Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

BROWN v. CITY OF AURORA

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION


September 30, 1996

LISA HILLIVI BROWN, Plaintiff,
v.
CITY OF AURORA, Defendant.

The opinion of the court was delivered by: ALESIA

MEMORANDUM OPINION AND ORDER

 This matter is before the Court on Defendant City of Aurora's motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 and motion to strike. For the reasons discussed hereafter, both motions are denied.

 I. BACKGROUND

 Plaintiff Lisa Hillivi Brown, a black female, began employment with the Defendant City of Aurora's Police Department in April 1990. Prior to becoming a patrol officer, one must first attend a ten-week training course at a police academy. Upon completion of the police academy training course, the recruits are hired by the City of Aurora as probationary patrol officers. The recruits are not released from probation until they next successfully complete the "Officer Training Program (OTP)."

 Generally, a recruit can earn a first release from the OTP after three months of training, and a second and final release after the fourth month of training. It is not unusual, however, for a recruit to spend an extra month in the OTP -- many do, especially if one is not familiar with the Aurora area. But, if the recruit fails to earn a first and second release, his employment with the City of Aurora will be terminated.

 While participating in the OTP, the recruits are assigned a "Field Training Officer (FTO)." FTOs train the recruits and are responsible for completing daily observation reports on each recruit. Generally, the recruits are assigned a new FTO on a monthly basis, but it is not unusual for a recruit to be assigned the same FTO twice.

 Brown failed to earn a first release within her first three months in the OTP. Her FTOs concluded that her performance was lacking in the "streets and orientation," "self-initiated field activity," and "report writing" areas. Consequently, Brown's stay in the OTP was extended by one month on two separate occasions. After six months in the OTP, Brown had yet to earn her first release. Brown was therefore terminated.

 On February 7, 1991, Brown filed a charge of race and sex discrimination with the Illinois Department of Human Rights (IDHR) and the Equal Employment Opportunity Commission (EEOC). On January 23, 1995, the EEOC issued a right to sue letter.

 On April 19, 1995, Brown filed a complaint in this Court alleging violations of Title VII, 42 U.S.C. § 2000e et seq.; the complaint was subsequently amended twice. The complaint contains one count of race discrimination and one count of sex discrimination.

 II. DISCUSSION

 Relying on Brown's brief, in her attempt to impose Title VII liability upon the City of Aurora, she advances one disparate treatment claim premised on two forms of discrimination -- race and sex. *fn1" Specifically, Brown claims that she was terminated from the City of Aurora's Police Department because of her race and/or sex. Following a statement of the summary judgment standard of review, the Court will address Brown's disparate treatment claim. The City of Aurora's motion to strike will be addressed while discussing the disparate treatment claim.

 A. Summary Judgment - Standard of Review

 Under FED. R. CIV. P. 56(c), summary judgment shall be granted if the record shows 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." Black v. Henry Pratt Co., 778 F.2d 1278, 1281 (7th Cir. 1985). The moving party has the burden of providing proper documentary evidence to show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). A genuine issue of material fact exists when "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Unquestionably, in determining whether a genuine issue of material fact exists, the evidence is to be taken in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). Once the moving party has met its burden, the opposing party must come forward with specific evidence, not mere allegations or denials of the pleadings, which demonstrates that there is a genuine issue for trial. Howland v. Kilquist, 833 F.2d 639 (7th Cir. 1987).

 B. Title VII - Disparate Treatment

 Title VII makes it "an unlawful employment practice for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's" race and/or sex. 42 U.S.C. § 2000e-2(a)(1). Brown admittedly offers no direct evidence that race or sex played a role in the City of Aurora's decision to terminate her, *fn2" thus, her disparate treatment claim will be analyzed under the three-step model enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). First, Brown must establish a prima facie case. She must show: (1) that she belongs to a protected group; (2) that she performed satisfactorily; (3) that she was subjected to an adverse employment action; and (4) that similarly situated employees outside the classification received more favorable treatment. Hughes v. Brown, 20 F.3d 745, 746 (7th Cir. 1994).

 Once established, the "prima facie case creates a rebuttable presumption of discrimination, and the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for its allegedly biased employment decision." Johnson v. City of Fort Wayne, Ind., 91 F.3d 922, WL 427960 *5 (7th Cir. 1996). "If the employer meets its burden of production, the presumption dissolves." Id.

 If the presumption dissolves, "to prevail, the employee then must demonstrate that the nondiscriminatory explanation of the employer is pretextual." Id. Pretext means a lie. Id. There are three ways to show that a proffered nondiscriminatory explanation is pretextual: (1) the employer's explanation had no basis in fact; (2) the explanation was not the "real" reason; or (3) the reason stated was insufficient to warrant the adverse employment action. Id. "In trying to establish that an employer's explanation is pretextual, an employee must 'focus on the specific reasons advanced by the defendant[s].'" Id.

 1. The Prima Facie Case

 The Court concludes that Brown has established a prima facie case of race and sex discrimination. Brown is a black female, she obviously belongs to a protected group (actually, two protected groups) -- the first element is not disputed.

 Regarding the second element, Brown's affidavit attests to the fact that in her opinion she was qualified to earn her first and second releases from the OTP following her six-month stay in the program. Although the City of Aurora disputes the adequacy of her performance, such a statement from Brown is sufficient to satisfy the second element of her prima facie case. Rush v. McDonald's Corp., 966 F.2d 1104, 1114 n.34 (7th Cir. 1992); Williams v. Williams Elec., Inc., 856 F.2d 920, 923 n.6 (7th Cir. 1988).

 The City of Aurora argues that the Court should strike the portion of Brown's affidavit attesting to her personal belief in the quality of her performance. The City of Aurora contends that Brown's affidavit is inconsistent with her prior deposition testimony. If Brown's affidavit was in fact inconsistent with her deposition testimony, the Court would agree with the City of Aurora's position and strike the pertinent paragraph of the affidavit. See Bank of Illinois v. Allied Signal Safety Restraint Sys., 75 F.3d 1162, 1170-72 (7th Cir. 1996); Russell v. ACME-Evans Co., 51 F.3d 64, 67-68 (7th Cir. 1995) ("Where deposition and affidavit are in conflict, the affidavit is to be disregarded ....").

 The Court, however, does not believe that Brown's affidavit conflicts with her prior deposition testimony. In support of its position, the City of Aurora first cites Brown's testimony where she conceded that she lacked the "tools" necessary to obtain her first release. Brown Dep. pg. 187. It appears to the Court, however, that Brown's concession concerned her performance in the early part of her six-month stay in the OTP, i.e., Brown conceded that she lacked the necessary tools to obtain her first release after three or four months in the program. *fn3" But, the Court has not been cited to any deposition testimony where Brown conceded that she was not qualified to obtain her first release after six months in the program -- and, that is the pertinent statement contained within the affidavit. Indeed, the closest testimony the Court could locate provides that Brown believes that she is qualified to be a City of Aurora officer. Brown Dep. pg. 206. Thus, the first cite to Brown's deposition testimony does not support the City of Aurora's position.

 Next, the City of Aurora contends that Brown's concession that she needed additional remedial training while in the OTP (thus, implying that she was not performing up to par), Brown Dep. pg. 178, conflicts with her affidavit statement that her performance was sufficient to obtain her first and second release. Once again, though, the context in which Brown made the concession is unclear. It appears to the Court that Brown merely conceded that she needed the remedial training at the time it was given. But, there is no indication that Brown conceded the need for remedial training at the end of her sixth month in the OTP.

 Finally, the City of Aurora claims that Brown's concession that she still requires one month of additional training before being qualified to be a police officer provides further evidence that she was not qualified to obtain her first or second releases and thus is inconsistent with her affidavit. The City of Aurora's position, however, ignores the context of Brown's concession. Indeed, the reason Brown stated that she needed a month of additional training is not because 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. *fn4" 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 *fn5" 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.

 3. Pretext

 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 *fn6" -- primarily, FTO Curran. *fn7" 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." *fn8"

 The statements collectively evidence -- for the purposes of summary judgment -- proof of racist and sexist animosity directed toward black individuals and women. *fn9" 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. *fn10" 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. *fn11"

 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. *fn12"

 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.

 III. CONCLUSION

 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


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.