Summary
finding that even though a police officer's speech did not directly impede her ability to perform her job, her superiors reasonably believed that her speech would negatively impact their ability to achieve their overall goals, which weighed in favor of the government on the third Pickering factor
Summary of this case from Harnishfeger v. United StatesOpinion
3:03-cv-00183-JDT-WGH.
June 28, 2005
ENTRY ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
This Entry is a matter of public record and may be made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
This matter is before the court on Defendants' Motion for Summary Judgment. For the reasons discussed in this entry, Defendants are entitled to the summary judgment they have requested.
I. FACTUAL BACKGROUND AND PROCEDURAL BACKGROUND
Plaintiff, Brenda Mills, was hired by the Evansville Police Department ("EPD") on October 31, 1975. From January 1, 1996, until March 11, 2002, she served as the West Sector Administrative Sergeant, first shift. During this time period, one of Mills's duties was to supervise the Crime Prevention Officers ("CPOs") assigned to the West Sector. CPOs are part of the patrol division and are assigned throughout the city to, in part, interact with neighborhood associations in an effort to reduce the incidence of crime, foster good community relations and deal with quality of life issues.
EPD has a policy that allows some employees the use of a personally assigned vehicle. Standard Operating Procedure ("SOP") 225.00, which controls the use of these vehicles, defines them as follows: "[p]ersonally assigned vehicles are vehicles [that are] owned or leased by the EPD and assigned to an officer on a 24-hour basis." Additionally, the policy portion of SOP 225.00 states that "[p]ersonal vehicle assignment is at the direction of the Chief of Police or his designee and is not an employment right." The department had a plan in place to provide all officer positions with a personally assigned vehicle at the end of five years. At the time in question some positions were allocated a personally assigned vehicle and some were not. As a West Sector Administrative Sergeant, first shift employee, Mills was in a position which was allowed a personally assigned vehicle.
Mills is now retired. However, during the period of time in question Mills's chain of command in ascending order was: Lieutenant Gary Weber, Captain Brad Hill, Deputy Chief Joseph Reed, Assistant Chief Kent Burnsworth and Chief David Gulledge. On January 18, 2002, there was a meeting at the East Sector office of the upper level staff. Mills attended the meeting because her supervisor, Lt. Gary Weber could not attend, however the rest of her chain of command was present. After the meeting, while Mills was in a public lobby area, Gulledge initiated a conversation with Mills that could be overheard by other members of the Department in the area. While there is disagreement over the exact phrasing and tone, both parties agree that the conversation centered around the fact that a CPO was being transferred away from the West Sector. This removal of one CPO from the West Sector would require some patrol beats to share a CPO. Gulledge was concerned because he had heard that the CPOs were contacting neighborhood association members and asking them to contact the Mayor in order to stop the removal of the CPO. During this conversation with Gulledge, Mills expressed her concerns about the change in CPO staffing. To summarize, she stated that the proposal to remove CPOs would not be accepted by the public, that the Neighborhood Associations would want their officer back, and that the complaints the CPOs would be getting, plus the workload, would likely lead to the department scuttling the new resource allocation and restoring the original number of CPOs. From the beginning of this discussion, Taylor, Gulledge, Burnsworth, and Reed were present. Hill joined them in the middle of the discussion.
Standard Operating Procedure (SOP) 388.00, titled "Chain of Command", includes a section titled "Respect for Chain of Command" which opens by stating "Members must show proper respect for the chain of command." Additionally, Article 2 (titled "Conduct Which May Result in the Imposition of Discipline"), Chapter 2, Section 2 (titled "Respect Toward Superior Officers") in the Rules and Regulations Manual states that "Superior officers shall be treated with respect and shall be addressed by their rank."
On January 30, 2002, Mills received a written counseling from Hill which included a "Summary of Counseling" regarding the conversation that occurred on January 18, 2002. SOP 314.00 "Disciplinary Procedure" calls for proper counseling and training to make the employee aware of management's expectations and to help prevent the need for formal discipline." The summary stated:
On January 18, 2002 the chief approached you about seeing that the CPOs did not encourage neighborhood people to contact the mayor to complain about the loss of one CPO in the West Sector. I was not present for the beginning of that conversation which took place in the front lobby of the East Sector office. When I did enter the lobby you were still in discussion with the chief. The rest of your chain of command was also present at that time (Deputy Chief Reed and Assistant Chief Burnsworth). There were also several other people present, coming and going through that area, including the East Sector secretary. At one point in the conversation I heard you say to Deputy Chief Reed that he was wrong more than once about removing a CPO. You said that it was not going to work (functioning with one less CPO) and we would find that out and have to add a CPO back. I would not stifle your expression of your opinion about any action by the police administration, but I felt your expression in that setting, and being a CPO sergeant, was inappropriate. I agree with Assistant Chief Burnsworth's response to you at the time that if you decide something is going to fail it will fail. That attitude does not need to be displayed to the rank and file.
Mills signed a form indicating that she received the counseling, checked a box indicating that she disagreed with the counseling and wrote a memo back in reply. In this memo Mills said that she "definitely agree[d] the time and location of this `discussion' was inappropriate," and that she was confronted and put on the defensive "with no recourse except to respond." Furthermore she indicated that it was possible that part of the conversation was misunderstood.
On March 5, 2002 Mills was notified that she was being transferred from West Sector Administrative Sergeant, first shift, to West Sector Patrol, third shift, effective March 11, 2002. The transfer required Mills to temporarily fill in for a more junior employee who was out on sick leave. On April 24, 2002, Mills was notified that she was going to be transferred from West Sector Patrol, third shift, to South Sector Patrol, third shift, when the employee on sick leave returned. This was to be effective May 1, 2002. Mills verbally requested to remain in the West Sector. Two days later Mills wrote a letter to Hill and her soon to-be commanding officer, Lieutenant Gary Vogel, informing them of some potential problems with her working in a patrol division in South Sector. Hill notified Mills of the recision of the transfer to South Sector, Patrol Division on April 30, 2002, indicating that instead she would be transferred to Support Services Division/Record Room effective that same day. Mills has brought this action against the City of Evansville, EPD and Hill, Reed, Burnsworth and Gulledge in their personal and official capacities, claiming retaliation in violation of her constitutional rights and gender discrimination.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is only to be granted if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). To determine whether any genuine fact exists, the court examines the pleadings and the proof as presented in depositions, answers to interrogatories, admissions, and affidavits made a part of the record. First Bank Trust v. Firstar Info. Servs., Corp., 276 F.3d 317 (7th Cir. 2001). It also draws all reasonable inferences from undisputed facts in favor of the non-moving party and views the disputed evidence in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). However, the non-moving party may not rest upon mere allegations in the pleadings or upon conclusory statements in affidavits; rather he must go beyond the pleadings and support his contentions with properly admissible evidence. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). Only competing evidence regarding facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). And, if the nonmoving party fails to establish the existence of an element essential to his case, one on which he would bear the burden of proof at trial, summary judgment is properly granted to the moving party. Ortiz v. John O. Butler Co., 94 F.3d 1121, 1124 (7th Cir. 1996).
III. ANALYSIS
Mills claims that she was disciplined and transferred as a result of her exercising her First Amendment right to free speech during the discussion with her superiors on January 18, 2002. She argues that she spoke out as both a citizen and a concerned police officer regarding a matter of public concern. It is her contention that the Defendants retaliated in two distinct ways. The first incident of retaliation was the counseling and then there were the transfers which resulted in the loss of her personally assigned vehicle. According to Mills, her transfers were also a result of her being sexually discriminated against by the defendants.
The Defendants argue that Mills's speech was not addressing a legitimate matter of public concern, and that even if it was, the police department has a right to effectively run their department and that this right outweighs any right of Plaintiff's with respect to this particular speech. Additionally, the Defendants argue that they should be protected by qualified immunity. In response to the discrimination claim against them, Defendants argue that Mills has not established a prima facie case and that, even if she had, there were legitimate non-discriminatory reasons for the actions that were taken.
A. First Amendment Violation
In order to support a claim of retaliation in violation of her First Amendment rights, Mills must prove that her speech was a matter of public concern and that it played at least a substantial part in her employer's decision to take an adverse employment action against her. Gustafson v. Jones, 290 F.3d 895, 906 (7th Cir. 2002). "If the plaintiff can carry the burden on these two elements, the Defendants can only prevail if they prove by a preponderance of the evidence that the government's interest, as an employer, in efficiently providing government services outweighs the employee's First Amendment interests, or if they can prove that they would have disciplined the employee even in the absence of the speech." Id.
"Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record." Connick v. Myers, 461 U.S. 138, 147-148 (1983). Content is considered the most important. Wright v. Ill. Dep't of Children Family Servs., 40 F.3d 1492, 1501 (7th Cir. 1994) (citing Yoggerst v. Hedges, 739 F.2d 293, 296 (7th Cir. 1984)). However, "if the speech concerns a subject of public interest but the particular statement or expression only impacts personally upon the employee, then as a matter of law the speech is not of public concern." Id. The content of Mills's speech centered around the removal of a CPO from the West Sector. Defendants argue that the reduction in the CPO force was an "internal Departmental shift of personnel," that it did not generate any news coverage, and that it was not a matter which carried any interest for the general public or news media.
Defendants' arguments are not completely convincing. It is true that courts have found remarks made "for purely personal reasons rather than a desire to air the merits of the issue" were not speech on a matter of public concern. Smith v. Fruin, 28 F.3d 646, 652 (7th Cir. 1994), cert. denied, 513 U.S. 1083 (1995). However, "the fact that the speaker has a personal stake in the subject matter of her speech does not necessarily remove the speech from the scope of public concern." Wright, 40 F.3d at 1501 (citing Marshall v. Porter County Plan Comm'n, 32 F.3d 1215, 1219; Breuer v. Hart, 909 F.2d 1035, 1039 (7th Cir. 1990)). There is no doubt that the removal of a CPO underneath Mills's command would specifically affect her job, however the allocation of police officers also affects public safety. While it is accurate to say that Mills's speech was not in the news, not intended to spark public debate and did not generate news coverage, this alone is not sufficient to determine that speech is not of public importance. See, e.g., Givhan v. W. Line Consol. Sch. Dist., 439 U.S. 410, 415-416 (1979) (stating "Neither the Amendment itself nor our decisions indicate that this freedom is lost to the public employee who arranges to communicate privately with his employer rather than to spread his views before the public."). Taken in a light most favorable to Mills, her speech was not necessarily purely motivated by personal interest. Both Mills and the Defendants have acknowledged the importance of the CPO program and that the public would be affected and concerned by changes in the program. As the courts have continuously found, it would be difficult to find a matter of greater public concern in a metropolitan area than public safety. E.g., Auriemma v. Rice, 910 F.2d 1449, 1460 (7th Cir. 1990), cert. denied, 501 U.S. 1204 (1991).
Since her speech was related to a matter of public concern, the next question is whether or not it played a substantial part in any decision which resulted in an employment action adverse to Mills. Gustafson, 290 F.3d at 906. Mills's speech did play a part in the department's decision to transfer her. While the Defendants do give several other reasons for her transfer, they acknowledge that one of the reasons was because her comments implied that a less than resolute effort at making the new CPO distribution plan work in her sector might be forthcoming. In short, they were concerned "that the Chief's policy would not be faithfully implemented." Because her speech played a part in her transfer, as established through the deposition testimony of the individual defendants, Mills has satisfied the two prerequisites to proceeding with her First Amendment claim. Defendants may still prevail, but only if they prove by a preponderance of the evidence that, as an employer, the government's interest in efficiently providing services outweighs the employee's First Amendment interests or that it would have transferred Mills regardless of the speech. Id. The Defendants argue only the former. That is, that the EPD had a strong interest in the success of their policy of reallocating public safety resources and had reason to believe Mills was not willing to give the reallocation a chance to work.
At first blush it might appear that the counseling Mills received was also a result of her speaking out against the reallocation of CPOs. But, upon closer examination there is a clear distinction present. It is important to distinguish that the counseling was a result of the method of expression and the setting for the discussion instead of the content of the speech itself. This point is reinforced by the fact that the summary of counseling from Captain Hill explicitly states "I would not stifle your expression of your opinion about any action by the police administration, but I felt that your expression in that setting, and being a CPO sergeant, was inappropriate." Mills, herself, alluded to the fact that the time and location of the discussion was of concern to her as well, but suggested that neither was her choice. While the court accepts for purposes of the motion that it was her superior who started the conversation in the public area, whether or not that is accurate has nothing to do with whether or not the counseling resulted from the substance of her speech or the manner and place where it occurred. The court finds that there is no evidence which would contradict the fact that the counseling was a result of the manner and tone of expression chosen by Mills and the time and location where it occurred, as opposed to the content of her speech.
Mills has successfully carried the burden with respect to the first two elements, that her speech was protected speech and that it played a substantial role in her transfer. At this point, the burden shifts to the Defendants to prove "that the interest of the public employee as a citizen in commenting on the matter is outweighed by the interest of the state, as employer, in promoting effective and efficient public service." Gustafson, 290 F.3d at 909. That requires the court to engage in a very fact sensitive inquiry. Id.
In determining a public employee's rights of free speech, the problem is to arrive at a balance between the interests of the employee, as a citizen, in commenting on matters of public concern and in the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees. Connick, 461 U.S. at 140. It is this balancing of interests which the Supreme Court has indicated must be done when a trial court is asked to consider a question of a public employee's First Amendment rights. Pickering v. Bd. of Educ. of Township. High Sch. Dist. 205, 391 U.S. 563, 568 (1968). The factors a court considers in applying the Pickering balancing test include (1) whether the speech would create problems in maintaining discipline or harmony among co-workers; (2) whether the employment relationship is one in which personal loyalty and confidence are necessary; (3) whether the speech impeded the employee's ability to perform her responsibilities; (4) the time, place and manner of the speech; (5) the context within which the underlying dispute arose; (6) whether the matter was one which debate was vital to informed decision-making; and (7) whether the speaker should be regarded as a member of the general public. Greer v. Amesque, 212 F.3d 358, 371 (7th Cir. 2000).
In Gustafson, after setting forth the seven interrelated factors to consider, the Court of Appeals for the Seventh Circuit affirmed a trial verdict in favor of two plaintiff Milwaukee police officers who were critical of a Deputy Inspectors's roll call order forbidding certain follow up investigations without his specific approval. Gustafson, 290 F.3d at 901-902. The officers felt that the order was in conflict with other departmental orders and not only jeopardized the public, but put them in the untenable position of receiving a serious complaint regarding a dangerous individual from a citizen without the ability to follow up on any initial efforts to investigate the complaint because they may not be able to find the Deputy Inspector to get his permission. Id. Accordingly, the officers in Gustafson went to one of their union leaders who talked them into allowing him to go public with the potential public safety dangers associated with the order in order to pressure the department to change its course. Id. at 902. The union leader wrote the Chief of Police and copied elected officials and the local papers. Id. at 902-903. The officers were transferred out of their department and brought suit claiming that the Deputy Inspector and Chief of Police caused them to be transferred and prevented their return to the department in retaliation for their public speech on the issue of the roll call order. Id. at 904. The Court of Appeals found there to be insufficient evidence introduced at trial to support a conclusion that the officers speech had any disruptive effect on the department or that the defendants had any real concern that it did. Id. at 910. As to an argument that the department should be allowed to take action on the basis of the "potential disruptiveness" of an employee's speech, the Court found that such an argument could not be raised for the first time on appeal. Id.
As to the relevant Pickering factors, Mills argues that there was no disruptive effect on the Department and points to that part of the Gustafson decision which states: "First Amendment rights cannot be trampled based on hypothetical concerns that a governmental employer never expressed. . . ." Gustafson, 290 F.3d at 910. However, the department did express concern about discipline and morale. Chief Gulledge testified at deposition that he believed that the open manner in which Mills challenged the policy and the attitude she exhibited would disrupt morale and make it more difficult for her to interact and supervise those in her sector with respect to implementation of the CPO reduction program. Indeed, unlike Gustafson, where there was no evidence that the superior officers felt the speech at issue to have a disruptive affect, all in the chain of command above Mills felt there was a need to provide discipline or counseling after Mills's speech, because of the manner in which she chose to challenge the policy, thereby confirming a concern for the disruptive nature of the speech. "An employer is allowed to act on the basis of the `potential disruptiveness' of an employee's speech and that it need not wait for `events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking action.'" Gustafson 290 F.3d at 910 (quoting Connick, 461 U.S. at 151). As the Seventh Circuit stated in Campbell, "[i]t surely cannot be doubted that individuals who work in the highest echelons of the command of a police department must be assured of their immediate subordinates, as these subordinates are entrusted with carrying out their orders at times under the most trying conditions. Campbell, 99 F.3d at 829.
The second factor to consider in balancing the parties' interests is the importance of loyalty and confidence vis-a-vis the particular employment relationship at issue. When close working relationships are essential to fulfilling public responsibilities, the employer must be given wider latitude in exercising its judgment. Connick, 461 U.S. at 152-153. A police department "is a paramilitary organization built on relationships of trust and loyalty, and as such the judgment of police officials regarding the disruptive nature of an officer's speech is entitled to considerable — although by no means complete — deference." Gustafson, 290 F.3d at 910 (citing Waters v. Churchill, 511 U.S. 661, 677 (1994)). Again, unlike Gustafson, Mills's superiors were quite frank in their assessment of the reasons for her transfer, stating that their confidence in her willingness to faithfully advance the policy decision made was severely eroded by both the nature and content of her criticism.
Strictly speaking, Mills's speech did not impede her ability to perform her job in the traditional sense. It did not keep her from performing any particular tasks and she did not miss any work because of it. However, the speech did indicate that she had some serious disagreements with the policy and it left an impression of less than full cooperation on her part in the implementation of the policy. The Chief wanted someone who would further his policy to be working in Mills's position, and certainly had a basis to believe that she was no longer the best person for the job. See, e.g. Campbell, 99 F.3d at 829 (demonstrating an example where an officer loses faith in one of his subordinate officers after receiving a memo from him indicating he did not agree with a policy). So, while the speech did not immediately impede her ability to work, it was reasonable for her superiors to believe that her statement that "it won't work" indicated that she might not try as hard to achieve the goals of the policy.
Time, place and manner of the speech is the fourth of the interrelated factors the court is called on to consider. After the staff meeting, Gulledge approached and initiated the conversation with Mills in the lobby, so in a sense he chose the time and place of the discussion. However, Gulledge was approaching Mills about making sure the CPOs were not contacting the neighborhood associations. He had little way of knowing that Mills would expand upon the subject to openly express her doubts about the policy in an area where others could hear. Mills, certainly could have indicated that she wished to discuss the policy with Gulledge or the others at a more private location. More importantly though, Mills's speech was delivered in an area accessible to the public and some people may have overheard part of it, but she was not trying to deliver a message to the public or take part in a public debate. She was responding to a superior officer while on duty after having been asked a question. This is not a case where the employee was acting as a whistle blower and bringing some illegal act of a superior officer to light. See, e.g., Breuer, 909 F.2d at 1035 (finding that the sheriff's interest in running an effective tight-knit police department outweighed a deputy sheriff's interest in publicly speaking out against the sheriff's favoritism and theft within the department). Nor was this an instance where a public employee elected to speak out at a public forum on a particular topic. See City of Madison Joint Sch. Dist. No. 8 v. Wis. Employment Relations Comm'n, 429 U.S. 167 (1976). Unlike Gustafson, where the officers felt compelled to allow the intentional airing of their criticism in a most public fashion, Mills was not seeking to change the policy through swaying public opinion, but just happened to choose a public area to criticize the decision of her superiors.
Whether Mills's speech was vital to informed decision making may be debatable. While Mills's opinion as a sector sergeant would have intrinsic value to the Chief with respect to any decision he might make regarding the CPOs, the discussion occurred after the meeting which had been called in part to determine the feasibility of redrawing district lines and reallocating personnel. The value of her after-the-fact comments that the policy would not work and that the department would eventually go back to having the additional CPO in her sector, with little more, is limited. The comments were more in the nature of post-act criticism than constructive disagreement and exchange.
While Mills was speaking about a concern she had both as a citizen and as an employee of the EPD, her speech was initiated by answering a question from a superior officer in an EPD office building immediately after a meeting that both had attended. At the time, she was acting as a sergeant in the EPD and her primary role at the time was not as a member of the general public. While for purposes of this motion the court found that the speech at issue was with respect to a matter of public concern, because they were not solely motivated by a personal concern, the context of her comments clearly indicates that they were made more from the perspective of a police sergeant than a citizen. "The stronger the employee's interest in speaking, the more substantial a showing the state must make to justify restriction of that speech." Gustafson, 290 F.3d at 909. In this case, where the speaker was speaking while performing her job, answering the questions of a superior officer and not specifically trying to deliver her opinion to the public, the speech weighs in much lighter than if she were speaking at a public meeting on the topic or expressing her opinion to the mayor. It does not come close to countering the employer's very significant interest in maintaining discipline and morale and the department's need to be confident of an officer's personal loyalty.
In conclusion, there has not been a violation of Mills's First Amendment rights. Her speech did touch upon issues of public concern, namely public safety, and while her motivation is murky, it must be assumed that she was acting as both a concerned citizen and as an aggrieved employee. Additionally, because it has been established that the speech did play a part in both the counseling and the transfer, she has fulfilled the first two requirements for a retaliation claim as laid out in Gustafson. However, upon examining the factors under the Pickering balancing test, it quickly becomes evident that EPD's interest in running an efficient department, including their need for discipline, loyalty and confidence outweighs Mills's interest in this particular instance where she was addressing a superior officer while on duty. Because of the outcome of the Pickering balancing test, there has not been a violation of Mills's constitutional right to free speech.
Defendants Gulledge, Burnsworth, Reed and Hill argue that they are entitled to qualified immunity under these circumstances and should be dismissed from the lawsuit. "A court required to rule upon the qualified immunity issue must consider, then, this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Saucier v. Katz, 533 U.S. 194, 201 (2001). Because the court has determined that there was no constitutional violation, further inquiry concerning qualified immunity is unnecessary. Id.
B. Gender Discrimination
Plaintiff is without the rare benefit of direct evidence of discrimination and admits to proceeding in an attempt to present sufficient circumstantial evidence to establish discrimination. "To establish a prima facie case of sex discrimination under the indirect or burden-shifting, method, the employee must demonstrate that: (1) she is a member of a protected class; (2) she was performing her job satisfactorily; (3) she suffered an adverse employment action; and (4) at least one similarly situated employee, not in her protected class, was treated more favorably." Wyninger v. New Venture Gear, Inc., 361 F.3d 965, 978 (7th Cir. 2004). "Only after plaintiff establishes a prima facie case does the burden shift to defendants to articulate a nondiscriminatory justification for the action. Once defendants do so, plaintiff must present sufficient evidence to create a triable issue concerning whether this justification is pretextual." O'Neal v. City of Chicago, 392 F.3d 909, 911 (7th Cir. 2004).
As to the first element, Mills is a member of a protected class as "all men and women are in [a] sex discrimination case." Brill v. Lante Corp., 119 F.3d 1266, 1270 (7th Cir. 1997). So, the dispute starts at element two.
As the Court of Appeals for this circuit has stated: "Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. is not an insurance policy against unemployment for poor or insubordinate job performance." Kirk v. Fed. Prop. Mgmt. Corp., 22 F.3d 135 (7th Cir. 1994). Mills asserts that during her career she performed her job satisfactorily. The Defendants generally agree with respect to past performance; however, they do point out six cases of discipline, including the current case of counseling over Mills's 27 years of employment. While not taking issue too much with Mills's past performance, Defendants strenuously maintain that the counseling shows that at the time of the transfer, Mills was not performing her job satisfactorily. As the Defendants are quick to point out, "when a district court evaluates the question of whether an employee was meeting an employer's legitimate employment expectations, the issue is not the employee's past performance but whether the employee was performing well at the time of [the disputed employment action.]" Peele v. Country Mut. Ins. Co., 288 F.3d 319, 329 (7th Cir. 2002) (finding that the plaintiff's long term satisfactory performance review was not sufficient when she had more recently assumed a new role and that role was being performed unsatisfactorily). It is undisputed that except for Weber, Mills's entire chain of command was present for the discussion at issue. Mills's own testimony establishes a question of fact as to the volume level and heatedness of her comments; however, each of those in the chain of command believed that she was acting disrespectful to a superior officer. This perceived disrespect violated established EPD rules that are contained in SOP 388.00 and the Rules and Regulations Manual, Article 2, Chapter 2, Section 2. It also serves as a firm foundation for her superiors taking action based upon an assessment that she was not performing to the expectations of her employer.
Mills claims that the transfers were adverse employment actions. The transfer away from West Sector Administrative position, resulted in the loss of a personally assigned vehicle. It is important to note that the personally assigned vehicles were assigned to positions and not individuals, and that it was a function of Mills's transfer that resulted in the loss of the vehicle. Additionally, with a plan underway to provide personally assigned vehicles to all positions, including the one that Mills was transferred to it is extremely doubtful that this was in any way an effort to single her out. Regardless there is enough perceived value in holding a position which is assigned a vehicle that the transfer to one without such a vehicle assigned to it must be considered an adverse employment action when viewed in a light most favorable to Mills.
The subsequent transfer orders however are not adverse employment actions. The transfer to South Sector Patrol, would of been "a purely lateral transfer, that is, a transfer that does not involve a demotion in form or substance, [and] cannot rise to the level of a materially adverse employment action." Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996); see, also, e.g. O'Neal, 392 F.3d at 911 (finding that the transfer of an officer from a Narcotics Unit to the position of beat sergeant was not an adverse employment action). However, this transfer order was rescinded at Mills's own request. Because Mills was filling in for an officer on sick leave, there was no question that she would be moved to another position of some sort. After she objected to the first choice, there was still a need to transfer her. So, Mills was transferred to Support Services Division/Record Room, not to the South Sector as originally contemplated.
Addressing the last element required to establish a prima facie case, Mills attempts to identify several male employees that are similarly situated that were treated differently. These employees are not similarly situated. First, Mills suggests that the other two Administrative Sergeants who were not transferred were similarly situated. They were not. Mills was the only one of the three that spoke up expressing disagreement with the policy of removing a CPO. Mills then suggests that the injured Sergeant whose place she took while he was out on sick leave was similarly situated and could have been transferred. The officer was taking a temporary leave from his employment for health reasons and was expected to return to his normal position. Mills, on the other hand, was in a temporary position at this point. Her time in that role was expected to end upon the other officer returning to work. The two were not similarly situated. Mills also argues that the other two Sergeants on the West Sector third shift had less seniority than her. This does not establish that they are similarly situated to her for many of the same reasons. They were in their regular positions as opposed to Mills who was in the position of temporarily filling in for someone who was out on sick leave. In addition, there is no evidence of record that seniority plays a significant role in transfers. While the record could support a finding that seniority matters when placements are made at the beginning of a year, especially as pertains to the rank and file, there is no question of fact that seniority is not a guarantee of receiving a particular work assignment and that departmental needs are paramount with regard to placement on any transfer.
When a plaintiff does not establish a prima facie case "an employer may not be subjected to a pretext inquiry". Peele, 288 F.3d at 327. The Plaintiff here failed to establish a prima facie case. However, even if she had, the Defendants carried their burden of successfully showing that they had a non-discriminatory reason for each of the transfers. The burden then shifts back to the Plaintiff to prove that the reasons provided are a pretext. To establish that an employer's reasons are pretext, an employee must show either: (1) that the employer was more likely motivated by a discriminatory reason, or (2) that the employer's proffered reason is unworthy of credence. Staples v. Pepsi-Cola Gen. Bottlers, Inc., 312 F.3d 294, 299 (7th Cir. 2002).
As a basis for Mills's first transfer, from West Sector Administrative Sergeant, first shift, to West Sector Patrol, third shift, the Defendants provide three reasons: 1) the need to have the local Fraternal Oder of Police president on a day shift, 2) that Mills had expressed a desire for a third shift patrol position and 3) that because of the discussion with Mills that resulted in the counseling, the Chief did not believe that Mills would faithfully implement his policy regarding the CPOs. The Defendants further explain that the final transfer to Support Services Division/Record Room was a result of Mills's memo to Captain Hill in which she disclosed some potential problems with her working in the Patrol division in South Sector.
The local FOP president took over in Mills's old position as West Sector Administrative Sergeant on first shift.
Mills denied requesting a transfer to a third shift position, therefore any allegations on the part of Defendants regarding a request for a third shift position on her part only creates a question of fact. However, the Defendants have produced other non-discriminatory reasons, specifically the loss of faith in Mills in her position as Administrative Sergeant and the custom of having the FOP president on a day shift, which are not open to question on the record before the court. Mills fails to show that these reasons are pretext. Mills argues that Defendants do indeed rely upon seniority when transferring officers to different positions. Thus, she says, Defendants have lied and the court should infer intentional discrimination. The only evidence offered by Mills to support her conclusion that seniority plays a significant role in transfer placements is that when the FOP president was transferred to first shift there was a day time position open in the Detective Office, but that position was given to someone with more seniority than the FOP president. She does not provide any evidence that the FOP president desired the detective position, but was turned down due to lack of seniority. For that matter, she does not provide any evidence that seniority played any role in the transfer process at all.
Mills fails to establish a prima facie case of gender discrimination because she was not performing her job satisfactorily at the time of the actions in question, and she was not able to show a similarly situated male employee who was treated more favorably. Additionally, Defendants provided evidence showing nondiscriminatory justification for all of their actions. Mills has insufficient evidence of pretext to cause a reasonable jury to doubt those reasons. As a result, Mills has failed to make a case of gender discrimination.
IV. CONCLUSION
Plaintiff claims that she was disciplined and transferred in retaliation for her choice to speak out on a matter of public importance and that her transfer was alternatively a result of gender discrimination. While Mills has established in part that the speech was protected, the Defendants have shown that their interest in running an efficient and disciplined police department outweighs her interest in this particular instance. Regarding the gender discrimination claim, Mills failed to establish a prima facie case and, additionally, the Defendants articulate nondiscriminatory justifications for their actions. Defendants' Motion For Summary Judgment is GRANTED. Final judgment will be separately entered in favor of Defendants.
ALL OF WHICH IS ORDERED.