The opinion of the court was delivered by: Bucklo, District Judge.
MEMORANDUM OPINION AND ORDER
Shirley Watkins is an African-American woman who was denied a
job as a Chicago police officer in 1991, in part because of
circumstances surrounding a 1982 arrest in which charges were
never pressed.*fn1 After receiving her EEOC right-to-sue letter,
she filed this lawsuit against the City of Chicago (the "City"),
alleging disparate treatment and disparate impact race
discrimination under Title VII of the 1964 Civil Rights Act,
42 U.S.C. § 2000e, et seq. as amended by the Civil Rights Act of
1991.*fn2 The City now moves for summary judgment on both Title
VII claims and to strike several paragraphs of her statement of
facts under Local Rule 56.1(b). I deny the City's motion for
summary judgment on the disparate treatment claim and grant it on
the disparate impact claim. The motion to strike is denied as
Ms. Watkins took the City Police Officer Examination in May
1991 and, in September 1991, signed a waiver authorizing the
release of her arrest record to the Chicago Police Department
(the "Department"). Detective Arthur Tassone conducted a
background investigation of Ms. Watkins for the Department in
connection with her application. In a report dated July 19, 1992
(the "Report"), he wrote that fingerprint checks indicated that
Ms. Watkins had been arrested for possession of a controlled
substance (hashish) and unlawful use or possession of a dangerous
weapon (a knife), but that the "substance" was tested and found
not to be hashish or any controlled substance. He stated that the
authorities decided not to prosecute the weapons charge.
Detective Tassone also wrote that, on July 13 and 15, 1992, he
asked Ms. Watkins whether she had ever been arrested, taken into
custody, fingerprinted, or jailed, and that she said that she had
never been arrested. Ms. Watkins denies that she said any such
thing, and says that she had previously talked about her arrest
with Officer Patricia Harrison, a Department investigator, and
that she had also inquired at the Department about whether the
arrest could impede her application (and was assured that it
Detective Tassone reported, further, that he then told Ms.
Watkins about the 1982 arrest, and that she recalled being taken
into custody about 10 or eleven years ago after a traffic stop
when she was riding as a passenger on a motorcycle with a male
friend. Detective Tassone asked Ms. Watkins to write an
explanation of the facts and circumstances surrounding her
arrest, which she did. There she stated that she had put a pouch
in her purse at her friends request before riding the motorcycle
but that she did not know what was in it and found out only when
she went to court the next morning that it contained a knife and
"suspected cannabis which was
tested negative." (She never found out what the "suspected
cannabis" was, as opposed to what it wasn't.)
Detective Tassone relied upon a statement by Officer David
Strandberg, one of the officers who had arrested her in that
incident. Strandberg said that Ms. Watkins was "argumentative and
uncooperative during the arrest and processing." "Even though
this arrest was almost 10 years ago," wrote Officer Strandberg,
he "was able to recall most of the facts and circumstances
largely due to hostile attitude displayed by the candidate [Ms.
Watkins] towards me and my partner. Her unwillingness to
cooperate in my opinion indicated she at that time felt contempt
for our office. I would not recommend the candidate."
Ms. Watkins points out that before the Personnel Review Board,
Officer Strandberg denied that he made these statements. She
cites testimony by Sergeant Paul Parizanski, one of the people
who made the decision to reject her and who was aware of the
inconsistency. Strandberg also testified that there was "nothing
[unusual about the arrest that could have allowed him to recall
it after nine years] that had anything to do with the lady" as
opposed to her male companion. Ms. Watkins was never charged with
any offense in connection with this alleged disorderly conduct.
Ms. Watkins claims that her application was rejected because of
her race and because the City has a policy of excluding
applicants who have been arrested. The City denies any racial
motivation in its decision, denies having a policy of excluding
candidates with prior arrests, and denies rejecting Ms. Watkins
because she had been arrested. The City claims that its decision
was based on its policies of disqualifying all persons: (1) who
have engaged in illegal disorderly conduct, whether or not they
were convicted or (2) who have made untrue statements or failed
to provide material information during their application.
According to the City, the "argumentative and uncooperative"
behavior Ms. Watkins is supposed to have displayed during her
arrest qualifies as engaging in illegal disorderly conduct, and
her alleged denial to Detective Tassone that she ever was
arrested qualifies as a materially false statement.
Summary judgment is appropriate where there are no genuine
issues of material fact and the moving party is entitled to
judgment as a matter of law. Lexington Ins. Co. v. Rugg &
Knopp, 165 F.3d 1087, 1090 (7th Cir. 1999); Fed.R.Civ.P. 56(c);
Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986). An issue of fact is genuine only "if the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party." Smith v. Severn, 129 F.3d 419, 426
(7th Cir. 1997) (citing Anderson v. Liberty Lobby,
477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). In determining
whether a genuine issue of material fact exists, courts must
construe all facts in the light most favorable to the non-moving
party and draw all reasonable and justifiable inferences in favor
of that party. Hot Wax, Inc. v. Turtle Wax, Inc., 191 F.3d 813,
818-19 (7th Cir. 1999). On the issue of whether Ms. Watkins was
subjected to disparate treatment because of her race, there is a
genuine issue of material fact because a reasonable jury could
find incredible the Department's purported reason for rejecting
her application and because there is a genuine dispute about
whether Ms. Watkins denied having been arrested.
No direct evidence of discrimination is alleged here. An
employment discrimination case based upon circumstantial or
indirect evidence can be analyzed using the familiar
burden-shifting approach of McDonnell Douglas Corp. v. Green,
411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), where the
plaintiff may avoid summary judgment by arguing that the
defendant's nondiscriminatory reason was pretextual. Kennedy v.
Schoenberg, Fisher & Newman, Ltd., 140 F.3d 716, 723 (7th Cir.
1998) Alternatively, the plaintiff may proceed
under the "mixed motives" or direct method, where the plaintiff
may avoid summary judgment by producing sufficient evidence,
either direct or circumstantial, to create a triable issue as to
whether race was a motivating factor in her discharge. Id. at
The sort of evidence relevant here is "evidence that plaintiff
was qualified for the job in question but was passed over in
favor of . . . a person not having the forbidden characteristic
and that the employer's stated reason for the difference in
treatment is unworthy of belief or a mere pretext for
discrimination." Huff v. UARCO, Inc., 122 F.3d 374, 380 (7th
Cir. 1997). This sort of circumstantial evidence "in a direct
case is substantially the same as the evidence required in a
so-called indirect or McDonnell-Douglas case." Marshall v.
American Hosp. Assn., 157 F.3d 520, 525 (7th Cir. 1998).
Therefore, although the parties adopt the McDonnell-Douglas
approach, I need not choose between these approaches and, at this
stage, neither need they.
A factfinder's rejection of the defendant's nondiscriminatory
explanation of the facts comprising a prima facie case may itself
be enough to find for the plaintiff on the issue of liability.
Wichmann v. Southern Illinois Univ., 180 F.3d 791, 803 (7th
Cir. 1999) (citing St. Mary's Honor Center v. Hicks,
509 U.S. 502, 511, 113 S.Ct. 2742, 125 ...