The opinion of the court was delivered by: Matthew F. Kennelly, District Judge
MEMORANDUM OPINION AND ORDER
William Nagle began working as a police officer for the Village of Calumet Park Police Department in 1978 and is still employed by the Department as a police officer. In this case, Nagle challenges various adverse actions that he has experienced since late 2003, including changes in his work responsibilities and several short suspensions. Nagle contends that these adverse actions were taken due to his Caucasian race, his age, his filing of EEOC complaints and this lawsuit, and his exercise of his constitutional right to free speech. Nagle has sued the Village under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act and has sued the Village and several of its officials under 42 U.S.C. § 1983. The defendants have moved for summary judgment. For the following reasons, the Court grants the motion in part and denies it in part.
Because defendants have moved for summary judgment, the Court views the facts in the light most favorable to the plaintiff and draws reasonable inferences in his favor. See, e.g., Carreon v. Ill. Dep't of Human Svcs., 395 F.3d 786, 790 (7th Cir. 2005).
Nagle, who is Caucasian, is currently fifty-four years old. On November 15, 1978, he began working as a police officer for the Calumet Park Police Department. In the early 1980s, he helped form the local union that represents Calumet Park police officers. Since that time, Nagle has served in various roles within the union. During the period relevant to the allegations in his amended complaint, Nagle served as the union's vice-president and later as the safety and grievance officer. Between 2002 and the date he filed this suit, Nagle filed over one hundred grievances, most of which were "lodge grievances" filed on behalf of the union's collective membership. In August 2002, Calumet Park Mayor Buster Porch appointed Mark Davis, a fifty-nine-year-old African-American man, as chief of police. In December 2003, Chief Davis appointed Susan Rockett, a forty-eight-year-old white woman, as assistant chief of police. Since Chief Davis' appointment, the Department has employed white individuals in other high-ranking positions such as Sergeant and continues to hire white officers.
Nagle alleges that he has been discriminated against based on his age and race since Chief Davis came to the Department. Nagle recounts several incidents that he claims demonstrate Davis' discriminatory attitude. At a retirement party for a fellow officer in 2002, Chief Davis asked Nagle when he was going to retire. At the time, Nagle believed that Davis was just making friendly conversation, as it is common for police officers to discuss retirement plans.
In May 2004, a prisoner escaped after Nagle had placed him in custody. During a discussion of the incident with Chief Davis, Davis suggested that Nagle was getting too old for the job and that he may need more training in apprehending and handcuffing prisoners.
Officer Jerri Wilson-Spearman testified that approximately fifteen times over a three year period, she heard Davis say words to the effect that "these white mothers are used to the way things were, but it's going to be a change around here."
Nagle alleges that in October 2005, Robert Smith and Robert Scholl*fn1 told him that Robert Talaski, the Village's public works superintendent, told Phil Laskey, a Village trustee, that he overheard Chief Davis say to Commander Melvin Davis, "f--- those old white cops." Nagle was not present when this alleged conversation occurred and does not know either the context of the alleged remarks or whether Chief Davis was talking about him.
Robert Talaski testified that around the same time, he heard a man say "these old white cops aren't going to push me around" while at a training seminar at the village hall. Talaski cannot say, however, who made the remark; he did not recognize the voice as that of Chief Davis or anyone from the Department.
Roger Smith, a Village employee, testified that Talaski told him that the Chief said "that the white police officers weren't running this department" or that Talaski told him that somebody else told Talaski that the Chief made that remark. Smith could not remember one way or the other.
Linda Krewicki testified that she heard Chief Davis say "f--- Nagle" on numerous occasions. She never heard the Chief make any comments about Nagle's age or race.
Commander Davis (not to be confused with Chief Davis) made a notation next to the name of a potential lateral transfer stating "? Age." He testified that he made the notation because he "had a question to the Board [of Trustees] if they would be interested in interviewing [the candidate] because of his age," which was 59. Nagle claims that Commander Davis' notation shows an age-based bias within the Department.
Finally, Chief Davis authored a work of fiction, entitled Race Traitors, which was published in 2005. In the book, a character says, "DoubleA thought programs like affirmative action lowered the bar so that Blacks could receive positions they did not deserve . . . DoubleA did not see the bar being lowered for White candidates who did not demonstrate any better skills than Blacks; yet through political clout, nepotism, and prejudice, Whites have been given the opportunities for hire, assignment, and promotion." Nagle contends that Race Traitors is evidence of Chief Davis' discriminatory attitude toward white officers.
Nagle alleges that the individual defendants -- Chief Davis, Assistant Chief Rockett, Mayor Porch, Commander Davis, and Sergeant John Rigoni -- retaliated against him because he spoke out on matters of public concern at the Department. On May 12, 2004, Nagle attended a meeting with Chief Davis and several other Department officials to discuss Chief Davis' proposed manpower reductions. Nagle attended the meeting because at the time he was the union's safety and grievance officer. During the meeting, Nagle and other officers expressed concern over the proposed manpower reductions because they believed the reductions would affect officer safety. After the meeting, Chief Davis told Nagle that he had disrespected the Chief of Police in front of the other officers, and if Nagle ever spoke that way again he would be disciplined. Nagle contends that his later suspensions and assignments were a result of his comments at the May 12, 2004 meeting. Nagle also alleges that he spoke out on matters of public concern at various other times by submitting union grievances regarding manpower, hiring of untrained lateral transfers, broken radios, safety, police coverage, and discrimination.
Nagle claims that he suffered several adverse employment actions as a result of the alleged discrimination and retaliation. In October 2003, Chief Davis assigned Nagle to oversee the Department's evidence room; Nagle believes this assignment was a result of race and age discrimination. In December 2003, Nagle received a reprimand regarding his performance as "officer in charge." When a sergeant is not present for a shift, an officer in charge is in command. In December 2003, Nagle was working as officer in charge when he learned that an officer set to relieve him would not be arriving for two hours. Nagle left at the end of his shift, thereby leaving a gap in coverage. Assistant Chief Rockett wrote a memo criticizing Nagle for leaving his post, and Chief Davis issued a reprimand. According to defendants, Chief Davis removed Nagle as officer in charge after the December 2003 incident because of his inability to make supervisory and command decisions. Nagle claims, however, that he worked as officer in charge numerous times until January 2006, when another officer was appointed.
Nagle has been disciplined on multiple occasions by Chief Davis and other supervisors at the Department, most of them before he filed his EEOC complaints. First, on September 23, 2003, Nagle received a one-day suspension for abusing the Department's sick time policy. Nagle admits that he violated the Department's sick time policy. Second, on May 19, 2004, Nagle was suspended for two days for again abusing the sick time policy. Nagle did not lose any pay as a result of the two-day suspension. He believes he was suspended because of his race because he "heard" from other officers that black officers, specifically Jerri Wilson-Spearman, were not disciplined for violating the sick time policy. Third, in May 2004, Nagle performed a traffic stop in which the driver was arrested. Nagle handcuffed the driver, but he escaped as Nagle was walking him to a squad car. Chief Davis gave Nagle a written reprimand for allowing the prisoner to escape with his handcuffs on. Nagle suffered no monetary detriment as a result of this incident.
The fourth disciplinary action that Nagle challenges concerns an incident on August 15, 2004, when Nagle and officer William Vaughn responded to a call of a domestic disturbance. Sergeant Rigoni arrived at the scene and went inside the house, while Vaughn and Nagle remained outside. Rigoni claimed that Nagle refused to enter the house and assist because one of the occupants had previously made a citizen's complaint against him. Rigoni recommended to Assistant Chief Rockett that Nagle be terminated for failing to assist a fellow officer. Chief Davis instead imposed a three-day suspension. Nagle contends that he received the suspension as a result of discrimination, contending that Officer Vaughn, who is African-American, also "did nothing" but was not disciplined.
Nagle filed his first complaint with the EEOC on January 19, 2005, alleging age discrimination. The complaint referenced ageist comments by Davis and the suspension regarding the August 19, 2004 incident.
On January 23, 2005, Chief Davis observed Nagle preparing a grievance form during lunch. Davis states that lunch is considered "on duty" time at the Department and that Nagle violated the Department's rules and regulations by preparing the grievance while on duty. On February 11, 2005, after conducting an investigation and allowing Nagle to submit a memorandum explaining his actions, the Chief suspended Nagle for three days. Nagle filed his second EEOC charge on February 23, 2005, alleging that he had been suspended due to his age and race and in retaliation for his prior EEOC filing.
In March 2005, Chief Davis and Assistant Chief Rockett created a new position of senior citizen liaison. This position was created to provide outreach to seniors in the Village, perform well-being checks, and provide other forms of assistance. Chief Davis initially asked for volunteers to fill the assignment. After no one came forward, Chief Davis appointed Nagle. Davis appointed Nagle because he had received a commendation earlier in the year for assisting an elderly Village resident. Assignment to the senior citizen liaison position did not affect Nagle's rate of pay, working hours, or prospects for advancement. Nagle believed the senior program was worthwhile, knew he was qualified for the position, and enjoyed the position. However, Nagle also believed that Chief Davis selected him for the position as a "cruel, ageist joke" because the assignment was made around the time Nagle filed an age discrimination complaint with the EEOC.
On April 23, 2005, Nagle was suspended for five days for violating the Department's sick time policy. Nagle filed a third EEOC complaint on May 9, 2005, alleging that his suspension and his assignment to the senior citizen liaison position had been imposed due to his age and race and in retaliation for his earlier opposition to discrimination.
In September 2005, Chief Davis created a new detail in which officers from the Department were assigned to patrol the main shopping mall in the village. Nagle contends that Chief Davis assigned him to the mall detail, and created the detail, because of Nagle's race. The majority of Department officers, however, have been assigned to the mall detail. The assignment did not change Nagle's pay or job position; however, he did not like "being stuck at the mall."
Nagle filed the present suit lawsuit on December 14, 2005.
When a district court rules on a motion for summary judgment, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [his] favor." Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 255 (1986). Entry of summary judgment is appropriate only when the pleadings, depositions, answers to interrogatories, admissions, and affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c).
A. Section 1983 Retaliation -- Count 1
Nagle has made a claim under 42 U.S.C. § 1983 against the Village, Mayor Porch, Chief Davis, Assistant Chief Rockett, Commander Davis, and Sergeant Rigoni, alleging that they retaliated against him for exercising his constitutionally protected right of free speech. To prevail on a section 1983 claim, a plaintiff must establish that the defendants, acting under color of state law, deprived him of a constitutional or federal right. Brokaw v. Mercer County, 235 F.3d 1000, 1009 (7th Cir. 2000). To prevail on a claim of retaliation for exercising First Amendment free speech rights, a plaintiff must demonstrate that his speech was constitutionally protected and that the protected speech motivated the defendants' actions. Vukadinovich v. Bd. of School Trustees of North Newton, 278 F.3d 693, 699 (7th Cir. 2002).
Nagle complains that the defendants retaliated against him for comments he made during a May 12, 2004 labor management meeting about officer safety and staffing levels. He also claims that he suffered retaliation for other statements regarding Department hiring ...