United States District Court, N.D. Illinois
YVONNE AVERHART, Plaintiff,
MICHAEL F. SHEAHAN, The Sheriff of Cook County and COUNTY OF COOK, Defendants.
The opinion of the court was delivered by: ARLANDER KEYS, Magistrate Judge
MEMORANDUM OPINION AND ORDER
Defendants, Michael F. Sheahan and County of Cook ("Cook
County"), move this Court for summary judgment pursuant to Rule
56 of the Federal Rules of Civil Procedure. Plaintiff sued
Defendants, claiming that her employer retaliated against her for
exercising her rights under the First Amendment, and in violation
of Title VII of the Civil Rights Act of 1964, 42 U.S.C § 2000e
et seq. (West 2003), and 42 U.S.C. § 1983 (West 2003). For the
reasons set forth below, the Court grants Defendants' Motion for
On December 17, 1986, the Cook County Department of Corrections
(the "DOC") hired Yvonne Averhart as a correctional officer,
following her participation in a class action lawsuit that
successfully challenged the DOC's hiring policies. Ms. Averhart's
first thirteen years of service were relatively unremarkable.*fn1 On July 23, 1999, however, Plaintiff was
written up for misconduct and suspended for five days. Plaintiff
successfully grieved this write up, and the discipline was
subsequently expunged. Approximately one month later, on August
27, 1999, the United States Court of Appeals issued its opinion
in Valerie Smith v. Sheahan, 189 F.3d 529 (7th Cir. 1998).
The Seventh Circuit decision, which enabled Ms. Smith to proceed
with her sexual discrimination suit against the Cook County
Sheriff and his Department, expressly mentioned Ms. Averhart and
the affidavit she had given in support of Ms. Smith's claim.
Plaintiff contends that, following the issuance of the Seventh
Circuit's decision, Defendants began disciplining her for minor
and concocted infractions, and subjecting her to abuse and
harassment, in retaliation for assisting Ms. Smith.
On September 9, 1999, Plaintiff was cited for having DOC
property in her locker.*fn2 Plaintiff asserts that this was,
at best, a minor offense, but was written up as a major
infraction. Plaintiff grieved the September 9th write up, and
wrote letters to various officials within the DOC chain of
command, including Sheriff Sheahan. Plaintiff was then written up
for minor acts of disrespect. Plaintiff grieved the write up, claiming that the
write up was unfair and was the result of a hostile environment
created by Superintendent Imhof. Plaintiff's grievance was denied
on December 21, 1999.
On January 18, 2000, Plaintiff requested an administrative
move, noting that she had been written-up five times since Supt.
lmhof arrived in her Division.*fn3 On January 27, 2000,
Plaintiff was transferred to Division V, and was written up for a
"major act of insubordination" the next day, when she ignored an
order to remove her car from a handicapped-parking
space.*fn4 Plaintiff notes that, under the DOC's General
Orders, a "Minor traffic offense on duty" is not considered
serious misconduct.*fn5 In the interim, Defendants had begun investigating allegations
of impropriety against Plaintiff, including allegations that
Plaintiff was maintaining improper relationships with inmates and
was involved in smuggling contraband into the prison.*fn6
During the course of the investigation, inmate William Lang
informed investigators that he had a personal relationship with
Plaintiff, in violation of DOC rules. In the summer of 2000,
Internal Affairs Investigator Kuksta monitored planned phone
calls placed by Mr. Lang to Plaintiff on two occasions. Mr. Lang
and Plaintiff discussed an apparent personal relationship and planned to meet.*fn7 Notably, the meeting
never took place. Plaintiff denied ever having made or received
telephone calls from inmate Lang. However, Plaintiff did admit to
sending and receiving correspondence from other inmates, whom she
considered "lifelong friends."
On September 5, 2000, Plaintiff filed Charge NO. 210A04317 with
the Equal Employment Opportunity Commission ("EEOC"), alleging
that she was unfairly written up, recommended for suspension, and
subjected to different terms of employment in retaliation for
having participated in the 1985 class action discrimination
action, and in retaliation for giving deposition testimony on
behalf of a coworker. Plaintiff claims that she was written up
for minor infractions, such as using the commissary bathroom
instead of the ladies locker room when the locker room lacked
toiletries, and that Defendants failed to give her the
appropriate paperwork to properly challenge these
infractions.*fn8 Sometime thereafter, Plaintiff was arrested for theft by the
Chicago Police. On January 18, 2001, Defendants notified
Plaintiff that her inappropriate relationships with inmates and
her theft arrest violated the DOC's general orders.
On May 3, 2001, the DOC's Employee Discipline Administrator
notified Plaintiff that the allegations against her had been
sustained and recommended that Plaintiff be terminated. Plaintiff
sought and received a "Loudermill" hearing regarding the
allegations on May 18, 2001. Defendants filed a Complaint with
the Cook County Sheriff's Merit Board ("Board"), seeking
Averhart's termination, on May 29, 2001. The Complaint alleged
that Plaintiff made false official reports; engaged in conduct
unbecoming an employee of the DOC; failed to comply with DOC
rules, procedures, directives, etc.; knowingly associated with
persons having known criminal records; and violated General
Orders of the Sheriff's Office.
The Sheriff's Merit Board conducted a hearing on the Complaint
on June 21, 2002, and concluded the proceedings on April 17,
2003. Plaintiff argued that the charges against her were
overblown or fabricated. Plaintiff claimed that the charges were
brought in retaliation for her having submitted an affidavit in
the Smith v. Sheahan case and because she had reported other incidents she believed to be improper. The Merit Board issued its
final determination on June 11, 2003, finding that the Sheriff
had produced sufficient evidence to sustain all charges against
Plaintiff. The Merit Board found that Plaintiff's termination was
retroactive to May 29, 2001. Plaintiff filed suit in the Illinois
State courts, seeking review of this administrative decision.
In the interim, Plaintiff had filed another charge with the
EEOC. On January 23, 2002, Plaintiff filed charge Number
210A201475, alleging that Defendants suspended her from her
employment on May 29, 2001, in retaliation for having previously
filed Charge No. 210A04317.
Plaintiff first filed suit against Defendants on January 18,
2001, alleging that Defendants suspended her without pay from her
job in retaliation for speaking out against sexual harassment and
filing an EEOC Charge against Defendant, in violation of Title
VII. The case was initially assigned to Judge George W. Lindberg.
On February 21, 2002, the parties consented to proceed before a
Magistrate Judge, and on February 25, 2002, the case was assigned
to this Court.
Plaintiff filed her second lawsuit on June 4, 2002, alleging
that Defendants retaliated against her, in violation of Title
VII, and deprived her of her First Amendment Rights, in violation of 42 U.S.C. § 1983. The case was initially assigned to Judge
Ronald A. Guzman. On March 7, 2003, Judge Guzman denied
Defendants' Motion to Dismiss. The parties then consented to
proceed before this Court on April 25, 2003, and the cases were
Summary Judgment Standards
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." Matsushita Elec. Indus., Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). Additionally,
conclusory allegations are not sufficient to survive summary
judgment. Nowak v. St. Rita High School, 142 F.3d 999, 1002
(7th Cir. 1998). The non-moving party must 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." Courts need
not "scour the record" in an attempt to locate the relevant
information supporting the Rule 56.1 claims. Waldridge v.
American Hoechst Corp., 24 F.3d 918, 922 (7th Cir. 1994). The
Seventh Circuit has repeatedly "sustained the entry of summary
judgment when the nonmovant has failed to submit a factual
statement in the form called for by the pertinent rule and
thereby conceded the movant's version of the facts." Id.; see
also Jupiter Aluminum Corp. v. Home Ins. Co., 225 F.3d 868, 871
(7th Cir. 2000) (all relevant facts denied without supporting
documentation must be accepted as true provided the facts are
"properly supported by references to the record or other
In this case, Defendants have filed a Motion to Strike
Plaintiff's Responses to Defendants' Statement of Material Facts,
as well as Plaintiff's Statement of Additional Facts. In
responding to the Motion, Plaintiff not only challenged Defendants' assertions, but improperly used the opportunity to
highlight oversights she made in her Response and Statement of
Additional Facts. The Court will not directly rule on this
Motion, but notes that the Summary Judgment Motion will be
decided under the guidelines set forth in Local Rule 56.1.
Factual assertions not properly supported by accurate record
citations, and those supported only by hearsay testimony, will be
disregarded. See generally, Winskunas v. Birnbaum,
23 F.3d 1264, 1267-68 (7th Cir. 1994) (only admissible evidence may
be considered on summary judgment.)
1. Title VII Retaliation
The retaliation provision of Title VII forbids an employer from
discriminating "against any individual . . . because he has
opposed any practice made an unlawful employment practice by this
subchapter [42 U.S.C. §§ 2000e to 2000e-17], or because he has
made a charge . . . or participated in any manner in an
investigation, proceeding, or hearing under this subchapter
[42 U.S.C. §§ 2000e to 2000e-17]." 42 U.S.C. § 2000e-3(a). A
plaintiff has two routes to surviving summary judgment in a Title
VII retaliation case; by presenting direct evidence of
retaliation or by satisfying the indirect method of proof
announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Direct evidence is defined as evidence that "if believed by the
trier of fact, will prove the particular fact in question without
reliance upon inference or presumption." Randle v. LaSalle
Telecomm. Inc., 876 F.2d 563, 569 (7th Cir. 1989). Direct
evidence includes discriminatory statements made by decision
makers. Gorence v. Eagle Food Ctrs., Inc. 242 F.3d 759, 762
(7th Cir. 2001). The statements must be made contemporaneously
with, or causally related to, the employment decision and must
demonstrate the speaker's discriminatory intent. Markel v. Bd.
of Regents of Univ. of Wisc. Sys., 276 F.3d 906, 910 (7th Cir.
2002) (citing Conley v. Vill. of Bedford Park, 215 F.3d 703,
711 (7th Cir. 2000)). Finally, evidence of inappropriate remarks
not shown to be directly related to the employment decision may
not support a direct-method-of-proof case, but, in connection
with other evidence, might support a case under McDonnell
Douglas's indirect method of proof. Gorence, 242 F.3d at 762.
To establish a prima facie case of retaliation under the
indirect method of proof, Plaintiff must show that: (1) she
engaged in a statutorily protected activity; (2) she performed
her job according to her employer's legitimate expectations; (3)
despite meeting her employer's legitimate expectations, she
suffered a materially adverse employment action; and (4) she was
treated less favorably than similarly situated employees who did not engage in statutorily protected activity. Hilt-Dyson v. City
of Chicago, 282 F.3d 456, 465 (7th Cir. 2002). If Plaintiff
satisfies her prima facie case, the burden shifts to the
employer to articulate a legitimate, non-discriminatory reason
for the adverse employment action. "If the defendant presents
unrebutted evidence of a noninvidious reason for the adverse
action, [it] is entitled to summary judgment. Otherwise, there
must be a trial." Stone v. City of Indianapolis Pub. Utils.
Div., 281 F.3d 640, 644 (7th Cir. 2002).
In Stone, Judge Posner clarified a plaintiff's burden under
both the direct and indirect methods of proof. The Stone
decision focuses primarily upon the proper role of causation
under both methods of proof. Id. at 643. More pertinent to this
case, however, is Judge Posner's reiteration of the standard rule
that if "the defendant presents unrebutted evidence that he would
have taken the adverse employment action against the plaintiff
even if he had no retaliatory motive . . . the defendant is
entitled to summary judgment, because he has shown that the
plaintiff wasn't harmed by retaliation." Id. at 644. This is
true under both the direct and indirect methods of proof. Id.
at 644. In this case, the parties clash over whether Plaintiff has
produced admissible direct evidence of discrimination,*fn9
whether Plaintiff can satisfy the McDonnell Douglas test, and
whether Plaintiff has complied with Local Rule 56.1. The Court
need not address each of these disputes in detail, however,
because Defendants have produced unrebutted evidence that
Plaintiff would have been disciplined and suspended even in the
absence of retaliatory intent.*fn10
In this case, Defendants have demonstrated that Plaintiff was
charged with violating multiple DOC General Guidelines, and that she was disciplined accordingly. Plaintiff argues that the
charges were bogus, and contends that she demonstrated at the
merit board hearing that the "charges are unfounded." Pl.'s Resp.
at 15. Plaintiff claims that many of the charges against her were
minor incidents, blown out of proportion in an effort to build a
case for her termination such as her parking in a handicapped
parking spot; keeping cleaning supplies in her locker; and using
the commissary bathroom. She also claims that she damaged the
credibility of the only eyewitness against her at the Merit Board
hearing by showing that he contradicted himself. Obviously, the
Merit Board disagreed, recommending that Plaintiff be terminated
for her various infractions.
Plaintiff has not produced any admissible evidence
demonstrating that these charges were not valid. See generally,
Shea v. Lovejoy, Inc., 2004 WL 1194748 (N.D. Ill. May 27, 2004)
(noting that an employee's perception of his performance is
immaterial to the question of the employer's reasonable beliefs).
Nor has Plaintiff pointed to any evidence demonstrating that the
Merit Board was influenced by retaliatory intent, or any other
improper motivation, in sustaining the charges against her.
Plaintiff attempts to persuade the Court that the charges were
part of a smear campaign, by showing that other officers
committed similar or more serious infractions, but were not
suspended. See Pl.'s Resp. at 12. However, Plaintiff fails to cite to any admissible evidence in support of these claims. For
example, Plaintiff claims that Officer Sullivan improperly
impersonated a records officer and brought an inmate to court,
despite direct orders not to do so. Id. Plaintiff asserts that
Officer Sullivan received no discipline for this infraction. In
support of these assertions, Plaintiff offers only her own
deposition testimony. Although self serving deposition testimony
may be sufficient to defeat summary judgment, the testimony must
be based upon personal knowledge. See Payne v. Pauley,
337 F.3d 767, 773 (7th Cir. 2003). Here, Plaintiff has not directed
the Court to evidence establishing that she had personal
knowledge of the underlying incident or of Officer Sullivan's
disciplinary history nor that of Officers Collins, Caset Rios,
Daniel Duh, or Latanya McCulloh. See Fed.R. Evid. 602 (noting
that a witness may not testify to a matter unless she introduces
sufficient evidence to demonstrate that she has personal
knowledge of the matter.)
Even more confusing is Plaintiff's chart categorizing the race
and sex of all individuals accused of associating with an inmate.
The evidence tends to show that, in some instances, minorities
were found guilty of certain charges more frequently than white
men. This evidence would certainly have a place in a
discrimination lawsuit, but fails to shed much light on
Plaintiff's retaliation claims. To the contrary, the evidence tends to support Defendants' position by demonstrating that 12 of
the 27 individuals found guilty of associating with inmates were
terminated, while others were suspended or resigned.
None of this serves to rebut Defendants' evidence that
Plaintiff was found to have violated the DOC's general
guidelines, that she was provided a full and fair hearing on the
charges, and that the Merit Board, after weighing the evidence,
recommended that she be terminated. Under these circumstances,
the Court finds that the Defendants have offered a legitimate
explanation for terminating Plaintiff, which Plaintiff has failed
to rebut. Therefore, the Court grants Defendants Motion for
Summary Judgment on Plaintiff Title VII retaliation claim.
2. Section 1983 First Amendment Retaliation
The parties dispute whether res judicata precludes Plaintiff
from pursuing her First Amendment claim, because she failed to
raise the claim before the Merit Board. See Schofield v.
Nikkel, 314 Ill. App. 3d 771, 780, 731 N.E.2d 915 (2000).
Regardless of whether the Merit Board's decision precludes
Plaintiff from raising her claim here, or whether Defendants
waived the issue of res judicata by failing to raise it as an
affirmative defense, Plaintiff has not satisfied her burden under
McTigue v. City of Chicago, 60 F.3d 381, 382 (7th Cir.
It is well established that a local government unit may not be
held liable under § 1983 under the doctrine of respondeat superior. Monell v. Dept. of Soc. Servs. 435 U.S. 658, 691
(1978). Instead, a plaintiff must produce evidence showing that
the municipality's policy caused her injury. Plaintiff may do so
by showing that: 1) Defendants had an express policy that caused
a constitutional deprivation; or 2) had a widespread practice
that was so well settled as to constitute custom or usage with
the force of law; or 3) a policymaker inflicted the
constitutional injury. McTigue, 60 F.3d at 382.
Although Plaintiff's Complaint references General Order 1.8 as
the offending "gag order," Plaintiff neither attached this Order
to her Complaint, nor directed the Court's attention to General
Order 1.8 in her Rule 56.1 Statement. In her Response Brief,
Plaintiff abandons any attempt to satisfy the first or second
prongs of McTigue, and instead claims that Investigator Kuksta
and Superintendent Imhof were policymakers. But Plaintiff has not
produced any admissible evidence in support of her assertion that
these individuals were policymakers.
And even if Plaintiff could establish that Investigator Kuksta
and Superintendent Imhof were policymakers, Defendants' ability
to show that it would have terminated Plaintiff regardless of her
protected speech, prevents her from satisfying the test announced
in Mt Healthy City School Dist. Bd. Of Ed. v. Doyle,
429 U.S. 274 (1977) In Mt. Healthy, the Supreme Court directed courts to
determine whether the employee's speech is protected; whether the speech was a motivating factor in the
retaliatory action; and finally, whether the defendant
established that the action would have been taken in the absence
of the employee's speech. As discussed in detail above,
Defendants have presented unrebutted evidence that Plaintiff's
suspension was based upon the valid charges against her. See
also, Spiegla v. Hull, 371 F.3d 928 (7th Cir. 2004)
Because Plaintiff cannot satisfy her burden under McTigue,
the Court grants Defendants' Motion for Summary Judgment on
Plaintiff's Section 1983 claim.
Having carefully reviewed the entire record, the Court finds
that Plaintiff has failed to produce admissible evidence giving
rise to a genuine issue of material fact with regard to any of
her claims. The Court acknowledges that Plaintiff had a difficult
time interacting with her supervisors, and would concede that
Plaintiff likely believes she is the victim of retaliation.
Nevertheless, her evidence fails to support her claims.
Plaintiff's admissible evidence is simply insufficient to create a genuine issue of material fact. Accordingly,
IT IS HEREBY ORDERED that Defendants' Motion for Summary
Judgment be, and the same hereby is, GRANTED. JUDGMENT IN A CIVIL CASE
 Jury Verdict. This action came before the Court for a trial
by jury. The issues have been tried and the jury rendered its
[X] Decision by Court. This action came to trial or hearing
before the Court. The issues have been tried or heard and a
decision has been rendered.
IT IS HEREBY ORDERED AND ADJUDGED that Defendants' Motion For
Summary Judgment is hereby granted.