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Marshall Dunnigan v. City of Peoria

March 4, 2011


The opinion of the court was delivered by: Michael M. Mihm United States District Judge


Friday, 04 March, 2011 11:54:20 AM Clerk, U.S. District Court,


Now before the Court is Defendant City of Peoria, Illinois' ("City of Peoria") Motion for Summary Judgment [#20] and Motion to Strike [#27]. The parties appeared on this matter before the Court for an evidentiary hearing on February 11, 2011. For the reasons set forth below, the Motion for Summary Judgment [#20] is GRANTED. Additionally, the Motion to Strike [#27] is GRANTED.


The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 and 1343, as the claim asserted in the Complaint presents a federal question under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.


Plaintiff Marshall Dunnigan ("Dunnigan"), an African-American man, began his employment with the Peoria Police Department ("PPD") in April of 1981. In the years that Dunnigan worked for PPD, he obtained his associates', bachelor's, and master's degrees. At the time the employment decision in this case was made in 2007, Dunnigan had also worked as a Lieutenant and as a shift commander in the patrol division at PPD for several years.

In the fall of 2005, PPD announced that it would be making promotions to the position of Captain. Ordinarily, the Chief of Police is responsible for determining who is promoted to Captain. Chief of Police Steven Settingsgaard ("Settingsgaard") decided to institute a promotional process for the fall 2005 Captain position and created a document outlining the skills and attributes he thought important for the position. All eleven Lieutenants at PPD were notified of the promotional process, and ten chose to participate. Dunnigan was the only African-American Lieutenant at PPD in 2005. Settingsgaard, along with Ken Harding ("Harding") from Bradley University, administered the exercises. In addition, Fire Chief Roy Modglin, Human Resources Director Pat Parsons, and a Police Chief from Wisconsin assisted Settingsgaard in the oral interview.

At the conclusion of each exercise, the participants were ranked according to their performance. Dunnigan was not ranked in the top three of any of the assessment tools and finished behind the nine other candidates in the overall assessment. The three top applicants, Lieutenants Scally, Snow, and Korem, were promoted to Captain. On January 18, 2008, Dunnigan filed a complaint with this Court alleging discrimination on the basis of his race as a result of not being chosen for the Captain position. That case was dismissed by this Court on summary judgment on October 5, 2010 and is currently pending appeal.

Dunnigan filed his charge of race discrimination with the Illinois Department of Human Rights ("IDHR") in April of 2006. On March 2, 2007, Dunnigan was terminated by Settingsgaard, who was the Chief of the PPD at the time. At the time of his termination, Dunnigan was actively pursuing his claim against Settingsgaard for race discrimination as a result of Settingsgaard's decision regarding the Captain position decision. As a reason for his decision, Settingsgaard alleged that Dunnigan committed a felony by stealing a gaming ticket while at the Par-A-Dice Casino in November of 2006. Dunnigan was purportedly caught on a security camera cashing another patron's game ticket and leaving the casino with the ticket proceeds. Dunnigan was never charged with criminal misconduct, and an arbitrator later ruled that Dunnigan's termination was without just cause for lack of sufficient evidence of criminal intent. As a result of this arbitration decision, Dunnigan was reinstated by PPD.

Dunnigan filed his Complaint in this case on February 17, 2009. After denial of Defendant's Motion to Dismiss [#12], Defendant filed this Motion for Summary Judgment [#20], and Plaintiff filed his Memorandum in Opposition [#24]. As support for his Memorandum in Opposition, Plaintiff included an affidavit by Troy Skaggs ("Skaggs"), the president of the Police Benevolent Protective Association Unit 27 ("PBPA") [Ex. B to #24]. In this affidavit, Skaggs stated that he had "personal knowledge" of the investigations of Officer Katie Baer ("Baer") and Sergeant Mike Edelmon ("Edelmon"). Dunnigan asserts the facts alleged in Skaggs' affidavit to prove that these two officers are similarly situated to Dunnigan and were treated more favorably by PPD.

Defendants later filed a Motion to Strike Skaggs' affidavit [#27] pursuant to Federal Rule of Civil Procedure 56(e), arguing that Skaggs did not have personal knowledge of the investigations. Defendants attached a further affidavit signed by Skaggs in which he stated that he had no personal knowledge of the investigations of Officer Baer and Sergeant Edelmon and that his information was "provided to [him] by others." [Ex. A to #27]. Skaggs further stated that he "did not read the [previous affidavit] as [he] should have." Id. The Court conducted an evidentiary hearing on this case on February 11, 2011. At the February 11, 2011, evidentiary hearing, Officer Skaggs confirmed that he had limited personal knowledge of the investigation into Officer Baer and Sergeant Edelmon. The Motion for Summary Judgment and the Motion to Strike are fully briefed, and this Order follows.


As there are two pending motions in this case, the Court will review each motion and issue its findings collectively in this Order.

I. Motion to Strike

The Court is authorized to strike any "redundant, immaterial, impertinent, or scandalous matter" on a motion of either party pursuant to Federal Rule of Civil Procedure 12(f)(2). Affidavits "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify." Fed. R. Civ. P. 56(e)(1). Personal knowledge may include "reasonable inferences," but these reasonable inferences "must be grounded in observation or other first-hand personal experience." Drake v. Minnesota Mining & Manufacturing Co., 134 F.3d 878, 887 (7th Cir. 1998). An affiant who holds a managerial position within a group "will often become aware of the finances, organization, and employees" of the group. Boim v. Quranic Literacy Institute, 340 F.Supp.2d 885, 925 (N.D. Ill. 2004). This awareness does not, however, extend to specific facts or circumstances. Id. In the Boim case, the Northern District of Illinois found that the affiant, a corporation president, did have personal knowledge sufficient to support an affidavit on the issues of general finances, employees, and company relations. The Northern District further held that this corporation president did not have sufficient personal knowledge to testify to specific figures or circumstances that he did not directly oversee.

In this case, Skaggs, as President of the PBPA, had personal knowledge as to the general workings of the PBPA and its role in disciplining officers. Furthermore, he potentially had personal knowledge as to the resolution of the matter involving Sergeant Edelmon; however, Skaggs stated in his second affidavit that he did not have knowledge as to the details of the investigation [Ex. A to # 27]. At the February 11, 2011, evidentiary hearing, Skaggs stated that he was friends with Sergeant Edelmon. Skaggs also stated that, at one point, he asked Edelmon about the investigation, but Skaggs testified that he was not personally involved in the investigation.

Skaggs also had general knowledge of Officer Baer being issued a three day suspension. Skaggs did not, however have personal knowledge as to the specific incidents surrounding the investigation of either of these two officers. First, Skaggs stated that he had "no personal knowledge of the matters alleged in [Paragraph 7 of the Declaration dated December 3, 2010]" and that his information regarding the investigation of Officer Baer was "based on information provided by others." Id. Second, while Skaggs may have had general knowledge regarding these events given his position within PBPA, he did not have personal knowledge as to the particulars of the investigations of these two officers without having been involved in their investigations. At the February 11, 2011, evidentiary hearing, Skaggs testified that he had limited involvement in Baer's investigation: (1) Skaggs talked with another officer about a disagreement that the officer had with Baer; and (2) talked with personal affairs regarding Baer's ...

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