The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge
This matter comes before the Court on Defendant City of Springfield, Illinois' (City), Motion for Summary Judgment (d/e 251) (Motion). Plaintiff Rickey Davis is an African American man. He worked for the City as a police officer from 1981 to 2007. In the first of these two consolidated cases, Case No. 04-3168 (2004 Action), Davis claimed that the City discriminated and retaliated against him by not promoting him to the position of Deputy Chief of Police in charge of the Criminal Investigations Division (CID or Detective Division), in October 2003 in violation of Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e et seq., and 42 U.S.C. §§ 1981 and 1983. The Court entered partial summary judgment in favor of the City on Davis' §§ 1981 and 1983 claims. Opinion entered September 19, 2006 (d/e 86) (2004 Action Summary Judgment Opinion). The Title VII claims were tried to a jury beginning on September 10, 2007. The jury found in favor of the City on Davis' discrimination claim, but could not reach a verdict on Davis' retaliation claim. Minute Entry entered on September 14, 2007. This claim is not the subject of the Motion.
In the second of these consolidated cases, Case No. 07-3096 (2007 Action), Davis claimed that after October 2003, the City continued to discriminate and retaliate against him, and also created a hostile work environment, in violation of Title VII and the Civil Rights Act of 1866, 42 U.S.C. §§ 1981 and 1983. Davis claimed that the City's illegal acts ultimately led to his constructive discharge in 2007.
The City seeks summary judgment on Davis' claims in the 2007 Action. Davis has decided not to pursue his claims under §§ 1981 and 1983. Plaintiff's Memorandum in Opposition to Defendant's Motion for Summary Judgment (d/e 258) (Davis Memorandum), at 1 n.1. The City is, therefore, entitled to partial summary judgment on the §§ 1981 and 1983 claims in the 2007 Action. As explained below, the City's Motion is also allowed with respect to the Title VII disparate treatment and hostile work environment discrimination claims, and his constructive discharge claim, and allowed in part and denied in part with respect to Davis' remaining retaliation claim.*fn1
Davis became a police officer in the City's Police Department (Department or SPD) in 1981. His employment history with the Department is detailed in this Court's prior summary judgment opinion in the 2004 Action. 2004 Action Summary Judgment Opinion, at 9. He has also spoken out on racial issues with the Department and the City. Id., at 9-11. He was the President of the Black Guardians Association, a group of African American police officers in the Department.
On January 7, 2003, Davis and eight other African American officers, or former officers, filed a lawsuit against the City, then Police Chief John Harris, and certain other officers. Davis et al. v. City, et al., Case No. 03- 3007 (2003 Action). The 2003 Action alleged racial discrimination and retaliation in violation of Title VII and §§ 1981 and 1983. Davis and the other plaintiff officers each alleged separate claims based on each officer's personal experiences. See generally 2003 Action Complaint (Case No. 03-3007 d/e 1). One of Davis' co-plaintiffs was a former Department police officer named Renatta Frazier. In 2002, Frazier was the subject of several Department Internal Affairs (IA) investigations. The most serious charges arose from an incident in October 2001 (Frazier Incident). The press reported that Frazier was accused of responding improperly to a call, and as a result, a rape occurred. The victim's name was Nicole Lenhart. Several months later, the Department revealed that the rape occurred before Frazier was sent on the call, and so she could not have prevented the rape. See 2003 Action Opinion entered November 14, 2006 (Case No. 03-3007 d/e 304) (2003 Action Summary Judgment Opinion), at 20-21. Frazier alleged racial discrimination, constructive discharge, and several state law claims in the 2003 Action as a result of her treatment.
In June 2003, Department Sergeant Donald Kliment became the City's Chief of Police. In October 2003, Kliment appointed four new Deputy Chiefs of Police. Davis applied for the position of Deputy Chief in charge of CID. Davis was then a Lieutenant in CID. Kliment selected Lieutenant William Rouse for this position. 2004 Action Summary Judgment Opinion, at 11-16.
On November 2 or 3, 2003, Davis and his attorney in the 2003 Action, A. Courtney Cox, went to the residence of Nicole Lenhart, the victim in the Frazier Incident. Cox interviewed Lenhart on behalf of Frazier and the other plaintiffs in the 2003 Action. Davis was present during the interview. Motion, Exhibit 26, Excepts of Springfield Police Department Internal Affair File #2004/02/15 (IA File 2004/02/15).
On November 6, 2003, Davis filed a charge of discrimination against the City for failure to promote him to Deputy Chief. Davis claimed that Kliment chose Rouse (a Caucasian man) over him because of his race, and to retaliate against him because he spoke out on various issues of racial discrimination within the Department. Davis Memorandum, Exhibit 24. See 2004 Action Summary Judgment Opinion, at 12-16.
Davis remained in CID after Rouse became Deputy Chief. Davis supervised the General Investigations section of CID. At that time, CID was divided into General Investigations and Special Investigations. General Investigations investigated property crimes, financial crimes, and sexual assaults. Special Investigations included the Major Case Unit, Narcotics, and other specialized units in which Department officers were assigned to work with other law enforcement agencies, such as the Drug Enforcement Agency. Lieutenant David Dodson supervised Special Investigations. Davis Deposition, at 25; Davis Memorandum, attached Excerpts of Deposition of William Rouse taken February 19, 2009 (Rouse 2009 Deposition, Davis Excerpts), at 85.
On February 9, 2004, Davis sent an email to Deputy Chief William Pittman. The email had an attachment that consisted of another email that was authored by officer Randy Wilson and addressed to Pittman. The Wilson email summarized some statements that Davis made in Wilson's presence. The City had produced the Wilson email in discovery in the 2003 Action. Pittman was one of the individual defendants in the 2003 Action at the time. Pittman sent a memorandum to Assistant Chief Ralph Caldwell complaining about Davis' email. Pittman stated that he viewed the email as an attempt to threaten and harass Pittman. See Motion, Exhibit 11, Excerpts from Springfield Police Department Internal Affair File #2004/02/14 (IA File 2004/02/14).
On February 18, 2004, Kliment issued a written reprimand to Davis regarding the February 9, 2004, email to Pittman. Kliment reprimanded Davis for improper use of the email system. The written reprimand was also given an IA file number, but no investigation was conducted. IA File 2004/02/14, Memorandum from Donald Kliment to Rickey Davis dated February 18, 2004.
In February 2004, Kliment also initiated an IA investigation of Davis concerning the November 2003, interview of Lenhart. IA File 2004/02/15. Kliment alleged that Davis improperly used his position as a police officer to secure entrance into her residence and to secure an interview. Kliment alleged that Davis gave Lenhart the impression that he was there in an official capacity as a police officer. The interview, however, was for his personal benefit and for the benefit of the other plaintiffs in the 2003 Action. Motion, Exhibit 11, Civil Service Commission File on IA File 2004/2/15) (2004/2/15 Civil Service Commission File), Specifications of Charges (amended), at 1.
In March 2004, Kliment told Rouse to transfer Detective Dane Cookson temporarily. Kliment told Rouse that he wanted the transfer done by the next day. Motion, attached Excerpts of Rouse 2009 Deposition (Rouse 2009 Deposition City Excerpts), at 261. Cookson was temporarily transferred from CID to Professional Standards, effective March 15, 2004, with a scheduled transfer back to CID on April 4, 2004. Rouse transferred Cookson without notifying Davis first. Cookson had reported directly to Davis before these two transfers; however, after the April 4, 2004, transfer back to CID, Cookson would report to Lieutenant Dodson.
Davis sent Kliment a memorandum dated March 19, 2004, complaining about not being consulted or notified about the Cookson transfers. Davis said, in part:
I was never consulted about either of Detective Cookson's transfers. I only became aware of Detective Cookson's transfer orders when they were sent out for general distribution. As Detective Cookson's Lieutenant in charge of General Investigations I do not appreciate this blatant disrespect of my authority. In the future, I would appreciate at least being notified of such changes, and ideally being involved in the over all process when such changes occur. This continued retaliation against me is unacceptable.
Davis Memorandum, Exhibit 2, Memorandum from Davis to Kliment, dated March 19, 2004.
Kliment responded in a memorandum dated March 22, 2004. Kliment stated that he decided to transfer Cookson. He also stated:
All of this information was presented at the Super Staff meeting held on Monday, March 15, 2004, in which you attended. As I went around the room asking members of our staff if they had any concerns, your response was "No." . . . .
Motion, Exhibit 5, Memorandum from Kliment to Davis dated March 22, 2004. Kliment, however, agreed in his deposition that he did not advise Davis of the transfer before it occurred. Davis Memorandum, Exhibit 13, Excerpts of Kliment Deposition dated June 16, 2005 (Kliment 2005 Deposition), at 163.
On April 12, 2004, Davis filed an IA complaint against various officers for mishandling the Frazier Incident. The complaint was signed by eight officers, including Davis. Six of the eight who signed the complaint were plaintiffs in the 2003 Action. Davis Memorandum, Exhibit 26, Memorandum from Members of the Black Guardians Association to Robert Williams, Deputy Chief, Professional Standards Division.
On April 16, 2004, Frazier settled her claims in the 2003 Action. 2003 Action Order entered March 24, 2004 (Case No. 03-3007 d/e 116); Frazier v. City of Springfield, Case No. 04-3071 Order entered April 16, 2004 (Case No. 04-3071 d/e 119).*fn2 The Frazier settlement resolved all of her claims. She was the only plaintiff that alleged claims against Pittman and certain other individual defendants. After the Frazier settlement, Davis and the remaining officers continued to pursue the 2003 Action only against the City and former Chief Harris. 2003 Action, Text Order entered July 29, 2004.
On June 24, 2004, Rouse reviewed the IA investigation of Davis' involvement in the Lenhart interview in November 2003. Rouse concluded that, "Lt. Davis performed in excess of his lawful authority, for personal advantage for himself [and] the Black Guardians, . . . ." IA File 2004/02/15, page 10, (Staff Case Review, at 8). Rouse recommended a ten-day suspension and removal of Davis from CID. Id.
On July 8, 2004, Rouse met with the Crimes Analysis Unit. Davis was the direct supervisor of this Unit. Rouse did not notify Davis of the meeting. Rouse stated in his deposition that the failure to notify Davis was an oversight. Rouse 2009 Deposition, Davis Excerpts, at 159. On July 13, 2004, Davis sent Rouse a memorandum. Davis Memorandum, Exhibit 3, Memorandum dated July 13, 2004. The memorandum stated, in part, "As the Lieutenant in charge . . ., [I] should have been notified and included in the meeting. This is not the first time this problem has occurred. I would appreciate an explanation from you, in writing, as to why I was not notified or included." Id.
Rouse responded with a memorandum dated August 3, 2004. Rouse stated in writing that he could meet with anyone he wished in CID without notifying Davis or giving Davis an explanation. Rouse 2009 Deposition, Davis Excerpts, at 158-59. Rouse stated in his deposition that he did not tell Davis that the failure to invite was an oversight because he did not have to explain his actions to Davis. Id., at 159. Rouse also stated that he did not recall any other time in which he met with the Crimes Analysis Unit without notifying Davis. Id., at 160.
On August 3, 2004, Davis filed the 2004 Action.
In September 2004, Rouse assigned Davis to develop and supervise the process for selecting detectives for CID. Davis Memorandum: attached Excerpts of Deposition of Donald Kliment taken February 24, 2009 Deposition (Kliment 2009 Deposition, Davis Excerpts), at 127-29; Rouse 2009 Deposition, Davis Excerpts, at 236. According to Rouse, Davis refused to do the assignment. Rouse again asked that Davis be removed from CID. The police legal advisor Josh Carter advised Rouse to give Davis more time. Rouse did so. Rouse 2009 Deposition, Davis Excerpts, at 236-37.
Davis then prepared a memorandum regarding the detective selection process. Davis Memorandum, Exhibit 9, Memorandum from Davis to Rouse, dated September 28, 2004. Davis stated that the Department's detective examination, "is a poor evaluation tool to select SPD detectives." Id. Davis then summarized the process used by the Phoenix, Arizona, and Los Angeles, California, police. Davis concluded the memorandum with a discussion about why he should not supervise the detective selection process:
Additionally, I have several concerns with my selection to chairperson of the testing process. I am not refusing this assignment. However, I do not feel this is the proper time for me to lead the testing selection process for detective for the following reasons.
* I have spoken out publicly as the Vice President of the Black Guardians Association regarding corruption with our promotional process.
* I have spoken publicly of the fact SPD has no black detectives.
* I have two (2) pending federal racial discrimination lawsuits pending trial against the SPD and the City of Springfield.
* I fee that my lead role in the detective selection process may cause a reverse discrimination charge against me if a black candidate is selected for a detective position.
Because of the recent racial discrimination charges filed against the city of Springfield I feel the best solution would be for the Human Resources Department to validate and administer the detective examination. It would be my pleasure to assist in the process and I hope my suggestions will be considered.
Rouse explained that Davis' memorandum stated: Something about he wanted to copy the process in Phoenix, Arizona, Los Angeles, California, but then at the end he listed four bullet point why he couldn't complete the assignment and one of them was because he was afraid of being sued.
Rouse 2009 Deposition, Davis Excerpts, at 237. Rouse explained that the memorandum said Davis would be sued for reverse discrimination. Id., at 238. Rouse stated that Davis' memorandum was not sufficient. Rouse 2009 Deposition, Davis Excerpts, at 236. Rouse said that Davis' suggestions were not realistic because the Department's officers were unionized and the Phoenix officers were not. Id., at 239-40.
In October 2004, Lieutenant Dodson, the head of Special Investigations, left CID. Rouse stated in his deposition that he had Dodson transferred out of CID because of his poor performance in connection with an incident in which a security guard was shot at the Illinois State Capitol building. Rouse stated that he counseled Dodson orally about the incident and then recommended Dodson's transfer. Rouse stated that he made the transfer recommendation orally at a meeting with Kliment, the Assistant Chief, and the Deputy Chiefs. Rouse 2009 Deposition, Davis Excerpts, at 118-22.
Upon Dodson's transfer, Davis was assigned to supervise both General Investigations and Special Investigations. Davis supervised both divisions until January 2005. At that time, Lieutenant Greg Williamson was put in charge of General Investigations, and Davis was put in charge of Special Investigations.
On October 7, 2004, Kliment reviewed the IA investigation regarding the November 2003 Lenhart interview incident. Kliment issued a two-day suspension to Davis as discipline for Davis' actions in the incident. 2004/02/15 Civil Service Commission File, Memorandum from Donald Kliment to Rickey Davis, dated October 7, 2004. Davis appealed to the Civil Service Commission. On October 22, 2004, the Civil Service Commission issued its decision reducing the discipline to a one-day suspension. 2004/02/15 Civil Service Commission File, Conclusion of Pre-Deprivation Hearing, dated October 27, 2004.
On November 9, 2004, Davis filed a charge of discrimination because of the one-day suspension. Davis alleged that the suspension was in retaliation for his exercising his rights under Title VII to speak out on issues of racial discrimination. Davis Memorandum, Exhibit 25, Charge of Discrimination dated November 9, 2004. Davis asserted that he had previously filed charges of discrimination against the City; he was issued a two-day suspension; the suspension was without merit; and the timing raises an inference of retaliation. Id.
On November 16, 2004, Sergeant Ronald Vose called Rouse and asked to meet. Vose was then assigned to the Narcotics unit in CID. Rouse and Vose met in an alley. Vose told Rouse that a defense attorney in an ongoing murder trial was going to try to discredit Detective Paul Carpenter or Detective James Graham on the witness stand. The defendant in the trial was accused of murdering a woman named Tonia Smith. Graham and Carpenter were assigned to the Major Case Unit. Vose told Rouse that the attorney was planning to try to get one of the officers to perjure himself. Rouse said he could not attend, but he told Vose to attend the trial and report what he saw. Rouse 2009 Deposition, City Excerpts, at 163-66. Rouse did not notify Davis that he had told Vose to attend the trial. Vose, Carpenter, and Graham all reported to Davis.
On December 8, 2004, Lieutenant Williamson held a meeting of the Armed Robbery Suppression Program (ARSP). CID Sergeants Timothy Young and Pat Ross attended the meeting. Sergeant Young was assigned to report on all commercial armed robbery cases, and Sergeant Ross was assigned to monitor commercial armed robberies and report to Lieutenant Williamson. Young and Ross reported directly to Davis.
On December 10, 2004, Davis sent a memorandum to Rouse complaining that Rouse violated the chain of command by directing Vose to attend the murder trial, and by allowing Williamson to assign tasks to Young and Ross at the ARSP meeting. The memorandum stated:
As the general and special criminal investigations lieutenant, I am responsible for the day to day operation of the criminal investigation division and I am accountable and responsible for Sgt. Vose and Detectives Graham and Carpenter. In violation of Department policy, I was not notified that Sgt. Vose was investigating two of my lead detectives during the Tonia Smith murder trial. . . . I would like an explanation as to why these incidents occurred without my knowledge or approval.
I also understand that on December 8, 2004 at 1000 hours Lt. Williamson held a meeting . . . regarding the [ARSP]. Lt. Williamson ordered . . . Sergeants Tim Young and Pat Ross to attend the ARSP meeting. . . . As the immediate supervisor of Sgt. Young and Sgt. Ross I should have been notified of these orders; However, I was not notified of the meeting or the assignments given to Sgts' (sic) Young and Ross. . . . I would like an explanation as to why I was not informed of the meeting and why Sergeants under my command would be assisting without my knowledge or approval.
Davis Memorandum, Exhibit 5, Memorandum from Davis to Rouse, dated December 10, 2004.
Rouse responded with a memorandum to Davis dated December 22, 2004. Motion, Exhibit 9, Memorandum from Rouse to Davis dated December 22, 2004. Rouse stated, in part:
To begin, let me correct your assertion that Sgt. Vose was "investigating" two member of this Division when he attended the Tonia Smith murder trial. He was there, with my approval, to observe the proceedings and nothing more. I approved his attendance because I was unable to attend the proceedings myself due to a scheduling conflict and to the last ...