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Flanagan v. Office of the Chief Judge of the Circuit Court of Cook County

September 28, 2007

KIMBERLY FLANAGAN, PLAINTIFF,
v.
OFFICE OF THE CHIEF JUDGE OF THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS, DEFENDANT.



The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER

In August 2002, Plaintiff Kimberly Flanagan filed a charge of employment discrimination against her employer, the Cook County Adult Probation Department ("Adult Probation Department"), with the Equal Employment Opportunity Commission ("EEOC"). Flanagan, a probation officer, alleged that the Adult Probation Department had discriminated against her on the basis of her race and sex by failing to promote her and by failing to transfer her to a weapon-carrying unit. After receiving a notification of her right to sue from the EEOC, Flanagan filed a Complaint of race and sex discrimination against Defendant Office of the Chief Judge of the Circuit Court of Cook County, Illinois ("Cook County") in this court in December 2002. In July 2004, Judge Plunkett granted summary judgment in favor of Defendant Cook County on the race discrimination claim; Flanagan's sex discrimination claim survived summary judgment.

In the meantime, Flanagan continued to work with the Adult Probation Department and experienced what she considered acts of retaliation. In March 2006, Flanagan filed a second lawsuit, alleging unlawful retaliation. The two cases were consolidated. In January 2007, a jury trial was held, resulting in a verdict for Defendant on Flanagan's sex discrimination claim. Flanagan, however, prevailed on her retaliation claim and was awarded $205,000 in damages. Defendant has moved the court to vacate the jury's verdict and enter judgment as a matter of law for Defendant on Flanagan's retaliation claim. When adjudicating this motion, the court must view all evidence in the light most favorable to Flanagan and draw all reasonable inferences in her favor. Applying this standard, as explained below, Defendant's renewed motion for judgment as a matter of law is denied.

BACKGROUND

A. The 2002 Complaint

Plaintiff's retaliation claim arises out of actions that Adult Probation Department supervisors took against Flanagan from early 2004 through the summer of 2006. Some background about her employment is, however, necessary to understand her claim. Flanagan began working for the Adult Probation Department on February 16, 1999. (Flanagan, 1/23/07 p.m. Trial Tr. 20:10-12.) She filed a charge of discrimination with the Illinois Department of Human Rights and the Equal Employment Opportunity Commission ("EEOC") on August 28, 2002, and filed a complaint with this court on December 18, 2002, Flanagan v. Office of the Chief Judge of the Circuit Court of Cook County, Illinois, Case No. 02-cv-09190 ("2002 Complaint"). In the 2002 Complaint against Cook County, Flanagan alleged that the Adult Probation Department had failed to promote her, and had failed to transfer her to a position in which she was authorized to carry a weapon, on the basis of her race and sex. (2002 Compl., at 4.)*fn1

In 2004, Judge Plunkett ruled on Defendant's motion for summary judgment on the 2002 Complaint. Judge Plunkett noted that Flanagan's discrimination claims fell into three categories: Flanagan contended that Defendant "discriminated against her on the basis of her sex and race when it: (1) refused to requalify her to carry a weapon in 2000, precipitating her transfer to the Domestic Violence Unit; (2) delayed her transfer from the Domestic Violence Unit to the Probation Unit from November 2001 until August 2002; and (3) transferred her out of the Probation Unit in August 2002 because it deemed her psychologically unfit to carry a weapon." (Mem. Op. and Order in Case No. 02-cv-09190, dated 7/13/04, at 6.) Judge Plunkett found that Flanagan's claims of discrimination based on weapon requalification and transfer delay were time-barred. (Id. at 7-9.) In addition, he found insufficient factual support for Flanagan's race discrimination claim, (id. at 11-12), but denied summary judgment on Flanagan's claim that her 2002 transfer out of the Probation Unit was a product of sex discrimination. (Id. at 14)

B. Adult Probation Department's Retaliation

After filing the 2002 Complaint, Flanagan suffered employment actions she believed were materially adverse and in retaliation for charging the Adult Probation Department with discrimination. Viewing the evidence in the light most favorable to Flanagan, the conduct at issue can be categorized into the following incidents.

1. Veronica Ballard Comments

The conduct Flanagan classifies as retaliatory began on March 17, 2004. On that date, Flanagan, Carolyn Lisle, Everett Harris, and several other probation officers attended a meeting about the "What Works" program with Veronica Ballard, then the Chief Probation Officer. (Lisle, 1/17/07 Trial Tr. 102:17-22, 103:16-19.) Lisle is one of approximately ten Deputy Chief Probation Officers. (Id. 2:4-6; 3:9-11.) Harris was, until he retired in July 2006, a supervisor in the Adult Probation Department. (Harris, 1/22/07 p.m. Trial Tr. 48:17-49:17.) He was Flanagan's supervisor for a time that included the March 2004 meeting. (Id. 49:18-21.)

The "What Works" program was supported by a federal grant, which enabled the Department to initiate new training programs and techniques intended to reduce recidivism for probationers. (Lisle, 1/17/07 Trial Tr. 103:20-25.) After Ballard's "What Works" presentation, Flanagan made comments expressing doubt that the program would work and characterizing probation officers as "law enforcement" officers. (Id. 107:21-108:5; see also Harris, 1/22/07 p.m. Trial Tr. 78:25-79:11.) Ballard responded--in the hearing of the entire group--that, "if she [Flanagan] did not like what she [Ballard] was telling her, that she needed to find her a new job." (Harris, 1/22/07 p.m. Trial Tr. 79:12-18; see also Lisle, 1/17/07 Trial Tr. 108:16-20.) Everett Harris recalled that "[e]verybody reacted to" Ballard's reprimand, some laughing and others just astounded. (Harris, 1/22/07 p.m. Trial Tr. 80:2-9.) Following this run-in, Ballard asked Lisle to set up a meeting for Ballard, Lisle, Flanagan, Harris, and Lisle's direct supervisor, Assistant Chief Probation Officer Tom Quinn. (Lisle, 1/17/07 Trial Tr. 42:4-15; 108:24-109:25.) At the meeting, Ballard expressed that she "wasn't happy" with Flanagan's and Harris's conduct during the "What Works" meeting and reiterated differences between a probation officer and a law enforcement officer. (Id. 111:8-112-3.) Ballard accused Flanagan and Harris of being inattentive during the "What Works" meeting, although Lisle testified that she did not observe either Flanagan or Harris being inattentive. (Id. 51:17-52:3.) Harris testified that Ballard also told Flanagan that "she couldn't stand her" at that meeting. (Harris, 1/22/07 p.m. Trial Tr. 83:15-84:5.)

Despite Ballard's harsh comments, Harris observed that nothing Flanagan did at the "What Works" training or at the meeting was disrespectful toward Ballard. (Id. 84:19-25.) Harris further noted that there was an ongoing debate in the office regarding whether probation officers are law enforcement or social service officers. (Id. 78:25-79:11; see also Lisle, 1/17/07 Trial Tr. 106:12-19 (acknowledging the ongoing debate).) In the end, no formal discipline was issued against Flanagan or Harris. (Lisle, 1/17/07 Trial Tr. 112:1-3.)

2. Performance Evaluations

The next incident of alleged retaliation relates to Flanagan's 2004 performance evaluations. Harris helped to develop the department's performance evaluation process, including the forms used by the department. (Harris, 1/22/07 p.m. Trial Tr. 66:3- 67:6.) For many years after developing the process, Harris implemented it, evaluating employees; during that time, no one criticized a performance evaluation he completed. (Id. 65:23-66:2; 67:7-12.)

Harris's 2004 evaluation of Flanagan was the first to be questioned by anyone in the Department. (Id. 67:13-20.) According to Harris, Carolyn Lisle questioned that evaluation. Without offering any explanation for criticizing the score he awarded Flanagan, (id. 71:20-25), Lisle told Harris to lower Flanagan's scores so that she would not receive an "exceeds expectations" rating. (Id. 94:11-95:7.)*fn2 Harris stood by the accuracy of his evaluation and refused to make any changes. (Id. 71:20-25.) Lisle wrote Harris up for insubordination; Harris wrote Lisle up as well. (Id. 72:1-12.) No disciplinary action was ever taken. (Id. 72:16-19.) Lisle, however, later changed the performance evaluations of the other probation officers supervised by Harris. (Id. 75:7-15.) Lisle testified that she changed approximately seven or eight other evaluations because, like Flanagan's, they were "wrong." (Lisle, 1/17/07 Trial Tr. 130:19-131:13; 136:21-137:10.)

3. Assault of Dickerson

In April 2005, Flanagan was investigated for an alleged assault of another probation officer, Michael Dickerson. (Flanagan, 1/24/07 a.m. Trial Tr. 45:16-46:6.) Dickerson, a probation officer in the gang unit, (Dickerson, 1/24/07 a.m. Trial Tr. 79:6-12, 80:1-6), claimed that, on April 7, 2005, while he was conducting a training, Flanagan exited the elevator and elbowed him twice in the chest. (Id. 87:9-88:8.) Flanagan was wearing full duty gear at the time, and Dickerson was wearing a "RedMan." (Id. 88:9-89:1.)*fn3 Wallace Johnson, also a probation officer with the gang unit, observed the incident and corroborated Dickerson's summary of it. (Johnson, 1/24/07 a.m. Trial Tr. 112:3-11, 113:9-114:13.) Dickerson filed an incident report, in which he claimed that Flanagan had assaulted him. (Dickerson, 1/24/07 a.m. Trial Tr. 94:14-25.) He also had an attorney write a letter to the Adult Probation Department regarding the incident. (Id. 96:21-97:6.) At least four or five meetings were held regarding the alleged assault. (Flanagan, 1/24/07 a.m. Trial Tr. 46:7-47:13.) After this investigation, Flanagan received a written reprimand for her actions. (Id. 48:24-49:1.) She believes that the reprimand was unwarranted and that she did nothing wrong. (Id. 53:11-13.)

4. Reyes Comments

In August 2005, Jesse Reyes replaced Ballard as Chief Probation Officer. (Reyes, 1/24/07 p.m. Trial Tr. 1:23-2:5; 2-15-16.) When Flanagan introduced herself to Reyes for the first time in the fall of 2005, she remembers him responding as follows: "he's like I already heard about you. I don't need to even see you. He . . . like clapped his hands together like I'm washing my hands of you. I'm done with it. And turned his back." (Flanagan, 1/26/07 a.m. Trial Tr. 49:17-23; 50:14-17.)*fn4 Flanagan believes Reyes had heard about her and developed this attitude toward her through James Cunningham. (Id.) Cunningham was a Deputy Chief Probation Officer until his retirement in 2003, and Flanagan named him as a respondent in the 2002 sex discrimination charge she filed with the EEOC. (Id.; Cunningham, 1/22/07 a.m. Trial Tr. 67:23-68:12; 2002 Compl., at 8-11.) Flanagan testified that the altercation she had with Reyes occurred in front of many of her colleagues, who laughed about Flanagan's interaction with her new boss. (Flanagan, 1/26/07 a.m. Trial Tr. 49:24-25; 50:3-8.)

5. Investigations and Desk Duty

At approximately 2:05 a.m. on December 29, Flanagan and two other probation officers--Ronald Pula and Tony Rogers--came into contact with a probationer named Jason Johnson during a curfew check. (Pula, 1/23/07 a.m. Trial Tr. 8:11-9:10.) From outside Johnson's home, Flanagan telephoned Johnson to tell him to come downstairs for his curfew check. (Flanagan, 1/23/07 p.m. Trial Tr. 60:21-25.) Johnson told Flanagan that he was naked, (id. 61:1-9), which made Flanagan uncomfortable about going to Johnson's door. (Id. 62:7-16.) Pula therefore went to Johnson's door to conduct the curfew check, while Rogers and Flanagan stood back, closer to the car the three officers were driving that night. (Pula, 1/23/07 a.m. Trial Tr. 12:23-13:22.) Pula required Johnson to sign a contact form, as a way of verifying that he was home during the officers' visit. (Id. 14:9-15.) During the interaction, no probation officer unholstered a service revolver or displayed handcuffs. (Flanagan, 1/23/07 p.m. Trial Tr. 63:5-20.)

Johnson reported to the Adult Probation Department, however, that Pula had gone to Johnson's door with handcuffs, intending to arrest him. (Flanagan, 1/23/07 p.m. Trial Tr. 65:16-20.) Reyes believed the incident called into question the professionalism of probation officers and directed Donna Vaughan to investigate. (Reyes, 1/24/07 p.m. Trial Tr. 3:16-4:20.) The next day, Flanagan and Pula were interviewed, separately, by two supervisors and a deputy chief. (Pula, 1/23/07 a.m. Trial Tr. 14:16-15:13; Flanagan, 1/23/07 p.m. Trial Tr. 65:3-14.) Both Flanagan and Pula denied wrongdoing. (Flanagan, 1/23/07 p.m. Trial Tr. 65:16-22; Pula, 1/23/07 a.m. Trial Tr. 15:20-16:2.) Pula further testified that he had done nothing to suggest that he was going to arrest Johnson. (Pula, 1/23/07 a.m. Trial Tr. 14:4-6.) Despite this, Pula and Flanagan--but not Rogers--were taken off the streets for approximately three months. (Id. 8:15-22; Flanagan, 1/23/07 p.m. Trial Tr. 64:14-21.) They were placed on desk duty and required to contact probationers by phone rather than make curfew checks at their homes. (Pula, 1/23/07 a.m. Trial Tr. 16:3-12.) About a month and a half into this time on desk duty, Vaughan and a public affairs representative again interviewed Pula and Flanagan, with a union representative present. (Id. 16:13-17:6; Flanagan, 1/23/07 p.m. Trial Tr. 65:23-66:15.) Pula complained formally to his union, the chief judge, and the Department of Labor and informally to Vaughan regarding this investigation. (Pula, 1/23/07 a.m. Trial Tr. 27:16-28:1.) He described the Johnson investigation as "nothing but a witch hunt." (Id.)

In a second incident, Pula and Flanagan came into contact with a 14-year-old boy, who asked them for police assistance. (Pula, 1/23/07 a.m. Trial Tr. 19:14-18; Flanagan, 1/23/07 p.m. Trial Tr. 68:13-22.) After being approached by the boy, Pula contacted local law enforcement as well as his supervisor. (Pula, 1/23/07 a.m. Trial Tr. 21:1-8.) While Pula was on his cell phone discussing the situation with his supervisor, Pula saw a man who had been chasing the boy. (Id. 21:19-22:15.) Pula stopped the unidentified man, who smelled of alcohol, and explained to the man that the 14-year-old boy claimed the man was chasing him. (Id. 22:6-14.) Pula talked to the man until the police arrived. (Id. 22:10-23:17.)

Upon learning about this incident, Reyes requested that the incident be investigated, to ensure that probation officers were following official policy and procedures. (Reyes, 1/24/07 p.m. Trial Tr. 4:21-5:15.) Deputy Chief Probation Officer Phillip Loizon interviewed Pula approximately five or six times, and Vaughan also questioned Pula. (Pula, 1/23/07 a.m. Trial Tr. 24:7-11.) In addition to the usual incident report, Pula was asked to prepare another report regarding the incident. (Id. 24:22-25:4.) Flanagan was also investigated by Loizon and Vaughan. (Flanagan, 1/23/07 p.m. Trial Tr. 72:16-24.) Flanagan and Pula both denied any wrongdoing. (Id. 72:3-5, 9; Pula, 1/23/07 a.m. Trial Tr. 21:1-5, 27:3-10.) Indeed, Pula noted that his supervisor never accused him of any wrongdoing. (Pula, 1/23/07 a.m. Trial Tr. 26:22-24.) Following this investigation, Flanagan told the Adult Probation Department "that it was becoming a hostile work environment" because "we were being criticized for saving a child who was scared and screaming for help. It made no sense that we were being subjected to investigations when all we did was try and help a child who was upset and crying." (Flanagan, 1/23/07 p.m. Trial Tr. 73:8-15.)

6. Duty Shorts

The Adult Probation Department's scrutiny of Flanagan extended beyond her work product. During the summer of 2006, Flanagan and Loizon had an altercation regarding her clothing. (Flanagan, 1/23/07 p.m. Trial Tr. 74:1-5, 20-22.) Loizon asked whether Flanagan was wearing the official shorts permitted by the county regulations. (Id. 75:1-6.) Flanagan said that they were official shorts, but Loizon continued to question her about them, eventually demanding that Flanagan follow him to the supervisor's office. (Id. 76:23-77:4.) Once there, Loizon asked Guy Wilson, a supervisor, whether Flanagan was wearing official shorts. (Id. 77:5-6, 13-16; Wilson, 1/23/07 a.m. Trial Tr. 59:3-8.) Wilson confirmed that Flanagan's shorts were, indeed, proper attire. (Flanagan, 1/23/07 p.m. Trial Tr. 77:17-18; Wilson, 1/23/07 a.m. Trial Tr. 83:6-13, ...


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