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White v. Campanelli

United States District Court, N.D. Illinois, Eastern Division

February 9, 2016

PATRICK J. WHITE, Plaintiff,
AMY CAMPANELLI, THE PUBLIC DEFENDER OF COOK COUNTY, in her official capacity, et al., Defendants.


          John Robert Blakey United States District Judge

         Plaintiff 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.[1] 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. [78] at 1. As explained below, Defendants' motion is denied.

         I. Background[2]

         Plaintiff has been employed with the Office since December 2002. [80] at 1. By 2013, White was working as an Assistant Public Defender III assigned to the Felony Trial Division. Id. at 2.

         On May 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.

         Applicants 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. Id.

         Forty-two people applied for Assistant Public Defender IV positions, including White. Id. at 5. The Panel determined that thirty-eight of those applicants were qualified, [90] at 7, and those same thirty-eight qualified applicants, including White, were interviewed in July and August of 2013. [80] at 5. Twenty of the thirty-eight interviewees were male, while eighteen were female. [109] at 3.

         During each interview, the Panel posed ten questions, each of which was worth five, ten or fifteen points. [80] 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.

         The 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.

         On 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. Id.

         Defendants “admit that 20 of the 38 [interviewed] applicants were promoted.” [109] 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, [109] 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 candidates.

         White 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.” [90] at 13-14.

         White filed a Charge of Discrimination with the EEOC on June 17, 2014, alleging retaliation and discrimination based upon his race, sex and age. [80] at 8. The original complaint in this lawsuit was filed in September of 2014. [1] at 7.

         II. Legal Standard

         Summary 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).

         III. Analysis

         Plaintiff 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.

         A. Count III - Gender Discrimination Under Title VII

         Title VII of the Civil Rights Act of 1964 prohibits two categories of employment practices. Under Title VII, it is unlawful for an employer:

(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 national origin.

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.”

         1. Disparate Treatment

         Until 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).

         Alternatively, 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.

         The 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 evidence.”[3] Id.

         The 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. ...

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