she was unqualified after her time in the OTP, but because she has not been in the Aurora area "in years" and thus, would need the additional time to reacquaint herself with the streets.
Accordingly, the Court does not find that Brown's affidavit is inconsistent with her deposition testimony. In summary, the context in which most of the pertinent deposition testimony was provided is simply unclear. And, because this matter is before the Court on summary judgment, the Court will give Brown the benefit of the doubt. Thus, the City of Aurora's motion to strike the pertinent portion of Brown's affidavit is without merit.
Now, back to the McDonnell Douglas test and Brown's prima facie case.
Regarding the third element, Brown was terminated and thus subjected to an adverse employment decision -- the third element is not in dispute.
The fourth element -- whether similarly situated recruits outside of the classification received more favorable treatment -- is a little more interesting. Because of the somewhat unique circumstances surrounding the employment decision, the Court believes that Brown has logically satisfied this element.
That is, as discussed, to become a City of Aurora police officer, a recruit must earn a first and second release from the OTP. Brown was the only female in the program -- and, thus, the only black female.
Brown claims that she performed well enough to earn her first and second releases but was terminated instead of officially becoming a City of Aurora police officer. There were obviously other recruits in the program. Because the other recruits passed
the OTP and Brown failed, but Brown (according to her affidavit) performed well enough to pass, the other recruits logically received more favorable treatment. In other words, because Brown performed well enough to earn her first and second releases, but did not, while the other recruits did, she was singled out. The fourth and final element of Brown's prima facie case has been established.
2. The Legitimate, Nondiscriminatory Reason
The City of Aurora must now offer a legitimate, nondiscriminatory reason for its decision to terminate Brown. The City of Aurora does just that: it claims that it terminated Brown due to her poor performance in the OTP. In support of its position that Brown was not qualified to be a police officer, the City of Aurora submits the affidavits of two of Brown's FTOs during the OTP -- Officer Mike Curran and Officer Greg Thomas. Curran was Brown's FTO during her first month and Thomas was her FTO during her third and fifth months of the OTP. Both officers state that Brown performed inadequately in the "streets and orientation," "self-initiated field activity," and "report writing" areas.
Brown must now show that the City of Aurora's explanation for her termination is pretextual, i.e., a lie. The only evidence Brown offers in support of her position that the City of Aurora is lying is her affidavit attesting to the fact that she was subjected to racist and sexist comments from some of her FTOs
-- primarily, FTO Curran.
For example, FTO Curran: referred to Brown as "Missy, Missy;" would ridicule her shoe laces because they were very feminine (whatever that means); would comment about her ponytail; would comment about her petite size; told Brown that she "should be at home taking care of her daughter;" told her that she would probably make sergeant before him because she was female and black; after reading a headline in a local newspaper that read "Marquette Park Integrating," said that he was "glad that he no longer lived there and he felt sorry for his friends that still lived there;" after seeing an interracial couple, stated that "that would never happen in my neighborhood." FTO Thomas also commented about Brown's petite size and told Brown that he was not going to give "you people" anything. Brown interpreted the term "you people" as a reference to her race. See Grady v. Illinois Bell Tel. Co., 1996 U.S. Dist. LEXIS 11726, No. 94 C 3115, WL 473657 *8 (N.D. Ill. Aug. 13, 1996) (For the purposes of summary judgment, the court accepts that the defendant's alleged "you people" comment "was a reference to Plaintiff's race."). Finally, FTO Dabney told Brown that "all black kids come from broken homes."
The statements collectively evidence -- for the purposes of summary judgment -- proof of racist and sexist animosity directed toward black individuals and women.
The problem, however, is whether evidence of such remarks, by itself is enough to create the inference that the City of Aurora's explanation for terminating Brown -- a black woman -- is a lie. The reason that there is a problem is because the Seventh Circuit has not been entirely clear, and arguably inconsistent, regarding the relevance of such evidence in the context of the plaintiff's attempt to create the inference that the employer's explanation is pretextual, i.e., the final step under the indirect method of proof.
A couple of recent cases suggest that discriminatory remarks, by themselves, are not enough to support the inference that the employer's decision was premised on illegal discrimination; rather, the remarks can support such an inference only if considered in conjunction with other evidence.
See Fuka v. Thomson Consumer Elec., 82 F.3d 1397, 1406 (7th Cir. 1996) ("Those statements, when considered in conjunction with other evidence, could support an inference of discrimination under the indirect, burden-shifting method.") (emphasis added); Futrell v. J.I. Case, 38 F.3d 342, 346 (7th Cir. 1994) ("While no one of these factors alone might sustain an age discrimination claim, their sum does permit a reasonable inference of discrimination.") (emphasis added); Monaco v. Fuddruckers, Inc., 1 F.3d 658, 662 (7th Cir. 1993) ("Those remarks standing alone were insufficient as a matter of law to support an inference of age discrimination.") (emphasis added).
At least one case has held that statements evidencing discriminatory animus, "when unrelated to the decisional process," are simply "insufficient to demonstrate that the employer relied on illegitimate criteria, even when uttered by a decision maker." Hong v. Children's Memorial Hosp., 993 F.2d 1257, 1266 (7th Cir. 1993); see Knox v. First Nat'l Bank of Chicago, 909 F. Supp. 569, 572-74 (N.D. Ill. 1995) (discussing contradictory Seventh Circuit case law and Hong decision).
Still, other cases seem to look to the totality of the circumstances -- such as the type and frequency of the remark, the context in which the remark was stated, the period of time between the remark and the adverse employment action, and whether the remark was uttered by the decision maker -- and ask whether such circumstances could create a reasonable inference that the employer's legitimate nondiscriminatory explanation is pretextual. See, e.g., Weisbrot v. Medical College of Wis., 79 F.3d 677, 684-85 (7th Cir. 1996); Hill v. Burrell Communications Group, Inc., 67 F.3d 665, 669 (7th Cir. 1995); Rush v. McDonald's Corp., 966 F.2d 1104, 1116 (7th Cir. 1992) (discussing McCarthy v. Kemper Life Ins. Co., 924 F.2d 683 (7th Cir. 1991)); McCarthy, 924 F.2d at 687 n.4; see also, Knox, 909 F. Supp. at 574 (focusing on the "probative value" of the remark).
So what is the Court to do?
The Court does not believe that there can be a bright-line rule as to whether discriminatory remarks, by themselves, are sufficient to raise a reasonable inference that the employer's legitimate, nondiscriminatory reason is pretextual. Rather, each case must be analyzed on its own facts. The inquiry should focus on the type and frequency of the remark, the context in which the remark was stated, the period of time between the remark and the adverse employment action, whether the remark was uttered by the decision maker, and any other relevant factors. As discussed below, based on the circumstances surrounding Brown's termination, the Court finds that one could reasonably infer that the City of Aurora's explanation is a lie; thus, the factfinder should determine the truthfulness of the explanation.
First, the racist and sexist remarks were made by three of the decision makers, i.e., by individuals who had Brown's fate in their hands. Importantly -- and surprisingly -- neither party has informed the Court of the identity of the ultimate decision maker. Thus, the Court will presume that each of Brown's FTOs had significant input in determining whether she would pass or fail the OTP.
As noted, the vast majority of the racist and sexist remarks were made by FTO Curran. Some of his remarks could be viewed as being "related" to the decision to terminate Brown. For instance, he told her that she should be at home taking care of her child and that she would make sergeant before him because she was black and female. Such comments certainly evidence animosity toward working women (and, with respect to the latter comment, a black woman). Furthermore, Brown testified that Curran made derogatory comments on a daily basis while he was her FTO -- Curran was Brown's FTO during only the first month of her six-month stay in the OTP. FTO Dabney made only one racist comment and FTO Thomas, who was Brown's FTO during her third and fifth months, made the "you people" comment and commented about Brown's petite size.
Finally, the termination decision arose in the context of a recruit training program. The Court finds the relatively short-term nature of Brown's employment history (in the OTP) with the City of Aurora significant. In contrast to most Title VII termination cases, Brown never had the opportunity to have her performance judged over an extended period or by several different superiors. Instead, the only thing the Court knows about Brown's performance is what the FTOs attest to regarding her time in the OTP. Thus, since no one else was knowledgeable about Brown's ability, the FTOs had a considerable amount of power over Brown's continued employment with the City of Aurora. And, as discussed, three of the FTOs harbored racist and/or sexist views.
Moreover, the recruits' performance was being monitored and evaluated on a daily basis in the OTP. Each day the assigned FTO filled out an observation report on his recruits. Every day was therefore important. Thus, particularly with regard to Curran, the racist and sexist remarks were essentially made contemporaneously with the FTOs' evaluation of Brown.
In summary, the Court concludes that the circumstances of this case are such that one could reasonably infer that the City of Aurora is lying as to why it terminated Brown. The totality of the circumstances -- numerous remarks evidencing racist and sexist views, such remarks made while Brown was being evaluated, a short-term recruit training program, and remarks made by FTOs who had significant input regarding Brown's fate -- convince the Court that the factfinder should decide whether Brown's termination was motivated by her poor performance or by racist and/or sexist attitudes on the part of the decision makers.
Based on the foregoing analysis, the City of Aurora's motion for summary judgment and motion to strike are denied.
Date: SEP 30 1996
JAMES H. ALESIA
United States District Judge