United States District Court, N.D. Illinois, Eastern Division
CARRIE M. WARREN Plaintiff,
KENDALL COUNTY SHERIFF DWIGHT BAIRD, in his official capacity and as successor in office to Richard Randall, et.al., Defendants.
Kendall County Sheriff Dwight Baird, Kendall County, Richard
Randall, Scott Koster, and Sabrina Jennings, Julie A. Bruch
One of their attorneys
A. Bruch, #6215813 O'Halloran Kosoff Geitner & Cook,
Rowland Magistrate Judge
DEFENDANTS' SECOND MOTION FOR JUDGMENT AS A
MATTER OF LAW
Kendall County Sheriff Dwight Baird, in his official capacity
as successor in office to Richard Randall (hereinafter
“the Sheriff's Office”); Kendall County,
Illinois; Richard Randall; Scott Koster; and Sabrina Jennings
move for judgment as a matter of law in their favor and
against the plaintiff under Federal Rule of Civil Procedure
50. In support of this motion, defendants state as follows:
Carrie Warren has presented the following claims at trial:
(1) Title VII gender discrimination claim against the
Sheriff's Office and (2) section 1983 equal protection
claims of gender discrimination against the Sheriff's
Office, Randall, Koster, and Jennings. As a matter of law,
based on the evidence presented thus far at trial, no
reasonable jury could find for Warren on any of her claims.
time before a case is submitted to the jury, a party may move
for judgment as a matter of law under Rule 50 of the Federal
Rules of Civil Procedure. Fed. Civ. P. 50(a)(2). Rule 50
authorizes the entry of judgment as a matter of law if a
reasonable jury would not have a legally sufficient
evidentiary basis to find for the party on that issue.
Fed.R.Civ.P. 50(a)(1); Hall v. Forest River, Inc.,
536 F.3d 615, 619 (7th Cir. 2008). “In other words, the
question is simply whether the evidence as a whole, when
combined with all reasonable inferences permissibly drawn
from that evidence, is sufficient to allow a reasonable jury
to find in favor of the plaintiff.” Id.
No reasonable jury can find that Warren's gender was a
motivating factor in her
Supreme Court has described a “mixed-motives”
case as one in which “an employee alleges that he
suffered an adverse employment action because of both
permissible and impermissible considerations.”
Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 171,
129 S.Ct. 2343, 174 L.Ed.2d 119 (2009). If an employee in a
mixed-motive case establishes that her gender, for instance,
was a motivating factor for the employment action, the burden
shifts to the employer to prove by a preponderance of the
evidence that it would have made the same decision regardless
of the plaintiff's gender. Rapold v. Baxter Int'l
Inc., 718 F.3d 602, 609 (7th Cir. 2013), as amended on
denial of reh'g and reh'g en banc (June 3, 2013). The
employer may avoid a finding of liability only by proving by
a preponderance of the evidence that it would have made the
same decision even if it had not taken the plaintiff's
gender into account. Desert Palace, Inc. v. Costa,
539 U.S. 90, 93, 123 S.Ct. 2148, 2151, 156 L.Ed.2d 84 (2003).
same standards of establishing intentional discrimination
apply to Warren's claims of gender discrimination under
Title VII and equal protection. See Salas v. Wisconsin
Dep't Corr., 493 F.3d 913, 926 (7th Cir.2007)
(“The only difference is that a Title VII claim is
against an employer, while an equal protection claim is
against individual employees.”). Warren must prove that
the defendants intentionally discriminated against her based
in part upon her sex. Hong v. Children's Memorial
Hospital, 993 F.2d 1257, 1261 (7th Cir. 1992). The legal
standard is “whether the evidence would permit a
reasonable factfinder to conclude that the plaintiff's .
. . sex . . . caused the discharge.” Ortiz,
834 F.3d at 765. “Evidence must be considered as a
whole, rather than asking whether any particular piece of
evidence proves the case by itself .... Relevant evidence
must be considered and irrelevant evidence
instant case, Warren cannot show that her gender was a
motivating factor or that it played any part in
Defendants' decision to terminate her. Jennings testified
that Warren's gender played no role in her decision to
terminate Warren. Koster testified that in reviewing
Jennings's disciplinary recommendations, he never saw any
indication that she was recommending harsher discipline of a
deputy because of gender. (Trial transcript, Vol 2-B, p.
337). Koster and Randall both testified that they never
considered gender when deciding that Warren should be
terminated for her untruthfulness. (Trial transcript, Vol
2-B, pp. 336-337; Trial transcript, Vol 3-B, p. 535, 573).
Koster also testified that hiring and retaining female
correctional deputies is particularly challenging because the
jail environment is not one that attracts many candidates.
Koster opined that they receive 10 or more applications from
males for every 1 application from a female. The jail needs
female deputies to serve the female prisoner population so
the loss of a female deputy under any circumstance is very
difficult on their operations. Despite the potential strain
on operations from losing a female deputy, Koster did not
create more lenient standards for Warren because of her
gender. (Trial transcript, Vol 3-A, pp. 437-438, 510-511).
The record is completely void of any evidence to support the
notion that Warren's gender played a role in her
and Jennings testified at length about the male deputies who
were disciplined for their various infractions of the Code of
Conduct. In fact, Koster testified that the Sheriff's
Office produced over 3000 pages of disciplinary records for
the corrections division alone and that each year he reviews
hundreds of disciplinary reports. (Trial transcript, Vol 3-A,
p. 458). If a male deputy had done what Warren did, Koster
would have recommended termination for that male deputy.
(Trial transcript, Vol 3-B, p. 536). Although the
Sheriff's Office never had a deputy untruthful to the
extent that Warren was, they did have two male deputies, Dean
and Geisen, who were untruthful during formal interrogations
and were terminated. No. deputy, other than Warren, had been
untruthful during a formal interrogation and then enlisted a
third party to make a statement that by the third party's
own admission was false. (Trial transcript, Vol 3-A, p. 434).
Because Jennings did not cause or participate in the decision
to fire Warren, she cannot be liable on the Section 1983
individual defendant to be liable under section 1983, he or
she must have participated directly in the constitutional
violation. “Section 1983 creates a cause of action
based on personal liability and predicated upon fault; thus,
liability does not attach unless the individual defendant
caused or participated in a constitutional
deprivation.” Hildebrandt v. Illinois Dep't of
Nat. Res., 347 F.3d 1014, 1039 (7th Cir. 2003).
Commander Jennings initiated the investigation into
Warren's jury service but Chief Koster took over the
investigation and independently gathered additional evidence
and made the recommendation to Sheriff Randall to terminate
Warren's employment for reasons different than those
recommended by Jennings. (Trial transcript, Vol 2-B, pp.
360-361, 368; Trial transcript, Vol 3-A, pp. 441-442).
Warren's most egregious misconduct of presenting a
redacted cell phone record and claiming that a redacted call
came from her travel agent Fidler occurred after Jennings
relinquished control of the investigation. (Trial transcript,
Vol 2-B, pp. 375-378, 381-383; Trial transcript, Vol 3-A, pp.
429-430). Koster testified that he independently made the
decision to recommend Warren's termination. (Trial
transcript, Vol 2-B, pp. 368; Trial transcript, Vol 3-A, pp.
429-435, 437). Therefore, Jennings is entitled to judgment as
a matter of law on this claim because she was not the
decision maker and did not cause or participate in the
ultimate decision to terminate Warren's employment.
See Harris v. Warrick County Sheriff's Dept.,
666 F.3d 444, 448 (7th Cir. 2012)(“to prove employment
discrimination, a plaintiff needed direct or circumstantial
evidence ‘that the decisionmaker has acted for a
prohibited reason.'”); Woods v. City of
Berwyn, 803 F.3d 865, 870 (7th Cir. 2015)(“[A]
determination apart from the biased subordinate's
recommendation can break the chain of causation.”).
Warren was fired not because she is a woman, but because she
noted above, Warren's March 2014 termination followed an
investigation into her conduct during jury duty that was
initiated by a complaint to the Sheriff's Office from
Kendall County Chief Judge Tim McCann and Judge Robert
Pilmer. Following his investigation, Chief Koster concluded
that Warren had been untruthful in violation of the
Sheriff's Office Code of Conduct during the formal
investigation into the circumstances of her release from jury
duty, and in connection with that investigation she
fabricated evidence. (Trial transcript, Vol 3-A, pp.
contends that such conduct was not worthy of termination, but
courts have repeatedly stated that employers “may
terminate an employee for a good or bad reason without
violating federal law. Flowers v. Troup County, Ga.,
School Dist., 803 F.3d 1327, 1338 (11th Cir. 2015).
Multiple courts have found that terminating law enforcement
officers for untruthfulness is a legitimate basis for
termination. Therefore, the untruthful law enforcement
officer was not qualified for the job. For example, in
Thomas v. Johnson, 788 F.3d 177 (5th Cir. 2015), a
provisionary border patrol agent was terminated for lack of
candor and the Fifth Circuit found that lack of candor is a
legitimate basis for termination. In Gilty v. Village of
Oak Park, 919 F.2d 1247 (7th Cir. 1990), the court
affirmed summary judgment in favor of the Village of Oak Park
on a race discrimination claim after the police chief fired a
black police officer for falsifying his academic ...