The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge
This matter comes before the Court on Defendant City of Springfield, Illinois' (City) Motion for Summary Judgment (d/e 66) (Motion for Summary Judgment), Motion to Strike Affidavit (d/e 70), and Motion to Strike Exhibits (d/e 74). Davis is an African American man. He is a Lieutenant in the City's Police Department (Department). In October 2003, he applied for a promotion to Deputy Chief of the Department's Criminal Investigations Division (Position). Police Chief Donald Kliment selected Police Lieutenant William Rouse, a Caucasian man, for the Position. Davis claims that Kliment rejected him for the Position because he is an African American and to retaliate against him for speaking out about racial issues within the Department.
Davis has advanced four theories to support his claim that he was discriminated against when he was not promoted to the Position within the Police Department. Davis brings his claims against the City under two theories of Title VII of the Civil Rights Act of 1964 (Title VII) (Count I), and §§ 1981 and 1983 (Count II). 42 U.S.C. §§ 1981, 1983, and 2000e et seq. Title VII prohibits employment discrimination and retaliation against employees who oppose employment discrimination. 42 U.S.C. §§ 2000e-2, 2000e-3. Section 1981 prohibits racial discrimination in contracting, including employment relationships. 42 U.S.C. § 1981. Section 1983 authorizes suits against government officials and municipalities that violate an individual's federal statutory or constitutional rights. 42 U.S.C. § 1983.
Davis has presented sufficient evidence to defeat the City's Motion for Summary Judgment on each of the Title VII claims in Count I, but not on the §§ 1981 and 1983 claims in Count II. The City's Motion for Summary Judgment is, therefore, allowed as to Count II and denied as to Count I. The City also asks the Court to strike Davis' Affidavit and other evidence submitted by Davis. The Motion to Strike Davis' Affidavit (d/e 70) and Motion to Strike Davis' Exhibits (d/e 74) are allowed in part and denied in part, as outlined below.
The City asks the Court to strike Davis' Affidavit because it contains hearsay, assertions not based on personal knowledge and inappropriate legal conclusions. Davis argues that the Affidavit is admissible. An affidavit submitted in opposition to a motion for summary judgment must be based on personal knowledge and the averments must be otherwise admissible. Fed.R.Civ.P. 56(e). The Court has reviewed the Affidavit. Memorandum of Plaintiff in Opposition to Motion for Summary Judgment (d/e 68) (Davis Memorandum), Davis Exhibit 36, Affidavit of Rickey B. Davis (Davis Affidavit).*fn1 Some of the statements in the Davis Affidavit lack foundation to establish that the statements are based on personal knowledge. The Court will disregard any portions of the Davis Affidavit that lack such foundation. The Court will also disregard any portions of the Davis Affidavit that consist of inadmissible hearsay or are otherwise not competent evidence. The Motion to Strike the Davis Affidavit is, thus, allowed in part.
The City also asks the Court to strike a number of exhibits submitted by Davis in opposition to the Motion. Again, all exhibits must be competent, admissible evidence to be considered by the Court in connection with the pending Motion. Fed.R.Civ.P. 56(e). The evidence must also have been properly disclosed in discovery. Fed.R.Civ.P. 26 & 37. The City is correct that many of the exhibits either were not properly disclosed or are not competent, admissible evidence.
Davis Exhibit 1 is a report written by Lawrence C. Golden dated November 24, 1986. Davis offers no foundation to establish the document's authenticity and no evidence to establish that the report is admissible under any exception to the hearsay rule. Fed.R.Evid. 802 & 901. The Court will disregard Davis Exhibit 1.
Davis Exhibits 22, 29, 31 and 41 are newspaper articles. The City argues that they are inadmissible hearsay. Davis responds that newspaper articles are self-authenticating and that the City submitted a number of news articles in support of the Motion. Newspaper articles are self-authenticating. Fed.R.Evid. 901. Authentic hearsay, however, is still hearsay. Fed.R.Evid. 802. No author of any article has stated under oath that the statements in any of the submitted articles are true and based on personal knowledge. Fed.R.Civ.P. 56(e). The Court will disregard all of the news articles submitted by both parties.
Davis Exhibits 7 and 8 are summaries of employment data. The City objected because Davis has provided no foundation for these summaries. Davis responded with an Affidavit from Anniethabatha Bond, the person who prepared the summaries. Response to Motion to Strike Exhibits (d/e 82) (Response to Motion to Strike), attached Affidavit of Anniethabatha M. Bond. Bond's Affidavit includes copies of the documents summarized. Summaries of voluminous data are admissible, but the party proposing to use summaries must give the other side an opportunity to inspect the data on which the summaries are based. Fed.R.Evid. 1006; Fidelity Nat. Title Ins. Co. Of New York v. Intercounty Nat. Title Ins. Co., 412 F.3d 745, 753 (7th Cir. 2005). Davis submitted the summaries without informing the City of the data used. Davis did not provide the City with the Bond Affidavit until after the City filed this Motion to Strike and then only shortly before the City was obligated to file its Reply. See Text Order entered August 15, 2006. In this context, Davis did not provide the City with a reasonable amount of time to inspect the data and respond to these summaries. The Court therefore will not consider Davis Exhibits 7 and 8. Fed.R.Evid. 1006.
Davis Exhibit 38 is a letter from the City's Corporation Counsel Jenifer Johnson to attorney David Rose. The letter is on an official letterhead and is signed by Johnson. The City does not dispute the letter's authenticity and does not claim that the letter was not properly disclosed in discovery. The letter also is an admission of a party opponent and so is not hearsay. Fed.R.Evid. 801(d)(2)(D). The City only objects that Johnson and Rose were not disclosed as persons that Davis may use as witnesses. Fed.R.Civ.P. 26(a). Since the City does not dispute authenticity, Davis does not need to use either of these individuals as witnesses. The letter is also otherwise admissible. Furthermore, the City is not prejudiced by Davis' use of the letter or by Davis' failure to list a foundation witness in his Rule 26 disclosures. The Court will not strike the letter.
The City also objects to transcripts of depositions of Letitia Dewith-Anderson, Todd Renfrow, Frank McNeil, Frank Edwards, and Sandy Robinson. Davis Exhibits 3, 4, 6, 9, 13, and 15. The City objects because:
(1) Davis did not disclose in his Rule 26 disclosures that he may use any of these individuals as witnesses, and (2) their depositions were not taken in this case. See Motion to Strike Exhibits, attached exhibit Plaintiff's Rule 26 disclosures. These depositions were taken in a separate case in which both Davis and the City are parties. Davis v. Harris, Case No. 03-3007. The Davis v. Harris case currently has six plaintiffs, including Davis, and two defendants, including the City. The plaintiffs in Davis v. Harris allege acts of racial employment discrimination and retaliation that occurred in 2002 and before.
Davis responds that the parties agreed in a telephone conference with U.S. Magistrate Judge Byron G. Cudmore that depositions taken in this case or in Case No. 03-3007 could be used interchangeably. A Text Order entered by Judge Cudmore on March 6, 2006, in Case No. 03-3007, states that additional depositions in Case No. 03-3007 can be conducted during depositions taken in this case. Taking one deposition of an individual who may be a witness in both cases, or who may have discoverable information in both cases, may often be a good idea. All concerned save time by taking the deposition once instead of twice. The Text Order by Judge Cudmore reflects this. Thus, the Court finds no prejudice to the City from the fact that the depositions were taken in Case No. 03-3007.
The problem is that Davis did not disclose that he may use these individuals as witnesses in this case. He was obligated to do so. Fed.R.Civ.P. 26(a)(1)(A). Davis may not use these depositions to oppose the Motion for Summary Judgment unless his failure to disclose these individuals was harmless. Fed.R.Civ.P. 37(c)(1). The potential for harm in this case is real. The Davis v. Harris case has six plaintiffs, including Davis, who allege acts of discrimination and retaliation that occurred in 2002 and before. In this case, Davis alleges discrimination and retaliation based on one promotion decision in 2003. Davis should have alerted the City in his Rule 26 disclosures of those individuals who may be witnesses in this case. The City could then discover information about this case from those individuals. There is no reason that the City would assume that every person who may be deposed in Case No. 03-3007 might also be a witness in this case or have discoverable information about this case. Because Davis did not disclose that he may use Dewith-Anderson, Renfrow, McNeil, Edwards, and Robinson as witnesses in this case, the City was not on notice to ask these deponents questions about this case. Given this lack of notice, the Court cannot say that Davis' failure to disclose these witnesses was harmless. The Court, therefore, will not consider these depositions. Fed.R.Civ.P. 37(c)(1).
Davis also notes that the City used the deposition of Patrick D. Fogelman, taken in Case. No. 03-3007, to support its Motion for Summary Judgment in this case. Davis does not state whether the City disclosed Fogelman as a possible witness in its Rule 26 disclosures in this case. The Court, therefore, will not strike his deposition just because it was taken in Case No. 03-3007.
Davis came to the Department as a patrolman in 1981. He was promoted to Sergeant in 1994 and later to the rank of Lieutenant. In 2003, he had six years of experience as a detective, two years of experience as a Detective Sergeant, and more than one year of experience as a Lieutenant in the Criminal Investigations Division. He also received the William Herndon Award for outstanding detective work. See Reply to Response to Motion for Summary Judgment (d/e 85) (Reply), Exhibit 3, Charge of Discrimination, ¶¶ 6-8; Complaint (d/e 1), ¶¶ 11-12 and Answer (d/e 12), ¶¶ 11-12.
Throughout much of his career, Davis has spoken out about racial issues within the Department and the City. He became a leader in a group that advocated for the interests of African American police officers. The group ultimately became known as the Black Guardians Association of Central Illinois. See e.g., Davis Exhibit 19, The Black Guardians Association of Central Illinois Proposal for Recruiting dated May 5, 2004.
In 1994, Davis and three other African American officers were ranked among the top twenty applicants for promotion to the rank of Sergeant. Davis states that the City intended to promote all twenty. Some Aldermen and the Police Union wanted only eight of the applicants promoted to the rank of Sergeant; Davis spoke against this proposal. Kliment was head of the Union at the time. The City promoted the top twenty applicants, including Davis and the other three African American officers, to the rank of Sergeant. Davis Exhibit 20, Deposition of Rickey Davis dated June 15, 2005 at 45-47.
In 1999, Davis filed a complaint with the Illinois Department of Human Rights (IDHR) because then Department Chief John Harris had given a few Caucasian officers assistance in studying for the lieutenant's examination. Defendants' Motion for Summary Judgment, Exhibit 8, IDHR Investigation Report dated March 30, 2000. The IDHR Investigation Report found a lack of substantial evidence to indicate that Chief Harris' actions were racially motivated. Id. at § VII. E. The Report found that a majority of the Caucasian applicants, as well as all four African American applicants, did not receive any assistance from Chief Harris. Also, the test was postponed to give all applicants additional time to study for the test. Id.
In 2002, Davis and several other officers filed charges of discrimination and retaliation against the City with the Equal Employment Opportunity Commission (EEOC). Davis and the others then filed suit against the City and others in this Court. Davis v. Harris, Case No. 03-3007. The case is still pending.
Kliment became Chief of the Department in June 2003. Kliment had been the head of the Police Union for several years. He had also been Davis' partner and friend in the 1980's. Kliment still considers himself a friend of Davis. Reply to Response to Motion for Summary Judgment (Reply (d/e 85), attached Deposition of Donald Kliment dated June 16, 2005 at 94-95. Davis perceived a wall between himself and Kliment. Kliment often took positions on behalf of the Union that were adverse to positions that Davis took on behalf of the Black Guardians Association. Davis Exhibit 24, Deposition of Rickey Davis dated February 24, 2006 at 133. Davis, however, supported Kliment's selection as Chief. Id. at 133.
After becoming Chief, Kliment decided to reorganize the Department. The Department had a Police Chief and five Assistant Chiefs. Kliment decided to reorganize the Department's upper management. The Department had one Chief and five Assistant Chiefs. Kliment decided to have a Chief, one Assistant Chief, and four Deputy Chiefs, including the Position. See Reply, Exhibit 1, Department Organizational Chart. Davis was a Lieutenant in the Department. He applied for the Position. William Rouse, a Caucasian Lieutenant with the Department also applied to be a Deputy Chief. Rouse indicated that he preferred to be appointed to one of the other three Deputy Chief positions, but he would take any of the positions. Davis Exhibit 44 (d/e 78), email from Rouse dated September 17, 2003.
In early October 2003, the Department's Sergeant promotion list was about to expire. The Department periodically generated a list of officers qualified for promotion to the rank of Sergeant. Qualified officers applied for placement on the list. The process included an examination. The resulting list contained the qualified applicants in rank order. As openings occurred, officers at the top of the list were promoted to Sergeant, and the remaining applicants on the list would move up in rank order. The list was effective for a stated period of time. After the list expired, eligible officers could again apply and a new list would be generated. See Motion for Summary Judgment, Exhibit 4, Rules of the Springfield Civil Service Commission, § V, Eligibility Lists for Police and Fire Departments.
In this case, the Sergeant list was set to expire in early October 2003. The name of an African American officer, Ralph Harris, had moved close to the top of the list. If the list expired as originally planned, then Harris would need to start all over. If the list were extended, then Harris would probably be promoted to the rank of Sergeant because of vacancies that were anticipated in the next year. The City's Civil Service Commission (Commission) had the authority to extend the list for one year. Id., Rule 5.5(C). The Department had no African American Sergeants at that time. Davis, Harris and others asked that the Sergeant list be extended so Harris could be promoted. In December 2003, the Commission ...