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January 22, 2004.

BRENDA O'NEAL, Plaintiff

The opinion of the court was delivered by: HARRY LEINENWEBER, District Judge


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 Page 2 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 Page 3 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, 248 (1986).

  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., Inc., Page 4 914 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 Univ. Page 5 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 ...

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