United States District Court, N.D. Illinois
January 22, 2004.
BRENDA O'NEAL, Plaintiff
CITY OF CHICAGO and POLICE CHIEF JERRY ROBINSON, Defendant
The opinion of the court was delivered by: HARRY LEINENWEBER, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Brenda O'Neal ("O'Neal") filed a five-count complaint
against Defendants City of Chicago and Police Chief Jerry Robinson
alleging gender and racial discrimination based on her involuntary
transfer from an administrative sergeant to a beat sergeant position for
the City of Chicago. Plaintiff's claims arise under Title VII of the
Civil Rights Act of 1964, as amended, 42. U.S.C. § 2000 et
seq., 42. U.S.C. § 1981 ("Section 1981"), and 42 U.S.C. § 1983
("Section 1983"). Before the Court is Defendants' Motion for Summary
Judgment filed pursuant to FED. R. Civ. P. 56.
O'Neal, an African-American woman, has been a police officer for the
City of Chicago for more than eleven years. In June 1991, she was hired
by City of Chicago as a probationary police officer. After serving a
one-year probationary period, O'Neal attained the career service position
of police officer. In May 2001, O'Neal was
promoted to sergeant. In February 2002, O'Neal was assigned to an
administrative "desk job" in the Narcotics and Gang Investigations
section (the "Narcotics Section") of the Organized Crime Division. In
late May 2002, approximately four months into her new position, O'Neal
was involuntarily transferred back to a beat sergeant position (i.e.,
uniformed supervisory duty "on the streets").
The parties differ in their views of both the nature and motivating
reasons of the transfer. O'Neal characterizes the transfer as effectively
a demotion. Defendants characterize it as a lateral transfer. O'Neal
claims that the transfer was motivated by gender and race-based
discriminatory animus. Defendants claim that O'Neal was transferred
because of security concerns after they were informed that O'Neal had
purportedly dated a former police officer who was subsequently convicted
of selling narcotics.
Defendants base their motion for summary judgment primarily on two
arguments. First, Defendants contend that O'Neal cannot state a prima
facie case under Title VII because there is no evidence of either an
adverse employment action or that any similarly situated individuals
outside of O'Neal's protected class received more favorable treatment.
Second, Defendants claim that even if O'Neal could establish a
prima facie case, she cannot establish that Defendants'
proffered legitimate, non-discriminatory reasons for transferring
O'Neal were pretextual. (Defendants also argue that
O'Neal cannot sustain her Section 1981 and Section 1983 claims and
that Defendant Robinson is entitled to qualified immunity.)
A. Summary Judgment
Summary judgment is appropriate if "the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law." FED.
R. CIV. P. 56(c). A fact is "material" if it could affect the outcome of
the suit under the governing law; a dispute is "genuine" where 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,
The burden is initially upon the movant to demonstrate the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). In assessing the movant's claim, the court must
view all the evidence and any reasonable inferences that may be drawn
from that evidence in the light most favorable to the nonmovant.
Miller v. Am. Family Mut. Ins. Co., 203 F.3d 997, 1003 (7th Cir.
2000). Once the moving party has met its burden, the nonmoving party "may
not rest upon the mere allegations" contained in its pleading, but rather
"must set forth specific facts showing that there is a genuine issue for
trial." FED. R. CIV. P. 56(e); Becker v. Tenenbaum-Hill Assoc.,
914 F.2d 107, 110 (7th Cir. 1990); Schroeder v. Lufthansa German
Airlines, 875 F.2d 613, 620 (7th Cir. 1989). The nonmovant "must do
more than simply show that there is some metaphysical doubt as to the
material facts." Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). In the employment discrimination
context, summary judgment against a plaintiff is warranted where "the
evidence, interpreted favorably to the plaintiff, could [not] persuade a
reasonable jury that the employer had discriminated against the
plaintiff." Palucki v. Sears, Roebuck & Co., 879 F.2d 1568,
1570 (7th Cir. 1989).
B. Title VII
Title VII makes it unlawful for an employer to terminate or otherwise
to discriminate against an employee based on race, color, religion, sex,
or national origin. 42 U.S.C. § 2000e-2(a). A plaintiff may prove
unlawful employment discrimination through either direct evidence or via
the indirect burden shifting approach set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). Here, Plaintiff proceeds
under the indirect method and therefore must first establish a prima
facie case of discrimination by demonstrating that she (1) was a member
of a protected class, (2) performed her job according to Defendants'
legitimate expectations, (3) suffered an adverse employment action, and
(4) was treated less favorably than similarly situated employees outside
of her protected class. See, e.g., Markel v. Bd. of Regents of the
of Wisc. Sys., 276 F.3d 906, 910 (7th Cir. 2002);
Gordon v. United Airlines, Inc., 246 F.3d 878, 885-86 (7th Cir.
2001). If Plaintiff can show that "there is some evidence from which one
can infer that the employer took adverse action against the plaintiff on
the basis of a statutorily proscribed criterion," Leffel v. Valley
Fin. Servs., 113 F.3d 787, 793 (7th Cir. 1997), a presumption of
discrimination arises, and Defendants must produce evidence of a
legitimate, nondiscriminatory reason for O'Neal's termination. Gordon,
246 F.3d at 886.
The parties agree that all claims in O'Neal's complaint fall, for
summary judgment purposes, under Title VII law. See Def, Mem. at 2; Pl.
Resp. at 3; Forrester v. White, 846 F.2d 29, 32 (7th Cir.
1988). Defendants initially argue that O'Neal cannot make a prima
facie case under Title VII because the undisputed facts show that
there was no adverse employment action. In support of this, Defendants
allege that the Chicago Police Department does not distinguish between
administrative and beat sergeants. That is, the applicable rank for both
positions is "sergeant," and a sergeant performing administrative duties
has no authority over a beat sergeant. See id. Defendants also
state that there are no differences in base salary, benefits or other
privileges between administrative and beat sergeants. Thus, O'Neal's
transfer was a "lateral reassignment [and] not a demotion." See
In contrast, O'Neal claims that the transfer was effectively a
demotion, resulting in "a lower-paid and less prestigious" position.
See Pl. Resp. at 2. O'Neal points to the various ways in which
the duties of a beat sergeant are allegedly less favorable than those of
an administrative sergeant, including: less opportunity for overtime pay,
lower job prestige, fewer responsibilities,' less flexible hours, less
predictability in assignments, greater monitoring by superiors, and
greater physical demands. See id. at 5-6. O'Neal also alleges
that the transfer effectively validated rumors that she dated a corrupt
police officer, thereby causing her to suffer a "tarnished reputation
that will affect her future ability to receive a promotion." See
id. Thus, the parties appear to agree on the following: (1) there is
no separate rank for an "administrative sergeant" and (2) there is no
difference in base pay and benefits, although there may be greater
opportunities for overtime work for administrative sergeants.
See Pl. Resp. Def. Local Rule 56.1(b) Statement of Facts, ¶¶
Under Title VII law, an "adverse employment action" must be, at a
minimum, "materially adverse" and "more disruptive than a mere
inconvenience or an alteration of job responsibilities." Crady v.
Liberty Nat'l Bank & Trust Co. of Ind., 993 F.2d 132, 136 (7th
Cir. 1993). "[A]n employee must show that material harm has resulted from
. . . the challenged actions." Traylor v. Brown,
295 F.3d 783, 788 (7th Cir. 2002)(internal quotation marks omitted). The
Seventh Circuit has provided examples of potential materially adverse job
actions, including "termination of employment, a demotion evidenced by a
decrease in wage or salary, a less distinguished title, a material loss
of benefits, significantly diminished material responsibilities, or other
indices that might be unique to a particular situation." Crady,
993 F.2d at 136.
More recently, the Seventh Circuit categorized the types of cases that
can potentially include "materially adverse employment action[s]."
See Herrnreiter v. Chicago Housing Authority, 315 F.3d 742, 744
(7th Cir. 2002). Under Herrnreiter's classification, the present
case best fits under the category of "[c]ases in which a nominally
lateral transfer with no change in financial terms significantly reduces
the employee's career prospects by preventing him from using the skills
in which he is trained and experienced, so that the skills are likely to
atrophy and his career is likely to be stunted." See id.
(citations omitted). The Seventh Circuit went on to caution, however,
that these types of cases "are to be distinguished from `a purely lateral
transfer, that is, a transfer that does not rise to the level of a
materially adverse employment action. A transfer involving no reduction
in pay and no more than a minor change in working conditions will not do
either.'" See id., quoting Williams v. Bristol-Myers Squibb Co.,
85 F.3d 270, 274 (7th Cir. 1996). The issue, then, is whether the
construed in a light most favorable to O'Neal can place O'Neal's
claim into the category of cases recognized by the Seventh Circuit to
constitute cognizable adverse employment actions.
Although neither party cites to Herrnreiter, its facts and holding
heavily instruct this Court in the present case. In Herrnreiter,
an accountant initially employed in the auditing division of the Chicago
Housing Authority ("CHA") was transferred to the investigation division.
See id. at 743. The accountant greatly preferred his newfound
work in the investigation division, finding it more interesting and
challenging than his prior work. See id. His new job also
provided him with a car and the freedom to sign in and out of the office.
See id. However, after six months, the CHA transferred him back
to the auditing division. See id. Following the transfer, he
claimed that his transfer (and subsequent firing) were motivated due to
his race and national origin. See id. The Seventh Circuit
affirmed the district court's grant of summary judgment for defendant,
noting that an adverse employment action requires "a significant change
in employment status, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a decision
causing a significant change in benefits." Id. at 744,
quoting Burlington Industries, Inc. v. Ellerth, 524 U.S. 742,
761 (1998). In contrast, the Seventh Circuit held that the case before it
represented "purely subjective preference for one position over
another." Id. at 745. Specifically, an "auditor's job is
not objectively inferior to an investigator's job that has
identical financial terms; nor is an accountant who is transferred from
investigations to audits deprived of the opportunity to use the skills
for which he is trained. . . ." Id. (emphasis added). Moreover,
the "use of a company car and being excused from having to sign in or out
of an office might be preferred by some employees, but not having to run
around all day might be considered by others ample compensation for
giving up those particular perks." Id. The Seventh Circuit
concluded that the "two jobs were equivalent other than in idiosyncratic
terms that do not justify trundling out the heavy artillery of federal
antidiscrimination law." Id. Finally, the Seventh Circuit noted
the policy reasons supporting its dismissal of plaintiff's claim:
"otherwise every trivial personnel action that an irritable,
chip-on-the-shoulder employee did not like would form the basis of a
discrimination suit . . . [and] serious complaints would be lost among
the trivial." Id. (citations omitted).
Herrnreiter controls here and disposes of most if not
all of O'Neal's claim of adverse employment action. Like the
plaintiff in Herrnreiter, the transfer at issue here did not
result in any tangible financial change, given that the two jobs have
essentially the same pay and benefits. An administrative sergeant
may have greater opportunities for overtime work, but this appears
to be a
function of the greater hour demands of the administrative
sergeant. It is also a speculative financial outcome, which depends on
the hours worked, and O'Neal makes no showing that the administrative job
necessarily entails overtime pay. In addition, all of the additional
benefits that O'Neal claims are inherent in an administrative sergeant
position (i.e., flexible hours and assignments, freedom from
supervision, use of a car, parking space, cell phone, and pager, and
freedom; from uniform and heavy equipment) fall under the types of
"perks" and "idiosyncratic terms" that are a "purely subjective
preference" for some employees. See Herrnheiter, 315 F.3d at
745. The duties and responsibilities of a beat sergeant do not differ
significantly in skill, responsibility, or compensation from those of an
administrative sergeant. Moreover, O'Neal cannot show that a return to
beat duty after four months in administrative duty will result in a
deprivation of her skills: she is. a trained police officer with
extensive experience in the field. Accordingly, the transfer cannot
qualify as an adverse employment action on this basis. See Id.;
Williams v. Bristol-Myers Squibb, 85 F.3d 270, 273-74 (7th Cir.
O'Neal, however, also alleges that the title and responsibilities of a
beat sergeant carry "lower prestige" than those of an administrative
sergeant. This claim, arguably, does not fall squarely under the
Herrnheiter analysis. O'Neal seeks to
distinguish the ample case law cited by Defendants on the grounds
that such case law did not "involve  a lower status of the new position
verified by coworkers and the employer' supervisor." Pl. Resp. at 6.
Setting aside the issue of whether O'Neal's evidence can support the
claim of "lower prestige," the more immediate issue is whether such
purported "lower prestige" can by itself amount to an
adverse employment action, O'Neal falls to cite any case law holding that
a transfer to a purportedly lower prestige job without any
material adverse change in either compensation or work conditions
constitutes an adverse employment action. See Pl. Resp. at 4-5.
Indeed, the case law cited by O'Neal uniformly holds that some objective
material adverse change in working conditions or terms must occur.
See, e.g., Dahm v. Flynn, 60 F.3d 253, 257 (7th Cir.
1994)(noting the "dramatic downward shift in skill level"); Collins
v. State of Ill., 830 F.2d 692, 703-04 (7th Cir. 1987)(noting that
plaintiff was transferred to a new department with uncertain
responsibilities and authority).
Although it does not appear that the Seventh Circuit has squarely
addressed this issue, the District of Columbia Circuit recently held that
a plaintiff "could not establish an adverse action on the basis that the
reassignment deprived him of prestige" or otherwise rely on "purely
subjective harms." See Forkkio v. Powell, 306 F.3d 1127, 1131
(D.C. Cir. 2002). The Seventh Circuit has subsequently cited
Forkkio with approval. See Johnson v.
Cambridge Industries Inc., 325 F.3d 892, 899
(7th Cir. 2003) (approving, without relying on, Forkkio's
holding that adverse employment actions "cannot be established by showing
job reassignments that carry loss of; prestige"); Grayson v. City of
Chicago, 317 F.3d 745, 750 (7th Cir. 2003) (citing
Forkkio's holding that "an employee cannot establish an adverse
action on the basis that a reassignment deprives him of prestige").
Thus, a bare claim of loss of prestige or status, without objective
material adverse changes in employment, is insufficient to establish
an adverse employment action under Title VII.
Finally, O'Neal's claim of a "tarnished reputation" can be quickly
addressed. Assuming arguendo that O'Neal's evidence can support
this claim of "tarnished reputation," O'Neal cites no authority
and this Court finds no controlling authority for the proposition
that a "tarnished reputation" is sufficient for establishing an adverse
employment action. That is, to sustain a Title VII action, O'Neal's must
tether her "tarnished reputation" claim to a materially adverse change in
the nature or terms of work. As noted above, there is no evidence here to
support such a finding. (This is not to say that reputational harm cannot
constitute potential damages for an adverse employment action.
See, e.g., Williams v. Pharmacia, Inc., 137 F.3d 944, 954 (7th
In sum, even when construed in a light most favorable to O'Neal, the
evidence here cannot establish that O'Neal suffered a legally-cognizable
adverse employment action. The Court does not doubt that O'Neal
experienced the transfer as adverse and found the return to the duties of
a beat sergeant unpleasant. However, subjective distaste for a different
job position is not enough to support a claim under Title VII, or,
correspondingly, Sections 1981 or 1983. Because the Court finds that
there is no adverse employment action, it need not address Defendants'
other grounds for summary judgment.
For the reasons set forth above, Defendants' Motion for Summary
Judgment is GRANTED.
IT IS SO ORDERED.
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