to create a genuine issue of material fact. Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion for Summary

Judgment be, and the same hereby is, GRANTED.

Dated: September 9, 2004 ENTER:

Qe Oust

ARLANDER KEYS
United States Magistrate Judge

19


In this case, the parties clash over whether Plaintiff has
produced admissible direct evidence of discrimination®, whether
Plaintiff can satisfy the McDonnell Douglas test, and whether
Plaintiff has complied with Local Rule 56.1. The Court need not
address each of these disputes in detail, however, because
Defendants have produced unrebutted evidence that Plaintiff would
have been disciplined and suspended even in the absence of
retaliatory intent’.

In this case, Defendants have demonstrated that Plaintiff

was charged with violating multiple DOC General Guidelines, and

®° Plaintiff asserts that she has produced direct evidence
of discrimination. In her brief, Plaintiff contends that, at her
Merit Board hearing, coworker Phylis Dotson testified that Chief
Kurtovich said “I’m gonna get that bitch” and “Averhart is on my
last nerve.” Plaintiff then asks the Court to impute Chief
Kurtovich’s statements to Officers Imhof and Kutska - because,
she claims, the three are friends. See generally, Walker v.
Glickman, 241 F.3d 884, 888 (7° Cir. 2001). Notably, Plaintiff
makes little or no effort to prove that these individuals were
actual decisionmakers or even that they possessed the authority
to recommend that Plaintiff be investigated or suspended. The
Court finds that these “[i]solated and attenuated statements are
insufficient to establish discriminatory intent on the part of
the Defendant.” Geier v. Medtronic, Inc., 99 F.3d 238, 242 (7
Cir. 1996) (To be probative of discrimination, isolated comments
must be contemporaneous with the adverse action or causally
related to the decision making process.)

10 Plaintiff’s Response brief confusingly references
numerous paragraphs of her Statement of Additional Facts — many
of which are not properly supported by admissible evidence and/or
proper citation to the Record - that, she claims, shows that she
has suffered multiple adverse job actions. Notably, Plaintiff's
Complaints and EEOC Charges reference only Plaintiff's
suspension and the alleged conspiracy to sully Plaintiff's record
as adverse actions.

13


In the interim, Defendants had begun investigating
allegations of impropriety against Plaintiff, including
allegations that Plaintiff was maintaining improper relationships
with inmates and was involved in smuggling contraband into the
prison®. During the course of the investigation, inmate William
Lang informed investigators that he had a personal relationship
with Plaintiff, in violation of DOC rules. In the summer of
2000, Internal Affairs Investigator Kuksta monitored planned
phone calls placed by Mr. Lang to Plaintiff on two occasions.

Mr. Lang and Plaintiff discussed an apparent personal

on duty” as “Less Serious Misconduct,” Plaintiff was written up
for “Major Insubordination,” not a minor traffic offense.
Plaintiff would have the Court believe that ignoring the order to
move her car must be a minor traffic offense, and not major
insubordination, simply because the subject of the
insubordination involved her automobile. This is nonsensical.
Notably, the DOC Guidelines list “Major Insubordination” as
serious misconduct.

6 In her Statement of Additional Facts, Plaintiff claims
that several inmates and other officers informed her that she was
the target of an IAD investigation, and that “those white folks”
were trying to set up Plaintiff. In support of this claim
Plaintiff cites to “YA 97", and does not offer a citation to the
Record. A review of Plaintiff's deposition transcript does
reveal that Plaintiff testified to as much during her deposition.
Notably, this testimony is not admissible at trial ~ it is double
hearsay, and the statement against interest exception does not
deem it admissible - and will, therefore, be disregarded by the
Court. See Fed. R. Evid. 805 and Fed. R. Evid. 801 (d) (2) (D).
Plaintiff does not offer affidavits or testimony from these
alleged informants, or other admissible evidence in support of
this claim.


superior. Monell v. Dept. of Soc. Servs. 435 U.S. 658, 691
(1978). Instead, a plaintiff must produce evidence showing that
the municipality’s policy caused her injury. Plaintiff may do so
by showing that: 1) Defendants had an express policy that caused
a constitutional deprivation; or 2) had a widespread practice
that was so well settled as to constitute custom or usage with
the force of law; or 3)a policymaker inflicted the constitutional
injury. McTigue, 60 F.3d at 382.

Although Plaintiff's Complaint references General Order 1.8
as the offending “gag order,” Plaintiff neither attached this
Order to her Complaint, nor directed the Court’s attention to
General Order 1.8 in her Rule 56.1 Statement. In her Response
Brief, Plaintiff abandons any attempt to satisfy the first or
second prongs of McTigue, and instead claims that Investigator
Kuksta and Superintendent Imhof were policymakers. But Plaintiff
has not produced any admissible evidence in support of her
assertion that these individuals were policymakers.

And even if Plaintiff could establish that Investigator
Kuksta and Superintendent Imhof were policymakers, Defendants’
ability to show that it would have terminated Plaintiff
regardless of her protected speech, prevents her from satisfying
the test announced in Mt Healthy City School Dist. Bd. Of Ed. v.
Doyle, 429 U.S. 274 (1977) In Mt. Healthy, the Supreme Court

directed courts to determine whether the employee’s speech is

17


Courts do not make “credibility determinations nor choose
between competing inferences” at the summary judgment stage.
Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1041 (7th Cir.
1993). Further, the court must view the facts in the light most
favorable to the non-moving party. Anderson, 477 U.S. at 255.

In addition, pursuant to Northern District of Illinois Local
Rule 56.1, the parties must support all disputed facts with
“specific references to... parts of the record.” Courts need
not “scour the record” in an attempt to locate the relevant
information supporting the Rule 56.1 claims. Waldridge v.
American Hoechst Corp., 24 F.3d 918, 922 (7th Cir. 1994). The
Seventh Circuit has repeatedly “sustained the entry of summary
judgment when the nonmovant has failed to submit a factual
statement in the form called for by the pertinent rule and
thereby conceded the movant’s version of the facts.” Id.; see
also Jupiter Aluminum Corp. v. Home Ins. Co., 225 F.3d 868, 871
(7 Cir. 2000) (all relevant facts denied without supporting
documentation must be accepted as true provided the facts are
“properly supported by references to the record or other
evidentiary materials.”)

In this case, Defendants have filed a Motion to Strike
Plaintiff’s Responses to Defendants’ Statement of Material Facts,
as well as Plaintiff’s Statement of Additional Facts. In

responding to the Motion, Plaintiff not only challenged


Sometime thereafter, Plaintiff was arrested for theft by the
Chicago Police. On January 18, 2001, Defendants notified
Plaintiff that her inappropriate relationships with inmates and
her theft arrest violated the DOC’s general orders.

On May 3, 2001, the DOC’s Employee Discipline Administrator
notified Plaintiff that the allegations against her had been
sustained and recommended that Plaintiff be terminated.

Plaintiff sought and received a “Loudermill” hearing regarding
the allegations on May 18, 2001. Defendants filed a Complaint
with the Cook County Sheriff’s Merit Board (“Board”), seeking
Averhart’s termination, on May 29, 2001. The Complaint alleged
that Plaintiff made false official reports; engaged in conduct
unbecoming an employee of the DOC; failed to comply with DOC
rules, procedures, directives, etc.; knowingly associated with
persons having known criminal records; and violated General
Orders of the Sheriff's Office.

The Sheriff's Merit Board conducted a hearing on the
Complaint on June 21, 2002, and concluded the proceedings on
April 17, 2003. Plaintiff argued that the charges against her
were overblown or fabricated. Plaintiff claimed that the charges
were brought in retaliation for her having submitted an affidavit

in the Smith v. Sheahan case and because she had reported other

making this alleged statement. As such, this is inadmissible
hearsay testimony, and will be disregarded by the Court.

6


relationship and planned to meet’. Notably, the meeting never
took place. Plaintiff denied ever having made or received
telephone calls from inmate Lang. However, Plaintiff did admit
to sending and receiving correspondence from other inmates, whom
she considered “lifelong friends.”

On September 5, 2000, Plaintiff filed Charge NO. 210A04317
with the Equal Employment Opportunity Commission (“EEOC”),
alleging that she was unfairly written up, recommended for
suspension, and subjected to different terms of employment in
retaliation for having participated in the 1985 class action
discrimination action, and in retaliation for giving deposition
testimony on behalf of a coworker. Plaintiff claims that she was
written up for minor infractions, such as using the commissary
bathroom instead of the ladies locker room when the locker room
lacked toiletries, and that Defendants failed to give her the

appropriate paperwork to properly challenge these infractions®.

7 Plaintiff alleges that Investigator Kuksta’s tactics were

improper and deviated from IAD guidelines.

® Plaintiff also asserts, in her Statement of Additional
Facts, that she was told that various supervisors encouraged
other officers and inmates to come forward with damaging
information about Plaintiff. Plaintiff cites to only her
deposition testimony to support these assertions, and has not
demonstrated that this double hearsay is admissible evidence.
For example, Plaintiff asserts that “Capt. Milka informed
plaintiff [sic] his supervisor told him to write [sic] counseling
form on plaintiff,” citing to her own deposition testimony. Pl.‘’s
St. of Add. Facts at @ 125. Plaintiff has not argued or
demonstrated that Capt. Milka or his supervisor were acting
within the scope of his duties and as Defendants’ agent when

5


protected; whether the speech was a motivating factor in the
retaliatory action; and finally, whether the defendant
established that the action would have been taken in the absence
of the employee’s speech. As discussed in detail above,
Defendants have presented unrebutted evidence that Plaintiff’s
suspension was based upon the valid charges against her. See
also, Spiegla v. Hull, 371 F.3d 928 (7% Cir. 2004)

Because Plaintiff cannot satisfy her burden under McTigue, the
Court grants Defendants’ Motion for Summary Judgment on
Plaintiff’s Section 1983 claim.

CONCLUSION

Having carefully reviewed the entire record, the Court finds
that Plaintiff has failed to produce admissible evidence giving
rise to a genuine issue of material fact with regard to any of
her claims. The Court acknowledges that Plaintiff had a
difficult time interacting with her supervisors, and would
concede that Plaintiff likely believes she is the victim of
retaliation. Nevertheless, her evidence fails to support ‘her

claims. Plaintiff’s admissible evidence is simply insufficient

18


of 42 U.S.C. § 1983. The case was initially assigned to Judge
Ronald A. Guzman. On March 7, 2003, Judge Guzman denied
Defendants’ Motion to Dismiss. The parties then consented to
proceed before this Court on April 25, 2003, and the cases were
subsequently consolidated.

Summary Judgment Standards

Courts should grant summary judgment when “there is no
genuine issue as to any material fact and. . . the moving party
is entitled to a judgment as a matter of law.” Fep. R. Civ. P.
56(c). A genuine issue of material fact exists when the
“evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1985). Initially, the moving party bears the
burden of showing that the record contains no genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986).

The non-moving party must present more than a “metaphysical
doubt as to the material facts.” Matsushita Elec. Indus., Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). Additionally,
conclusory allegations are not sufficient to survive summary
judgment. Nowak v. St. Rita High School, 142 F.3d 999, 1002 (7th
Cir. 1998). The non-moving party must present sufficient
evidence to support each element of her case on which she will

bear the burden of proof at trial. Celotex, 477 U.S. at 322.


Mingle Order Form (0897)

re

A usipea States District Court, Northern District of Minois

Name of Assigned Judge Sitting Judge if Other
. or Magistrate Judge Arlander Keys than Assigued Judge
CASE NUMBER 01 C 5569; 02 C 3981) DATE 9/9/2004
=—
CASE Yvonne Averhart vs. Michael F, Sheahan et al.
TITLE
{On 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.]
DOCKET ENTRY:
qd) Qo Filed motion of [ use listing in “Motion” box above.]
(2) oO Brief in support of motion due
(3) Q Answer brief to motion due. . Reply to answer brief due. .
(4) oO Roling/Hearing on set for at
(5) Q Status hearing[held/continued to} [set for/re-set for] on set for at .
(6) im Pretrial conference[held/continued to} [set for/re-set for] on set for at .
(7) Qo Trial[set for/re-set for] on at
(8) o (Bench/Jury trial] [Hearing] held/continued to at
(9) Oo This case is dismissed [ with/without) prejudice and without costs[by/agreement/pursuant to]
CIFRCP4(m) (Local Rule 41.1 O)FRCP41(aX(1) © FRCP41(a)(2).
(10) HM [Other docket entry} Memorandum Opinion and Order entered. Defendants’ Motion for Summary
Judgment [#46] is hereby granted. Af
(il) [For further detail see order attached to the original minute order.)
No notices required, advised in open court. ,  Document-—
No notices required. somber of wotiea ; Number od
o | Notices mailed by judge's staff.
Notified counsel by telephone.
Docketing to mail notices.
¢ | Mail AO 450 form. oe
isi “SN
Copy to judge/magistrate judge. Lunes 19 379
courtroom an:2 Hd 6- daS yo0e
FT/ deputy’s \
m Dateftine redeied nt
central Clerk’s Office



Direct evidence is defined as evidence that “if believed by
the trier of fact, will prove the particular fact in question
without reliance upon inference or presumption.” Randle v.
LaSalle Telecomm. Inc., 876 F.2d 563, 569 (7th Cir. 1989).
Direct evidence includes discriminatory statements made by
decision makers. Gorence v. Eagle Food Ctrs., Inc. 242 F.3d 759,
762 (7th Cir. 2001). The statements must be made
contemporaneously with, or causally related to, the employment
decision and must demonstrate the speaker’s discriminatory
intent. Markel v. Bd. of Regents of Univ. of Wisc. Sys., 276
F.3d 906, 910 (7th Cir. 2002) (citing Conley v. Vill. of Bedford
Park, 215 F.3d 703, 711 (7th Cir. 2000)). Finally, evidence of
inappropriate remarks not shown to be directly related to the
employment decision may not support a direct-method-of-proof
case, but, in connection with other evidence, might support a
case under McDonnell Douglas's indirect method of proof.
Gorence, 242 F.3d at 762.

To establish a prima facie case of retaliation under the
indirect method of proof, Plaintiff must show that: (1) she
engaged in a statutorily protected activity; (2) she performed
her job according to her employer's legitimate expectations; (3)
despite meeting her employer's legitimate expectations, she
suffered a materially adverse employment action; and (4) she was

treated less favorably than similarly situated employees who did

11


Defendants’ assertions, but improperly used the opportunity to
highlight oversights she made in her Response and Statement of
Additional Facts. The Court will not directly rule on this
Motion, but notes that the Summary Judgment Motion will be
decided under the guidelines set forth in Local Rule 56.1.
Factual assertions not properly supported by accurate record
citations, and those supported only by hearsay testimony, will be
disregarded. See generally, Winskunas v. Birnbaum, 23 F.3d 1264,
1267-68 (7 Cir. 1994) (only admissible evidence may be
considered on summary judgment.)
DISCUSSION

1. Title VII Retaliation

The retaliation provision of Title VII forbids an employer
from discriminating “against any individual . . . because he has
opposed any practice made an unlawful employment practice by this
subchapter [42 U.S.C. §§ 2000e to 2000e-17], or because he has
made a charge . . . or participated in any manner in an
investigation, proceeding, or hearing under this subchapter [42
U.S.C. §§ 2000e to 2000e-17].” 42 U.S.C. § 2000e-3(a). A
plaintiff has two routes to surviving summary judgment in a Title
VII retaliation case; by presenting direct evidence of
retaliation or by satisfying the indirect method of proof
announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973).

10


incidents she believed to be improper. The Merit Board issued
its final determination on June 11, 2003, finding that the
Sheriff had produced sufficient evidence to sustain all charges
against Plaintiff. The Merit Board found that Plaintiff’s
termination was retroactive to May 29, 2001. Plaintiff filed
suit in the Illinois State courts, seeking review of this
administrative decision.

In the interim, Plaintiff had filed another charge with the
EEOC. On January 23, 2002, Plaintiff filed charge Number
210A201475, alleging that Defendants suspended her from her
employment on May 29, 2001, in retaliation for having previously
filed Charge No. 210A04317.

PROCEDURAL HISTORY

Plaintiff first filed suit against Defendants on January 18,
2001, alleging that Defendants suspended her without pay from her
job in retaliation for speaking out against sexual harassment and
filing an EEOC Charge against Defendant, in violation of Title
VII. The case was initially assigned to Judge George W.
Lindberg. On February 21, 2002, the parties consented to proceed
before a Magistrate Judge, and on February 25, 2002, the case was
assigned to this Court.

Plaintiff filed her second lawsuit on June 4, 2002, alleging
that Defendants retaliated against her, in violation of Title

VII, and deprived her of her First Amendment Rights, in violation


disrespect. Plaintiff grieved the write up, claiming that the
write up was unfair and was the result of a hostile environment
created by Superintendent Imhof, Plaintiff’s grievance was
denied on December 21, 1999,

On January 18, 2000, Plaintiff requested an administrative
move, noting that she had been written-up five times since Supt.
Imhof arrived in her Division?. on January 27, 2000, Plaintiff
was transferred to Division V, and was written up for a “major
act of insubordination” the next day, when she ignored an order
to remove her car from a handicapped-parking space‘. Plaintiff
notes that, under the DOC’s General Orders, a “Minor traffic

offense on duty” is not considered serious misconduct’,

3 Plaintiff asserts that these write ups began,
suspiciously, immediately after the Seventh Circuit issued its
opinion in Smith v. Sheahan, 189 F.3d 529 (7 Cir. 1998),
Plaintiff reluctantly acknowledges that she was first written up

attempts to downplay its significance - thereby strengthening her
claims of causation -- by noting that the July 23, 1999 write up
was later expunged.

‘ Plaintiff's Statement of Additional Facts asserts that
this write up was baseless, because she had heel spurs and had
been issued a handicap parking Placard. She then claims that the
write up was issued at Supt. Imhof’s direction, in retaliation
for Plaintiff’s transfer request. Pl.’s Add. Facts 4 However,
Plaintiff fails to cite to any evidence in the record in support
of her claim that Supt. Imhof was involved in any way, or that he
was attempting to retaliate against Plaintiff. As explained
below, the Court will disregard this, and all, “additional facts”
not properly supported by citations to the record and admissible
evidence.

5 Plaintiff seems to muddy the waters here. While it is
true that the DOC’s General Orders labels “Minor traffic offense

3


that she was disciplined accordingly. Plaintiff argues that the
charges were bogus, and contends that she demonstrated at the
merit board hearing that the “charges are unfounded.” Pl.’s
Resp. at 15. Plaintiff claims that many of the charges against
her were minor incidents, blown out of proportion in an effort to
build a case for her termination ~ such as her parking in a
handicapped parking spot; keeping cleaning supplies in her
locker; and using the commissary bathroom. She also claims that
she damaged the credibility of the only eyewitness against her at
the Merit Board hearing by showing that he contradicted himself.
Obviously, the Merit Board disagreed, recommending that Plaintiff
be terminated for her various infractions.

Plaintiff has not produced any admissible evidence
demonstrating that these charges were not valid. See generally,
Shea v. Lovejoy, Inc., 2004 WL 1194748 (N.D. Ill. May 27, 2004)
(noting that an employee’s perception of his performance is
immaterial to the question of the employer’s reasonable beliefs).
Nor has Plaintiff pointed to any evidence demonstrating that the
Merit Board was influenced by retaliatory intent, or any other
improper motivation, in sustaining the charges against her.

Plaintiff attempts to persuade the Court that the charges were
part of a smear campaign, by showing that other officers
committed similar or more serious infractions, but were not

suspended. See Pl.’s Resp. at 12. However, Plaintiff fails to

14


tends to support Defendants’ position by demonstrating that 12 of
the 27 individuals found guilty of associating with inmates were
terminated, while others were suspended or resigned.

None of this serves to rebut Defendants’ evidence that
Plaintiff was found to have violated the DOC’s general
guidelines, that she was provided a full and fair hearing on the
charges, and that the Merit Board, after weighing the evidence,
recommended that she be terminated. Under these circumstances,
the Court finds that the Defendants have offered a legitimate
explanation for terminating Plaintiff, which Plaintiff has failed
to rebut. Therefore, the Court grants Defendants Motion for
Summary Judgment on Plaintiff Title VII retaliation claim.

2. Section 1983- First Amendment Retaliation

The parties dispute whether res judicata precludes Plaintiff
from pursuing her First Amendment claim, because she failed to
raise the claim before the Merit Board. See Schofield v. Nikkel,
314 Ill. App. 3d 771, 780, 731 N.E.2d 915 (2000). Regardless of
whether the Merit Board’s decision precludes Plaintiff from
raising her claim here, or whether Defendants waived the issue of
res judicata by failing to raise it as an affirmative defense,
Plaintiff has not satisfied her burden under McTigue v. City of
Chicago, 60 F.3d 381, 382 (7 Cir. 1995).

It is well established that a local government unit may not

be held liable under § 1983 under the doctrine of respondeat

16


unremarkable’. On July 23, 1999, however, Plaintiff was written
up for misconduct and suspended for five days. Plaintiff
successfully grieved this write up, and the discipline was
subsequently expunged. Approximately one month later, on August
27, 1999, the United States Court of Appeals issued its opinion
in Valerie Smith v. Sheahan, 189 F.3d 529 (7% Cir. 1998). The
Seventh Circuit decision, which enabled Ms. Smith to proceed with
her sexual discrimination suit against the Cook County Sheriff
and his Department, expressly mentioned Ms. Averhart and the
affidavit she had given in support of Ms. Smith’s claim.
Plaintiff contends that, following the issuance of the Seventh
Circuit’s decision, Defendants began disciplining her for minor
and concocted infractions, and subjecting her to abuse and
harassment, in retaliation for assisting Ms. Smith.

On September 9, 1999, Plaintiff was cited for having DOC
property in her locker*. Plaintiff asserts that this was, at
best, a minor offense, but was written up as a major infraction.
Plaintiff grieved the September 9'* write up, and wrote letters
to various officials within the DOC chain of command, including

Sheriff Sheahan. Plaintiff was then written up for minor acts of

1 Plaintiff did, however, provide affidavits in support of a
coworker’s discrimination lawsuit in 1995 and 1997.

2 Apparently, drug sniffing dogs reacted suspiciously to
Plaintiff’s locker. Defendants then searched
Plaintiff's locker, while neither Plaintiff nor a union
representative were present, and found cleaning supplies inside.

2


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

YVONNE AVERHART,
NO. 01 C 5569 &

02 ¢ 3982 DOCKETED

SEP 0 9 2004

Plaintiff

vs.
Magistrate Judge
Arlander Keys
MICHAEL F. SHEAHAN, The Sheriff
of Cook County and

COUNTY OF COOK,

Defendants.

MEMORANDUM OPINION AND ORDER

Defendants, Michael F. Sheahan and County of Cook (“Cook
County”), move this Court for summary judgment pursuant to Rule
56 of the Federal Rules of Civil Procedure. Plaintiff sued
Defendants, claiming that her employer retaliated against her for
exercising her rights under the First Amendment, and in violation
of Title VII of the Civil Rights Act of 1964, 42 U.S.C § 2000e et
seq. (West 2003), and 42 U.S.C. § 1983 (West 2003). For the
reasons set forth below, the Court grants Defendants’ Motion for
Summary Judgment.

BACKGROUND FACTS

On December 17, 1986, the Cook County Department of

Corrections (the “DOC”) hired Yvonne Averhart as a correctional

officer, following her participation in a class action lawsuit

On

that successfully challenged the DOC’s hiring policies. Ms.

Averhart’s first thirteen years of service were relatively


not engage in statutorily protected activity. Hilt-Dyson v. City
of Chicago, 282 F.3d 456, 465 (7th Cir.2002). If Plaintiff
satisfies her prima facie case, the burden shifts to the employer
to articulate a legitimate, non-discriminatory reason for the
adverse employment action. "If the defendant presents unrebutted
evidence of a noninvidious reason for the adverse action, [it] is
entitled to summary judgment. Otherwise, there must be a trial."
Stone v. City of Indianapolis Pub. Utils. Div., 281 F.3d 640, 644
(7th Cir.2002).

In Stone, Judge Posner clarified a plaintiff’s burden under
both the direct and indirect methods of proof. The Stone
decision focuses primarily upon the proper role of causation
under both methods of proof. Id. at 643. More pertinent to this
case, however, is Judge Posner’s reiteration of the standard rule
that if “the defendant presents unrebutted evidence that he would
have taken the adverse employment action against the plaintiff
even if he had no retaliatory motive . . . the defendant is
entitled to summary judgment, because he has shown that the
plaintiff wasn’t harmed by retaliation.” Id. at 644. This is
true under both the direct and indirect methods of proof. Id. at

644.

12


cite to any admissible evidence in support of these claims.

For example, Plaintiff claims that Officer Sullivan improperly
impersonated a records officer and brought an inmate to court,
despite direct orders not to do so. Jd. Plaintiff asserts that
Officer Sullivan received no discipline for this infraction. In
support of these assertions, Plaintiff offers only her own
deposition testimony. Although self serving deposition testimony
may be sufficient to defeat summary judgment, the testimony must
be based upon personal knowledge. See Payne v. Pauley, 337 F.3d
767, 773 (7 Cir. 2003). Here, Plaintiff has not directed the
Court to evidence establishing that she had personal knowledge of
the underlying incident or of Officer Sullivan’s disciplinary
history - nor that of Officers Collins, Caset Rios, Daniel Duh,
or Latanya McCulloh. See Fed. R. Evid, 602 (noting that a
witness may not testify to a matter unless she introduces
sufficient evidence to demonstrate that she has personal
knowledge of the matter.)

Even more confusing is Plaintiff’s chart categorizing the
race and sex of all individuals accused of associating with an
inmate. The evidence tends to show that, in some instances,
minorities were found guilty of certain charges more frequently
than white men. This evidence would certainly have a place ina
discrimination lawsuit, but fails to shed much light on

Plaintiff's retaliation claims. To the contrary, the evidence

15