United States District Court, N.D. Illinois, Eastern Division
PATRICK J. WHITE, Plaintiff,
AMY CAMPANELLI, THE PUBLIC DEFENDER OF COOK COUNTY, in her official capacity, et al., Defendants.
MEMORANDUM OPINION AND ORDER
Robert Blakey United States District Judge
Patrick White (“Plainitff”) has been employed
with the Office of the Cook County Public Defender (the
“Office”) since 2002. Plaintiff currently alleges
that he was denied a promotion within the Office on the basis
of his gender, and brings claims for sex discrimination and
retaliation pursuant to Title VII, and for deprivation of his
constitutional rights under 28 U.S.C. §
1983. Defendants Stephanie Hirshboeck, Crystal
Marchigiani, Darlene Williams (collectively, the
“Individual Defendants”) and Amy Campanelli
(“Campanelli”), in her official capacity as the
Public Defender of Cook County, have moved for summary
judgment on all counts.  at 1. As explained below,
Defendants' motion is denied.
has been employed with the Office since December 2002. 
at 1. By 2013, White was working as an Assistant Public
Defender III assigned to the Felony Trial Division.
Id. at 2.
14, 2013, a Notice of Transfer/Promotion Opportunity was
posted for a number of Assistant Public Defender IV
positions. Id. at 4. White applied to be an
Assistant Public Defender IV. Id. at 5.
for the Assistant Public Defender IV position were evaluated
by a promotion panel (the “Panel”) composed of
the Individual Defendants. Id. at 4. Hirschboeck was
the chair of the Panel. Id. The Panel's duties
included investigating, interviewing, and scoring applicants,
and recommending applicants for promotion to Assistant Public
Defender IV. Id. The Panel determined that they
would consider the following criteria: experience, written
application, interview, body of work, and seniority.
people applied for Assistant Public Defender IV positions,
including White. Id. at 5. The Panel determined that
thirty-eight of those applicants were qualified,  at 7,
and those same thirty-eight qualified applicants, including
White, were interviewed in July and August of 2013.  at
5. Twenty of the thirty-eight interviewees were male, while
eighteen were female.  at 3.
each interview, the Panel posed ten questions, each of which
was worth five, ten or fifteen points.  at 5. Each member
of the Panel generated an individual score for each
interviewee. Id. An interviewee could receive a
maximum score of ninety during the interview portion.
Id. at 6.
Panel interviewed Plaintiff on July 23, 2013. Id.
Hirschboeck gave Plaintiff a score of 38 out of 90;
Marchigiani gave Plaintiff a score of 35 out of 90; and
Williams gave Plaintiff a score of 36 out of 90. Id.
August 8, 2013, the Panel held a consensus meeting to discuss
the applicants and tally their scores. Id. After the
consensus meeting, Hirschboeck composed a report summarizing
the Panel's findings for then-Public Defender Abishi
Cunningham, Jr., who adopted the Panel's recommendations.
“admit that 20 of the 38 [interviewed] applicants were
promoted.”  at 3. The parties disagree as to the
gender ratio of the twenty candidates who received
promotions: Defendants contend six of the promoted candidates
were male,  at 3, while Plaintiff insists that only five
were male. Id. at 2. Based upon the Court's
review of the record, Defendants are correct. See
[80-4] at 67-68 (list of promoted candidates includes Bernard
Okitipi, Steve Journey, William Bolan, Steve Tyson, Vernon
Schleyer, and Kevin Ochalla). In either event, the parties
agree that White was not among the five or six promoted male
contends that when he did not receive a promotion, he
publicly complained of gender discrimination, and the
Defendants retaliated against him for exercising his First
Amendment rights. More specifically, White claims that the
Defendants retaliated against him by: (1) allowing a subpoena
for his testimony to issue in the matter of People v.
Eric Brooks; (2) doubling his case load; (3) assigning
him to more demanding courtrooms; (4) failing to notify him
of an “ineffective assistance” petition filed
against him; (5) assigning him to less desirable office
space; (6) publicly and erroneously accusing him of failing
to file a notice of appeal; and (7) manipulating his case
assignments. White also claims that, when he complained that
his new workspace was cramped, his supervisor told him:
“Don't worry, we will get a skinny female to take
your place.”  at 13-14.
filed a Charge of Discrimination with the EEOC on June 17,
2014, alleging retaliation and discrimination based upon his
race, sex and age.  at 8. The original complaint in this
lawsuit was filed in September of 2014.  at 7.
judgment is appropriate if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law. Spurling v. C
& M Fine Pack, Inc., 739 F.3d 1055, 1060 (7th Cir.
2014). A genuine dispute as to any material fact exists if
“the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
party seeking summary judgment has the burden of establishing
that there is no genuine dispute as to any material fact.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). In determining whether a genuine issue of material
fact exists, this Court must construe all facts and
reasonable inferences in the light most favorable to the
nonmoving party. See CTL ex rel. Trebatoski v. Ashland
Sch. Dist., 743 F.3d 524, 528 (7th Cir. 2014).
has three remaining claims: Count III (gender discrimination
under Title VII); Count IV (retaliation under Title VII); and
Count V (denial of equal protection under 28 U.S.C. §
1983). Plaintiff's Title VII claims are against
Campanelli in her official capacity, which functionally means
those claims are pending against the Office itself. See
Carver v. Sheriff of LaSalle Cty., Illinois, 243 F.3d
379, 381 (7th Cir. 2001) (A “supervisor is not a proper
defendant in Title VII; the suit must proceed against the
employer as an entity rather than against a natural
person.”). Plaintiff's § 1983 claim,
meanwhile, is pending against both the Office and the
Individual Defendants. The Court addresses each in turn.
Count III - Gender Discrimination Under Title VII
VII of the Civil Rights Act of 1964 prohibits two categories
of employment practices. Under Title VII, it is unlawful for
(1) to fail or refuse to hire or to discharge any individual,
or otherwise to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges
of employment, because of such individual's race, color,
religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or
applicants for employment in any way which would deprive or
tend to deprive any individual of employment opportunities or
otherwise adversely affect his status as an employee, because
of such individual's race, color, religion, sex, or
42 U.S.C. § 2000e-2(a). These proscriptions are the
basis for the two operative theories of recovery for
discrimination claims under Title VII: “disparate
treatment” and “disparate impact.”
recently, plaintiffs in the Seventh Circuit could avoid
summary judgment on their disparate treatment claims by
making one of two showings. A plaintiff could first attempt
to satisfy the so-called “direct method” of
proof, whereby the Court would evaluate whether the plaintiff
had presented “sufficient evidence, either direct or
circumstantial, that the employer's discriminatory animus
motivated an adverse employment action.” Harper v.
Fulton Cnty., 748 F.3d 761, 765 (7th Cir. 2014).
a plaintiff could pursue the so-called “indirect
method” of proof. As first described in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), the
“indirect method” allowed the plaintiff to shift
the burden of proof on the question of intent to the
defendant, once the plaintiff made certain showings. See
Id. at 802. Specifically, the plaintiff first had to
make a prima facie case, showing that: “(1) he
belonged to a protected class; (2) he applied and was
qualified for the position sought; (3) he was rejected for
that position; and (4) the employer awarded the promotion to
someone outside the protected class who was not better
qualified.” Adams v. City of Indianapolis, 742
F.3d 720, 735 (7th Cir. 2014) (modifying the McDonnel
Douglas prime facie case for failure-to-promote claims).
If the plaintiff made his prima facie case, the
burden shifted to the defendant to give a non- discriminatory
reason for treating the plaintiff the way it did.
Id. If the defendant then met its burden,
the onus shifted back to the plaintiff to show that the
defendant's explanation was not pretextual. See
McDonnell Douglas, 411 U.S. at 802, 804.
Seventh Circuit recently streamlined this procedure in
Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 763
(7th Cir. 2016). Ortiz eliminated the distinction
between the direct and indirect methods, stating that the
“time has come to jettison these diversions and refocus
analysis on the substantive legal issue.” Id.
at 3. The “substantive legal issue, ” as
identified in Ortiz, was whether “a reasonable
juror could conclude that Ortiz would have kept his job if he
had a different ethnicity, and everything else had remained
the same.” Id. Phrased another way, the
operative “legal standard . . . is simply whether the
evidence would permit a reasonable factfinder to conclude
that the plaintiff's . . . sex or other proscribed factor
caused the discharge or other adverse employment
action.” Id. at 765. When applying this
standard, the evidence “must be considered as a whole,
rather than asking whether any particular piece of evidence
proves the case by itself-or whether just the
‘direct' evidence does so, or the
‘indirect' evidence. Evidence is
Seventh Circuit also explained that Ortiz did not
undermine the “burden-shifting framework created by
McDonnell Douglas or any other burden-shifting
framework.” Id. at 766. ...