The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge
This matter comes before the Court on Defendants John Harris and City of Springfield, Illinois' (City) Motion for Summary Judgment (d/e 274) (Motion for Summary Judgment) and Motion to Strike Affidavits of Harris and Davis (d/e 284) (Motion to Strike). The Plaintiffs are six African American police officers who allege racial employment discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 (Title VII) and post-Civil War Civil Rights Acts. 42 U.S.C. §§ 1981, 1983, & 2000e. Complaint (d/e 1), Counts I and II. For the reasons set forth below, both Motions are ALLOWED in part and DENIED in part. The Court has reviewed the Motion to Strike and the Response (d/e 288), including additional supporting documents, and will disregard those portions of the Affidavits of Defendants Rickey Davis and Ralph Harris that are not competent admissible evidence based on personal knowledge. The Motion for Summary Judgment is DENIED with respect to the following claims:
1. Plaintiff Rickey Davis' Title VII claims in Count I against the City for: (1) disparate treatment and retaliation based on: (a) the 1996 transfer from Criminal Investigations to Patrol, and (b) the 1997 to 2002 denial of transfers to Criminal Investigations; and (2) retaliation based on: (a) the February 2001 reprimand, (b) the assignment to the third watch as a Lieutenant, and (c) the discipline in August 2002;
2. Plaintiff Rickey Davis' §§ 1981 and 1983 claims in Count II against Defendant John Harris for disparate treatment racial discrimination based on: (a) the 1996 transfer from Criminal Investigations to Patrol, and (b) the 1997 to 2002 denial of transfers to Criminal Investigations; and
3. Plaintiff Lea Joy's Title VII claims in Count I against the City for: (a) retaliation based on: (1) the 1996 transfer to the third watch, and (2) the transfer from Internal Affairs to Field Operations; and (b) hostile work environment.
The Motion for Summary Judgment is otherwise ALLOWED.
Before discussing the Motion for Summary Judgment in detail, the Court is compelled to note certain matters that have affected this case significantly. The six Plaintiffs may elect, as they have, to join their separate claims in a single action. Fed. R. Civ. P. 20(a). The Plaintiffs have not, however, have taken any of the necessary steps to show that this case should be treated as a class action. See Fed. R. Civ. P. 23. As such, the Court cannot treat the Plaintiffs' claims as a group or class. Each Plaintiff's claims are separate and distinct. At this juncture, each Plaintiff must present evidence to demonstrate that issues of fact exist with respect to each of his or her claims.
Second, the Defendants have waived the affirmative defense of the statute of limitations. The Plaintiffs filed their claims on January 9, 2003. Complaint (d/e 1). They filed their charges of discrimination with the Equal Employment Opportunity Commission (EEOC) on September 9, 2002. E.g., Defendants' Reply to Amended Response to Motion for Summary Judgment (d/e 290) (Reply), Exhibit 5, Charge of Discrimination by Rickey Davis. In their Complaint, and in their response to the Motion for Summary Judgment, the Plaintiffs assert claims based on events that occurred as far back as 1978. As this Court discussed in detail in its Order entered June 10, 2003 (d/e 25) (Order), the relevant statutes of limitations generally limit claims brought under Title VII and §§ 1981 and 1983 to events that occurred within the two years preceding the filing of the lawsuit, or less. Order, at 23-24. The Court entered the Order on June 10, 2003, before the Defendants filed their Answer and Affirmative Defenses on July 18, 2003. Answer and Affirmative Defenses of Harris, City of Springfield Illinois, Pittman, Vasconcelles and Harms (d/e 29) (Answer). The Defendants were thus aware of the statute of limitations defenses. The Defendants even argue the statute of limitations in their Reply. E.g., Reply, at 19-22, 24-29, 32-34, 36, 39-40, 44-45.
The statute of limitations, however, is an affirmative defense that must be pleaded in the answer, or amended answer, or else it is waived. Fed. R. Civ. P. 8(c). The Defendants did not plead the statute of limitations as an affirmative defense in this case. Answer, at 23-25.*fn1 The Defendants did not subsequently amend their pleadings to raise the defense. "[I]n civil litigation, a statutory time limit is forfeited if not raised in a defendant's answer or in an amendment thereto. Fed. Rules Civ. Proc. 8(c), 12(b), and 15(a). And we would count it an abuse of discretion to override a [party's] deliberate waiver of a limitations defense." Day v. McDonough, __U.S.__, 126 S.Ct. 1675, 1679 (2006). The Court, therefore, must respect the Defendants' waiver of this defense. Consequently, the Court will consider all of Plaintiffs' claims, not just those that would have survived the bar of the statute of limitations.
The Plaintiffs' pleading decisions, however, have also affected the matters at issue on summary judgment. For example, Plaintiff Rickey Davis presents evidence, discussed below, that he was subjected to a hostile work environment throughout his career, particularly through Caucasian officers' practice of telling "nigger" jokes. Amended Memorandum of Plaintiffs in Opposition to Motion for Summary Judgment (d/e 283) (Response), at 109-10. Davis did not allege in the Complaint that he was subjected to a hostile work environment, and specifically did not allege that he was subjected to racial jokes of any kind. Complaint (d/e 1), at 13-17, 45-47, 75-78. Based on his allegations, this Court previously held that Davis stated claims for disparate treatment and retaliation, but not for a hostile work environment.
Order, at 38, 53. Davis has had more than three years since the Order was entered to ask for leave to amend the Complaint to add a hostile work environment claim. Such timely requests are liberally granted. Fed. R. Civ. P. 15(a). He did not make the request to amend his claims.*fn2 He cannot now attempt to use the Response to amend his claims to add this additional claim. Speer v. Rand McNally & Co., 123 F.3d 658, 665 (7th Cir. 1997). Thus, Davis may not proceed with a hostile work environment claim. Other Plaintiffs have also presented evidence of claims that they did not raise in the Complaint or in any amended pleadings. They, too, cannot use the Response to amend their claims.
The Plaintiffs also submit evidence of events that occurred after the filing of the Complaint in January 2003. In order to pursue claims based on events that occurred after the filing of a complaint, a plaintiff must, with leave of Court, file supplemental pleadings that set forth the new claims. Fed. R. Civ. P. 15(d). Such supplemental pleadings give the defendant fair notice of the additional claims. The Plaintiffs did not ask for permission to file supplemental pleadings and did not file any supplemental pleadings. The Court cannot now allow the Plaintiffs to proceed on these claims. The Court, therefore, will not consider evidence of claims based on events that occurred after the filing of the Complaint.
Last, the Court notes that each Plaintiff, in responding to the Motion, must present some competent evidence that the Defendants treated similarly-situated, non-minority employees more favorably in order to go forward to trial with claims of disparate treatment in employment. In the case of the retaliation claims, each relevant Plaintiff must present some competent evidence that a similarly-situated individual, who did not speak out against perceived racial discrimination, received more favorable treatment. The parties have had some three years to conduct discovery and have electronically filed the equivalent of more that five reams of paper in connection with the Motion for Summary Judgment. Yet, each Plaintiff, in many cases, has failed to submit competent evidence that relevant, similarly-situated non-minority officers received more favorable treatment. With some exceptions, each Plaintiff has only submitted his or her personal opinion that similarly-situated Caucasian officers received more favorable treatment. These uncorroborated personal opinions are not sufficient to demonstrate that issues of fact exist. Fed. R. Civ. P. 56(e); Oest v. Illinois Department of Corrections, 240 F.3d 605, 615 (7th Cir. 2001). The Plaintiffs have had years to discover the relevant personnel and disciplinary records of police officers who they believe received better treatment, or to depose those officers, or others, with personal knowledge of the relevant circumstances, to show that these officers were similarly-situated. The Plaintiffs elected not to discover and present such evidence to the Court; thus, in many cases, the Plaintiffs simply have not presented the evidence needed to overcome summary judgment.
The Court rarely comments in this manner at the beginning of opinions. But, in this particular case, the parties' actions have so significantly affected the outcome of the Plaintiffs' claims, that these matters needed to be explained initially, before the Court addressed the Motion for Summary Judgment. The rules of pleading and evidence exist for a reason; they define the matters at issue in the lawsuit and keep the trial free of irrelevant and improper matters. As counsel well know, both they and the Court are required to follow these rules.
Because each Plaintiff's claim is separate, the Court will address the evidence that has been submitted relevant to each party's claim separately, and then analyze each claim separately, as set forth below.
Davis is an African American man. Davis joined the Department on May 1, 1981. On May 1, 1988, he was assigned to Detective in the Criminal Investigations Division (Criminal Investigations).*fn3 In the summer of 1993, he and Plaintiff Officer Ralph Harris (Officer Harris) were assigned to investigate the death of an African American citizen named Floyd Stringer. Response, Exhibit 20, Deposition of Rickey Davis (Davis Deposition), at 7. Stringer died in police custody. Davis and Officer Harris ultimately determined that Stringer's death was the fault of three Caucasian officers: Greg Williamson, Dan Zabados, and Tim Garrett. According to Davis, Stringer had mental problems and was under the influence of crack cocaine when the officers arrested him. Davis and Officer Harris determined that these officers had not been properly trained to handle this situation, and as a result, they took steps which caused Stringer's death. Id., at 127-28.
Davis and Officer Harris encountered a great deal of difficulty and hostility from other officers throughout the Stringer investigation. There were delays in receiving reports and other information. Police union officials spoke out publically against the investigation. Other Detectives also made harsh comments criticizing Davis and Officer Harris for investigating other officers. Some officers would not speak to them after the investigation started. They were also ostracized by other officers. Id., at 35-36, 41-44.
In one instance, Davis and Officer Harris needed to see Stringer's clothing. The clothing was being held in the evidence room. The evidence clerk made a derogatory remark about Stringer and the investigation. He gave Davis and Officer Harris the clothes. Davis and Officer Harris were overwhelmed by the pepper spray that was left on the clothing. When they left the evidence room, one of the officers under investigation, Dan Zabados, was standing outside the evidence room. Zabados made a comment to the effect that he was not pleased with what Davis and Officer Harris were doing. Id., at 36-40.
Davis and Officer Harris reported the animosity of the other officers to then Police Chief Harvey Davis. Chief Davis is an African American man and the brother of Plaintiff Davis. Chief Davis did not do anything to address these problems. Id., at 44-45. In early 1994, Davis also wrote a letter to Chief Davis and the Mayor of Springfield. The letter explained the problems they anticipated as a result of their investigation of Stringer's death. Id., at 50.
In 1994, Davis, Plaintiff Lea Joy, and two other African American officers, Kirk Robinson and Robert Williams, applied for promotion to the rank of Sergeant. The promotions process involved taking an examination. Chief Davis intended to promote the top twenty candidates. The police union and several aldermen proposed only promoting the top eight candidates. Davis, Joy, Robinson, and Williams were among the top twenty candidates, but none of them were in the top eight. Id., at 46.
At that time, African American officers belonged to a group known as the Springfield Ethical Police Society (Ethical Society), later know as the Black Guardians Association of Central Illinois (Black Guardians). The Ethical Society held town meetings to gather community support for promoting all twenty officers. As a result of their efforts, a large group of black citizens attended a City Council meeting to support the promotion of all twenty officers. All twenty were promoted. On May 24, 1994, Davis, Joy, Robinson, and Williams, along with sixteen Caucasian officers, were all promoted to the rank of Sergeant. Id., at 46.*fn4
After his promotion, Davis was assigned to the Major Case Unit within Criminal Investigations. In 1995, his assignment changed to the desk in Criminal Investigations. Davis states that this transfer was a demotion. He states that the desk assignment was less prestigious than the Major Case Unit. Id., at 50. The desk assignment also had reduced responsibilities. While in the Major Case Unit, Davis supervised the investigation of major violent felony crimes. In the desk assignment, he answered the phone and reviewed closed cases. Response, Exhibit 36, Affidavit of Rickey Davis (Davis Affidavit), ¶ 115.
In the fall of 1995, Defendant John Harris (Chief Harris) became Chief of the Department. In the summer of 1996, Davis' assignment was changed to the Patrol Division (Patrol), second watch. Davis stated that reassignment to Patrol was a further reduction in prestige and responsibilities, and a reduction in compensation. Sergeants in Criminal Investigations were not required to work weekends or holidays. Davis Affidavit, ¶ 112. Sergeants in Criminal Investigations also received additional compensation in the form of a clothing allowance. Reply, Exhibit 21, Affidavit of Donald Kliment, ¶ 4; see Davis Deposition, at 54-56.
Chief Harris states that he had a practice of regularly rotating his supervisory personnel to different divisions in order to cross train supervisors in various divisions of the Department. Motion for Summary Judgment, Exhibit 9, Affidavit of John Harris (John Harris Affidavit), ¶ 4. Davis notes, however, that Sergeant Donald Kliment remained in the Field Operations Division throughout Chief Harris' tenure with the Department. Davis Affidavit, ¶ 37.*fn5
Between 1997 and 2001, Davis repeatedly applied to be reassigned to Criminal Investigations, but in each instance, Caucasian Sergeants were given the assignment. Davis states that he had more experience as a Detective than these officers, but he presents no evidence to show the basis of his personal knowledge of the other officers' experience or to corroborate his assertions. Davis Deposition, at 61-62; Davis Affidavit, ¶¶ 77-78, 124.
Also, according to Davis, from 1997 to 2001, numerous complaints were filed against him with the Internal Affairs Division (IA). Davis Deposition, at 63. One of the complaints was that Davis improperly approved an African American civilian employee (Carol Gaston) of the Department's report. Davis signed off on a report prepared by Gaston that was incomplete. Gaston did not have all of the necessary information to complete the report by the time that Davis' shift ended. Davis asked the Sergeant who relieved him to make sure the report was complete. Id., at 9. That was not done, and Davis was disciplined for approving the incomplete report. Davis states that the discipline was improper.
During the time that Davis and Gaston worked together, Davis also filed an IA complaint regarding the treatment of Gaston. Other officers were making improper sexual remarks that alluded to Gaston's gender, color, and weight. Id., at 128-29.
In 1999, Davis and Plaintiff Joy applied for promotion to Lieutenant. A year earlier, in 1998, two Caucasian officers, William Pittman and Kevin Keen, had asked Chief Harris for suggestions on what they could do to prepare for their future careers. Chief Harris suggested a book on community policing. John Harris Affidavit, ¶ 7. This book was later made part of the study materials for the examination that were issued by the City's Civil Service Commission sixty days before the examination. Shortly before taking the examination, Davis and Joy learned that Keen and Pittman had been given the book by Chief Harris. Joy and Davis complained that Chief Harris had given these officers an unfair advantage in violation of Civil Service rules. The City's Civil Service Commission delayed the examination from fall 1998 to January 1999, to give all applicants additional time to study for the examination. Id., ¶ 8; see Response to Motion to Strike Affidavits of Harris and Davis (d/e 288) (Response to Motion to Strike), Exhibit C, Illinois Department of Human Rights (IDHR) Investigation Report. Davis and Joy also filed a complaint with the IDHR. The IDHR found a lack of substantial evidence to show any racial discrimination. IDHR Investigation Report, at 5. Davis and Joy took the examination in January 1999, along with sixteen other officers, fourteen of whom were Caucasian including Pittman. Pittman was ranked first among the applicants, Joy was ranked thirteenth, and Davis was ranked sixteenth. Response to Motion to Strike, Exhibit D, Civil Service Commission Promotional Eligibility List Police Lieutenant January 1999. Joy was promoted to Lieutenant on October 14, 1999. Davis was promoted to Lieutenant on June 4, 2001.
In early 2000, Davis and others filed an IA complaint against Assistant Chief James Burton for failing to perform his duties as an officer. According to Davis and Harris, Burton came to a bar in Springfield named Mac's Lounge. Several African American police officers worked second jobs at Mac's Lounge while off-duty. Davis claims that Burton made an accusation that these off-duty officers observed illegal drug use at the bar and took no action. Davis and Officer Harris filed an IA complaint against Burton on the grounds that he must have also seen this activity and took no action. Davis Deposition, at 15.*fn6 Officer Harris states that Chief Harris ordered them to file the IA complaint against Burton. Response, Exhibit 21, Deposition of Ralph Harris (Ralph Harris Deposition), at 54-55. Officer Harris states that the complaint against Burton was determined to be unfounded. Id., at 18.*fn7
Also in 2000, Davis attended the Northwestern University Staff and Command School. While attending this course, Davis wrote a paper about race relations in the Department in which he commented on the Department's lack of effort in recruiting. He provided a copy of the paper to Chief Harris. Davis Deposition, at 11-12.
On January 3, 2001, Davis wrote a letter, as President of the Black Guardians, to Carl Madison, then President of the local chapter of the NAACP. The letter complained about the failure of Caucasian officers to respond to requests for assistance by off-duty African American officers who were working second jobs at Mac's Lounge. Davis sent copies of the letter to all Department staff. Id., at 13. Davis and Officer Harris state that African American officers had a great deal of trouble getting assistance at Mac's Lounge. They claim that Caucasian officers work off-duty at other bars and do not have trouble receiving assistance. Davis Affidavit, ¶ 89.
On February 2, 2001, Lieutenant Greg Smith gave Davis a written reprimand for taking too much time for lunch. Smith stated that Davis took ten minutes too long for lunch. Davis denies that he took too long for lunch. Id., ¶¶ 79-84. Davis also states that he observed Lieutenant Smith regularly leaving his second watch shift at 10:30 p.m. when the third watch Lieutenant came on duty, even though Smith's second watch shift did not end until 12:00 a.m. Id., ¶¶ 85-87. Davis said that the practice of leaving when the next watch Lieutenant came on duty was common among all Lieutenants. Id., ¶ 87.
On June 4, 2001, Davis was promoted to Lieutenant. Upon his promotion, Chief Harris instructed Davis to stop working off-duty at Mac's Lounge. Davis states that he suffered a significant loss of income because he had to quit his second job. Davis Affidavit, ¶¶ 88-92.*fn8
Davis was also assigned to the third watch upon his promotion to Lieutenant. He preferred the second watch, but his request for the second watch was denied. Assistant Chief Burton told Davis that watch assignments were based on seniority and he was the junior Lieutenant. Second Davis Affidavit, ¶ 20.
In 2001, Chief Harris asked his Lieutenants to tell him their assignment preferences. Davis again asked for Criminal Investigations. Chief Harris assigned Lieutenant Dave Dobson, a Caucasian man, to Criminal Investigations rather than Davis. Davis states that Dobson had spent all of his career in Patrol, and Dobson had no investigative experience. Davis Affidavit, ¶¶ 120-21. Davis does not state the basis for his knowledge of Dobson's investigative experience.*fn9
In February or March 2002, Davis and the other Plaintiffs held a press conference as members of the Black Guardians in front of the Martin Luther King statue near the Illinois State Capitol building in Springfield. Davis states that he and the other officers made a public statement about racial problems in the Department, and specifically came out in support of Renatta Frazier.*fn10 Frazier is an African American woman, and was at that time, an officer in the Department. At the time of the press conference, Frazier was the subject of several IA investigations. The most serious charges arose from an incident in October 2001. Newspapers had reported that Frazier was accused of responding improperly to a call, and as a result, a rape occurred. Several months later, the Department revealed that the rape occurred before Frazier was sent on the call, and so, she could not have prevented the rape.
On March 27, 2002, Davis and Officer Harris attended a Day Away meeting with Chief Harris and others from the Department. Davis states that he and Officer Harris, and the others, discussed racial problems, recruiting issues, and discriminatory practices in the Department. Davis Deposition, at 20; Summary Judgment Motion, Exhibit 16, Day Away agenda, materials, and notes.
On or about April 29, 2002, Frazier was evicted from her home. Davis states that numerous Department officers were present observing the eviction and laughing and joking. Davis attempted to pay the rent for Frazier in order to avoid the eviction. According to Davis, the payment was refused after the landlord spoke with Department Lieutenant William Rouse. The next day, Davis attended a meeting with Chief Harris and Reverend Jesse Jackson. At the meeting, Chief Harris yelled at Davis for being present at the Frazier eviction the previous day. Davis Deposition, at 164-68.
On June 3, 2002, Davis and Officer Harris traveled to Washington, D.C., to meet with representatives of the U.S. Department of Justice to discuss racial problems within the Department. Davis and Officer Harris stated in the meeting that African American officers were written up on bogus claims so that they could be terminated by Chief Harris. Ralph Harris Deposition, at 13. Davis and Officer Harris also stated at the meeting that the Department was misusing the "weed and seed" grant money. The grant was designed to fight drugs, but Davis and Officer Harris stated that the funds were used to issue tickets to African American citizens and to pay overtime for officers. Id., at 11-12; Davis Deposition, at 24-26.
After they returned from Washington D.C., Davis states that Assistant Chief William Pittman was furious that Davis and Officer Harris had gone to this meeting. Davis states that Pittman was yelling and cursing at him, and pointing his finger at Davis in a threatening manner. Davis filed an IA complaint about Pittman's behavior. Davis Deposition, at 24-26.
In July 2002, Davis and Officer Harris asked for permission to attend the National Black Policemen Association's (NBPA) national convention, scheduled for August 2, 2002. The Department authorized them to attend and said that their time would be considered school time. The Department, however, would not pay any expenses. Reply, Exhibit 7, Memoranda from Chief Harris to Davis and Officer Harris, dated July 24, 2002, and July 31, 2002. Kliment states the City also allowed Caucasian officers to attend conventions as school days. Response, Exhibit 17, Deposition of Donald Kliment (Kliment Deposition), at 103-04, 113. Kliment Deposition, at 103-04, 113.
In July 2002, Davis filed an IA complaint against a Caucasian officer, Angela Westlake, who had called an African American citizen a "nigger." Assistant Chief Pittman ordered that the complaint should not be investigated. He stated that these matters should be handled by Westlake's supervisors rather than through Internal Affairs. Id., at 175; Reply, Exhibit 23, Memorandum from Pittman to Lieutenant Robert Williams dated July 23, 2002.
In August 2002, Chief Harris disciplined Davis at a senior staff meeting for having Sergeants write monthly beat reports. Chief Harris presented Davis with a written reprimand in front of the other Lieutenants and yelled at Davis in front of the other officers. Davis found this to be very humiliating. Davis states he was following the procedures for preparing reports that had been given to him by his supervisor, Assistant Chief Dan Hughes. Response to Motion to Strike, Exhibit K, Affidavit of Rickey Davis (Second Davis Affidavit), ¶¶ 12-13.
In September 2002, Davis again asked for an assignment to Criminal Investigations. He again was not selected for the position. Lieutenant Robert Williams, an African American, was one of the officers selected for this assignment. On September 6, 2002, Williams wrote a memorandum to Ralph Caldwell, the Assistant Chief of Criminal Investigations accepting the position. Response to Motion to Strike, Exhibit F, Memorandum from Williams to Caldwell dated September 6, 2002. In the memorandum, Williams stated that Davis was the most qualified of all the Lieutenants for the assignment, including himself. Id.
In the fall of 2002, Lieutenants Charlie Cox and Greg Williamson were assigned to the second watch. Davis then asked for a second watch assignment, but the request was denied. Davis had seniority over Cox and Williamson. Second Davis Affidavit, ¶ 20.
In October 2002, Lieutenants Al Pinter and Randy Wilson sent memoranda to Assistant Chief Pittman indicating that Davis was missing during his shift and was rumored to be visiting a girlfriend during his shift.
Response, Exhibit 41, Deposition of Patrick Fogleman (Fogleman Deposition), at 104; Summary Judgment Motion, Exhibit 20, Memoranda from Pinter and Wilson to Pittman, dated October 14, 2002. Patrick Fogleman from IA was ordered to investigate Davis' whereabouts while on duty. Fogleman examined Davis' emails and records of his other communications. Fogleman found a lack of activity. Fogleman Deposition, at 106-09. Chief Harris ordered Fogleman to put Davis under surveillance. Fogleman and Assistant Chief Mary Vasconcelles placed a tracking device on Davis' vehicle and followed him in a rented vehicle. Davis figured out that they were following him and stopped their vehicle. They denied that they were following him. Fogleman states that they did not find Davis doing anything improper. Davis was not followed again. Fogleman Deposition, at 113-15, 139; Davis Deposition, at 134-35, 139. Thereafter, Davis filed an IA complaint against Chief Harris because of the surveillance. Davis Deposition, at 30-31.
In December 2002, Davis was assigned to Criminal Investigations. John Harris Affidavit, ¶ 3. The Complaint in this case was then filed on January 9, 2003.
Davis references several other events without giving any dates. Thus, it is difficult for the Court to put these events in context. Davis and Officer Harris completed PPCT training, but they were never assigned to teach. According to Officer Harris, PPCT refers to training on the use of pressure points to subdue individuals. Ralph Harris Deposition, at 147.*fn11 Davis and Officer Harris never applied to teach. Id., at 147-49. The City hired the law firm of Husch and Eppenberger to investigate the Department in light of the Frazier investigation. Davis told members of the law firm about racial problems in the Department. Id. Current Chief Kliment states that at some point in time Davis and Officer Harris requested permission to attend an NBPA convention. The request was denied, but the date is not given. Kliment Deposition, at 103-04.
Davis states that throughout his career, Caucasian officers routinely told "nigger" jokes in his presence. He states that these jokes were regularly told in meetings in front of supervisors with no repercussions to the person telling the jokes. He states that racially offensive graffiti was written all over the bathrooms. He states that the Department eventually put chalk boards up in the bathrooms on which officers could write this graffiti. He said that he never observed anyone disciplined for this behavior. Davis Deposition, Exhibit 20, 56-57.
Davis states that he once received a written reprimand for not booking evidence correctly. He stated that this reprimand was unfair because he followed appropriate procedures. Id., at 63-65.
Davis also states that the Black Guardians also filed an IA complaint against the individuals responsible for handling the Frazier investigation. He states that only one Sergeant was disciplined as a result and that no one higher in the chain of command was disciplined. Id., at 130-31.
Officer Harris joined the Department on November 27, 1978. Early in his career, Officer Harris heard Officer Tapscott call a suspect a "nigger." Ralph Harris Deposition, at 162, 248. Officer Harris states that officers charged with making racial slurs were never disciplined. Id., at 131. Officer Harris presented no other evidence of examples or details of any use of racial slurs.
As discussed in detail above, in 1993, Chief Harvey Davis assigned Officers Harris and Davis to investigate Floyd Stringer's death, and they determined that four Caucasian officers were responsible for the death. Officer Harris stated that he was well-liked before this investigation, but after that, everything changed. Officer Harris states that other officers ignored him and avoided him.
Officer Harris said in his deposition that officers starting "keying up" his microphone after the Stringer investigation was completed. "Keying up" involved blocking an officer's radio signal so that he could not use his radio. Ralph Harris Deposition, at 43. Officer Harris, however, stated elsewhere in his deposition that the "keying up" practice stopped by the time that Harvey Davis became Chief. He stated that the Department installed new equipment that identified anyone who tried to key up another officer's radio. Id., at 218-19. He stated that he was never "keyed up" while Harvey Davis was Chief, "When Harvey Davis was chief of police, I never had, not one incident." Id., at 218. Since Officer Harris conducted the Stringer investigation during Harvey Davis' tenure as Chief, it is unclear how officers could have keyed him up in retaliation if he was never keyed up at that time.
Defendant John Harris became Chief of the Department in 1995. Shortly thereafter, Officer Harris was moved from Planning and Research to the "streets." Officer Harris does not define the term "streets", but the Court assumes he means Patrol. Officer Harris considered this a demotion.
Id., at 223. Officer Harris stated that he was given a "raggedy" squad car at this time. Citizens commented on the condition of the car. Id., at 223-24. Later, Officer Harris received a new car. Shortly thereafter, a notch was cut out of the steering wheel of the car. Id. Officer Harris also stated in his deposition that at other times throughout his career, cars assigned to him were spat upon and dented. He also states that Caucasian officers with less seniority were assigned newer vehicles than his, even though the assignments were supposed to be based on seniority. Id., at 25, 46-47, 174, 176, 220-23. The time frame for these events is unclear from the deposition.
In 2000, Officer Harris was on the eligibility list for promotion to Sergeant. He was fourteenth on the list. Individuals were promoted in rank order from the list as openings occurred. Lists expired after a certain period of time. This particular eligibility list was to expire before enough openings had occurred to allow Officer Harris to be promoted. Chief Harris had the authority to extend the time that the list would remain effective, which would have allowed Officer Harris to be promoted. Chief Harris refused to extend the list, and so, allowed it to expire. Id., at 252.
On September 19, 2001, Officer Harris asked for leave to attend a convention in Michigan on October 19-20, 2001. He was scheduled to speak at the convention. His request for leave was denied on September 20, 2001. On October 4, 2001, Officer Harris made reservations to fly to Michigan to attend the convention. Officer Harris then called in sick for October 19-20. He states that he was sick with sinusitis. He called his doctor and got a prescription for sinus medicine. He then went on his trip to Michigan. He was disciplined for abusing sick leave. He disputes whether this discipline was justified. Id., at 125-28, 130, 135, 269-72; Summary Judgment Motion, Collective Exhibit 15 (d/e 276), Grievances, Disciplinary Proceedings and Internal Investigation Summaries, docket entry 276-3 at 53 of 61.*fn12 Harris states that Caucasian officers abused sick leave and were not punished. He states that he complained to Lieutenant White about this abuse, but White told Harris that he could not do anything about it. Ralph Harris Deposition, at 129-30.
In December 2001, Officer Harris was charged with an IA complaint based on the complaint of a citizen named Helen Corn. On November 15, 2001, Corn called the Department to report a stolen wallet. Officer Harris took the call initially, but told her to call back because he was too busy to make a report at that time. She called back, but Officer Harris was at lunch. Officer Pat Selvaggio, a Caucasian man, took the call again but did not make a report. She called back again, but Officer Harris again did not make out a report. Corn called back on November 27, 2001, to get the file number of the report of her complaint and discovered that no report had been made. She then complained about Officer Harris. She states that someone used her stolen credit card to buy over $1,000.00 in merchandise. During the investigation, Corn stated that Officer Harris told her to climb into a dumpster to look for the wallet. Officer Harris denies that he stated this. Officer Harris received a written reprimand as a result of this incident. Officer Harris complains that Officer Selvaggio was not subjected to an IA complaint. Id., at 118-122, Summary Judgment Motion, Collective Exhibit 15 (d/e 276), Grievances, Disciplinary Proceedings and Internal Investigation Summaries, docket entries 276-2 at 53; 276-3, at 2-36; and 276-4, at 1-37.
In June 2002, Officer Harris was again investigated for improper use of sick leave. He took sick leave on June 2, 2002. He had been assigned to the first watch that day, which ended at 3:30 p.m. At approximately 12:00 a.m. midnight June 3, 2002, he traveled to Washington, D.C. with Davis to speak with the U.S. Department of Justice about the weed and seed program. Officer Harris states that he was sick on June 2, 2002, and his use of sick leave was proper. Ralph Harris Deposition, at 123. The complaint of improper use of sick leave was not sustained, and Officer Harris received no discipline as a result of this investigation. Exhibit 15, docket entry 276-1, at 2, Official History Summary, results of Investigation 2001/12/130.
Officer Harris testified in his deposition about several other events, but he provided no time frame for these occurrences. Officer Harris stated that he requested to work in dispatch because he had a background in radio. His request was never granted. Id., at 145-46. Officer Harris also requested an assignment to the gang unit. He had training in this area. He was assigned to the gang unit for a time, but he was then reassigned. Id., at 148-52. He stated that Caucasian officers assigned to the gang unit did not have the same training that he had received. He stated that during an Ethical Society meeting, Caucasian officers took down license plate numbers of the vehicles driven by those attending. Id., at 49-50. Officer Harris states that when he was in Criminal Investigations, he was given the worst car. He states that newer cars went to Caucasian officers with less seniority. Id., at 174-75.
Officer Harris stated that once, while at the firing range for target practice, someone had plugged up the end of his carbine so that it would explode when he tried to fire it. Officer Harris tried to fire the carbine, but the weapon would not fire. He then inspected the weapon and found the obstruction. He states that the only reason the weapon did not explode was because the round would not seat properly. After that incident, Officer Harris feared for his life. Id., at 154-58.
Officer Harris states that he was charged with domestic battery and acquitted. He states that Officer Scott Allen lied at the trial. Id., at 103-07.*fn13 Even though Harris was acquitted, there was an IA investigation in which the charges were sustained. As a result, Officer Harris was sent back to the streets as a patrol officer. Id., at 95-96. Officer Harris claims that he later worked in the records division and discovered that four or five Caucasian officers had been charged with domestic battery, but they were not subjected to an IA investigation. Id., at 102. Officer Harris does not submit to the Court the records he so discovered, or any other information about these other officers.
Officer Harris participated in the press conference held by the Black Guardians to support Frazier in 2002. Thereafter Officer Harris received a death threat. He reported it to Chief Harris, but Officer Harris states that nothing was done. Id., at 242. Officer Harris also states that he received more IA complaints against him after supporting Frazier than he had received in the previous twenty years. Id., at 131, 135. Officer Harris also asserted in his deposition that Caucasian officers who do not support the racist and discriminatory behavior of the other officers are often excluded from assignments. Id., at 216.
Joy joined the Department on September 26, 1983. She experienced several problems very early in her career. During her probation period, she was assigned to the transport truck, referred to as the "ice cream truck". Response, Exhibit 22, Deposition of Lea Joy (Joy Deposition), at 95. She states that this truck stayed downtown. As a result she was not allowed to go out on patrol and so did not learn, during the probationary period, how to conduct patrol and respond to calls. Id. As a new recruit, Joy states that she was not allowed to ask questions. She states, "If I asked questions, I was written up for it." Id., at 93. Right after she graduated from the academy, she asked her supervisor (whom she identified as Sergeant Smith) a question, and he responded, "If you have to ask that questions, maybe you need to look for another job." Id. Early in her career, officers called her "Ms. Joy" instead of "Officer Joy". She considered this to be disrespectful. Id., at 93. One officer named Frank Natale always called her Ms. Joy throughout her career. Id., at 128.
In 1984 or 1986, then Police Chief Walton told Joy that some officer referred to her as an "African cunt." Joy does not know who made the statement, and does not know whether it was repeated, or how often. Id., at 147. Also, early in her career, Officer Sandy Vacker said something about Joy having chicken grease on her steering wheel. Joy considered this a racial slur. Id., at 140-41. Joy states that jokes about chicken grease followed her for twenty years. Id., at 140-41; see Response, Exhibit 25, Deposition of Melody Holman, at 11-13.
In 1994, Joy applied for the canine unit.*fn14 Officers in the canine unit received some additional overtime to take care of the dog at home. Joy states that she was the top applicant, but she was put on the bottom of the eligibility list. According to the City, Joy was put at the top of the list, but she was promoted to Sergeant on May 24, 1994, before anyone from the list was assigned to the unit. Sergeants are not assigned to the canine unit. Joy claims that some less qualified individuals were assigned to the canine unit before she was promoted to Sergeant. Joy Deposition, at 59; Response, Exhibit 39, Affidavit of Lea Joy; Summary Judgment Motion, Exhibit 13, Affidavit of John Hauversburk; Reply Exhibit 30, Excerpts from collective bargaining agreement. See Davis Deposition, at 124-26. She does not identify any of these individuals or provide any other evidence about them or their assignment to the canine unit.
Defendant Officer Harris became Chief in the fall of 1995. Soon after this, Joy was moved from crime prevention to the midnight shift, presumably the third watch. Ralph Harris Deposition, at 223.
In December 1997, Joy applied for training to be a Fire Arms Training instructor called a "FATS" instructor. She was not selected. She said that she was the only applicant who was denied this training. Joy Deposition, at 40. The documents state that Sergeant Mark Bridges disapproved the application because Joy had previously refused to teach mobile data terminal (MDT) after attending the MDT instructor training course. Summary Judgment Motion, Exhibit 14, Seminar Application. Joy states that she bowed out of teaching MDT after taking the class because she did not have a terminal in her vehicle and so did not have experience with the equipment. Joy Deposition, at 40.
As discussed above, Joy took the Lieutenant examination with Davis in 1999, and she discovered that Chief Harris had recommended a book to Pittman and Keen that was later designated as one of the study materials for the examination. She joined Davis in filing a complaint with the ...