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KOZLOWSKI v. FRY

December 30, 2002

CAMILLE KOZLOWSKI, DARLENE WILLIAMS, SUSAN HORN, VICKI ROGERS, MOSES COLLINS, MARC MILLER, AND KENNETH FLETCHER PLAINTIFFS,
V.
RITA FRY, IN HER OFFICIAL CAPACITY AS COOK COUNTY PUBLIC DEFENDER, AND COUNTY OF COOK, DEFENDANTS.



The opinion of the court was delivered by: Arlander Keys, United States Magistrate Judge

      MEMORANDUM OPINION AND ORDER

This matter is before the Court on Defendants' Motion for Summary Judgment on all counts and Plaintiff's Motion for Summary Judgment on Counts III, IV, and VI.*fn1 For the reasons set forth below, the Court grants in part and denies in part the parties' respective motions.

FACTS*fn2

Camille Kozlowski, Darlene Williams, Susan Horn, and Vicki Rogers ("Female Plaintiffs") are women employed as Attorney Supervisors in the Cook County Public Defender's Office (the "Public Defender's Office"). (Pls.' 56.1 ¶¶ 1, 7.) Moses Collins, Kenneth Fletcher, and Marc Miller ("Male Plaintiffs") ("Female Plaintiffs" and "Male Plaintiffs" are hereinafter collectively referred to as "Plaintiffs") are men who are employed as Attorney Supervisors in the Public Defender's Office. (Id. ¶¶ 2, 7.)

Defendant Rita Fry is the Public Defender of Cook County, and was appointed to her position in February 1992. (Id. ¶ 3.) Defendant Cook County is a political subdivision established by the laws of the State of Illinois and is Plaintiffs' employer. (Id. ¶ 4.) Defendants are subject to the consent decree in Shakwan v. Democratic Org. of Cook County, Ill.*fn3 (Id. ¶ 48.)

The Public Defender's Office has 53*fn4 supervisory attorneys, of which 15 are women. (Id. ¶ 8.) Supervisory attorneys*fn5 are designated as Attorney Supervisors, Chiefs, and Directors, and the salary levels for such attorneys range from the lowest level D1 through the highest D11*fn6 (Id. ¶ 9.) The Public Defender's Office is divided into four Operational Units, with each such Unit supervised by a Director. (Defs.' 56.1 ¶¶ 27-29.)*fn7 The Directors are at the highest level and report to the First Assistant Public Defender; Chiefs report to Directors and supervise Divisions within the Operational Units; Attorney Supervisors report to Chiefs and supervise the line attorneys within each Division who provide legal services to the clients of the Public Defender's Office. (Id.) Other duties of the Attorney Supervisors include, strategy, case development and trials, supervising the courtrooms where the line attorneys work, conferring with judges, and handling personnel matters relating to the line attorneys. (Id.) Attorney Supervisors are Shakman positions, and therefore subject to the Shakman decree. (Id. ¶ 59.)

All attorney supervisors at a particular grade earn the same salary. (Id. ¶ 20.) The higher the grade, the greater the salary associated with the position. (Id.) The D10 positions are held by Directors, the D8 and D9 positions are held by Chiefs,*fn8 and D1 through D7 positions are held by Attorney Supervisors. (Id. ¶ 19.)

The salary system at the Public Defender's Office is not merit-based, and therefore, employee evaluations play no role in determining salary increases (Pls.' 56.1 ¶¶ 31-34 ) nor in filling vacancies (Defs.' 56.1 ¶ 84). One way for an Attorney Supervisor to increase her salary is to be selected, or promoted, to fill a vacant supervisory attorney position which is graded higher than her current position. (Id. ¶ 25, 64.) The only other way an Attorney Supervisor can increase her salary is by having her grade increased through a process called "reclassification" (Id. ¶ 24), but Ms. Pry must get approval for this action (Id. ¶ 172).

Ms. Fry makes the decision as to which D-grade a person is assigned when filling vacant supervisory attorney positions. (Pls.' 56.1, Ex. I at 19.) However, she has no ability to change the grade of the position when filling a vacancy, and cannot fill any supervisory attorney position unless it is vacant. (Defs.' 56.1 ¶¶ 96, 97.) Ms. Fry testified that the D ranks are not tied to specific responsibilities because of her frequent need to move supervisors around when vacancies arise. (Pls.' 56.1 Resp. ¶ 62, Ex. 5. at 94.) Ms. Fry also stated that a vacancy in a certain division may require her to move a supervisor from one division to the next, regardless of the supervisors' respective salaries at the time of the move. (Pls.' 56.1, Ex. I at 18-19.) She explained that working in a particular division does not necessarily govern what one's salary is to be, because she could not always tie salaries to the supervisors' movements. (Pls.' 56.1 ¶ 34, Ex. I at 18-19, 26-27; Defs.' 56.1 Resp. ¶¶ 34.) However, Ms. Fry also testified that experience or type of supervisory work is connected to someone's designation as a D1 through D11. (Pls.' 56.1, Ex. I at 26-27.) Where possible, Ms. Fry explained that a felony supervisor should be paid more than a supervisor in the First Municipal division (Id. at 18), but would not necessarily be paid more than a supervisor in the juvenile division (Id. at 17-18) However, an individual from Defendants' personnel department testified that nothing in the Public Defender's Office classification system dictates that a person working in a particular division, such as misdemeanors, should be a D1 and someone working in the felony division should be a D4. (Pls.' 56.1 Resp. ¶ 62, Ex. 7 at 28.)

When seeking to fill a supervisory attorney position, Ms. Fry recommends individuals to Cook County Board President John Stroger for aporoval. (Defs.' 56.1 ¶¶ 93.) Ms. Fry and President Stroger never discuss any such candidates, but Ms. Fry's recommendations are approved as a matter of course. (Id. ¶¶ 94, 95.) Ms. Fry does not consider a candidate's political affiliation when she fills vacancies, nor was she aware of the political affiliations of the candidates which she recommended for various supervisory positions. (Id. ¶¶ 101, 106, 110, 115, 118, 121, 124, 127, 130, 133, 136, 140, 143, 146, 149, 152, 155, 158, 161, 164, 168, 171, 186, 192, 200, 205, 211, 218, 225.)

For Shakman positions, Defendants continuously post a notice for D1 through D4 positions. (Id. ¶ 66, 70). The D1 through D4 positions require no specific qualifications beyond what the actual posting indicates on its face. (Pls.' Add. Facts ¶ 152-58, Ex. 8.) In contrast, Defendants do not advertise or post openings for positions above D5. (Id. ¶ 156-57.) However, in December 2000, some Shakman supervisory positions were reclassified and are now graded D5 through D8. (Defs.' 56.1 ¶ 71.) Since December 2000, the continuous notice posted expressly for D1 through D4 positions applies for all Shakman supervisory attorney positions, including those now graded D5 through D8. (Id. ¶ 71.)

When the Public Defender's Office anticipates a vacancy, the hiring committee, comprised of Chiefs and Directors, convenes. (Id. ¶¶ 76, 77.) The interview committee interviews candidates for supervisory positions and makes a recommendation to Ms. Fry, not for a particular vacancy either in terms of pay or assignment, but rather issues a generic recommendation that a candidate is qualified to fill any vacancy that might open up in the office. (Pls.' Add. Facts ¶ 107.) These recommended candidates are placed on the "must hire" list, and Ms. Fry considers the candidate for the next vacancy with other "must hires." (Defs.' 56.1 ¶ 81, 86). Ms. Fry is not obligated to accept the interview committee's recommendations and may choose another candidate based on her own subjective reasons. (Pls.' Add. Facts ¶ 126-27; Defs.' Resp. Add. Fact ¶ 126-27, Pls.' 56.1 Resp., Ex. 11 at 37.) Defendants allege that the hiring committee has not convened since January 1999. (Defs.' 56.1 ¶ 83).

In 2000, Ms. Horn, Ms. Kozlowski, and Ms. Williams completed applications for promotion. (Id. ¶¶ 197, 202, 222.) Neither Ms. Horn, Ms. Kozlowski, nor Ms. Williams have been interviewed for these positions. (Id. ¶¶ 198, 203, 223.) Ms. Horn and Ms. Williams had previously applied and interviewed for a promotion in 1996, but were not placed on the "must hire" list. (Id. ¶ 195, 220.) However, Ms. Horn spoke to Ms. Fry about the promotion, was subsequently hired as an Acting Chief, but later declined to continue in the position in a permanent capacity. (Id. ¶ 196.) Ms. Rogers never completed an application for promotion (id. ¶ 217), but she claims that she approached Ms. Fry about a promotion to Director but the position went to another woman (Id. ¶ 213). Ms. Rogers has not approached Ms. Fry again about any positions. (Id. ¶ 215.) Since 1996, Ms. Horn has not, nor have Ms. Kozlowski nor Ms. Williams ever, approached Ms. Fry about vacancies, nor has Ms. Fry ever approached them about such positions. (Id. ¶¶ 199, 204, 214-215, 224). In addition, Ms. Fry has not offered Ms. Horn a second Chief position because she advised Ms. Fry that she did not want the Chief position in the Fifth Municipal Division. (Id. ¶ 199.)

Female Plaintiffs have worked in several divisions, including felony trial, with the exception of Ms. Rogers, who has only worked in the appeals division. (Id. ¶¶ 193, 201, 212, 219.) Ms. Horn has been an Attorney Supervisor since 1997, and briefly held a position as an Acting Chief. (Id. ¶ 193.) Ms. Kozlowski and Ms. Rogers have been Attorney Supervisors since 1997 and 1998, respectively. (Id. ¶¶ 201, 212.) For a brief period, Ms. Williams served as an Acting Chief, but otherwise she has been an Attorney Supervisor since 1994. (Id. ¶ 219.)

Male Plaintiffs Moses Collins, Kenneth Fletcher and Marc Miller are Attorney Supervisors. (Id. ¶¶ 180, 187, 206.) Mr. Collins was hired as an assistant public defender in 1979, and has worked as an Attorney Supervisor in various divisions, including felony. (Id. ¶ 180.) In 1991, Mr. Collins approached Ms. Fry about a promotion to First Assistant Public Defender, but the job instead went to another man. (Id. ¶ 182.) Mr. Fletcher has been an Attorney Supervisor since 1989, and has worked in various divisions, including the murder task force, and is currently in felony. (Id. ¶ 187.) Mr. Fletcher applied for a promotion in 1996, but was unsuccessful in obtaining the position. (Id. ¶ 189, 191.) Mr. Miller has been an Attorney Supervisor since 1989, and has worked in various divisions, including felony and murder. (Id. ¶ 206.) In 1997, Mr. Miller interviewed for a promotion, but he was not placed on the "must hire" list and did not receive a promotion. (Id. ¶ 208, 210.)

In 1992, Ms. Fry filled the position of First Assistant Public Defender with a male. (Id. ¶¶ 99, 100.) She also filled two alleged policymaking supervisory attorney positions — one in 1993 with a woman and the other in 1995 with a man. (Id. ¶ 165-67, 170.) Between 1992 and 1995, Ms. Fry also filled at least three*fn9 Director vacancies — with a woman and two men. (Defs.' 56.1 ¶¶ 102, 105, 110.) Further, between 1996 and 1998, and again in 2000, Ms. Fry filled at least nines*fn10 Chief vacancies — with five men and two women. (Id. ¶ 111, 114, 117, 120, 123, 126, 129, 132, 135.) Further, between 1997 and 2000, Ms. Fry filled nine*fn11 Attorney Supervisor vacancies with at least six men and five women. (Id. ¶ 137, 139, 142, 145, 148, 151, 154, 157, 160, 163.)

Scecifically, in December 1999, she promoted Richard Hutt and Wendy Schilling, who at the time were line attorneys, to fill D3 vacancies in the civil division. (Id. ¶ 231.) In January 2000, she hired Ramon Ocasio, who at the time did not work for the Public Defender's Office (Pls.' Add. Fact ¶ 13), for another D3 position in the civil division (Defs.' 56.1 ¶ 231).

On March 24, 2000, after learning that these three individuals were hired for the D3 Attorney Supervisor vacancies, Plaintiffs sent a letter to Ms. Fry, stating that they believed the decision to hire the three individuals reflected sex discrimination. (Id. ¶ 233.) Plaintiffs believed that it was unfair that these new Attorney Supervisors were earning more than some of them and were graded equal to or higher than them. (Id. ¶ 232.) In the letter, Plaintiffs requested a meeting with Ms. Fry to discuss the matter of sex discrimination at the Public Defender's Office. (Defs.' 56.1, Ex. 27.)

Ms. Fry testified that she met with Ms. Kozlowski, Ms. Williams, Ms. Rogers, Mr. Miller, and Mr. Collins on April 10, 2002. (Defs.' 56.1 ¶ 234; Pls.' 56.1 Resp. ¶ 234, Ex. 5 at 36). Ms. Fry testified that at the meeting, the spokesperson for the group, Ms. Kozlowski, stated that she felt that women were not being promoted at the Public Defender's Office, and that women should have more opportunities for higher graded positions. (Pls.' 56.1 Resp., Ex. 5 at 37.) Ms. Fry responded by saying that she could only fill positions when there were vacancies. (Id. at 37-38.) Plaintiffs claim that Ms. Fry also told them at the meeting that "there had been discrimination, but it was not intentional." (Defs.' 56.1 ¶ 234.) Ms. Fry denies making such a statement. (Id. ¶ 235.)

In April 2000, Ms. Horn, Ms. Williams, and a non-Plaintiff, Deborah Niesen, received higher graded classifications. (Pls.' 56.1 Resp. ¶ 178, Ex. 5 at 80, Ex. 30*fn12). Each woman went from a D2 to D4 grade. (Defs.' 56.1 ¶¶ 193, 219, 178; Pls.' 56.1 Resp. ¶¶ 193, 219, 178). The increase in salaries did not coincide with an increase in the women's work responsibilities (Pls. Add. Facts ¶ 28.)

In 1999 or 2000, Ms. Fry sought to reclassify D1 through D3 Attorney Supervisor positions to remedy the inequality in pay between supervisors and their subordinates. (Defs.' 56.1 ¶ 174.)*fn13 In December 2000, Ms. Kozlowski was reclassified from D1 to D3, Mr. Collins was reclassified from a D4 to a D7, and Mr. Fletcher from a D2*fn14 to a D3 (Id. ¶ 179).

Having not been reclassified or promoted, Mr. Miller remains a D4. (Defs.' 56.1 ¶ 206; Pls.' 56.1 Resp. ¶ 206.) Similarly, Ms. Rogers remains a D5. (Pls.' 56.1 ¶ 10.)

Plaintiffs filed charges of discrimination with the Equal Employment Opportunity Commission, and on August 29, 2000, Plaintiffs received a Notice of Right to Sue Letter. (Defs.' 56.1 ¶¶ 236-37.) Plaintiffs filed the instant lawsuit on August 29, 2000 in federal court, and subsequently consented to proceed before this Court. Plaintiffs filed their Second Amended Complaint on March 29, 2002. Both parties have moved for summary judgment, and the parties' respective motions are the subject of this opinion.

DISCUSSION

I. Summary Judgment Standard

Courts should grant summary judgment when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." FED. R. Civ. P. 56(c). A genuine issue of material fact exists when the "evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1985). Initially, the moving party bears the burden of showing that the record contains no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

The non-moving party must present more than a "metaphysical doubt as to the material facts" to survive summary judgment. Matsushita Elec. Indus., Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Additionally, "mere conclusory" allegations are not enough. Nowak v. St. Rita High School, 142 F.3d 999, 1002 (7th Cir. 1998). The non-moving party will not survive summary judgment if she cannot present sufficient evidence to support each element of her case on which she will bear the burden of proof at trial. Celotex, 477 U.S. at 322.

Courts do not make "credibility determinations nor choose between competing inferences" at the summary judgment stage. Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1041 (7th Cir. 1993). Further, the court must view the facts in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255.

In addition, pursuant to Northern District of Illinois Local Rule 56.1, the parties must support all disputed facts with "specific references to . . . parts of the record . . ." The Seventh Circuit has articulated that courts need not "scour the record" in an attempt to locate the relevant information supporting the 56.1 claims. Waldridge v. American Hoechst Corp., 24 F.3d 918, 922 (7th Cir. 1994)

II. Title VII

In Count I, Plaintiffs charge Defendants with sex discrimination, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII") Title VII prohibits sex discrimination of employees by employers. 42 U.S.C. § 2000e et seq. With Title VII's enactment, Congress intended to "achieve equality of employment opportunities and remove barriers that have operated in the past to favor," some groups over others in the employment setting. Griggs v. Duke Power Co., 401 U.S. 424, 429-30 (1971).

Plaintiffs may prove sex discrimination under Title VII by showing either "disparate impact" or "disparate treatment." O'Regan v. Arbitration Forums, Inc., 246 F.3d 975, 983-986 (7th Cir. 2001) (termination case). Whether plaintiffs prove that their employer intentionally discriminated against them or unintentionally discriminated against them is irrelevant, because a finding of either is a violation of Title VII. See, DeClue v. Cent. Ill. Light Co., 223 F.3d 434, 436 (7th Cir. 2000). To maintain their claim under Title VII, Male Plaintiffs must prove that they were injured as a result of the discrimination against Female Plaintiffs. Allen v. Am. Home Foods, Inc., 644 F. Supp. 1553, 1556 (N.D. Ind. 1986).

The facts in this case are somewhat unique compared to other Title VII cases that the Court has studied. Typically, plaintiffs do not provide courts with "smoking gun" type of evidence that proves the employer engaged in discriminatory practices against a protected group. However, the record currently before this Court shows that a genuine issue of material fact exists as to whether Ms. Fry actually admitted that discrimination occurred at the Public Defender's Office. Thus, the typical application of the disparate impact or disparate treatment tests are not necessary, because Defendants have arguably proved Female*fn15 Plaintiffs' prima facie case for them, and rebutted any defenses Defendants might raise, by admitting liability (if the statement is found to be true). Certainly, Female Plaintiffs must be given an opportunity to present this inculpatory evidence to a jury. As this alleged admission is a material fact in dispute, and involves a determination of Ms. Fry's credibility, the Court must deny summary judgment on Count I of Female Plaintiffs' claim. Nevertheless, ...


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