strike

As a preliminary matter, this Court addresses the City’s motions to strike portions of
Cisneros’s affidavit and portions of Dancy’s affidavit, The City moves to strike portions of
Cisneros’s affidavit that are vague and ambiguous, immaterial, unsupported, lack foundation,
contain hearsay, conflict with her deposition testimony, or are otherwise inadmissible. Cisneros’s
affidavit mostly rehashes the allegations in her complaint. This Court will disregard statements
that are immaterial but it declines to strike portions of her affidavit. The following portions of
Cisneros’s affidavit, however, should be stricken: 1) In paragraph 3, the phrase, “who were under
forty,” is inconsistent with her prior testimony; 2) Paragraph 11, in which Cisneros states the City
has ignored the seniority clause in the CBA to the benefit of Jaber and Bulatovie, is conclusory and
lacks evidentiary support; and 3) Paragraph 14, in which Cisneros states she received “more bad
assignments” after she filed her EEOC claim than other officers, is conclusory and lacks
evidentiary support.

Similarly, many portions of Dancy’s affidavit are immaterial, unsupported, lack foundation,
contain hearsay, or are otherwise inadmissable. Some examples are: 1) Paragraph 4, in which
Dancy asserts that Jaber would be offered to work overtime when overtime was available almost
every time Dancy was working, is hearsay and lacks evidentiary support; 2) Paragraph 5, in which
Dancy asserts that, over the past three years, Cisneros rarely was offered overtime after she called
in and was interested in working is hearsay, lacks personal knowledge and evidentiary support; 3)

Paragraph 7, in which Dancy states the City has ignored the seniority clause in the CBA to the

-8-



‘Minute Onder Form (08/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge David H. Coar Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 00 C 8059 DATE 10/11/2002
CASE Esperanza Cisneros v. City of Chicago
TITLE
[In the following box (a) indicate the party filing the motion, e-g., plaintiff, defendant, 3rd party plaintiff, and (b) slate briefly the nature
MOTION: of the motion being presented.

Defendant’s Motion for Summary Judgment pursuant to Fed. R. Civ, P. 56

DOCKET ENTRY;
qa) o Filed motion of { use listing in “Motion” box above.]
Qa ao Brief in support of motion due |,
(3) o Answer brief to motion due . Reply to answer brief due
(4) Qo Ruling/Hearing on set for at
(3) a Status hearing[held/continued to] [set for/re-set for] on sct for at.
(6) Oo Pretrial conference[held/continued to] [set for/re-set for] on set for at .
7) go ‘Trial[set for/re-set for] on at
(8) o (Bench/Jury trial] [Hearing] held/continued to at
(9) oO This casc is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}
OFRCP4(m) O General Rule 21 OO FRCP4] (a1) ( FRCP41(a)(2).
qo) of [Other docketentry] For the reasons set forth in the attached Memorandum Opinion and Order, this
Court GRANTS the City of Chicago’s motion for summary judgment [30-1]. The City’s motions to strike
portions of Cisneros’s and Sharon Dancy’s affidavits [36-1][36-2] are DENIED as moot. This case is
closed. )) F |
al @ [For further detail see order attached to the original minute order.]
No notices required, advised in open court Document
Number
No notices required numberof nicer
Notices mailed by judge's staff. oct i / 2002
Notified counsel by telephone, date docketed
X | Docketing to mail notices. at
ten Mail AO 450 form. dlockelag ep ints
Cupy to judge/magistrate judge aay

courtroom
deputy’s
initials

mas(lc)

Date/time received in

central Clerk's Office soning deeaty initials



to her original position, that of proving intentional discrimination. Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 142-43 (2000); see also Hicks, 509 U.S. at 510 (stating that the

McDonnell Douglas burden-shifting framework “simply drops out of the picture”).

The City concedes for the purposes of this motion that Cisncros meets the first two
requirements for establishing a prima facie case. It argues, however, that Cisneros fails to meet the
last lwo requirements because she has not suffered an adverse employment action and she cannot
show that substantially younger employees were treated more favorably. This Court agrees.

To establish a prima facie case for both age discrimination and retaliation, Cisneros must
have suffered an adverse employment action. An adverse employment action “constitutes a
significant change in employment status, such as hiring, firing, failing 10 promote, reassignment
with signiticantly different responsibilities, or a decision constituting a significant change in

benefits.” Burlington Indus,, Inc, v. Ellerth, 524 U.S, 742, 761 (1998); see also Traylor v. Brown,

295 F.3d 783, 788 (summarizing the “adverse employment action” requirement). While an adverse
employment action is defined quite broadly, not everything that makes an employee unhappy
suffices. See Traylor, 295 F.3d at 788; Hilt-Dyson v. City of Chicago, 282 F.3d 456, 466 (7th Cir.
2002); Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996). Rather, Cisneros must show
that “material harm has resulted from . . , the challenged actions.” Traylor, 795 F.3d at 788 citing
Haugerud v. Amery Sch. Dist., 259 F.3d 678, 692 (7th Cir, 2001).

Ordinarily, denial of overtime has a tangible economic effect, and would constitute an
adverse action, see Moore v, Henderson, 174 F. Supp. 2d 767, 776 (N.D. Ill. 2001). Here,
however, Cisneros has received a substantial amount of overtime. Indeed, in 2001, she received
the third highest overtime hours of all officers on the second watch, even though she is ninth in
seniority on that watch, and her overtime pay was an additional $22,588.81 for that year. In 2000,

-1I-



Count I under the burden-shifting method articulated in McDonnel! Douglas Corp, v. Green, 411
U.S. 792, 800-06 (1973), See Krehnavy v, Limagrain Genetics Corp., 294 F.3d 871, 875 (7th Cir.
2002) (stating that the McDonnell Douglas framework applies to both Title VII and ADEA
claims). Under this burden-shifting approach, a plaintiff bears the initial burden of establishing a

prima facie case of discrimination, St. Mary’s Honor Ctr, v. Hicks, 509 U.S. 502, 505 (1993);

Franzoni v, Hartmarx Corp., 300 F.3d 767, 771 (7th Cir, 2002); Hall v. Bodine Elec. Co., 276 F.3d
345, (7th Cir. 2002). To establish a prima facie case of age discrimination, an employee must
show that: (1) she was over forty years of age; (2) she was meeting her employer’s legitimate
expectations; (3) she suffered an adverse employment action; and (4) similarly situated,
substantially younger employees were treated more favorably. Franzoni, 300 F.3d at 771-72;
Krehnavy, 294 F.3d at 875. Once the plaintiff establishes a prima facie case, a legal, rebuttable
presumption of discrimination arises, and a burden of production then shifts to the employer to

articulate a legitimate, nondiscrimtinatory reason for the adverse employment action. Franzoni, 300

F.3d at 772; Nawrot, 2002 WL 27528, at *7. If the employer satisfies that burden, the
presumption of discrimination extinguishes, and the burden shifts back to the plaintiff to persuade
the trier of fact either directly that a discriminatory reason more likely motivated the action or
indirectly that the employer’s articulated reason for the employment action is unworthy of credence
and is but a mere pretext for intentional discrimination. Id.

At all times, the ultimate burden of persuasion remains with the plaintiff. Texas Dep’t of
Cmty, Affairs v, Burdine, 450 U.S. 248, 253-56 (1981). In the third stage, the plaintiff's burden
under the McDonnell Douglas framework merges with the ultimate burden of persuading the court
that she has been the victim of intentional discrimination or retaliation. Id, at 253. At this point,
the McDonnell Douglas framework no longer is relevant; the third step simply returns the plaintiff

-10-



August 19, 2000’

February 8, 2001 February 9, 12, 2001

April 11, 2001 April 13, 2001
The City maintains that these denials of overtime were done according to the department policy
and the CBA. Cisneros disputes that fact and contends that there were deviations from the policies,
see supra notes 2 and 3. She also states that on July 6, 2000, Mills informed her that she could
work overtime, but she was later told by desk officer Figueroa that Mills did not need her to work
overtime; Cisneros found out the following day that Officers Jaber and Bulatovic, along with
several others from their shift with less seniority than Cisneros, worked the overtime.

A comparison of time sheets belonging to Cisneros, Bulatovic, and Haddon--all of whom
worked the second watch at O’Hare in 2000--shows that Cisneros worked 89 days of overtime,
Bulatovic worked 64 days of overtime, and Haddon worked 56 days of overtime. A 2001
Department of Aviation audit, which indicated each officer’s base pay and overtime pay for the
year 2001, revealed that Cisneros received the third highest overtime hours of all officers on the
second watch, even though she is ninth in seniority on that watch. The 2001 audit report also
indicates that Cisneros’s 2001 base salary was $43,728.00 and her overtime pay was an additional
$22,588.81 (not including the compensatory time she received for the overtime hours.) As for
Officer Jaber, the City contends that, while he was employed with the Department of Aviation in

2000, he did not work at the O’Hare airport until May 1, 2001. Cisneros disputes this fact based

7 Cisneros’s time sheet reflects that August 19, 2000 was her “7th day off.” Only in
extreme circumstances are officers allowed to work overtime on their 7th day off.

-7-



evidence, determining credibility, and drawing reasonable inferences are jury functions, not those
of a judge deciding a motion for summary judgment. Anderson, 477 U.S. at 255, 106 S. Ct. at
2515.
Il. Background

The following facts are taken from the parties’ Local Rule 56.1(a)(3) and (b)(3) Statement
of Material Facts. Cisneros, a 58-year old female, is and has been employed by the City of
Chicago Department of Aviation since July 16, 1989. Cisneros was 46-years old when she began
working for the City, and she was hired as a security officer. Her duties included checking
individuals’ identification cards and vehicles before those individuals were provided access to the
airfield at Chicago O*Hare airport (the “airport”). Cisneros’s duties essentially have remained the
same during her tenure at the Department of Aviation, although her title has changed to that of
aviation special police officer (“officer”). Cisneros has worked the second watch--5;30 a.m. to
2:00 p.m.--since she began working for the City. There are approximately 50 officers who worked
the second watch with Cisneros. Cisneros believes that there are only three officers on her watch
that are older than her. Cisneros is ranked ninth in seniority on the second watch. During the
reJevant time period, February 1, 2000 to July 31, 2001, Cisneros had more seniority than Officers
Jasna Bulatovic, Patricia Haddon, and Dirar Jaber.

The award of overtime hours for the City’s Department of Aviation is governed by the

Collective Bargaining Agreement (the “CBA”) between the City and the Public Safety Employees



Cisneros argues that the City’s reason is a pretext for discrimination because she and
Officer Dancy observed “on more than five occasions” that the CBA procedures were ignored to
benefit Jaber and Bulatovic, and because Lt. Mills cannot recall calling Cisneros over the public
address system to work overtime while he does recall calling Jaber. Cisneros, however, offers no
evidence to support her assertions. For example, despite her “note-taking,” she does not provide
the specific dates which the CBA procedures were allegedly ignored, nor does she even explain
exactly how the other officers were “benefitted.” In fact, at her deposition, Cisneros admitted that
she was unaware that the CBA agreement provided that once overtime was offered to an employee,
it could not be offered to the same employee until the opportunity to work overtime was afforded
to others. If she were unaware of this procedure, her belief that the policies were being ignored
was unfounded. Further, the fact that Lt. Mills remembers calling Jaber over the radio and not
Cisneros hardly establishes pretext. Even if this Court were to assume that Lt. Mills never offered
Cisneros overtime over the radio, it was only one way in which overtime was awarded; because
Cisneros received a substantial amount of overtime, her not receiving overtime through this method
does not demonstrate that the City’s reason is a mere pretext for discrimination.

In short, Cisneros falls substantially short of meeting her burden as she has presented no
evidence from which it can be inferred that the City’s stated reasons for denying her overtime was
4 pretext for discrimination. Because Cisneros does not establish a prima facie case of age
discrimination, and because even if she did, she cannot demonstrate the City’s legitimate, non-
discriminatory reason was a pretext, this Court GRANTS the City’s motion for summary judgment

as to Count |, the discrimination claim.

-14.



assignments nor does she allege that the individual knew she had filed her charge when he or she

gave her the assignments. Cisneros also fails to identity when she received these assignments, and
she therefore cannot prove that there is a causal connection between these allegedly bad
assignments and the filing of her EEOC charge. For these reasons, this Court GRANTS the City's
motion for summary judgment on Cisneros’s retaliation claim.
TV. Conclusion

For the foregoing reasons, the City’s motion for summary judgment is GRANTED in its
entirety; the City’s motions to strike portions of Cisneros’s and Dancy’s affidavits are DENIED as
moot.

Enter:

David H, Coar

United States District Judge

Dated: October 11, 2002

-16-



Summary judgment is proper “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); Michael v. St. Joseph County, et, al., 259 F.3d 842, 845 (7th Cir. 2001). A genuine issue

of material fact cxists for trial when, in viewing the record and all reasonable inferences drawn
from it in a light most favorable to the non-movant, a reasonable jury could return a verdict for the

non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 8. Ct, 2505, 2510 (1986);

Eiland v. Trinity Hosp., 150 F.3d 747, 750 (7th Cir. 1998).

The movant bears the burden of establishing that no genuine issuc of material fact exists.
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct, 2548, 2553 (1986); Hedberg v. Indiana Bell
Tel. Co., 47 F.3d 928, 931 (7th Cir. 1995). If the movant meets this burden, the non-movant must
set forth specific facts that demonstrate the existence of a genuine issue for trial. Rule 56(e);

Celotex, 477 U.S. at 324, 106 8. Ct. at 2553. Because the purpose of summary judgment is to

isolate and dispose of factually unsupported claims, the non-movant must respond to the motion
with evidence setting forth specific facts showing that there is a genuine issue for trial.

Fed.R.Civ.P 56(e); Michael, 259 F.3d at 845; Albiero v. City of Kankakee, 246 F.3d 927, 932 (7th

Cir. 2001). To successfully oppose the motion for summary judgment, the non-movant cannot rest
on the pleadings alone, but must designate specific facts in affidavits, depositions, answers to
interrogatories or admissions that establish that there is a genuine triable issue. Selan v. Kiley, 969
F.2d 560, 564 (7th Cir. 1992). A scintilla of evidence in support of the non-movant’s position is

insufficient, and the non-movant “‘must do more than simply show that there is some metaphysical

doubt as to the material fact.’” Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

US. 574, 586 (1986)); see also Anderson, 477 U.S. at 250, 106 S. Ct. at 2511. Weighing

2



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

EASTERN DIVISION pee
f.
ESPERANZA CISNEROS, ) Qt:
) No. 00 C8059 HG
Plaintiff, )
) HONORABLE DAVID H. COAR
v. ) Hk
)
CITY OF CHICAGO )
)
Defendant. )

MEMORANDUM OPINION AND ORDER

Esperanza R. Cisneros (“Cisneros”) brings a discrimination and retaliation action pursuant
to the Age Discrimination in Employment Act (“ADEA”), as amended, 29 U.S.C. § 621 et seq..
Cisneros alleges that her employer, the City of Chicago’s Department of Aviation (the “City”),
discriminated against her on the basis of age when, after she asked to work overtime hours and
overtime hours were available, the overtime was given to younger co-workers with less seniority.
Cisneros further alleges that the City retaliated against her by denying her overtime from the date
she filed the EEOC charge on August 8, 2000 through February 9, 2001. Before this Court is the
defendant City’s motions to strike portions of Cisneros’s and Sharon Dancy’s affidavits, and for
summary judgment on remaining counts I and II of the Amended Complaint.’ For the reasons
stated below, this Court GRANTS the City’s motion for summary judgment in its entirety, and
DENIES as moot the City’s motions to strike portions of the affidavits.

J. Summary Judgment Standard

1 On November 20, 2001, this Court dismissed Count II] of Cisneros’s Amended

Complaint.
+ 29



Cisneros worked 89 days of overtime, while Bulatovic and Haddon (two officers whom she
identifies as being younger than her and receiving overtime hours that shc was denied) worked 64
and 56 days of overtime, respectively, Cisneros admits that she gets more overtime than other
officers on her watch. Thus, Cisneros’s alleged adverse employment action is not a general denial
of overtime; instead, she essentially is complaining about not receiving overtime every time she
requested it, Cisneros, however, is not entitled to work overtime every time she requests it, and
neither is any other employee regardless of his or her age." Cisneros was clearly unhappy with
being denied overtime sometimes, but she was not terminated, demoted, or disciplined, Further,
her pay was not diminished, as she received more overtime pay than most of her coworkers, and
her job responsibilities were not materially diminished, In sum, the City’s failure to award Cisneros
overtime on those dates that she has identified may have distressed her, but it did not cause her
material harm that would constitute an adverse employment action under the ADEA.

Cisneros also fails to meet the fourth requirement for establishing a prima facie case of age
discrimination that similarly situated younger employees were treated more favorably, While
Cisneros claims that younger officers, such as Haddon, Bulatovic, and Jaber, were offered more
overtime, the fact that she received more overtime than all of them in 2000, and more overtime
than Haddon and Bulatovic in 2001 belies her claim. As for Jaber in 2001, while he received

$5,882.46 more overtime pay than Cisneros, the City argues persuasively that he was not similarly

® The City distributes overtime according to procedures set forth in the CBA, which are
based on seniority. The CBA, procedures, however, also provide that those employees in any
classification who have been given the option to work overtime will not be afforded the option to
work overtime again until all employees in the classification have been afforded the opportunity.
Even if the City misapplied the stated policy on some occasions, that fact fails to establish that
the misapplication was on account of age or retaliation where, as here, Cisneros received
substantial overtime before and after filing a charge with the EEOC.

-12-



2. Count Il ~ Retaliation Claim

Cisneros’s second claim is that the City retaliated against her for her EEOC activity in
violation of Title VII. As with her discrimination claim, Cisneros does not have direct evidence
and therefore proceeds under the McDonnell Douglas framework applicable to retaliation claims.

In order to prevail on a claim of retaliation, a plaintiff must first demonstrate a prima facie
case by showing that: (1) she engaged in statutorily engaged expression; (2) she suffered an
adverse action by her employer; and (3) there is a causal link between the protected expression and
the adverse action. Miller v. Am. Fam. Mut, Ins. Co., 203 F.3d 997, 1007 (7th Cir. 2000).
Cisneros cannot establish a prima facie case for retaliation. She alleges that she was denied
overtime in retaliation of filing an EEOC charge.’ For the reasons discussed above, however, those
denials do not constitute an adverse employment action. Even if they did, Cisneros has failed to
show that the individuals responsible for making those decisions knew about Cisneros’s EEOC
filing,!° thus she fails to show a causal link between her filing and the denials of overtime.
Cisneros also argues that she received more bad assignments than other officers after she filed her
discrimination charge. Yet, short of her and Dancy’s conclusory, self-serving statements, Cisneros
offers no evidence to substantiate this claim, see Ozlowski v. Henderson, 237 F.3d 837, 840 (7th
Cir. 2001) (holding that self-serving statement unsupported by the record are insufficient to defeat

summary judgment). Cisneros fails to identify the individual who allegedly gave her these bad

° Cisneros also argues that Jaber’s accrual of more overtime pay than her constitutes
retaliation against her. The adverse action against Cisneros, however, would not be Jaber’s pay,
but the City’s action of denying her overtime.

© Ty fact, the record shows that two of the individuals responsible for distributing
overtime--Lt, Mills and Sgt. DiSandro--did not know about Cisneros’s EEOC charge. Their
denials of overtime could not constitute retaliation. Johnson v. Nordstrom, Inc., 260 F.3d 727,
735 (7th Cir. 2001).

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