The opinion of the court was delivered by: Proud, Magistrate Judge:
This matter is before the Court on defendants' Motion for Summary Judgment. (Doc. 47). Plaintiff filed a response in opposition at Doc. 54. With leave, defendants filed a reply at Doc. 57.
Plaintiff, who is white, is a former employee of the Illinois State Police. In 2007, while she was employed in another division, she applied for a position as an investigator in the Division of Internal Investigations (DII). She was unsuccessful; John Merrifield, an African-American male, got the job. Believing that she had been the victim of discrimination, she filed suit against two of her superior officers.
Ms. Weidner-Kasheimer brings two claims against defendants, both of which are brought pursuant to 42 U.S.C. §1983. She claims that she was passed over in favor of a less-qualified black applicant because of her race, in violation of the Fourteenth Amendment equal protection clause and 42 U.S.C. §1981. She also claims that her application was denied in retaliation for her exercise of her First Amendment rights by speaking before an Illinois Supreme Court committee in 2003.
This Court has jurisdiction pursuant to 28 U.S.C. §1331. All parties consented to final disposition by a magistrate judge pursuant to 28 U.S.C. §636(c). See, Docs. 22, 27 & 29.
Standard for Summary Judgment
Summary judgment is appropriate where the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Estate of Suskovich v. Anthem Health Plans of Virginia, Inc., 553 F.3d 559, 563 (7th Cir. 2009), citing Fed. R. Civ. P. 56(c). Accord, Breneisen v. Motorola, Inc., 512 F.3d 972 (7th Cir. Cir. 2008); Levy v. Minnesota Life Ins. Co., 517 F.3d 519 (7th Cir. 2008).
In ruling on a summary judgment motion, the Court construes all facts and reasonable inferences in the light most favorable to the non-moving party (here, plaintiff). Lloyd v. Swifty Transp., Inc., 552 F.3d 594, 600 (7th Cir. 2009); TAS Distributing Co., Inc. v. Cummins Engine Co., Inc., 491 F.3d 625, 630 (7th Cir. 2007); Reynolds v. Jamison, 488 F.3d 756, 764 (7th Cir. 2007).
In response to summary judgment, the non-movant cannot rest on his pleadings. Rather, the non-movant must provide evidence on which the jury or court could find in his favor. Maclin v. SBC Ameritech, 520 F.3d 781, 786 (7th Cir. 2008).
This overview of the facts is mostly taken from plaintiff's memorandum, Doc. 54, pp. 2-7. Unfortunately, plaintiff's memorandum misstates the facts in several important respects. Where plaintiff's statement conflicts with the record, the Court will cite to the record.
Ms. Weidner-Kasheimer began working for the ISP in 1985, and became an investigator in 1993. She retired from the ISP in 2009.
Plaintiff transferred into the DII in 2001. She received good performance reviews. Her statement of facts says that, in 2003, she requested and received permission to testify, in her personal capacity, before an Illinois Supreme Court commission regarding grandparents' rights.*fn1
However, the document she cites in support of this statement does not refer to testimony before the Illinois Supreme Court. The document she cites to is an e-mail in which she states that she had been "accepted to the Grandparents Raising Grandchildren task force" of the Illinois Department of Aging, and that she intended to attend a task force meeting on March 4, 2003. She was "requesting clarification on policy issues" concerning her participation. Doc. 48, Ex.3, p. 29. The Court has searched in vain for any exhibit which supports plaintiff's contention that she sought and received permission to testify before the Illinois Supreme Court. This statement in her brief is contradicted by her own deposition, in which plaintiff testified that she did not inform her chain of command in advance that she would be speaking before the Supreme Court committee. Doc. 54, Ex. 16, p. 2.
In any event, during her testimony before the Supreme Court committee, plaintiff did not identify herself as an employee of the ISP. Her testimony was recorded and part of it was broadcast or referred to on the radio. Defendant Lance Adams, who was then an Area Commander in plaintiff's chain of command, heard a reference to plaintiff's testimony on the radio. Adams noted in her next evaluation that she had exercised poor judgment by testifying without first clearing the contents of her remarks with her superior officers.
Plaintiff transferred out of DII at her request in 2004.
In March, 2007, the ISP posted vacancy announcements for two DII investigator positions in the Collinsville, Illinois, office. Three candidates applied: John Merrifield, Pete Goodman, and plaintiff. A panel was formed to interview the candidates and make recommendations. The members of the panel were Gerald Jenkins, Morrie Fraser and Terry Campbell According to plaintiff, it was "clear" that Goodman would get one of the jobs because he was already working in an acting capacity as a DII investigator. Plaintiff does not base her claims on the fact that Goodman got one of the jobs.
After the interviews, Campbell and Fraser told Jenkins that they favored plaintiff over Merrifield. Jenkins replied that "Colonel Nelson won't be happy with that." Jenkins then met with Colonel Nelson and informed him that Fraser and Campbell recommended WeidnerKasheimer, but that Jenkins recommended Merrifield. ...