The opinion of the court was delivered by: Jeanne E. Scott, District Judge
This matter comes before the Court on the Defendants' Motion to Dismiss. The Plaintiffs Renatta Frazier, Rickey B. Davis, Ralph L. Harris (Officer Harris), Donald F. Ewing, Jr., Melody E. Holman, Lea L. Joy, Cleo Moore, Larry Stelivan and Robert Williams are African-Americans. They are current or former police officers with the City of Springfield, Illinois, Police Department (Department). The Defendants are the City of Springfield, Illinois (City), Springfield Police Chief John W. Harris (Chief Harris), former Mayor Karen Hasara, Assistant Police Chief William Pittman, Assistant Police Chief Mary L. Vasconcelles, Police Lieutenant Mark Harms, and Police Legal Adviser William G. Workman. The Plaintiffs claim that the Defendants committed a series of acts of racial discrimination and retaliation, all of which violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (Title VII); and 42 U.S.C. § 1981, 1983, 1985 and 1986. Plaintiff Frazier also alleges that the Defendants committed other state law torts against her. The Plaintiffs have brought this action against the individual Defendants in both their individual and official capacities. The Defendants ask this Court to dismiss the Complaint for failure to state a claim. For the reasons set forth below, the Motion is allowed in part and denied in part.
For purposes of this Motion, the Court must accept as true all well-pleaded factual allegations contained in the Complaint and draw all inferences in the light most favorable to the Plaintiffs. Hager v. City of West Peoria, 84 F.3d 865, 868-69 (7th Cir. 1996); Covington Court, Ltd. v. Village of Oak Brook, 77 F.3d 177, 178 (7th Cir. 1996). A claim should not be dismissed unless it appears beyond doubt that a plaintiff can prove no set of facts that would entitle him or her to relief. Doherty v. City of Chicago, 75 F.3d 318, 322 (7th Cir. 1996).
Plaintiffs allege that the racial problems in the Department date back at least to the 1970's. At that time there were 25 African-American officers on a force of 150. By the time the Complaint was filed in January 2003, the Department had only 14 African-American officers on a force of 283. The percentage of African-American officers had dropped from 16 percent to slightly less than 5 percent. Plaintiffs allege that the Department has a practice of discriminating against African-Americans in hiring, promotion, discipline, and assignments. The Department now has no African-American: (1) sergeant; (2) drug enforcement agent; (3) undercover drug unit agent; (4) canine unit agent; (5) dispatch personnel; (6) police academy personnel; (7) SWAT Team personnel; (8) traffic unit personnel; or (9) gang unit personnel; and only one African-American detective. Each Plaintiff, except Williams, alleges specific acts to which he or she was subjected.*fn1 The allegations, which are presumed to be true for this discussion, are set forth below.
Larry Stelivan joined the Department in 1978. Stelivan was assigned to the traffic section for 10 years. He was then transferred to the operations section. At that time, he was assigned to ride with Defendant Pittman. Pittman was then a Field Training Officer. Pittman complained about Stelivan's report writing and caused him to go to report writing school. The instructor informed Stelivan that he did not need to go to report writing classes.
In 1998, Stelivan was involved in a disturbance at his home with his wife. Caucasian officers came to his home. Stelivan told the officers that his wife would probably say that he hit her, but he did not. Stelivan's wife told officers that nothing happened. The officers arrested Stelivan anyway because one officer said, "He said he hit her so arrest him." Complaint ¶ 26.c.*fn2 His wife had to sign a statement at the Sangamon County, Illinois, State Attorney's Office stating that Stelivan did not hit her before the charges were dropped.
At some point, Stelivan's son became sick and needed a kidney transplant. Defendant Pittman told Stelivan that if he gave his son a kidney, Pittman would do everything he could to get Stelivan kicked out of the police pension system. Pittman was in charge of the Department's pension board at the time. Caucasian officers with one kidney were not removed from the police pension system. Stelivan does not allege that Pittman did anything to remove him from the pension system.
Officer Harris also began working for the Springfield Police Department in 1978. Officer Harris was a principal organizer of the Black Guardians Association (BGA), a local chapter of the National Black Police Association. Officer Harris is a spokesman for equal treatment of African-American officers and applicants. He is the spokesperson for the BGA and was elected its president in 2001. He has spoken to officials of the United States Department of Justice regarding racial discrimination and retaliation toward African-American police officers by members of the Department, including Chief Harris. He has also complained about the Department's refusal to provide backup to African-American officers when problems arise while such officers are working at off-duty jobs. The Department provides such assistance to Caucasian officers who work off-duty jobs.
In the two years prior to filing the Complaint, Officer Harris has been the subject of numerous false disciplinary complaints. More complaints were filed against him in the last two years than were filed against him in the previous twenty. In October 2001, Officer Harris was written up for allegedly misusing sick leave. On June 18, 2002, he was informed of another complaint filed against him alleging misuse of sick time. Officer Harris was also charged with violating a Department rule against lying. These charges were false and were filed in retaliation for his opposition to racial discrimination. Caucasian officers who were found to have lied to secure a warrant have not been subjected to discipline.
As a consequence of Officer Harris' advocacy for African-American officers, he has been continually passed over for promotion to the position of sergeant, while less experienced and less qualified Caucasian officers have been promoted ahead of him.
Plaintiff Donald Ewing joined the force in 1979. Ewing alleges that he has been treated differently than Caucasian officers with respect to the disciplinary process. Ewing was written up and suspended for a day because he was involved in a minor accident. Caucasian officers in similar situations either were not disciplined or were disciplined less harshly.
Ewing applied for the Detective Division on three occasions. Caucasians were selected for these positions based on biased and highly subjective interview processes. These officers who received the assignments had less time or experience than Ewing. In fact, Ewing trained many of them.
Ewing also applied and tested for the sergeant position. Ewing always scored low on the exam due to the Department's testing procedures. Chief Harris gave study materials for the tests to Caucasian officers, but gave no such materials to African-American officers. When African-American officers were placed on the sergeant list, Chief Harris allowed the list to expire before appointing any African-American officers to the rank of sergeant.
Ewing and some other African-American officers worked off-duty at an establishment called Mac's Lounge. These off-duty officers were not given backup from the Department when problems arose. Plaintiff Joy was told by Caucasian sergeants and lieutenants not to provide assistance to officers working off-duty at Mac's Lounge. Caucasian officers in similar situations were given backup at other off-duty jobs.
Ewing opposed racial discrimination by Caucasian officers. He complained once that an officer, named Don Kolar, became physically aggressive toward an African-American prisoner. He also complained that Caucasian officers wore thin black leather gloves in African-American neighborhoods. These gloves were very intimidating to African-American citizens. When African-American officers expressed concerns about racial matters to Chief Harris, his response was, "I don't know why you all work there, you shouldn't want to put yourself in a position that you don't want to be in." Complaint ¶ 23.g. At another meeting regarding racial problems in the Department, Chief Harris threatened Ewing that the City would take his house. At the time Ewing was a Community Policing Officer; the City provided such officers with housing in the neighborhood to which they were assigned.
Ewing was appointed Neighborhood Police Officer for Springfield's east side area, an African-American neighborhood. Caucasian officers who previously held his position were given advance assistance to help them succeed in the position. Ewing was given no such assistance. Pittman told Ewing, "We know you will be the first one to fail at this position." Complaint ¶ 23.j. Ewing was also given more geographical area to cover than the prior Caucasian officers. Ewing succeeded at the position even without the typical assistance that Caucasian officers received.
Ewing at one point requested to be placed on a particular beat as his regular assignment. His request was denied; instead a Caucasian officer with less than one year of service was placed in that assignment.
Rickey Davis has been an officer for the Department since 1981. He has been a lieutenant for a year. He was promoted to the position of lieutenant primarily because of protests over the discriminatory manner in which the lieutenant's test was administered to favor certain Caucasian officers.
Davis has been president and thereafter vice president of the BGA. He, along with Officer Harris, has been active in advocating for equal treatment of African-American officers. He has also complained about the Department practice of not providing backup to black officers working off-duty.
As a result of his advocacy for African-American officers, Davis has been subjected to various types of discrimination. In 2001, he was disciplined for returning from his lunch break approximately 10 minutes late, while Caucasian officers who were also late were not disciplined. Davis was assigned to the third shift without being consulted about his shift preference; Caucasian lieutenants were not similarly treated. After a meeting on June 3, 2002, Davis was subjected to verbal abuse, vulgarities and threatening behavior by Defendant Pittman. Chief Harris was aware of the misconduct and did nothing to discipline or punish Pittman. Pursuant to Chief Harris' instructions, Defendant Vasconcelles and a Caucasian officer Lieutenant Patrick Fogleman followed Davis during his third watch shift on October 29, 2002.
Davis was criticized by Defendants Vasconcelles and Pittman for filing a complaint against a Caucasian police officer who used vulgar language toward an African-American citizen. Vasconcelles and Pittman asserted that lodging a complaint with the Department's Internal Affairs Division was inappropriate. Davis, however, was following proper procedures. Similar complaints against African-American officers for less severe conduct have been investigated by Internal Affairs.
On July 25, 2002, Defendant Chief Harris asked Davis why his reports for April, May, and June 2002, were late. Davis explained that one of his sergeants had marital problems and therefore had been late with the reports. On October 28, 2002, Davis discovered that this conversation had been deemed a counseling session, which is a type of discipline under Department personnel rules. Such discipline has a detrimental effect on Davis' opportunities for advancement and promotion within the Department. Davis has also been criticized for having a sergeant prepare monthly reports for him. Caucasian lieutenants have sergeants or other officers prepare their reports and have not been disciplined for this practice.
Davis had been passed over for positions within the Detective Bureau while Chief Harris has selected less experienced Caucasian officers for those positions.
Plaintiff Lea Joy joined the Department in 1983. She was promoted to sergeant. Defendant Pittman said that as long as he was there, Joy would never "move up." Complaint ¶ 22.a. Joy was later promoted to position of lieutenant because of protests made by her and other African-American officers over the discriminatory manner in which the lieutenant's test was administered to favor certain Caucasian officers.
Joy has been subjected to numerous instances of racially discriminatory treatment and hostility. Caucasian officers referred to her as, "African Cunt." Complaint ¶ 22.b. Joy was written up almost every day and chastised about things that Caucasian officers would just be talked to about without any formal discipline. Joy consistently received the worst vehicles. She was not issued equipment that Caucasian officers were given. Caucasian officers refused to ride with her. She has had difficulty obtaining backup from Caucasian officers. While she was a sergeant, she was required to explain and justify her actions when Caucasian sergeants were not required to do so. Caucasian officers did not want to train with her.
Joy applied for various positions during her tenure at the Department. Caucasian officers treated those applications as jokes. Caucasian officers commented that she would never be allowed to hold any of the positions that she sought. Joy applied several times to the Canine Unit. One interviewer told her that he ranked her the highest, but she was not given the position. Joy applied to be a Fire Arms Training Simulator (FATS) instructor. She was the only applicant who was not accepted. She was the only African-American officer who applied.
At one point Joy was paid less than a Caucasian officer, Lieutenant Brunsman, who performed the same work as she. When she complained to Chief Harris, he ignored her.
Joy was unfairly subjected to discipline at various times. She was written up for being sick. Caucasian officers were not written up under similar circumstances. The complainant told her that he was ordered to write her up. She was also written up for insubordination; again, Caucasian officers were not written up for similar conduct. At one point, Chief Harris threatened to charge Joy with lying. A Caucasian officer has not been charged for lying under Chief Harris, even when it has been recommended. Many times Joy has been ordered not to charge Caucasian officers who have lied.
Joy worked in Internal Affairs until Chief Harris ordered her transfer. He transferred her after she complained about the Department's treatment of Frazier. After the transfer, her authority was immediately curtailed. She became the Assistant Coordinator for the Hostage Negotiations Team. Chief Harris told Joy that she would be considered the Interim Assistant Coordinator, and was later told that a Caucasian officer would be considered for the position even though he had not applied for it.
Plaintiff Melody E. Holman was hired as an officer in 1987. In 1986, a lawsuit was filed to force the City to hire more African-Americans police officers. Holman was hired as a result of that suit. She was thereafter assigned to the Field Training Program. While she was on her initial one-year probationary period for new officers, she was on patrol with a Caucasian officer Mark Bridges. A Caucasian citizen asked Bridges, "How do I become a police officer with your Department?" Bridges responded, "You got to be black and you got to be a female," or words to that effect. Complaint ¶ 24.a. Holman was extremely offended by the statement, which she perceived as racist and sexist. Because of her probationary status, however, she said nothing.
During her tenure she heard racist remarks about both Plaintiffs Frazier and Joy. She felt that she was in a racially hostile environment as a result. Several times she had been with both Caucasian officers and Plaintiff Frazier. The Caucasian officers had refused to speak to Frazier and had on occasion turned and walked away from Frazier.
Cleo Moore joined the Department in 1995. Moore perceived that she was subjected to a racially hostile environment. She observed Caucasian officers make derogatory comments about Plaintiffs Davis and Joy. She witnessed officers bypassing then Lieutenant Davis to ask questions of Caucasian sergeants. She came to believe that she could only be successful within the Department if she remained quiet and was seen as little as possible.
Moore applied for a detective position and was placed at the bottom of the list according to the Department's interview procedures. Caucasian officers who applied for the position were given advanced information concerning exam procedures and process; she was not provided with this information. This advance notice gave Caucasian officers an unfair advantage.
Moore also worked off-duty at Mac's Lounge. A Caucasian lieutenant, James Burton, falsely reported that several people were sitting in their vehicles outside the establishment smoking dope and drinking alcohol while off-duty African-American officers were standing around observing and doing nothing. Burton stated to the lounge owner that "you could get way more bang for your buck if you hired different officers," or words to that effect. Complaint ¶ 25.f.
Renatta Frazier was hired in August 2000. Like Holman, her hiring was a result of a lawsuit. This time, the NAACP filed a suit alleging that the City engaged in racially discriminatory hiring practices. Frazier was hired as part of the response to that lawsuit. Frazier was subjected to physical abuse during the time that she was on trainee status at the Department. Following her probationary period, Frazier continued to be subjected to racial harassment, discrimination, and retaliation from members of the Department's command structure. Ranking officers regularly spoke to her in a hostile and humiliating manner. She was denied the opportunity to participate in recruitment activities while on probation, but similarly situated Caucasian probationary officers were permitted to do so. She was denied the opportunity to work off-duty. She was required to work through dinner breaks. She was called names such as the, "poster child for the NAACP." Complaint ¶ 19.d.
Beginning on August 6, 2001, Frazier was subjected to a series of false Internal Affairs investigation complaints. Defendants Chief Harris, Pittman, Vasconcelles, Harms, and Workman subjected her to these complaints with the intent to force her to resign from the Department. On August 6, 2001, she was subjected to an Internal Affairs complaint regarding a traffic stop that occurred on August 2, 2001. On November 2, 2001, Frazier was subjected to a second Internal Affairs complaint. Frazier was accused of failing to perform her duties properly on October 31, 2001; she was accused of failing to prevent a rape of a Caucasian police officer's daughter by an African-American man because she did not respond promptly to a dispatch call to the location where the rape occurred. This was untrue; the alleged rape occurred before Frazier was dispatched.
The false accusation created a racially hostile environment for Frazier. An internal email that circulated throughout the Department indicated that Frazier had allowed the rape to occur. Local news media reported the accusation to the public. Defendants Chief Harris, Pittman, Vasconcelles, Harms, Workman, and others at the Department knew these reports were false but did nothing to correct them. The Defendants allowed this false information to remain in the public arena for the purpose of creating a racially hostile atmosphere for Frazier in order to force her to resign.
Chief Harris three times falsely told Carl Madison, the head of the local NAACP chapter, that the Department was investigating to determine whether Frazier could have prevented the rape. Chief Harris knew these statements about Frazier were false because he and others in the Department already knew that she could not have prevented the alleged rape. The Department therefore was not investigating for the purpose of making this determination. Pittman was present at the meeting in which Chief Harris made the false statements and said nothing to correct the false statements.
The false accusations, continued racial harassment, and retaliatory treatment created such stress that Frazier was forced to take an unpaid medical leave of absence on November 7, 2001. She never returned to work for the Department.
On November 28, 2001, a third false Internal Affairs complaint was filed against Frazier. The complaint alleged that she failed to handle a situation at a gas station while working off-duty. Frazier was not advised of the complaint until February 21, 2002. On May 7, 2002, Frazier was subjected to a fourth Internal Affairs complaint regarding incidents ...