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Neal Tokowitz v. Cook County Sheriff's Office

September 7, 2012

NEAL TOKOWITZ, PLAINTIFF,
v.
COOK COUNTY SHERIFF'S OFFICE, DEFENDANT.



The opinion of the court was delivered by: Judge Joan B. Gottschall

MEMORANDUM OPINION & ORDER

Plaintiff Neal Tokowitz filed an amended complaint in January 2011, alleging that he was subjected to a "campaign of harassment and retaliation" while he was employed with the Cook County Sheriff's Department, and that this campaign ultimately led to his constructive discharge. His two-count complaint alleges retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and breach of contract. The defendant, the Cook County Sheriff's Office ("the Sheriff"), has now filed a motion for summary judgment on both counts. For the reasons set forth below, the court grants the motion.

I. BACKGROUND

The following facts are undisputed unless otherwise noted.*fn1 Tokowitz began working in the Cook County Sheriff's Office on August 1, 1988. Upon graduation from the Sheriff's Academy, he became the administrative assistant for the Director of Community Service, where he remained until 1991 or 1992. He was then assigned to the Department of Community Service and Intervention ("DCSI") and-after working on creating the general orders for the new Internal Affairs Division ("IAD") of DSCI- Tokowitz became an investigator with that division. Tokowitz claims that around this time, Inspector General Richard Stillings led Tokowitz to believe he would become the director of IAD, but Dave Devane, the Executive Director of DCSI, told Tokowitz that he was not going to be the director, although Tokowitz could be an investigator for IAD if he wanted. Tokowitz took the investigator job. At some point, Devane did make Tokowitz the Deputy Director of IAD.

In 1998, Ed Healy, an independent director who reported to Devane, told Tokowitz that Tokowitz would be promoted to Deputy Chief of the Sheriff's Work Alternative Program ("SWAP"), another division of DCSI.*fn2 In his deposition, Tokowitz testified that Devane did in fact promote him to the Deputy Chief position and that Devane informed Tokowitz that his pay grade would be raised to Grade 18 by November 1, 1998.*fn3 Since at least mid-1993, Tokowitz's pay grade had been at Grade 16. But when the budget was announced in November 1998, Tokowitz realized he had not been raised to Grade 18.*fn4 Tokowitz spoke with Devane about it, and Devane told Tokowitz that he would "take care of it," yet no changes to Tokowitz's pay grade were made.

During this time, Tokowitz was assigned to work out of the Maywood facility. Ray Doran, the Director of SWAP, did not know Tokowitz had been assigned to that facility, and Tokowitz was given a desk in a hallway. While he was in Maywood, Tokowitz worked on several projects for Devane, including writing general orders and working on disciplinary procedures. When SWAP Headquarters moved from the Maywood facility to one at 31st and California, Tokowitz was given an office that was close to the Chief. At the new facility, Tokowitz was not invited to supervisors' meetings, although he was not prevented from attending the meetings when he showed up.

In March 1999, Tokowitz spoke with Ray Doran about his pay grade. In addition, Tokowitz raised a number of other issues with Doran, including that Tokowitz's inferior officers were insubordinate and countermanding his orders, and that his disciplinary recommendations were being ignored by the Lieutenant and the Chief of SWAP. Doran replied that he thought Tokowitz already was a Grade 18. Tokowitz then wrote a memo to, and met with, Devane regarding the pay grade issue. Devane told Neal that Neal should "quit if he didn't like it." Tokowitz never brought the Grade 18 issue to the attention of any official in the chain of command above Devane.

Both Devane and Doran testified that they do not recall these conversations. In fact, the Sheriff claims it would be "highly unusual" for employees (other than the directors of each department of DCSI) to report to Devane on issues those employees were having within their respective positions. The parties also dispute whether Devane had the authority to promote employees: the Sheriff claims Devane did not have this authority, whereas Tokowitz claims that Devane was the "final arbiter of promotions and pay grade." There have been times where Devane would recommend that an employee have his or her pay grade upgraded, but the Department of Personnel would not upgrade that employee; there have also been times where Devane would receive recommendations about personnel issues such as promotions, and Devane would "approve" the promotion (although it is not clear whether this approval was final for purposes of the promotion). In any event, Tokowitz's pay grade did not change from Grade 16.

In 2001, Bill Wallace-Tokowitz's one-time boss in IAD-asked Tokowitz to investigate Gordon Kalb, a Chief in DCSI, for sexual harassment. In the past,*fn5 Tokowitz had investigated allegations of sexual harassment, but that investigation had resulted in Tokowitz being "publicly humiliated, threatened, and told to drop the investigation." As early as 1998, Tokowitz had raised allegations of sexual harassment with Kalb, at which point Kalb told Tokowitz that Tokowitz was "going to be a clerk." Before starting the 2001 investigation, Tokowitz requested that steps be taken to prevent retaliation from Kalb. Tokowitz ultimately provided an investigation summary to the Director of IAD on September 15, 2001 concerning Kalb's alleged sexual harassment. During the investigation, Tokowitz's life was threatened by one of Kalb's friends, Chuck Ranzino. Tokowitz filed a complaint with IAD, but he did not attempt to initiate a criminal investigation. Kalb also confronted Tokowitz, telling Tokowitz that he would "never see the street again" and that he would "be a clerk for the rest of [his] life."

Sometime after Tokowitz's investigation, he was told by George Tamez, Chief of SWAP, that he would be placed out on street patrol to supervise crews of offenders and act as a problem solver.*fn6 Tokowitz was given a marked car and had to work a rotating shift, but he accepted the assignment to go back on the street. During this assignment, Sergeants Enriquez and Righeimer typically ignored Tokowitz's orders, and when Tokowitz tried to discipline them, his disciplinary efforts were ignored by the others, including Tamez, Doran, and a lieutenant. At one point, Sergeant Enriquez told Tokowitz's deputies not to pay attention to Tokowitz's orders, and that they were going to be getting rid of Tokowitz soon.

Tokowitz remained on the street assignment until he received a severe head injury while on duty in December 2003; as a result, he was off duty until 2005. When Tokowitz returned to duty, Tamez told Tokowitz that he would not be allowed to go back on the street, and that he was "going to Maywood to be a clerk."*fn7 Tokowitz was assigned to Maywood to review SWAP incident reports, medical incident reports, and assist in registration and intake of offenders for SWAP. Tokowitz was not given a car, and he was assigned a screened-off desk in a hallway without a computer or assignments. When he requested a word processor, Tokowitz was provided with a computer that was not hooked up. Gordon Kalb would visit the Maywood office and tell Tokowitz that he would be "down here until [Kalb] decide[s]."

The Sheriff notes that offices were given to personnel when offices became available. In fact, there were times when Tamez did not have an office due to space restrictions, and Tamez did not have a Sheriff's vehicle. Moreover, in SWAP computers were sparse and not everyone had their own individual computer, and there were times when Tamez was a Deputy Chief in SWAP that he had to do intake and clerical work.

Following his return to work, Tokowitz could not carry a firearm until he had been recertified and had received credentials. If a sheriff's deputy chief did not have his credentials, but carried a weapon on duty, that person could be disciplined and possibly even arrested. In order to obtain new credentials, Tamez would request the return of credentials from IAD, and after IAD approved, the credentials were returned either to the employee or to George Tamez. According to Tokowitz, Tamez intentionally held up the return of Tokowitz's credentials by requesting that the Director of Training for DCSI not return the credentials to Tokowitz.*fn8 Tokowitz did eventually receive his credentials.

Neither of Tokowitz's supervisors recalls any complaints about Tokowitz or Tokowitz's performance. Tokowitz stayed in his position from his return to work in 2005 until September 2008, at which point he had accrued twenty years service and was able to retire and switch ...


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