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Diemer v. Fraternal of Police

November 29, 2007

JULIE E. DIEMER, PLAINTIFF,
v.
FRATERNAL OF POLICE, CHICAGO LODGE 7, DEFENDANT.



The opinion of the court was delivered by: Virginia M. Kendall, United States District Judge

ORDER

Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Plaintiff Julie E. Diemer ("Diemer" or "Plaintiff") filed suit against defendant Fraternal Order of Police, Chicago Lodge 7 ("FOP" or "Defendant") alleging that the FOP fired her due to her pregnancy and her gender in violation of Title VII of the Civil Rights Act of 1964 as amended by the Pregnancy Disability Act ("PDA") and the Civil Rights Act of 1991, 42 U.S.C. §2000(e) et seq. The FOP moves for summary judgment on Diemer's pregnancy discrimination claim. For the reasons set forth below the FOP's Motion for Summary Judgment is denied.

STATEMENT OF FACTS

Plaintiff Julie Diemer worked as an in-house attorney for the FOP from approximately August 4, 2003 through November 2, 2004, when she was terminated.*fn1 (Pl. 56.1 Resp. at ¶ 1; Def. 56.1 Resp. at ¶ 130.) The bulk of Diemer's duties as an in-house attorney involved handling "standard" and "medical" grievances and arbitrations.*fn2 (Pl. 56.1 Resp. at ¶¶ 3, 7; Def. Ex. 6, Diemer Dep. at 160.) Diemer's duties also included some state and federal litigation, administrative hearing matters, writing memoranda to the FOP's Legal Defense Committee, and coordinating with outside counsel. (Pl. 56.1 Resp. at ¶ 3; Def. Ex. 6, Diemer Dep. at 159-60.)

The FOP employed two attorneys in addition to Diemer during Diemer's employment: Paul Geiger ("Geiger") and Thomas Pleines ("Pleines"). (Pl. 56.1 Resp. at ¶ 4.) Geiger was hired by the FOP as a staff attorney on October 16, 2002. (Id.) Geiger's duties include handling medical and psychological grievances, civil litigation, and "walk-in" police officer matters. (Pl. 56.1 Resp. at ¶ 8.) Geiger worked as a solo practitioner from 1994 through 2002, prior to joining the FOP. (Pl. Ex. 12, Geiger Dep. at 20-21.) As part of his practice, Geiger represented members of the FOP in Loudermill and Police Board termination hearings, and was paid by the FOP for this work. (Def. 56.1 Resp. at ¶ 123; Pl. 56.1 Resp. at ¶ 8.)

In 2001, Geiger was paid by the FOP to file a petition in state court for administrative review challenging the termination of police officer Gerald Weber ("the Weber matter"). (Def. 56.1 Resp. at ¶ 124.) Because Geiger filed the petition after the statute of limitations expired, the City of Chicago filed a motion to dismiss the appeal. (Def. 56.1 Resp. at ¶ 125.) In response, Geiger voluntarily dismissed the case. (Id.; Pl. Ex. 12, Geiger Dep. at 202.) Geiger never informed Donahue, who was not President at the time of the Weber matter, or Dougherty, who did not become Vice-President until the following year, about the Weber matter. (Def. 56.1 Resp. at ¶ 127; Pl. 56.1 Resp. at ¶ 2; Pl. Ex. 12, Geiger Dep. at 202-03.) In addition, Geiger claims that he was not supervised by anyone at the FOP at the time of the Weber matter. (Def. 56.1 Resp. at ¶ 124; Pl. Ex. 12, Geiger Dep. at 203.)

Pleines joined the FOP as its General Counsel in 1993. (Pl. 56.1 Resp. at ¶ 4.) As General Counsel, Pleines' duties included distributing work to Geiger and Diemer and assisting the two attorneys as necessary. (Pl. 56.1 Resp. at ¶ 6.) In addition, Pleines handled standard and medical grievances as well as civil litigation, participated in collective bargaining negotiations, selected arbitrators, represented police officers before the Pension Board, coordinated matters sent to outside counsel, and reviewed bills from outside counsel. (Id.)

In 1996, Pleines, in his capacity as an attorney for the FOP, worked with Laura Finnegan, an outside lawyer, in the representation of a group of police officers in Majeske v. Fraternal Order of Police, 94 F.3d 307 (7th Cir. 1996). (Pl. 56.1 Resp. at ¶ 68; Def. 56.1 Resp. at ¶ 121; Pl. Ex. 14, Pleines Dep. at 190.) While the case was on appeal before the Seventh Circuit, Finnegan and Pleines missed a scheduled oral argument because they went to the wrong courtroom. (Pl. 56.1 Resp. at ¶ 67.) Pleines did not inform William Nolan, or First Vice President, Robert Podgorny, that he and Finnegan missed the oral argument. (Def. 56.1 Resp. at ¶ 122.)

Lockup Closure Brief

In approximately July 2004, Diemer was assigned to handle the arbitration in a case referred to as the "Lockup Closure" matter. (Pl. 56.1 Resp. at ¶ 10.) Before the July 12, 2004 filing deadline, Fallon reviewed a draft of a brief prepared in the matter ( the "Lockup Closure brief") and observed that the draft contained spelling and grammatical errors and mistakes regarding the use of police vernacular. (Pl. 56.1 Resp. at ¶¶ 11, 12.) Fallon subsequently told Diemer to fix the errors related to spelling, grammar, and the use of police vernacular. (Pl. 56.1 Resp. at ¶ 13.)

After the filing deadline, Fallon reviewed a version of the Lockup Closure brief that he understood to be the version sent to the arbitrator and observed that the brief still contained a number of errors. (Pl. 56.1 Resp. at ¶ 14; Def. Ex. 11, Fallon Dep. at 92.) Fallon later discussed these problems with Donahue, who considered the brief "awful," as well as with Dougherty.(Pl. 56.1 Resp. at ¶ 15.) Concerned that future briefs would be filed with errors, Fallon also discussed with Dougherty and Donahue a new policy relating to the review of legal briefs. (Pl. 56.1 Resp. at ¶ 16; Def. Ex. 11, Fallon Dep. at 92.)Shortly after July 12, 2004, Fallon announced The Peer Review Policy, which required all briefs to be reviewed by two in-house attorneys before the briefs were sent out. (Pl. 56.1 Resp. at ¶¶ 16, 17; Def, 56.1 Resp. at ¶ 76.) The parties dispute whether the policy also required that Fallon review all briefs before they were sent out or filed by the attorneys. (Pl. 56.1 Resp. at ¶¶ 16, 17; Def, 56.1 Resp. at ¶ 76.)

Diemer's Pregnancy Announcement and Initial Performance Evaluation In August 2004, Diemer informed Geiger that she was pregnant. (Def. 56.1 Resp. at ¶ 130.) She did not disclose her pregnancy to anyone else at the FOP until September 4, 2004, when she met with Donahue and Dougherty to discuss her workplace performance. (Id.; Pl. 56.1 Resp. at ¶ 19.) According to Diemer, Donahue told her that she was doing a great job and that everyone was happy with her work.*fn3 (Pl. 56.1 Resp. at ¶ 20, Def. 56.1 Resp. at ¶ 81.) Towards the end of this meeting, Diemer told Donahue and Dougherty that she was pregnant, was due in March 2005, and would be taking eight to twelve weeks of leave under the Family Medical Leave Act. (Pl. 56.1 Resp. at ¶ 21.)

The Moseley Brief

In September 2004, at Pleines's request, Diemer assisted with the preparation of a brief in the case of Moseley v. Retirement Board ("the Moseley brief"). (Pl. 56.1 Resp. at ¶ 22.) Pleines instructed Diemer to file the Moseley brief by September 27, 2004. (Id.) On September 27, 2004, Diemer emailed a version of the Moseley brief to Michelle Moorman ("Moorman"), FOP legal secretary to Diemer, Geiger, and Pleines, and subsequently gave the Moseley file to Geiger. (Pl. 56.1 Resp. at ¶¶ 23, 35; Def. 56.1 Resp. at ¶ 129.) Diemer also offered to proof-read the brief she submitted, but Geiger declined her offer. (Def. 56.1 Resp. at ¶ 129.)

Geiger and Pleines then reviewed the Moseley brief that same day and, after concluding that the brief was of very poor quality, rewrote the brief in an effort to timely file it on September 27. (Pl. 56.1 Resp. at ¶ 24.) Pleines later informed Fallon that Diemer's draft of the Moseley brief was of poor quality and that it had to be rewritten by Pleines and Geiger. (Pl. 56.1 Resp. at ¶ 25.)

The Canine Handler Brief

Diemer was also assigned to handle a brief referred to as the "Canine Handler brief." (Pl. 56.1 Resp. at ¶ 26.) On the afternoon of October 18, Diemer submitted a draft of the Canine Handler brief to Geiger for review. (Id.) After Diemer received Geiger's suggested changes later that day, she inputted Geiger's changes and sent out the brief without review by Fallon or any further review by Geiger. (Id.)

The Timothy Thomas Brief

Diemer also drafted the arbitration brief in a matter referred to as the "Timothy Thomas arbitration." (Pl. 56.1 Resp. at ¶ 27.) Diemer did not have the brief reviewed by an FOP attorney before sending it out, as required by the Peer Review Policy. (Pl. 56.1 Resp. at ¶ 28.) Fallon subsequently informed Donahue of Diemer's failure to have the brief reviewed and, in October 2004, Donahue spoke with Diemer about Diemer's failure to follow the Peer Review Policy. (Pl. 56.1 Resp. at ¶ 29; Def. Ex. 6, Diemer Dep. at 219.) During the discussion, Diemer admitted that she sent the brief without review, apologized to Donahue for this failure, and agreed to have her briefs reviewed in the future. (Pl. 56.1 Resp. at ¶ 29; Def. 56.1 Resp. at ¶ 86.) Donahue then admonished Diemer in a half-joking manner,*fn4 but did not remark on the quality of the brief. (Def. 56.1 Resp. at ¶¶ 86, 87.) In addition, Diemer claims that Donahue made a statement to the effect of "let me just sit here for a minute so it looks like I'm really reading you the riot act." (Pl. 56.1 Resp. at ¶ 29.)

The parties dispute whether Diemer and Donahue met once or twice to discuss Diemer's failure to follow the Peer Review Policy in October 2004. (Pl. 56.1 Resp. at ¶ 30.) They also dispute whether Donahue spoke to Diemer about failing to have one brief reviewed or briefs reviewed. (Id.)

The Taylor Matter

In her capacity as an FOP attorney, Diemer also represented Chicago Police Officer Thomas Taylor in a matter regarding Officer Taylor's application to register a firearm (the "Taylor matter"). (Pl. 56.1 Resp. at ¶ 31.) On March 4, 2004, the Mayor's License Commission issued an Order denying Officer Taylor's appeal of a previous denial of Officer Taylor's application to register a firearm. (Id.) The Order provided that the Officer Taylor could further appeal the Order by filing a Writ of Certiorari in the Circuit Court within six months of service of the Order and that a failure to file a timely appeal would bar any further judicial review of the Order. (Id.)

In response, Diemer researched the question of what she needed to file with the court in order to pursue further relief on behalf of Officer Taylor. (Pl. 56.1 Resp. at ¶ 32.) This research revealed that she needed to file a common law Writ of Certiorari. (Id.) The parties dispute whether, at some point, Pleines told Diemer to file a Complaint of Mandamus.*fn5 (Pl. 56.1 Resp. at ¶ 33.)

On September 10, 2004, Diemer prepared and filed a Complaint for Mandamus on behalf of Officer Taylor. (Pl. 56.1 Resp. at ¶ 34.) On October 14, 2004, the City of Chicago filed a Motion to Dismiss the Complaint ("the Motion") because the action was not brought within the applicable six-month limitations period and because the Complaint was not the proper form of review. (Id.) The Motion was scheduled for presentment before the court on October 27, 2004. (Pl. 56.1 Resp. at ¶ 35.)

The FOP, via Moorman, received the City's Motion on October 15, 2004. (Id.) After reviewing the Motion, Moorman created an entry for the October 27 motion hearing in the FOP's electronic calendar*fn6 (the "October 27 entry"). (Id.; Moorman Aff. at ¶ 14.) The October 27 entry reflected the nature of the Motion, noted that the Motion would be heard on October 27, 2004, and listed Diemer as the handling attorney. (Pl. 56.1 Resp. at ¶ 35; Moorman Aff. at ¶ 14.) Per Diemer's instructions, Moorman then placed the Motion on Diemer's desk. (Pl. 56.1 Resp. at ¶ 36; Def. 56.1 Resp. at ¶ 88; Def. Ex. 6, Diemer Dep. at 237.)

On either October 15, 2004 or October 18, 2004, Moorman also spoke with Geiger about the Motion. (Pl. 56.1 Resp. at ¶ 37; Moorman Aff. at ¶ 15.) Moorman informed Geiger of the Motion (stating "we blew a statute") and of her entry in the electronic calendar for the October 27, 2004 presentment date. (Pl. 56.1 Resp. at ¶¶ 37, 38; Moorman Aff. at ¶ 16.) When Geiger subsequently checked the electronic calendar for details regarding the presentment of the Motion, he did not find the October 27 electronic entry. (Pl. 56.1 Resp. at ¶ 38; Def. Ex. 13, Geiger Dep. at 139-40.) Moorman also examined the electronic calendar, but could not locate the October 27 entry.*fn7 (Moorman Aff. at ¶ 17.)

On October 18, 2004, Geiger informed Dougherty of the Motion and told Dougherty that he would "look into it" and get back to him. (Def. 56.1 Resp. at ¶ 90.) Rather than ask Diemer for a copy of the Motion, Geiger searched Diemer's office for the Taylor file and Motion almost every work day between October 18 and October 29. (Def. 56.1 Resp. at ¶ 94.) While the Motion remained in a stack of papers on Diemer's desk until October 26, 2004, Geiger did not find the Motion. (Def. 56.1 Resp. at ¶¶ 88, 94; Pl. 56.1 Resp. at ¶ 44.) Geiger was most concerned with the October 27 entry, which he assumed Diemer had removed. (Pl. 56.1 Resp. at ¶ 44; Def. Ex. 13, Geiger Dep. at 146-47.)

After examining the Motion on October 26, Diemer concluded that the City's assertion in the Motion regarding the untimeliness of Diemer's pleading was likely correct. (Pl. 56.1 Resp. at ΒΆ 40.) The next day, Diemer appeared in court on the Motion and a briefing schedule for the Motion was entered. (Id.) From October 27, 2004 through November 1, 2004, the Notice of Motion, Motion, ...


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