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Gordan v. City of Harvey

July 20, 2009

SHANE GORDAN, PLAINTIFF,
v.
THE CITY OF HARVEY, DEFENDANT.



The opinion of the court was delivered by: Judge Blanche M. Manning

MEMORANDUM AND ORDER

Plaintiff Shane Gordan*fn1 sued the City of Harvey alleging that it discriminated against him when it filled vacant supervisory positions in the police department with African-American and Hispanic individuals who were less qualified than their white counterparts. Specifically, Gordan alleges that Harvey violated his rights under Title VII of the Civil Rights Act of 1964 by failing to promote him to sergeant in a timely manner on account of his race, which is white. The City moves for summary judgment, which, for the reasons stated below, is denied.

I. Facts

Before delving into the facts, the court notes that certain deficiencies in the parties' statements of fact made resolution of this case more difficult than need be. The specific problems are discussed in more detail below, but the court takes this opportunity to remind the parties that properly constructed and supported statements of fact can greatly assist the court in both familiarizing itself with the facts of the case and ruling expeditiously on the underlying motion. With that said, the court sets forth the facts as supported by the record evidence.

Gordan was hired by Harvey as a police officer in 2000. He graduated from the police academy in December of 2000 and completed his field training in the Spring of 2001. Prior to becoming a patrol officer for Harvey, Gordan had no law enforcement experience. In November of 2006, Harvey administered a civil service examination for the position of sergeant.*fn2 Gordan, who placed second highest, was promoted to sergeant in February 2007, as well as officers Forbes (highest score) and White (third highest score). Accordingly, Gordan is currently employed as a patrol sergeant by the City of Harvey. Gordan claims, however, that he should have been promoted earlier to sergeant and would have been but for the fact that Harvey discriminated against Caucasians.

Eric Kellogg became Mayor of Harvey in April 2003. The chain of command at the Harvey Police Department starts with patrol officer, then moves up to sergeant, commander, deputy chief, and chief of police. After Mayor Kellogg took office, Andrew Joshua became the Chief of Police for Harvey, and Denard Eaves became a Deputy Chief. After Chief Joshua retired in 2007, Eaves became the Acting Chief of Police for Harvey. Since Eaves became a deputy chief, Mayor Kellogg has conferred with him on a variety of promotions and appointments in the Harvey Police Department. During those conversations, Eaves made recommendations to Mayor Kellogg on promotions and appointments.*fn3

Gordan's Disciplinary History

Between 2001 and 2005, Gordan incurred numerous disciplinary demerits. With respect to all of the disciplinary proceedings described herein, Gordan argues that he was reprimanded not based on his race or his failure to abide by department rules and regulations, but because he was being "targeted" due to his attempts to organize a patrolmen's union.

On March 28, 2001, Gordan was dispatched twice regarding a juvenile battery and went to the wrong location each time. As a result of Gordan's failure to go to the correct location, he was given a written reprimand. Additionally, the Harvey Police Department found Gordan to be in violation of Harvey Police Department's Rules and Regulations § 2.41.07 (Neglect of Duty), § 2.41.10 (Incompetence), and § 2.41.60 (Attention to Duty). On November 23, 2001, Gordan was called by dispatch via the radio main band seven times, three times on radio band two, and on "Alerts" once, but did not respond to any of these eleven attempts to contact him. As a result of Gordans' failure to respond, Gordan was given a one-day suspension without pay. Additionally, the Harvey Police Department found Gordan to be in violation of Harvey Police Department's Rules and Regulations § 2.41.07 (Neglect of Duty) and § 2.41.10 (Incompetence).

On January 13, 2002, Harvey contends that Gordan called in sick less than two hours prior to the start of his shift (despite an apparent rule requiring two hours' notice). At his deposition, Gordan contested this assertion, stating that he called in sick two hours and four minutes prior to his shift. As a result of purportedly calling in sick without proper notification, Gordan was given a written reprimand. Additionally, the Harvey Police Department found Gordan to be in violation of Harvey Police Department's Rules and Regulations § 2.41.01 (Violation of Rules) and § 2.41.02 (Familiarization with Rules).

On July 20, 2002, Gordan was not present for roll call at 6:30 a.m. and did not arrive for duty until 8:00 a.m. As a result of coming to work late, Gordan was given a written reprimand and his salary was docked for one and a half (11/2 ) hours. Additionally, the Harvey Police Department found Gordan to be in violation of § 2.41.06 (Readiness for Duty) of the Harvey Police Department's Rules and Regulations.

On August 17, 2002, Gordan called in to work sick but was not at home when someone from the Harvey Police Department made a sick check via telephone at his home number. As a result of failing to answer his phone on a sick check, Gordan was suspended from duty for one day without pay. Additionally, the Harvey Police Department found Gordan to be in violation of Harvey Police Department's Rules and Regulations § 2.41.10 (Incompetence) and § 2.41.68 (Reporting Sick). On August 19, 2002, in responding to assist another patrol car, Gordan drove 85 m.p.h. in a posted 40 m.p.h. zone. As a result of traveling at an excessive speed, Gordan was suspended from duty for three days without pay. Additionally, the Harvey Police Department found Gordan to be in violation of Harvey Police Department's Rules and Regulations § 2.41.01 (Violation of Rules) and § 3.71.07 (Use of Emergency Warning Devices).

On October 10, 2002, Gordan failed to use his in-car microphone on four calls and two traffic stops. As a result of Gordan's failure to use his microphone, Gordan was suspended from duty for two days without pay. Additionally, the Harvey Police Department found Gordan to be in violation of the Department's Operations Manual Order # 43-02 and § 2.41.10 (Incompetence) of the Harvey Police Department's Rules and Regulations.

On October 11, 2002, Gordan failed to use his in-car microphone on four calls and one traffic stop. As a result of Gordan's failure to use his microphone, Gordan was suspended from duty for three days without pay. Additionally, the Harvey Police Department found Gordan to be in violation of the Department's Operations Manual Order # 43-02 and § 2.41.10 (Incompetence) of the Harvey Police Department's Rules and Regulations. On October 12, 2002, Gordan failed to use his in-car camera and microphone on three calls and two traffic stops. Gordan stated in his deposition that his equipment was not working. As a result of his failure to use his camera and microphone, Gordan was suspended for five days without pay. Additionally, the Harvey Police Department found Gordan to be in violation of the Department's Operations Manual Order # 42-02 and § 2.41.10 (Incompetence) of the Harvey Police Department's Rules and Regulations.

On January 13, 2003, Harvey asserts that Gordan failed to make a premises check of businesses while on the midnight shift. Gordan disputes this, but the deposition testimony he points to in support of his denial does not refute that he failed to make a premises check. Rather, Gordan stated in his deposition that "I was suspended basically because a burglary occurred in my area sometime between January 12 and January 13th, and I was held responsible for it." Gordan Dep. at 39, ll. 10-13, Exh. 10 to Gordan's Rule 56.1(b)(3) Statement. According to Harvey, as a result of his failing to make the premises check, Gordan was suspended from duty without pay for three days. Additionally, the Harvey Police Department found Gordan to be in violation of Harvey Police Department's Rules and Regulations § 2.41.01 (Violation of Rules), § 2.41.07 (Neglect of Duty), § 2.41.60 (Obedience to Orders), and §2.41.60 (Attention to Duty).

On February 5, 2003, Gordan issued a citation to a motorist for having no license plate light. Gordan, as well as all patrolmen in the Harvey Police Department, had been informed repeatedly that motorists are to be given warnings for a license plate lights violation. Gordan denies this statement of fact, but again, the deposition testimony he points to fails to refute the statement, and indeed, supports Harvey's version of events. Specifically, Gordan stated in his deposition that "I wrote a moving violation, a traffic ticket to an individual, which is a law that is enforced in the Illinois Vehicle Code, Chapter 625; and I was advised by Sergeant Sampson that it is against Harvey Police Department policy to enforce this particular law, therefore, I was suspended." Gordan Dep. at 40, ll. 11-17, Exh. 10 to Gordan's Rule 56.1(b)(3) Statement. As a result of his failure to give a warning instead of a citation, Gordan was suspended from duty without pay for one day. Additionally, the Harvey Police Department found Gordan to be in violation of Harvey Police Department's Rules and Regulations § 2.41.07 (Neglect of Duty), § 2.41.10 (Incompetence), § 2.41.16 (Obedience to Orders).

On March 14, 2003, Gordan failed to report for his regularly scheduled court appearance. Gordan points to his own deposition testimony that he was on call that day and had received a traffic accident report dispatch call just prior to the time that he was to appear in court. According to Gordan, he informed the dispatch caller that he would be late for court, but ultimately ended up missing the entire court call due to his duties associated with the traffic accident. As a result of Gordan's failure to appear for court, he was suspended from duty without pay for three days. Additionally, the Harvey Police Department found Gordan to be in violation of Harvey Police Department's Rules and Regulations § 2.41.01 (Violation of Rules), § 2.41.07 (Neglect of Duty), § 2.41.10 (Incompetence A, B, C, and H), and § 2.41.37 (Court Attendance and Conduct).

Gordan failed to appear at Markham Court for his scheduled court date on four separate dates: August 12, 2004, August 17, 2004, October 22, 2004, and January 12, 2005.

As a result of Gordan's failure to appear in court, the Harvey Police Department found Gordan to be in violation of Harvey Police Department's Rules and Regulations § 2.41.01 (Violation of Rules), § 2.41.10 (Incompetence A), and § 2.41.37 (Court Attendance and Conduct). Additionally, Gordan was suspended from duty ...


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