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October 29, 1999


The opinion of the court was delivered by: Bucklo, District Judge.


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 moot.


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 would not).

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 722.

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 ...

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