argue that plaintiffs have failed to do so. We believe that they have.

Hillard stated that the factors he considered in choosing Lieutenants for promotion
included rankings by district commanders. See Pls’ Ex. 13 (City report to DOJ) at 210. But
plaintiffs were both ranked favorably by several district commanders, see Pls’ Ex. 31, and
defendants admit to promoting at least two candidates, Cathy Touhy and Anne Egan, who did not
file discrimination charges, and who did not appear on any district commander’s list of
recommended candidates. Moreover, defendants argue that Johnston was not promoted in part
because of certain disciplinary problems she experienced, but Hillard promoted at least one other
individual with disciplinary problems (George Comish) who had neither filed discrimination
charges nor spoken out against the department on women’s issues, See Pls’ Ex. 3 (Hillard Dep.)
at 33. And plaintiffs point to other circumstantial evidence of disparate treatment. For example,
Hillard testified in a deposition in a previous discrimination case, that during the promotions
process, he separated the applications of eligible candidates into three piles labeled “highly
qualified,” “qualified,” and “unqualified,” and could recall only the names of persons who had
filed discrimination charges against the Department as candidates whose applications he placed
in the “unqualified” pile. See Pls’ Ex. 3A (Hillard Dep.) at 15-18. In sum, a reasonable jury
could find that plaintiffs have met the elements of a prima facie case of retaliation.'

The Court also finds that plaintiffs have come forward with evidence that Hillard’s stated

reasons for not promoting plaintiffs were pretextual. A plaintiff in a Title VI case can

' Defendants argue that plaintiffs’ retaliation claims fail for the additional reason that too much time passed
between their protected activities (speech and filing of discrimination charges) and Hillard’s promotion decisions to
infer retaliation. But proof of temporal proximity is not required to make out a prima facie case of retaliation. See
Stone, 281 F.3d at 644. The Seventh Circuit cases the defendants cite involve failed attempts by plaintiffs to
establish as part of their prima facie case a direct causal link between their protected activities and the adverse
employment actions they suffered~a burden no longer imposed on plaintiffs in retaliation cases. See id.

4


Johnston prepared and compiled CPWA newsletters that were forwarded to Hillard on women’s
issues including merit promotions and the impact of nepotism. See Defs’ Resp. to Pls’
56.1(b)(3)(B) Stmt, | 107. Though plaintiffs may have been personally affected by
discrimination in the workplace, that does not mean that their speech on these issues fails to
qualify for First Amendment protection. There is no question that sex discrimination in public
employment is a matter of public concem. See Kokkinis v. Ivkovich, 185 F.3d 840, 844 (7° Cir.
1999); Hartman v. Board of Trustees of Community College District No. 508, 4 F.3d 465, 472
n.5 (7" Cir. 1993); Marshall v. Allen, 984 F.2d 787, 795 (7 Cir. 1993). In this case, plaintiffs
have provided evidence that they spoke on women’s issues generally, and not (as in Kokkinis and
other cases) merely about how this affected their private interests. For these reasons, their speech
on these issues is in the public interest, and outweighs the police department’s countervailing
interests,
The Court finds that plaintiffs have raised a genuine issue of fact as to whether

Hillard was motivated by plaintiffs’ advocacy when he passed them over for promotion.
Plaintiffs are entitled to prove a § 1983 retaliation claim through circumstantial evidence, see
Pugh v. City of Attica, Indiana, 259 F.3d 619, 630 n. 9 (7 Cir. 2001) (noting similar evidentiary
requirements for Title VI and § 1983 retaliation claims), and as indicated in our discussion of
the Title VII claims, plaintiffs have presented evidence from which a reasonable jury could find
that Hillard’s stated reasons for his actions are pretextual.

Hillard has also raised the defense of qualified immunity with regard to the § 1983 claim.
He does not ague, however (nor could he), that the law in this area is not clearly established.

Rather, he argues that summary judgment should be granted because he did not act based on


reason, the burden shifts back to the plaintiff to show that the defendant’s reason is pretextual.
Id.

Defendants first argue that plaintiffs have failed to make out a prima facie case. They
argue primarily that plaintiffs have failed to identify similarly situated police Lieutenants. They
also contend that plaintiffs were unqualified for the promotion and therefore did not meet the
City’s or Hillard’s legitimate expectations. As an initial matter, we note that “the prima facie
case cannot be used by rote but must be adapted to fit the varying facts of discrimination cases.”
Flores v. Preferred Technical Group, 182 F.3d 512, 515 (7" Cir. 1999). Because this case
involves promotion, not discharge, the most pertinent question on element two of the prima facie
case is whether plaintiffs were qualified for the promotion, an issue also raised by defendants’
assertion that the plaintiffs were not promoted because they lacked certain qualifications. And
this issue dovetails to some extent with the issue of whether plaintiffs have identified similarly
situated employees who were promoted. See e.g., Grayson v. O'Neill, 308 F.3d 808, 818 (7" Cir.
2002) (“when a plaintiff produces evidence sufficient to raise an inference that the employer
applied its legitimate expectations in a disparate manner, the second and fourth prongs of
McDonnell Douglas merge, allowing the plaintiff to establish a prima facie case by establishing
that similarly situated employees were treated more favorably”). The “linchpin” of the prima
facie case here is evidence of disparate treatment between plaintiffs and others filing charges of
discrimination or speaking out against the Department, and similar Lieutenants who did not
engage in that protected activity. See Flores, 182 F.3d at 514-15. In order for plaintiffs to
demonstrate disparate treatment, they first need to identify candidates who were promoted and

who had equal or lesser qualifications, as the City and Hillard has defined them. Defendants


demonstrate pretext by showing that an employer’s reasons are (1) factually baseless, (2) did not
actually motivate defendants, or (3) were insufficient to motivate them. See O'Neal v. City of
New Albany, 293 F.3d 998, 1005 (7" Cir. 2002). Evidence that an employer’s proffered
nondiscriminatory reasons have changed over time is sufficient to raise a genuine issue of fact on
the question of pretext. Zaccagnini y. Chas. Levy Circulating Co., 338 F.3d 672, 677-78 (7" Cir.
2003). Hillard has stated that he did not promote plaintiffs because he did not have confidence in
them and they lacked certain leadership qualities. But plaintiffs have produced evidence that
casts doubt on the factual basis for Hillard’s evaluation of plaintiffs’ qualifications, along with
evidence that suggests that his stated reasons might be post hoc rationalizations.

For example, when asked to explain why he questioned Deloughery’s judgment and
leadership skills, Hillard stated that she had improperly assisted her sister—a prospective police
officer-during a training exercise by rigging the score on her running test. See Pls’ Ex. 13 (City
report to DOJ) at 209. He later acknowledged, however, that Deloughery was merely present
during the training exercise. Pls’ Ex. 14 (Defs’ Ans. to Interrogs.) at 2. Further, Hillard stated
that he questioned Deloughery’s leadership skills based on an alleged conversation they had in
which, he claimed, Deloughery mentioned a “Top Cop” award she had received but failed to
make suggestions for handling an ongoing scandal in the Department. See id. When asked to
recount that conversation during his deposition, however, Hillard did not mention the Top Cop
award, stating only that he and Deloughery had a general conversation about Deloughery’s
father’s retirement from the police force. Pls’ Ex. 3 (Hillard Dep.) at 12-15, Further, he
indicated that if Deloughery had wanted to make a suggestion about the scandal in the

Department, that she should have made it through the chain of command-and not to him directly.


plaintiffs’ exercise of their First Amendment rights. The existence of genuine issues of material
fact on that score precludes summary judgment on the immunity issue as well.

Because plaintiffs have failed to show that Hillard was final policymaker for the City,
however, we agree that the City cannot be held vicariously liable for his personnel decisions, and
is entitled to summary judgment on the § 1983 claim. Though Hillard was in charge of the
promotion process, his authority to act was based on the municipal ordinance adopting a
collective bargaining agreement between the policeman’s union and the City, and plaintiffs have
not made the required showing that his individual decisions amounted to custom or usage having
the force of law. See Kujawski v. Board of Commissioners, 183 F.3d 734, 739 (7* Cir.
1999)(‘there must be a delegation of authority to set policy for hiring an firing, not a delegation
of only the final authority to hire and fire”).

Conclusion

For the reasons stated above, the Court grants summary judgment in favor of the City on
plaintiffs’ § 1983 claim, but denies the City’s motion for summary judgment on the Title VI
claim and Hillard’s motion for summary judgment on the § 1983 claim [docket # 51-1, 53-1].
The final pretrial order remains due on October 31, 2003, and the case remains set for trial on
January 5, 2004 at 9:45 a.m. The case is set for a status hearing on September 30, 2003 at 9:30

a.m. to discuss the possibility of settlement.

MATTHEW F. KENNELL
United States District Jud
Date: September 22, 2003


Minute Order Porm (06/97)

United States District Court, Northern District of Minois

Name of Assigned Jud Sitting Judge If Oth
a Magione Judge Matthew F. Kennelly thant Asahied Tudge
CASE NUMBER 02 C 2722 DATE 9/22/2003
CASE Deloughery vs. City of Chicago
TITLE
[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.)
DOCKET ENTRY:
ql) o Filed motion of [ use listing in “Motion” box above.]
(2) Brief in support of motion due
QB) a Answer brief to motion due. . Reply to answer brief due, .
(4) Oo Ruling/Hearing on set for at
(5) a Status hearing[held/continued to) [set for/re-set for] on set for at
(6) o Pretrial conference[held/continued to] (set for/re-set for] on set for at .
() Oo Trial{set for/re-set for] on at
(8) Oo (Bench/Jury trial} [Hearing] held/continued to at
(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) CiLocalRule 41.1 OOFRCP41(a(1) OO FRCP41(a)(2).
ao [Other docket entry} For the reasons set forth on the attached Memorandum Opinion and Order,
the Court grants summary judgment in favor of the City on plaintiffs’ § 1983 claim, but denies the City’s
motion for summary judgment on the Title VII claim and Hillard’s motion for summary judgment on the
§ 1983 claim (51-1, 53-1). The final pretrial order remains due on 10/31/03, and the case remains set for
trial on 1/5/04 at 9:45 a.m. The case is set for a status hearing on 9/30/03 at 9:30 a.m. to discuss the
possibility of settlement.
(11) +@ [For further detail see order attached to the original minute order.]
No notices required, advised in open court. Document.
No notices required. Number
umber of notices
Notices mailed by judge's staff. 23
Notified counsel by telephone. per due 2003
oY | Docketing to mail notices.
Mail AO 450 form. | cranensy Moy rie
WEBS
Copy to judge/magistrate judge. synod a
OR epuy'a +7,.:9 Fi q
initials
Date/time received in. (13
contral Clerk's OfModt) 62748



Ia.

When asked to elaborate on why Johnston was unqualified for promotion, Hillard initially
stated that she was “very indecisive.” Pls’ Ex. 3A (Hillard Dep.) at 97. When asked to state an
occasion on which she was indecisive, he waffled, stating that she was not so much indecisive, as
she was an inadequate mentor. Jd, Hillard also stated that Johnston stayed inside too much as a
watch commander. See Jd. at 102. He has acknowledged, however, that he has no knowledge of
Johnston’s performance as a watch commander since 1995. Defs’ Resp. to Pls’ 56.1(b)(3)(B)
Stmt., | 290. Though these inconsistencies do not prove that Hillard’s reasons for not promoting
Johnston and Deloughery are phony, they raise a genuine issue of material fact on the issue of
pretext. For this reason, plaintiffs’ Title VII retaliation claims must be allowed to proceed.

To establish their § 1983 claim, which is based on First Amendment retaliation, plaintiffs
must show that they engaged in constitutionally protected speech and that defendants retaliated
against them based on that speech. A public employee’s speech is protected if it addresses a
matter of public concem, and the employee’s interest in expression outweighs the state’s interest
in promoting the efficiency of the public services it performs through its employees. Connick v.
Myers, 461 U.S. 138, 142 (1983), Plaintiffs claim that they were passed over for promotion
because of their advocacy for women’s issues in the Department. Defendants argue that
plaintiffs’ speech is not protected because it related only to their personal grievances and private
interests. The Court disagrees. The evidence reflects that Deloughery and Johnston (at least
through membership in the Chicago Police Women’s Association (CPWA)) advocated for
female police officers generally. Deloughery spoke directly with Hillard about the need for

increasing women in specialized units and higher ranks, see Pls’ Ex. 7 (Perez Dep.) at 28-29, and


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

EASTERN DIVISION
DELORES DELOUGHERY and )
MARIE JOHNSTON, )
Plaintiffs, }
vs. ) Case No. 02 C 2722
CITY OF CHICAGO and TERRY HILLARD, }
Defendants. }

gerert 4

MEMORANDUM OPINION AND ORDER
sep 2 32003

MATTHEW F. KENNELLY, District Judge:

Delores Deloughery and Marie Johnston, both Lieutenants in the Chicago Police
Department, have sued the City of Chicago and Police Superintendent Terence Hillard, asserting
claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5, and 42 U.S.C. §
1983, They allege that defendants violated their civil and constitutional rights when they were

passed over for a promotion to the rank of Captain; specifically they contend that promotion was

denied because they had made claims of discrimination and had spoken out regarding the
perceived need for more women in positions of authority in the CPD.

Defendants have moved for summary judgment. They argue that plaintiffs have failed to
produce evidence that would support a prima facie case of retaliatory discrimination under either
Title VI or § 1983. Alternatively, they argue that plaintiffs have failed to rebut Hillard’s stated,
non-discriminatory reasons for denying them promotions. Hillard argues that he cannot be held

individually liable under Title VU in any event, and the City disclaims vicarious liability under §

WF


1983 for Hillard’s personnel decisions. For the reasons outlined below, the Court grants
defendants’ motions in part and denies them in part.

First, the Court agrees that Hillard cannot be sued under Title VII in his individual
capacity. As he correctly states, a supervisor in his individual capacity is not an “employer” as
defined by Title VI, see Sattar v. Motorola, Inc., 138 F.3d 1164, 1168 (7" Cir. 1998), and
plaintiffs appear to concede the point. We therefore address the Title VI claims only insofar as
they are directed against the City.

To avoid summary judgment on their Title VII retaliation claims, plaintiffs must make
out a prima facie case of retaliation within the framework established in Stone v. City of
Indianapolis Public Utilities Division, 281 F.3d 640 (7" Cir. 2002). See Haywood y. Lucent
Technologies, Inc., 323 F.3d 524, 531 (7 Cir. 2003). Because they have no direct evidence of
retaliation, they must proceed under the indirect method- an “‘adaptation of the McDonnell
Douglas test to the retaliation context.”” Jd. at 531 (quoting Stone, 281 F.3d at 644). Each
plaintiff must show that she (1) engaged in statutorily protected activity; (2) performed her job
according to her employer’s legitimate expectations; (3) suffered an adverse employment action;
and (4) was treated less favorably than similarly situated employees who did not engage in
statutorily protected activity. Jd. Because the adverse employment action at issue here is the
City’s failure to promote plaintiffs, the fourth element requires plaintiffs to identify similarly
situated employees who did not file discrimination charges and who did not speak out on
women’s issues in the CPD, and who were promoted. If the plaintiff establishes these elements,
the burden shifts to the defendant to come forward with a legitimate, non-discriminatory reason

for the adverse employment action. Jd. Once the defendant presents a legitimate, non-invidious