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MUHAMMAD v. SHEAHAN

March 26, 2004.

MICKKI FATIMA MUHAMMAD, Plaintiff,
v.
MICHAEL F. SHEAHAN, in his official capacity as Sheriff of Cook County, Illinois; the COUNTY OF COOK, a unit of local Government; LT. WILLIAM JUDGE, in his individual and Official capacities; SGT. WILLIAM PRYBELL, in his individual and official capacities; FIRST DEPUTY CHIEF JAMES MALINOWSKI, in his individual and official capacities, Defendants



The opinion of the court was delivered by: REBECCA PALLMEYER, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff, a former officer with the Cook County Sheriff's Police Department, has filed this action against the County Sheriff and three superior officers. She alleges that she was subjected to harassment and unfair discipline on the bases of her race, sex, and disability status, and in retaliation for her previous complaints. Plaintiff's Amended Complaint charges Defendants with race discrimination in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e (Count I) and under 42 U.S.C. § 1981 (Count II); violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12202 (Count III); violation of her right to equal protection of the laws, actionable pursuant to 42 U.S.C. § 1983 (Count IV); retaliation in violation of the First Amendment (Count V); retaliation in violation of Title VII (Count VI); sexual harassment in violation of Title VII (Count VII); and intentional infliction of emotional distress (Count VIII).*fn1 Defendants seek summary judgment on Counts I, II, IV, V, VI, VII, and VIII (all claims other than the ADA claim). For the reasons set forth Page 2 here, the motion is granted in part and denied in part.

FACTS

  The facts are set forth in Defendant's Local Rule 56.1 Statement of Facts, supported by a number of exhibits. Although Plaintiff has responded to this motion, she has not filed a statement that responds, paragraph by paragraph, to Defendant's 56.1 statement, as required by the court's Local Rule 56.1(b). Accordingly, the statements in Defendant's 56.1 statement may be deemed admitted. See Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003), citing Michas v. Health Cost Controls of Illinois, Inc., 209 F.3d 687, 689 (7th Cir. 2000). Because Plaintiff has submitted her own statement of facts, however, the court will consider those statements, too, to the extent they are supported by evidentiary material and not inconsistent with the statements deemed admitted.*fn2

  Plaintiff, now known as Mickki Fatima Muhammad, has been employed as an officer with the Cook County Sheriff's Police since April 1983. (Deposition of Mickki Fatima Muhammad, Exhibit 10 to Defendant's Rule 56.1 Statement [hereinafter, "Muhammad Dep."], at 8.) Beginning in 1994, upon her return from injury leave, she was assigned to the position of investigator in the Fugitive Warrants Unit, (id at 9-10), a light-duty position that she held for six months before being transferred to "Markham patrol" for the months of May, June, and July 1995. (Id. at 23-25.) In July 1995, as part of an agreement to settle an earlier EEOC charge, Plaintiff was returned to the Fugitive Warrants position, a position she held until her retirement on March 31, 2003. (Id. at 25, 29-30, 32; Exit Interview Record, Exhibit 11 to Defendant's Rule 56.1 Statement.)

 Plaintiff's Charges

  The last few years of Plaintiff's tenure with the Sheriff's Police were marked by conflict. On Page 3 April 4, 2001, Plaintiff filed a charge of discrimination with the EEOC, in which she alleged discrimination on the bases of race, sex, and disability, as well as retaliation. (EEOC Charge, Exhibit 12 to Defendant's Rule 56.1 Statement.) Plaintiff's charge alleged that her supervisors had harassed her in the following ways: (1) she was required to remove a banner she had posted in her office in honor of Black History month; (2) she was instructed to assist a non-black male police officer, despite the fact that she had not been provided assistance when she had performed the job that officer held; (3) she was denied parking privileges that had been afforded to a non-black male officer; (4) she was sent on an arrest assignment without appropriate assistance; (5) she was accused of abusing telephone privileges and working too slowly; (6) her desk was relocated; (7) she was directed to provide a written explanation for having driven her own vehicle to work; and (8) she was ordered to obtain a current medical evaluation, (Id.)

  A few days after filing her charge, on April 9, 2001, Plaintiff sent a packet of documents, including memoranda she had written describing incidents of alleged harassment, to First Deputy Chief James E. Malinowski by certified mail. (Memoranda, Exhibits 13 A-D to Defendant's 56.1 Statement.) In her cover letter to this packet, Plaintiff explained that she has "come to believe very strongly that there is a `denial objective' in place against her," that she was treated unfavorably as compared with her co-workers, and that she was the target of a conspiracy. (Undated letters to Malinowski from Muhammad, Exhibit 13A to Defendant's 56.1 Statement.) Among the documents Plaintiff included in this mailing was a memorandum (to which she referred as "a to/from") to Sergeant M. P. Callahan. (March 22, 2001 Memorandum to Sergeant M. P. Callahan from Police Officer M. Fatima Muhammad, Exhibit 13B to Def.'s 56.1 Statement.) The memo, reportedly prepared at the direction of Lieutenant Judge, explained that Plaintiff had driven her personal vehicle to work on March 21 because she needed to drive family members directly to an appointment after work. She reported, further, that Sergeant Prybell had violated rules on "a few Saturdays" by transporting his own family members in the squad car, and that other police officers Page 4 drove their vehicles to work "simply because they want to." Plaintiff's memo stated that Lieutenant Judge's request that Plaintiff prepare "a to/from" explaining her use of her personal vehicle on March 21 was an example of harassment. The memo cited the following additional examples of the alleged harassment: (1) on February 7, 2001, a co-worker had seen the letters "HRO" on a banner Plaintiff had displayed in observance of Black History month, and had joked that the letters stood for the words, "Honkey Retard Out"; (2) Plaintiff's work desk was moved to the lockup area, creating a "circus like atmosphere" while her co-workers watched to see her response to this move; (3) an incident Plaintiff referred to as the "Christ Hospital Debacle," described more fully below; (4) after another co-worker successfully "politicked" for Plaintiff's primary assignment to be transferred to him, Plaintiff was directed to help him with the assignment; (5) on March 19, 2001, after Sergeant Prybell became aware that there was a "write up against him" relating to the incident at Christ Hospital, he verbally reprimanded her, falsely accusing her of abuse of her telephone privileges; (6) also on March 19, 2001, Sergeant Prybell urged her to work faster; (7) after Plaintiff complained that the requirement that she remove her posters reflected unfair treatment, Lieutenant Judge created bad blood between Plaintiff and a co-worker by telling him that "[Plaintiff] wants your pictures to come down."

  A second memorandum included within this packet, dated March 20, 2001, reported several incidents in which, according to Plaintiff, other Cook County officers reportedly violated the department's policies for use of their weapons. (March 20, 2001 Memorandum from Muhammad to Judge, Exhibit 13C to Defendant's 56.1 Statement.) Yet another memorandum, dated March 19, 2001 and directed to Lieutenant Judge, recounted Plaintiff's complaint concerning an incident on March 14, 2001, when she had been dispatched to Christ Hospital in Oak Lawn to arrest an individual being treated there. (March 19, 2001 Memorandum from Muhammad to Judge, Exhibit 13D to Defendant's 56.1 Statement.) Plaintiff reported in her memorandum that she learned that the individual in question had threatened to shoot a police officer. When she sought out Sergeant Page 5 Prybell for further instruction, he told her to "just cuff him [the arrestee] to the bed," and then turned and walked away. Plaintiff did not at that time ordinarily carry handcuffs and had to obtain a set in order to carry out the assignment. She later learned from other officers that in such circumstances the correct procedure required that the suspect not only be handcuffed, but also shackled. Plaintiff was, in her words, "unprepared, unprotected, and uninformed" to carry out the assignment. When she arrived at Christ Hospital, she learned that the suspect had been a patient there since March 5, had phone and visitor privileges, and was not restrained. Plaintiff herself was recovering from surgery at the time and still had stitches "in her affected part," and was therefore at some physical risk in taking the suspect into custody. She contacted Sergeant Prybell four times for directions. She also pointed out that she was required at that time to take medications with food and therefore needed "lunch relief." Plaintiff asserts that, for any male arrestee not confined in the Cook County Department of Corrections medical facility, the General Order requires that he be guarded by a male police officer.

  When he received this packet of materials, Chief Malinowski forwarded them to Brian Flaherty, a legal assistant in the Sheriffs Department Division of Legal and Labor Affairs, who forwarded them, in turn, to the Office of the Inspector General on April 9, 2002. (Summary Report of Inspector General, Exhibit 14 to Defendant's 56.1 Statement, at [unnumbered] page 6.)*fn3 On April 11, 2001, the OIG opened an investigation into Plaintiff's allegations that Sergeant Prybell and Page 6 Lieutenant Judge had violated various rules and regulations and were creating a hosfile work environment for Plaintiff. The investigators heard Plaintiff's own statements, given on April 23 and April 26, 2001 in the presence of her counsel, and interviewed Prybell, Judge, and 22 of Plaintiff's co-workers.

 Removal of Materials Posted on the Walls

  The February 7, 2001 incident was the first matter mentioned in Plaintiff's charge of discrimination and was a prominent matter in her complaint to Chief Malinowski, so the court addresses it first. Plaintiff had posted a number of items on the wall in her office, which she described as follows:
I had a banner that I had purchased that to me when I bought the banner it looked like it had three black people on it. I also had a poster up of kings and queens of Africa. I had a poster up of a representation of the slave ship and how the slaves were packed into the ship during transport to the New World. I had a poster up of Michael Jordan. I had a poster up — not really a poster, but a page I had got out of a magazine of a room that I liked, just furniture and color scheme that I liked. And then I had some job-related material up, phone numbers to different courts that I dealt with on a daily basis and other memo — department memoranda I had up.
(Muhammad Dep., at 64.) Plaintiff has acknowledged that the banner — referred to by several witnesses as a "tapestry" — stretched from floor to ceiling. (Plaintiff's Statement to Inspector General [hereinafter, "Plaintiff's OIG Statement"], Exhibit 24 to Def.'s 56.1 Statement, at 5.) Plaintiff hung the tapestry or banner on her wall on February 7, 2001, in honor of Black History Month. Officer Donald Morrison and Officer Wayne Layer noted the letters "AS-HRO" on the banner; Plaintiff asserted in her affidavit that Morrison and Layer asked her what those letters stand for and then falsely reported to other officers in the unit that the letters "ASHRO" were offensive, racially charged epithets. (Muhammad Aff. ¶ 12.)*fn4

  Cook County Sheriff's Police Department Rules provide that "[n]o material shall be affixed Page 7 in any way to any wall in Department buildings without specific authorization from a commanding officer." (Department Rules and Regulations, Exhibit 22 to Def.'s 56.1 Statement, ¶ 8.5.) On the same day that she hung the banner,*fn5 Sergeant Prybell approached Plaintiff and directed that she remove it and other items from the walls. (Id. at 4; Plaintiff's 56.1 Statement ¶ 14.) In an affidavit, Plaintiff asserts that Sergeant Prybell did not order any other officer to remove items from their offices (Muhammad Aff. ¶¶ 9, 19), but her own testimony is to the contrary. In her deposition, she testified that after she complained of being singled out, she learned that Sergeant Prybell had ordered another employee to remove a "Three Stooges poster." (Muhammad Dep., at 68.) The court notes, further, that in one of the "to/from" documents Plaintiff drafted, she complained that Lieutenant Judge had created bad blood between Plaintiff and a co-worker by telling him that "[Plaintiff] wants your pictures to come down." (March 22, 2001 Memorandum to Sergeant M. P. Callahan from Police Officer M. Fatima Muhammad, Exhibit 13B to Def.'s 56.1 Statement.) As part of its investigation of Plaintiff's charges, the Inspector General's office obtained written statements in the form of questionnaire answers from a number of Plaintiff's co-workers; Officer Myron Weres reported in his statement that "I had a 3 Stooges Poster — Told to Take it Down by Sgt. Prybell." (Weres Statement, Exhibit 23K to Def.'s 56.1 Statement.)*fn6 Another officer reported to the Inspector General's office that "We all had something on the walls — we were all told to take things down." Page 8 (Statement of Officer Steve Erickson, Exhibit 23M to Def.'s 56.1 Statement.)*fn7 Plaintiff testified that a group of photos posted on the third floor have never been removed, however. (Muhammad Dep., at 69.)*fn8

 Plaintiff's Dispatch to Christ Hospital

  As noted in her complaints, described above, Plaintiff expressed grave concerns regarding an incident that occurred on March 14, 2001, in which she was assigned to arrest and guard a hospitalized man wanted on a warrant issued in Wisconsin. In his statement to the OIG investigator, Sergeant Prybell explained his decision to assign this responsibility to Plaintiff as follows:
It was a emergency hospital take over. Oak Lawn had called us and informed us that there was a gun shot victim at Christ Hospital and that he had a child molester Warrant outstanding. I was told by Investigator Morrison, who does extraditions, that no one was guarding him at that time. Morrison told me that he talked to the nurse on the floor where the subject was and that the subject did not pose any threat and that he had a chest tube in him and was confined to the bed at that time. The jail will not send a guard until they have an officers name and they have to talk to that officer where the prisoner is confined. The only person that I had available was Officer Mohammed. I was the only supervisor at the building so I could not go. Officer Mohammed has refused to work the desk, so I could not send the desk officer, so she was the only one left, so since I needed to send someone right away or the wanted subject could walk out of the hospital. Being aware that females guard males at the jail and because of the emergency nature of the assignment, I made the decision to send her. Officer Morrison could not go because he was going to court that time. All other on duty officers were out on assignment.
(Prybell Statement, at 3.) Prybell stated, further, that Plaintiff did not tell him she was unable to perform the assignment. (Id. at 3, 4.) Plaintiff did in fact carry out the assignment without any problem. (Plaintiff OIG Statement, at 10.) She and Prybell both recalled that she contacted him Page 9 four times with questions concerning the expected arrival of an officer from the jail to relieve her, her need for a lunch break, and her need for assistance from the hospital staff for a personal break. (Id.; Prybell Statement, at 4.) The Office of Inspector General concluded that Sergeant Prybell's assignment of Plaintiff to guard a male prisoner was "a technical violation of General Order 80-1," but was excusable because this was "an emergency situation requiring immediate action" and no other officer was available to execute the arrest warrant. (OIG Report, Exhibit 14 to Def.'s 56.1, at (unnumbered) page 11-12.)

 Other Incidents of Alleged Unfair Treatment

  Plaintiff complains of a number of other incidents in which she believes she was singled out for unfair treatment or harassment. For example, Plaintiff believes Lieutenant Judge acted unfairly when he required Plaintiff to prepare a "to/from" explaining her decision to drive her own car, rather than her official vehicle, to work on March 21. In response to questions by the OIG investigators, Lt. Judge explained that Department cars were in short supply and that "other[s] could use the [Plaintiff's official] car" if Plaintiff chose not to use the one assigned to her. (Judge Statement, Exhibit 20 to Def.'s 56.1 Statement, at 4.) The OIG investigation concluded that Judge's request was reasonable; Department policy requires officers to be "properly uniformed and equipped," and Plaintiff's assigned police vehicle is part of her equipment. (OIG Report, Exhibit 14 to Def.'s 56.1 Statement, at 7, citing Cook County Sheriff's Police Department Rules and Regulations, Exhibit 19 to Def.'s 56.1 Statement, ¶ 12.12.) Although Plaintiff reported in her March 22 memorandum that other officers drove their vehicles to work "simply because they want to," she did not identify any such officers in her submissions to the court, nor did she offer evidence that these other officers were not required to provide a written explanation.

  Similarly, Plaintiff complained that she was not provided with reserved parking in the lot adjacent to the Fugitive Warrant Unit Building, where she worked. Lieutenant Judge and Sergeant Page 10 Prybell both testified that there are only three reserved spots in the parking lot, one assigned to the commanding officer and two others assigned to sergeants. (Judge Statement, at 4; Prybell Statement, Exhibit 21 to Def.'s 56.1 Statement, at 3.) Plaintiff has ...


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