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Swearnigen-El v. Cook County Sheriff's Dep't

June 26, 2009



Plaintiff Kenneth Swearnigen-El ("plaintiff"), an African-American male and former correctional officer, filed a six-count complaint against the defendants that alleges race and gender discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 1983, and 42 U.S.C. § 1981, retaliation under 42 U.S.C. § 1983, and two Illinois state law claims. The Cook County Sheriff's Department operates the Cook County Department of Corrections ("CCDOC") and the Cook County Sheriff's Police ("CCSP"). During the relevant time period, Sheahan was the Sheriff of Cook County, Baird was the Executive Director of the CCDOC, Kurtovich was the CCDOC's Assistance Executive Director, and Harrison was the Superintendent of the CCDOC division that houses only female detainees.

Defendants move for summary judgment on all counts. For the following reasons, defendants' motion is granted.*fn1


In March 2003, a female detainee gave Harrison a letter containing allegations that correctional officers were engaging in sexual intercourse with female detainees. The letter complaint did not include specific allegations against plaintiff. Harrison forwarded the complaint to the Internal Affairs Division ("IAD") of the CCDOC, who then forwarded the complaint to the CCSP for a criminal investigation. Detectives from the CCSP conducted interviews of numerous female detainees and submitted information gathered from their investigation to the Felony Review Unit of the Cook County State's Attorney's Office. Assistant State's Attorneys ("ASA") Freeman and Lechrone were assigned to the case. They conducted their own interviews with detainees and eventually criminally charged three of the twenty or so correctional officers investigated, one of whom was plaintiff. An administrative complaint seeking plaintiff's termination was also filed. He was subsequently placed on paid leave from work, pending a Loudermill*fn2 hearing.

Detainees told CCSP investigators and the ASAs that plaintiff had inappropriate sexual contact and relations with detainee Portia Warrington ("Warrington"). Warrington was interviewed and told CCSP investigators and ASAs that she had sex with plaintiff. Plaintiff's telephone records showed that between March 1, 2003, and May 31, 2003, Warrington made approximately 100 collect telephone calls from jail to his personal phone number and that he accepted about 25 of those calls.

When the criminal charges were made public, plaintiff was out of the country on a scheduled vacation. Having learned of the charges, plaintiff arranged with the department to turn himself on August 27, 2003 - the day after he returned from vacation. He was processed into and bonded out of jail that same day. On August 28, 2003, while on leave, plaintiff resigned, noting in his paperwork that he was leaving the CCDOC to go back to school. Plaintiff was indicted by a grand jury, prosecuted, and after a bench trial, was acquitted.


Summary judgment is appropriate where the record shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant initially bears the burden of "identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. Once the movant has met this burden, the non-movant "may not rest upon the mere allegations or denials of the adverse party's pleading," but rather "must set forth specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e)(2).

In determining summary judgment motions, "facts must be viewed in the light most favorable to the nonmoving party only if there is a 'genuine' dispute as to those facts." Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 1776, 167 L.Ed.2d 686 (2007). At summary judgment, the "court's role is not to evaluate the weight of the evidence, to judge the credibility of witnesses, or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact." National Athletic Sportswear, Inc. v. Westfield Ins. Co., 528 F.3d 508, 512 (7th Cir. 2008).


Counts I-III of the complaint allege race and gender discrimination in violation of Title VII and § 1983, and race discrimination in violation of § 1981. I address these claims together because the prima facie case for each of them requires proof of an adverse employment action. See Lucero v. Nettle Creek Sch. Corp., 566 F.3d 720, 730 (7th Cir. 2009); Phelan v. Cook County, 463 F.3d 773, 780 (7th Cir. 2006); O'Neal v. City of Chicago, 392 F.3d 909, 910-11 (7th Cir. 2004). Among other arguments, defendants contend that plaintiff's discrimination claims fail because he did not suffer an adverse employment action - he resigned. In response, plaintiff argues only that his resignation amounts to an adverse employment action because it was effectively a constructive discharge.

As support for his argument, plaintiff explains that an administrative complaint seeking his termination had been filed and he was placed on paid leave pending a Loudermill hearing scheduled for the next week. However, initiation of administrative proceedings alone does not equate to threatened termination or coercion. See Cigan v. Chippawa Falls Sch. Dist., 388 F.3d 331, 333-334 (7th Cir. 2004)(initiation of discharge proceedings is not the same as an actual discharge; "the prospect of being fired at the conclusion of an extended process is not itself a constructive discharge"). Plaintiff was entitled to fight disciplinary action and present his side of the story at his Loudermill hearing. He chose to resign instead because he was worried the administrative proceedings would not go his way and he thought it would be easier to explain to potential future employers that he left the CCDOC to attend school. This reasoning does not support a finding of constructive discharge.

Although plaintiff argues that he was given the choice to resign or be fired, none of the defendants are alleged to have communicated with plaintiff prior to his resignation and none had the authority to terminate him. See 55 ILCS 5/3-7012 ("no employee in the County Department of Corrections shall be removed, demoted, or suspended except for cause, upon written charges filed with the [Merit] Board by the Sheriff and a hearing before the [Merit] Board"). That plaintiff believed Loudermill was a "rubber stamp" and Merit Board proceedings never favor employees does not amount to threatened termination and does not mean his decision to resign was equivalent to a discharge.

In fact, the Seventh Circuit has clearly stated that it is not constructive discharge when an employee, suspended with pay pending an administrative hearing, resigns prior to the resolution of those proceedings: a person who is on leave with pay...pending an investigation of serious job misconduct, who resigns rather than waits for the conclusion of reasonable prescribed due process ...

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