The opinion of the court was delivered by: Richard Mills, U.S. District Judge
This case is before the Court on the Defendant's motion for summary judgment.
A. Introduction Plaintiff Linette Metzger alleges that Defendant Illinois State Police ("ISP" or "the Defendant") retaliated against her in violation of Title VII. The Plaintiff previously brought a federal lawsuit against certain employees of ISP alleging, inter alia, that she had been discriminated against in violation of Title VII. The Plaintiff states that lawsuit, Metzger v. DaRosa, et al., Civil Action Number 98-3297, resulted in a jury verdict in her favor that was ultimately taken away. Judgment was eventually entered against the Plaintiff.
Metzger asserts that she was retaliated against since those previous claims. She contends that while there have been many instances of retaliation, two significant incidents form the basis of her claims. The first is that she was denied an upgrade to a Public Service Administrator position ("PSA"). Additionally, the Plaintiff was passed over for a promotion in favor of another employee. ISP labels Metzger as the very model of "an irritable, chip-on-the-shoulder employee seeking review of actions which she did not like."
B. Kirk Lonbom Deposition*fn1 Kirk Lonbom has been Employed by Defendant ISP for Fifteen Years
In November 1998, Mr. Lonbom was appointed as Bureau Chief for the Firearms Services Bureau ("FSB" or "bureau"). Lonbom served as a sworn officer of the FSB from 1983 to 1990. ISP alleges that Lonbom changed the structure of the bureau in an attempt to address its needs and to restructure it based upon the functions that were being performed. Metzger claims that statement is largely conclusory and is difficult to agree with or to dispute. She notes that while Lonbom made modifications to the bureau, there are questions about whether the actions were for the betterment of it. Lonbom believed that the responsibility for the programs of the bureau rested with the bureau chief, a fact which Metzger claims is largely irrelevant.
At the end of 1999 or beginning of 2000, Mr. Lonbom altered the structure of FSB to create, inter alia, an enforcement support unit. The Plaintiff notes that the bureau continued to perform the same job duties. Metzger was transferred into that unit in approximately February of 2000.
The Defendant alleges that prior to creating the unit, Lonbom formed the opinion that the employee that would head the enforcement unit would be a sworn officer. ISP asserts that Lonbom believed this for the following reasons: (1) the importance of knowledge of the criminal code; (2) to be better able to handle communications with sworn officers in the field; and (3) to cover the potential need to operate in the field if a force of action might be necessary. The Plaintiff disputes these allegations. Metzger alleges that while this might accurately reflect the testimony of Lonbom, the undisputed facts show (1) that the duties of the position were previously performed by a non-sworn employee; and (2) Metzger performed each of the duties that any sworn officer in the position ever performed.
Soon after being transferred into the enforcement unit, the Plaintiff requested that she either be promoted or transferred out of the unit. Metzger was transferred into the enforcement unit in February, the same month she requested to be promoted. According to Mr. Lonbom, the enforcement unit is comprised of two positions, specifically a sworn officer who is supported by Metzger. The Plaintiff agrees that there have always been two people since she has been in the enforcement section. However, she claims (1) that the duties of the position were previously performed by a non-sworn employee; and (2) she has performed each of the duties that any sworn officer in the position ever performed.*fn2 ISP alleges that the enforcement support unit has never had any other employees assigned to it other than the sworn officer and its support position filled by Metzger. The Plaintiff objects to this allegation on the same basis noted above.
Wanda Kaidell was the section chief over the eligibility section and supervised four or five people. The Plaintiff notes that Ms. Kaidell was a non-sworn employee of ISP. The Firearms Transfer Inquiry Program ("FTIP") section was supervised by Cheryn Lawson, who oversaw approximately six employees. Metzger notes that Lawson was also a non-sworn employee.
The Defendant alleges that when Lonbom supervised the bureau, he believed that Metzger seemed to be more concerned about whether others were doing their jobs instead of how she was doing her job. The Plaintiff objects to this allegation and says that the conclusory statement is supported by absolutely no evidence. Metzger claims that at all times, she was concerned about the people of Illinois who she was charged with protecting. She states that she did complain when people did not follow protocol and procedures that resulted in the loss of life. The ISP next asserts that it was communicated to Lonbom that Metzger believed the job she was doing should be classified at a higher level, specifically a PSA position. The Plaintiff notes that her supervisor, Rick Kahrliker, agreed with her. Metzger has submitted information at various points in time for many years that she felt her job should be classified as a PSA. Mr. Lonbom did not believe her work was at a PSA level. ISP contends that Lonbom is not the ultimate classifier of jobs; the Illinois Department of Central Management Services ("CMS") is. Metzger disputes this statement and further states that Kahrliker was told by Lonbom in April of 2002 that Metzger was not classified as a PSA because of budgetary constraints.
The Defendant alleges that Lonbom was "excited" that CMS was involved as this would allow him to say what he believes the job entails; Metzger and her supervisors could say what they believed the job entails; and CMS could decide. While acknowledging this reflects Lonbom's testimony, Metzger contends it does not reflect what he has said on previous occasions. On one occasion, he advised Kahrliker that Metzger could not be promoted because of financial considerations. ISP claims that Mr. Lonbom did not have the authority to make the Plaintiff's position into a PSA level position. This would have required permission and agreement from CMS. The Plaintiff disputes these allegations by making the same objections noted above.
The Defendant next alleges that Candice Burns was transferred into the bureau as a PSA; she was not promoted. ISP further alleges that Mr. Lonbom's only role in the job audit was preparing a memo describing from his perspective what Metzger's job entailed. The Plaintiff objects to this assertion on the basis noted above about what Lonbom previously said about the job. Lonbom supported the CMS evaluation. The ISP contends that Lonbom knew Metzger had a lawsuit, but he had no knowledge about the lawsuit's allegations or any of its details. The Plaintiff disputes this allegation and claims that circumstantial evidence suggests otherwise, as is outlined in her brief.
C. Plaintiff Linette Metzger's Deposition
The Plaintiff is employed by ISP as an Administrative Assistant II. ISP alleges Metzger believes that the department has been retaliating against her because she reported wrongdoing. In response, Metzger claims that the retaliation has occurred because she has pointed out unlawful conduct on the part of ISP employees.
ISP alleges that the data entry section was supervised by an Office Administrator III or IV; the eligibility unit was also supervised by an Office Administrator III or IV. An Office Administrator IV title is approximately three levels below the Administrative Assistant I title. Mr. Lonbom left the bureau in October of 2002.
The Defendant further claims the enforcement unit was staffed with just two people, Ms. Metzger and the head of enforcement. When Metzger was first placed in the enforcement unit in February of 2000, she had nothing to do. The Plaintiff did not know what the functions or duties of the position she was occupying in enforcement would be until sometime in April of 2000.
Eligibility analysis was supervised by an Executive I. An Executive I position is below an Administrative Assistant II. Cheryn Lawson, Wanda Kaidell and JoAnn Bubonic are all in Executive I positions. Prior to February of 2000, the bureau typist had signature authority for Master Sergeant Whitley when he was Firearm Owner's Identification ("FOID") manager. Before Mr. Whitley provided the typist with his signature authority, two supervisors with an Office Administrator IV or V title had signature authority.
The Plaintiff believes that Chad Carter was removed from her supervision because she reported him for eavesdropping. Metzger believes the evaluation she received in October of 2001 was an attempt to retaliate against her. ISP alleges Metzger's 2001 evaluation rated her at the highest possible rank that she could obtain or receive for that year. The Plaintiff lists this as a statement of fact which she disputes, but she offers no explanation. Metzger received the maximum amount of money that she could receive based on such an evaluation. She is maxed out on the pay scale for her position. The Plaintiff believes that ISP has been retaliating against her off and on since 1993. ISP alleges that Lonbom was not a part of her previous action in federal court that was tried in May 2001. The Plaintiff claims that while Lonbom was not a defendant in the previous action, this does not mean that he was not aware of the facts of her claims. Rather, Lonbom asked her why she had not accepted a confidential settlement proposal that had been made to her.
The Plaintiff does not know if she had effective CMS promotional grades from 2001 to 2003. Metzger sent a letter to CMS requesting a job audit of her position on approximately May 20, 2002. The audit process involves CMS determining the classification for that position. The Plaintiff submitted her first charge alleging retaliation in this case three days after she sent her request for a desk audit. ISP alleges Metzger believed that her request to have a PSA position created for her was denied for retaliatory reasons because she was reporting wrongdoing, violations of statutes or other errors. The Plaintiff responds that she believes ISP has retaliated against her because she has pointed out unlawful conduct on the part of ISP employees. This includes objecting to unlawful discrimination that she has been subjected to as well as other wrongdoing she has reported.
The Defendant asserts that Plaintiff also believed the denial was retaliatory based upon statements from Deputy Director DaRosa; however, the issues related to DaRosa's statements were litigated in her prior proceeding. The Plaintiff does not dispute this statement. Metzger claims, however, that DaRosa's statement was that she would never be promoted as long as she maintained a lawsuit against the ISP. She also notes that DaRosa had a very significant position within ISP.
The Plaintiff alleges that Mr. Lonbom retaliated against her on December 13, 2001, by yelling at her. Metzger believed that Lonbom yelled at her because she made him look bad to his boss in reference to her 2001 evaluation. The Plaintiff's allegation that they withheld information from her on April 25, 2002, stems from ISP having LEADS OP messages rerouted from a terminal out in the open to a front desk PC to which Metzger did not have a password. Prior to rerouting the information, it was not sent to a specific person's work station. At the time the information was transferred, the terminal the information had been sent to was removed because the information could now be sent directly to a personal computer. The terminal the original information appeared on was just a printer which kept printing out information. There is always an employee stationed at the computer where the information is now sent. Metzger never asked any of the employees stationed at the computer to print out information for her. Persons who are stationed there are supposed to print out the information as they receive it and place it in a box.
The Defendant next alleges the Plaintiff is not claiming that Lonbom or Grubb instructed anyone or ordered anyone not to give her the OP information once it was routed to the new computer. She is not claiming that employees were instructed to intentionally delay providing the information to her, to hold on to it for a period of time, or to give it to her late.
The Plaintiff alleges that her signature authority was removed in May of 2002 in retaliation. When Wasilewski was assigned FTIP responsibility, the signature process was divided up and Wasilewski was signing FTIP revocations and Kahrliker was doing the enforcement ones. Metzger retained her signature authority on enforcement files. From February of 2000 to May of 2002, FTIP revocation letters went out through the enforcement program. Just prior to May of 2002, Wasilewski was assigned responsibility for FTIP revocations and the typists had his signature authority.
The Plaintiff filed her next charge of discrimination on June 4, 2003. On January 9, 2003, Metzger received a letter from CMS informing her that her position was properly classified as an Administrative Assistant II. The following day, she filed an internal EEO complaint with ISP EEO Officer Suzanne Bond. Metzger appealed to CMS to reconsider its determination that she should only be classified as an Administrative Assistant II. CMS adhered to its determination that she should be classified as an Administrative Assistant II.
In April of 2003, during the time that CMS was reconsidering its audit decision pursuant to the Plaintiff's request, there was a meeting of some members of ISP management. Metzger was not at the meeting and does not know the details of what was discussed. She does not know if any of the discussions at the April meeting were related or communicated to CMS in any way. The April meeting occurred after CMS had already denied the position audit and determined that she was properly classified as an Administrative Assistant II. According to Metzger, any finding by CMS that her position was properly classified as an Administrative Assistant II means that she was retaliated against. ISP alleges that Metzger would have challenged the CMS decision regardless of how the audit was handled or processed. Metzger claims this statement misconstrues her testimony.
The Plaintiff does not know if Mr. Lonbom had any knowledge or familiarity with audit procedure or process. She claims she was retaliated against in April 2003 because she had to have prior approval to work during non-working hours. The requirement to obtain prior approval before working during non-work hours included people other than Metzger, such as office associates. When Lonbom was bureau chief, Metzger put in extra hours and it was just volunteered time.
At some point after Scott Giles took over as bureau chief in October 2002, he instructed Metzger's direct supervisor, Kahrliker, that if she was going to work extra hours, she would be given comp hours for the extra hours she worked. This would allow the Plaintiff to take off from work the number of hours she has earned. From November 2002 through April 2003, Metzger had generated more than five days of comp time. Any employee who was earning comp time but determined to not be working during unscheduled hours was precluded from earning comp time. ISP contends that Metzger never had made a request to work unassigned hours or for comp time that was denied. The Plaintiff claims that this statement misconstrues her claims. Her complaint is that she was treated differently in how comp time operated.
The Plaintiff has no knowledge as to what, if any, information Lonbom or Grubb changed, deleted or added to her desk audit request, as she has no first hand ...