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November 15, 2000


The opinion of the court was delivered by: Levin, United States Magistrate Judge.


Plaintiff Marge Kielczynski ("Kielczynski") seeks recovery in a three-count Second Amended Complaint against Defendants Village of LaGrange ("LaGrange") and Police Chief Loren Clark ("Clark") for gender discrimination and retaliation in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. and 42 U.S.C. § 1983 ("§ 1983").*fn1 Pending is Defendants motion for summary judgment pursuant to Fed.R.Civ.P.56. For the reasons set forth below, the court denies Defendants' motion for summary judgment.


In January, 1987, Kielczynski filed an Equal Employment Opportunity Commission ("EEOC") complaint alleging gender-based discrimination during her employment in appointments, promotions and assignments. (Defs.' Local Rule 12(M) Statement ¶ 11.)*fn2 Subsequently, in March 1987, Kielczynski, filed a second EEOC complaint alleging gender-based discrimination during her employment in assignments, comments, evaluations, training and promotions. (Id. ¶ 12.) In June, 1989, Kielczynski, filed a third EEOC complaint alleging gender-based discrimination in training, promotions, assignments and retaliation. (Id. ¶ 13.) In October, 1996, Kielczynski filed a fourth EEOC complaint alleging gender-based discrimination in her employment, commencing in 1981. (Id. ¶ 14.) In May, 1997, Kielczynski, filed a fifth EEOC complaint alleging retaliation in connection with the Executive Management Program. (Pl.'s Local Rule 56.1(b)(3)(B) Statement ¶ 81.)

On November 21, 1997, Kielczynski filed her original complaint in this action. (See Pl.'s Compl.) On May 4, 1998, this court granted leave for Kielczynski to file her Amended Complaint. Kielczynski's First Amended Complaint added Clark (in his official and/or individual capacity) as a defendant and added Counts III and IV. (See Pl.'s First Am. Compl.) Subsequently, Kielczynski was granted leave to file her Second Amended Complaint on October 28, 1999 alleging gender discrimination and retaliation. (See Pl.'s Second Am. Compl.)

The first two counts of Kielczynski's three-count Second Amended Complaint are brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. and allege that LaGrange discriminated against Kielczynski on the basis of her sex by deliberately downgrading her evaluations for promotion and thereby denying her promotional opportunities and other terms and conditions of employment (Count I) and retaliated against her for filing Charges of Discrimination with the EEOC (Count II). (See Pl.'s Second Am. Compl.) Count III is brought under 42 U.S.C. § 1983 and alleges sex discrimination and retaliation. (Id.) Counts I and II are brought only against LaGrange and Count III is brought against LaGrange and Clark, in both his official and individual capacity. (Id.)


In January, 1981, Kielczynski was appointed to the position of police officer with the LaGrange Police Department ("Department"). (Defs.' Local Rule 12(M) Statement ¶ 5.) Kielczynski was the first female police officer at the Department and she was hired to replace a male police officer. (Id. ¶ 7.) Clark was hired as a rookie patrol officer by the Department in April, 1962. (Id. ¶ 8.) Clark was appointed acting Chief of Police in December, 1995, and was permanently appointed to that position in April, 1996. (Id. ¶ 9.)

In 1989, Officer (Ofc.) Renee Strasser (female officer), was hired as a rookie patrol officer with the Department. (Defs.' Local Rule 12(M) Statement ¶ 107.) She is still employed with the Department (Id.)

Kielczynski alleges that, during her police career with the Department, she has been subjected to numerous incidents of ongoing and continuing acts of sexual discrimination and retaliation, including: (1) refusing to provide necessary back up to protect Kielczynski in her work as a police officer, (2) failing to provide Kielczynski with necessary training to enable her to grow in her career, (3) reprimanding and disciplining Kielczynski more severely than male officers who engaged in the same or similar conduct, (4) reviewing Kielczynski's performance more critically than male officers were reviewed, and (5) taking actions to ensure that Kielczynski did not get promoted beyond patrol officer and was not able to advance in her career. (See, generally, Pl.'s Mem. in Opp'n to Defs.' Mot. for Summ. J.)

Kielczynski alleges that the gender-based discriminatory acts began on her first day of employment when former Chief Roy Lane told Kielczynski that he believed that women did not belong in law enforcement. (Pl.'s Local Rule 56.1(b)(3)(B) Statement ¶ 3.) Furthermore, Kielczynski, alleges that early in her career, Department supervisors made many other discriminatory comments. (Id. ¶ 4.) For example, Lieutenant ("Lt.") Williams asked Kielczynski to clean the coffee pot because she had more experience. (Id.)

I. Sex Discrimination*fn3

A. Sergeants' Promotional Processes

1. 1996 Process

Kielczynski was a candidate for promotion to sergeant in 1996. (Pl.'s Local Rule 56.1(b)(3)(B) Statement ¶ 28.) In the 1996 promotional process, candidates for sergeant were ranked on the Sergeant's Eligibility Register on the basis of a numerical score. (Id. ¶ 29.) The score was comprised of a written examination given by the BFPC, an oral interview given by the BFPC, and the Department Merit and Efficiency Ratings ("DMER") completed by Department police supervisors, and seniority and military service points. (Id.) The written test, oral interview and DMER's each counted for 30% of a candidate's total score with a maximum of five points added for seniority as well as additional points for military service. (Id.) The BFPC makes the determination regarding which candidate would be promoted from the eligibility list. (Id. ¶ 30.) Any one of the top three candidates may be selected for promotion to sergeant. (Id.) A promotion has never been given to an individual other than the top-rated individual on the sergeant's eligibility list. (Defs.' Resp. to Pl.'s Local Rule 56.1(b)(3)(B) Statement ¶ 30.)

Prior to 1996, supervisory input was accorded less weight than the written examination scores and the oral interview scores in determining the final rankings of the candidates. (Defs.' Local Rule 12(M) Statement ¶ 22.) In addition, the Police Chief would typically elicit input from the other police supervisors as to each promotional candidate, but the Police Chief's own personal evaluation of each candidate carried greater weight than those of the other police supervisors. (Id. ¶ 26.) In 1996, Clark determined that the evaluations of each of the police supervisors, including sergeants, lieutenants, and the Police Chief, would be equally weighted as to each promotional candidate and that each supervisor should submit his written evaluations of the candidates confidentially to the BFPC. (Id. ¶¶ 27, 28.) The BFPC approved Clark's methodology for obtaining supervisory ratings as to each promotional candidate. (Id. ¶ 29.)

Kielczynski, who was the only female applicant for promotion to sergeant, submitted to the written promotional examination and an oral interview conducted by the BFPC. (Pl.s' Local Rule 56.1(b)(3)(B) Statement ¶ 32.) Kielczynski received the highest scores on the objective test and tied with one other candidate for the highest score on the oral interview. (Id. ¶ 34.)

Thereafter, the police supervisors, all males, including Clark, conducted individual evaluations of each sergeant candidate, including Kielczynski, for purposes of awarding merit and efficiency points. (Pl.'s Local Rule 56.1(b)(3)(B) Statement ¶¶ 39, 50.) According to Kielczynski, the supervisors deliberately awarded low merit and efficiency scores in order to keep her from being one of the top three candidates on the Sergeant's Eligibility Register. (Defs.' Local Rule 12(M) Statement ¶ 34.)

The supervisors at the time of the 1996 DMER ratings testified that Kielczynski had at times performed competently as a police officer. (Defs.' Local Rule 12(M) Statement ¶ 49.) They, however, also believed that Kielczynski had manifested deficiencies of different types and severity in her performance as a police officer. (Id. ¶ 51.)

Kielczynski scored the lowest of all candidates on the DMER's. (Pl.'s Local Rule 56.1(b)(3)(B) Statement ¶ 46.) Her overall score, which was an average of the scores she was given by nine raters, was 47 points. (Id.) DMER's are comprised of ten components with each component being worth ten points. (Id. ¶ 44.) Kielczynski overall ranked fourth out of seven candidates, behind three male candidates and ahead of two male candidates. (Defs.' Local Rule 12(M) Statement ¶ 34.) The only candidate who was promoted from the 1996 Sergeant's Eligibility List was Sgt. Trzeciak. (Pl.'s Local Rule 56.1(b)(3)(B) Statement ¶ 48.)

Kielczynski alleges that the low merit and efficiency scores are discriminatory because they are inconsistent and lacked uniformity. (Pl.'s Local Rule 56.1(b)(3)(B) Statement ¶¶ 53, 63.) Kielczynski further contends that the police supervisors were unable to explain their basis for the ratings, (Id. ¶ 63.) Kielczynski also alleges that the scores she received varied more than the scores given to other candidates because she had a range of 63 points (highest score of 80 and lowest score of 17) which was the most inconsistent rating of any candidate. (Id. ¶ 54.)

2. 1999 Process

In 1999, Kielczynski, again, applied for promotion to sergeant. (Pl.'s Local Rule 56.1(b)(3)(B) Statement ¶ 126.) Kielczynski scored the highest of all candidates on the written examination and on the oral interview. (Id. ¶ 129.) She, however, was ranked fifth out of nine candidates, behind three male candidates and one female candidate and ahead of four males. (Defs.' Local Rule 12(M) Statement ¶ 34.) Female Ofc. Strasser had also submitted to the promotional process and ranked second. (Id. T 109.) Ofc. Strasser was appointed to sergeant by the Department in November, 1999. (Id. ¶ 112.)

In 1999, Kielczynski was, again, rated the lowest on the DMER's of any candidate for sergeant. (Pl.'s Local Rule 56.1(b)(3)(B) Statement ¶ 130.) Kielczynski, alleged, as she had in 1996, that the process was discriminatory because of the inconsistent and lack of uniformity among the merit and efficiency scores she received from the police supervisors. (Id. T 132.) Kielczynski alleges that there were substantial variations in her scores and the police supervisors were unable to explain their ratings. (Id. ¶ 133, 135.) Furthermore, Kielczynski alleged that the 1999 DMER ratings given to her by Clark were not consistent with his statements regarding her performance since Clark had acknowledged that Kielczynski had improved since the 1993 sergeant's examination. (Id. ¶ 135.)

B. Special Assignments, Training, Discipline and Evaluations

Kielczynski first contends that she has been discriminated against with respect to special assignments because, with the exception of Officer Schwaegerman, Kielczynski is the only officer who has been employed for at least four years and has only had a minor, seasonal special assignment since the 1996 Sergeant's Eligibility Register was posted. (Pl.'s Local Rule 56.1(b)(3)(B) Statement ¶ 209.) Kielczynski was, however, a Squad Leader in 1993. (Id. ¶ 7.) Kielczynski has only held the position of Bike Patrol Officer which is assigned during weekends or special events during warm weather months. (Id. 1 210.) Furthermore, every officer who has been promoted to the position of sergeant since 1993 was either an Investigator or Squad Leader at the time of promotion, and has held both positions at some point in his or her career. (Id. ¶ 217.)

Kielczynski further contends that she has been discriminated against regarding training opportunities because she has regularly requested training and special assignments and she is the only officer who has not received any in-depth training, i.e., training of more than one day, since 1993. (Pl.'s Local Rule 56.1(b)(3)(B) Statement §§ 225, 227, 228.) From October 18, 1995 (300 days before Kielczynski filed her EEOC Charge) through October 30, 1998, the date of the training records produced by Defendants, Kielczynski received a total of 32 hours of training. (Id. ¶ 229.) Kielczynski alleges that, for the same period, the average number of training hours provided to male police officers (who were employed for four years or more) was 69.9 hours. Furthermore, Clark, as Police Chief, is responsible for approving all requests for officer training. (Id. ¶ 225.)

Kielczynski alleges that she has been Discriminated against because she was disciplined for Department violations while male officers have either received lesser discipline or no discipline for similar offenses. (Pl.'s Local Rule 56.1(b)(3)(B) Statement ¶ 85.) For example, Kielczynski was issued a letter of reprimand on June 9, 1997 (which was also reported on her two month and annual evaluations) by Lt. Neuzil indicating that she had failed to timely respond to a radio request to provide back-up to another Department police officer. (Id. ¶ 82.) Kielczynski also received an incident report on June 18, 1997 for failing to properly search a female prisoner. (Id. ¶ 88.) Kielczynski alleges that other male officers who did not respond to radio calls or who failed to conduct proper searches did not receive similar discipline.

Kielczynski further contends that male officers who exhibited inappropriate public behavior either did not receive any discipline or received lesser discipline. (Pl.'s Local Rule 56.1(b)(B)(3) Statement ¶ 187.) For instance, Kielczynski received three incident reports and a letter of reprimand in response to complaints that she had displayed inappropriate public behavior. (Id. ¶ 162.) Another male officer, however, did not receive any discipline for inappropriate behavior, even though Clark was aware of the situation. (Id. ¶ 202.)

Kielczynski alleges that she has been discriminated against with respect to performance evaluations she has received from Department supervisors. In her evaluations, Kielczynski has received significantly lower ratings even though her evaluations have contained almost identical comments. (Pl.'s Local Rule 56.1(b)(3)(B) Statement ¶¶ 240, 241.) For example, a male officer whose productivity was lower than Kielczynski's was rated higher during two different rating periods. (Id. ¶¶ 243, 244.)

II. Retaliatory Conduct

Kielczynski alleges that Defendants have retaliated against her through various adverse employment actions. (See, generally, Pl.s' Mem. in Opp'n to Defs.' Mot. for Summ. J.)

A. Executive Management Program ("EMP")

In January, 1997, shortly after Kielczynski filed her October 3, 1996 complaint alleging gender discrimination, she informed Lt. Neuzil that she had been accepted into a program called the EMP which she intended to attend on her own time and at no expense to the Department. (Pl.'s Local Rule 56.1(b)(3)(B) Statement 1 80.) Clark, subsequently, called the director of the program, Dr. Robert Fisher, and questioned why he would have allowed Kielczynski to ...

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