Lewis, Donna L. v. Chicago Police Dept ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2302
DONNA L. LEWIS,
Plaintiff-Appellant,
v.
CITY OF CHICAGO and TERENCE WILLIAMS,1
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 C 6050—Ruben Castillo, Judge.
____________
ARGUED FEBRUARY 6, 2007—DECIDED JULY 26, 2007
____________
Before KANNE, WOOD, and WILLIAMS, Circuit Judges.
KANNE, Circuit Judge. Plaintiff Donna Lewis is a police
officer in the Chicago Police Department. She alleges
sex discrimination and retaliation claims under Title VII
and 42 U.S.C. § 1983 against her former supervisor
Lieutenant Terence Williams, the Department and the
City of Chicago. The district court granted the defendants’
1
The City of Chicago is the real party in interest for claims
against the Chicago Police Department and therefore we have
adjusted the caption accordingly. See Chan v. Wodnicki, 123
F.3d 1005, 1007 (7th Cir. 1997).
2 No. 06-2302
motion for summary judgment on all claims. We affirm the
judgment as to the Monell claim against the City but
otherwise reverse.
I. HISTORY
Lewis graduated from the Chicago police academy in
1998 and began her career in the Department as a patrol
officer. In 2000, she was transferred to a Tactical Unit
where she was a plain clothes officer dealing regularly
with drug dealers and gangs. At the Tactical Unit, the
chain of command had Lewis reporting directly to a
sergeant who in turn was supervised by a lieutenant.
By 2002, defendant Williams was Lewis’s supervising
Lieutenant.
In the late summer of 2002, the Washington, D.C. police
department sought assistance from various police depart-
ments, including Chicago’s, in anticipation of likely
demonstrations during a forthcoming International
Monetary Fund meeting. Chicago’s Chief of Patrol, James
A. Maurer, issued a memorandum on September 11, 2002
to various units in the Department setting forth a re-
quest for volunteers and establishing a selection proce-
dure.
Pursuant to the memorandum:
! Participating officers would travel to Washington,
D.C. on Friday, September 27th, work on Saturday
and Sunday, September 28th and 29th, and return
to Chicago on September 30th.
! Only Tactical, Gang or Special Operations Sections
officers who completed riot training in September
2002 were eligible to participate.
! Qualifying officers would need to be on either
furlough or regular days off to qualify.
No. 06-2302 3
! Officers would receive overtime pay for the time
they spent traveling and working in Washington,
D.C.
The memorandum also noted that the Department
might send “several hundred officers and supervisors” to
the IMF rally, and “that this could serve as an excellent
on-the-job training exercise” in light of a future demon-
stration then scheduled for Chicago in November 2002.
Appellant’s Appx. 885.
Additionally, the memorandum stated that, “Because of
hotel accommodations, a lone female officer will not be
sent since there are two (2) persons to each room. There-
fore, recommend a minimum of two (2) female officers.” Id.Despite Chief Maurer’s use of the phrase “lone female
officer” in the memorandum, the defendants claim that
“Chief . . . Maurer intended to convey that [the Depart-
ment] had a limited number of hotel rooms, so an odd
number of either gender would not be chosen.” Appellees’
Brief at 9.
Lewis qualified for the IMF Detail and wanted to attend.
She completed the necessary form and provided it to
her supervisor, Sergeant Melean, in a timely fashion in
compliance with the procedure established by Chief Mau-
rer’s memorandum. Her name was initially placed on the
list of IMF attendees from her unit. However, Lewis’s
name was removed from the final list submitted from her
unit and she would not go to Washington, D.C.
The defendants’ explanation is that Lewis’s unit did not
have another qualified female officer interested in going
to Washington, D.C. Lieutenant Williams determined
that Lewis was the “odd woman out” and therefore re-
moved her name from the list in conformance with Chief
Maurer’s memorandum.
Lewis, however, believes the defendants’ explanation is
hogwash. According to Lewis, she questioned Williams
4 No. 06-2302
about being removed from the list. Williams allegedly
responded that he took her name off the list “because [she]
was a female,” and that “it was going to be a working trip,
and he thought it would be dangerous and that [she] would
thank him for it later.” Appellant’s Brief at 7. Williams
denies making this statement.
Lewis argues that the issue of avoiding an odd number
of officers for rooming purposes is a pretextual argument
masking discrimination against her. She claims that a
fellow qualified female officer, Officer Regan, was never
informed about the IMF Detail. Thus, Lewis implies that
Williams intentionally tried to prevent her from obtain-
ing a partnering officer for the IMF Detail. Additionally,
Lewis claims that other units in the Department contacted
each other in an attempt to pair up single officers.
If Chief Maurer’s intention was to avoid an odd number
of participants of either gender on the IMF Detail for
rooming purposes, the Department was unsuccessful in
achieving this task. The record contains a document
entitled “Fall 2002 IMF / World Bank Conference—
Washington, D.C.” that lists the officers who attended the
IMF Detail and corresponding hotel room numbers for
these officers. Appellant’s Appx. 873-80. According to
this list, 245 male officers and 17 female officers attended
the IMF Detail in Washington, D.C. Most officers shared
a hotel room with a fellow officer of the same gender.
However, four officers had a room to themselves. Three of
the four were male officers: Lt. Flynn in Room 338, Officer
Marin in Room 363, and Officer Saez in Room 446. The
fourth officer, a female, Officer Varela is listed by herself
in Room 426. The record is silent as to whether there
were accommodations available for three officers in a
single room such as a roll-away bed.
The parties dispute whether Lewis was denied any
benefit due to her absence from the IMF Detail. Lewis
No. 06-2302 5
argues that she lost out on approximately $1,000 in
overtime earnings. She also believes that the IMF Detail
was a “once in a lifetime opportunity” that would have
been “great” on her resume. The defendants counter that
Lewis does not point to any lost promotional opportunities.
The defendants also note that Lewis was able to partici-
pate in other similar details in Chicago and Lewis did not
place these details on her resume.
At the end of September 2002, Lewis filed a grievance
with the union over the IMF Detail and later filed a
complaint with the EEOC. She alleges that Williams
retaliated against her in response to her complaints. The
alleged retaliation included sending Lewis on dangerous
assignments without sufficient support in violation of
Department policy. She was also transferred from the
Tactical Unit to a Gang Unit. The transfer, according to
Lewis, was in retaliation as the Gang Unit provided her
less opportunities for advancement and overtime. The
transfers and disruptions also included new partners that
Lewis did not know or trust leading her to believe that
Williams was trying to place her in compromising and
dangerous situations. Lewis also requested a transfer to
the Special Operations Section but this request was
denied. The Special Operations Section was not supervised
by Williams. Lewis believes that Williams denied her
request for a transfer in order to continue his retaliation
against her. Lewis also claims that she made several
complaints to various supervisors above Williams about
his discrimination and retaliation. She argues that
these other supervisors failed to take action and this
is part of a pattern and practice in the Department to
ignore discrimination claims.
Lewis is now on permanent disability leave after a fellow
officer hit her in the head with a sledgehammer when she
was assisting in a forced entry during a narcotics investi-
gation. Lewis does not provide any evidence that her
6 No. 06-2302
injury was anything other than an accident. However, she
does point out that Williams ordered her to assist the
narcotics team and she also complains about the City’s
failure to provide her proper medical care.
II. ANALYSIS
“We review grants of summary judgment de novo.”
Lummis v. State Farm Fire & Cas. Co., 469 F.3d 1098,
1099-1100 (7th Cir. 2006) (citing Hrobowski v. Worthington
Steel Co., 358 F.3d 473, 475 (7th Cir. 2004); Rogers v. City
of Chicago, 320 F.3d 748, 752 (7th Cir. 2003)). Summary
judgment is proper “if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” FED. R. CIV. P.
56(c).
A. Sex Discrimination Claims as to the IMF Detail
Lewis’s claims against the City arise under Title VII
and her claim against Williams is brought pursuant to
§ 1983. See Fairley v. Fermaint, 482 F.3d 897, 903-04 (7th
Cir. 2007). However, we analyze Lewis’s Title VII and
§ 1983 sex discrimination claims arising from her inability
to participate in the IMF Detail in the same manner.
Burks v. Wisconsin Dep’t of Transp., 464 F.3d 744, 750 n.2
(7th Cir. 2006) (citing Williams v. Seniff, 342 F.3d 774, 788
n.13 (7th Cir. 2003)).
It is unlawful to “discriminate against any individual
with respect to [her] compensation, terms, conditions, or
privileges of employment, because of such individual’s
race, color, religion, sex, or national origin.” Thanongsinh
v. Bd. of Educ., Dist. U-46, 462 F.3d 762, 772 (7th Cir.
No. 06-2302 7
2006) (quoting 42 U.S.C. § 2000e-2(a)(1)). A plaintiff “can
avert summary judgment ‘either by putting in enough
evidence, whether direct or circumstantial, of discrimina-
tory motivation to create a triable issue or by establish-
ing a prima facie case under the McDonnell Douglas
formula.’ ” Paz v. Wauconda Healthcare and Rehab. Ctr.,
LLC, 464 F.3d 659, 665 (7th Cir. 2006) (quoting Rudin v.
Lincoln Land Cmty. Coll., 420 F.3d 712, 719 (7th Cir.
2005)).
1. Direct Method for Demonstrating Discrimination
The terminology in this area of law can be a bit confus-
ing as the word “direct” is used both for the “direct
method” and “direct evidence.” See Rudin, 420 F.3d at 720
n.3. “Direct evidence,” one of the two types of proof used
in the direct method for establishing a triable issue of
fact, is “an admission by the decision-maker that his
actions were based upon the prohibited animus. Needless
to say, such admissions are rarely encountered.” Rogers,
320 F.3d at 753 (citing Hoffman v. Caterpillar, Inc., 256
F.3d 568, 576 (7th Cir. 2001); Radue v. Kimberly-Clark
Corp., 219 F.3d 612, 616 (7th Cir. 2000) (internal quota-
tions omitted)). Evidence used in the direct method is “not
limited to near-admissions by the employer that its
decisions were based on a proscribed criterion . . ., but also
includes circumstantial evidence which suggests discrimi-
nation albeit through a longer chain of inferences.” Luks
v. Baxter Healthcare Corp., 467 F.3d 1049, 1052 (7th
Cir. 2006) (citing Sylvester v. SOS Children’s Villages
Illinois, Inc., 453 F.3d 900, 902-03 (7th Cir. 2006);
Ptasznik v. St. Joseph Hosp., 464 F.3d 691, 695 (7th Cir.
2006)). In the present case, Lewis provides both direct
evidence and circumstantial evidence against the defen-
dants sufficient to survive summary judgment under
the direct method.
8 No. 06-2302
Lewis provides direct evidence of alleged discrimination
through Williams’s statement that he prevented her
from participating on the IMF Detail because she was a
female and that “it was going to be a working trip, and he
thought it would be dangerous and that [she] would thank
him for it later.” Appellant’s Brief at 7. This is sufficient
evidence to create a genuine issue of material fact as to
whether the defendants discriminated against Lewis.
The district court, however, rejected this evidence. It
determined that “Williams’s comment must be considered
in the context in which it was made. . . . Williams’s alleged
statement that Lewis could not go on the IMF Detail
because she is ‘female’ cannot be characterized as direct
evidence of discrimination without a presumption that
gender is completely irrelevant to the IMF Detail. [Chief
Maurer’s memorandum] indicates that gender was rele-
vant to the rooming arrangements.” Lewis v. City of
Chicago Police Dep’t, 428 F. Supp. 2d 783, 792-93 (N.D. Ill.
2006).
The district court erred by improperly weighing the
parties’ evidence during summary judgment. In ruling on
a motion for summary judgment, the evidence of the
nonmovant must be believed and all justifiable inferences
must be drawn in the nonmovant’s favor. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The district
court should not weigh the evidence and determine the
truth of the matter but rather determine whether there is
a genuine issue for trial. See Albiero v. City of Kankakee,
246 F.3d 927, 932 (7th Cir. 2001).
The record presents a swearing contest between Lewis
and Williams as to Williams’s alleged statement as to why
he excluded Lewis from the IMF Detail. The reason for
that exclusion, whether Williams had discriminatory
intent or because of a legitimate non-discriminatory
reason, is a question of fact for a jury to decide at trial, not
No. 06-2302 9
for a district court to consider at summary judgment.
Lewis is a competent witness to testify because she was
present when Williams made the alleged statement, it is
an admission by a party-opponent and, if true, is direct
evidence of discriminatory intent. FED. R. EVID. 801(d)(2);
see, e.g., Stinnett v. Iron Works Gym/Executive Health Spa,
Inc., 301 F.3d 610, 613 (7th Cir. 2002) (noting that the
evidence relied upon in defending a motion for summary
judgment must be competent evidence of a type other-
wise admissible at trial).
The defendants provide a secondary argument that
Williams’s comments must also be ignored because he
was not a decision maker. Although he consulted with his
supervisor, Commander Brown, the record contains
evidence to demonstrate that Williams was involved in the
process of determining who would be put on the IMF
Detail. Therefore, Williams’s comments can qualify as
direct evidence of discrimination. See Rozskowiak v. Vill.
of Arlington Heights, 415 F.3d 608, 612 (7th Cir. 2005)
(explaining that a decision maker is one who is involved in
the process of making the employment decision at issue).
Furthermore, a plaintiff can use either direct evidence,
circumstantial evidence or a combination of the two types
of evidence, to meet her burden under the direct method.
Troupe v. May Dep’t Stores Co., 20 F.3d 734, 736 (7th Cir.
1994). “Circumstantial evidence demonstrating inten-
tional discrimination includes: ‘(1) suspicious timing, am-
biguous oral or written statements, or behavior toward
or comments directed at other employees in the protected
group; (2) evidence, whether or not rigorously statistical,
that similarly situated employees outside the protected
class received systematically better treatment; and
(3) evidence that the employee was qualified for the job
in question but was passed over in favor of a person out-
side the protected class and the employer’s reason is a pre-
10 No. 06-2302
text for discrimination.’ ” Hemsworth v. Quotesmith.com,
Inc., 476 F.3d 487, 491 (7th Cir. 2007) (quoting Sun v. Bd.
of Tr. of Univ. of Illinois, 473 F.3d 799, 812 (7th Cir.
2007)). Chief Maurer’s memorandum and the ultimate
rooming arrangements made in Washington, D.C. provide
circumstantial evidence of discrimination that Lewis
can also use under the direct method.
Chief Maurer’s memorandum, when viewed in the light
most favorable to Lewis, does not convey a gender neutral
concern in regard to hotel arrangements as suggested by
the defendants. The Department has the same privacy
and efficiency concerns in its rooming arrangements
regardless of whether there is a lone female or lone male
officer. Despite the universal nature of privacy and
efficiency concerns to rooming arrangements for both
genders, the memorandum uses the phrase “lone female”
instead of “lone female or lone male” or “lone officer.”
Additionally, the defendants’ argument that the Depart-
ment’s purpose was to avoid single officers in a hotel
room does not stand up to the reality that the Department
ultimately sent an odd number of male and female officers
to the IMF Detail and that four lone officers, three men
and one woman, had individual rooms to themselves.
Lewis has provided sufficient direct and circumstantial
evidence to satisfy the direct method of proof on this issue.
A genuine issue of material fact exists as to whether
the defendants discriminated against Lewis on the basis
of her gender.
2. Evidence of Materially Adverse Employment Action
Despite the existence of a genuine issue of material fact
on one element of Lewis’s claim, summary judgment is
still appropriate if Lewis cannot provide evidence to sup-
port all elements of the claim. Celotex Corp. v. Catrett, 477
U.S. 317, 324 (1986); see, e.g., Koszola v. Bd. of Educ. of the
No. 06-2302 11
City of Chicago, 385 F.3d 1104, 1111 (7th Cir. 2004) (citing
Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th
Cir. 2003)). Lewis must also demonstrate a materially
adverse employment action that resulted from the alleged
discrimination. See Rhodes v. Illinois Dep’t of Transp., 359
F.3d 498, 504 (7th Cir. 2004) (“Whether the plaintiff
proceeds by the direct or indirect method of proof, [s]he
must show a materially adverse employment action.”)
(citing Haugerud v. Amery Sch. Dist., 259 F.3d 678, 691
(7th Cir. 2001)).
“Although we define adverse employment action broadly,
not everything that makes an employee unhappy is an
actionable adverse action. For an employment action to be
actionable, it must be a significant change in employment
status, such as hiring, firing, failing to promote, reassign-
ment with significantly different responsibility, or a
decision causing a significant change in benefits.” Bell v.
E.P.A., 232 F.3d 546, 555 (7th Cir. 2000) (citing Burlington
Indus. v. Ellerth, 524 U.S. 742, 761 (1998); Ribando v.
United Airlines, Inc., 200 F.3d 507, 511 (7th Cir. 1999);
Smart v. Ball State Univ., 89 F.3d 437, 440 (7th Cir. 1996)
(internal quotations omitted)). We have noted that materi-
ally adverse employment action can be categorized into
three groups of cases involving: (1) the employee’s current
wealth such as compensation, fringe benefits, and financial
terms of employment including termination; (2) the em-
ployee’s career prospects thus impacting the employee’s
future wealth; and (3) changes to the employee’s work
conditions including subjecting her to “humiliating,
degrading, unsafe, unhealthy, or otherwise significant
negative alteration in [her] work place environment.”
Herrnreiter v. Chicago Hous. Auth., 315 F.3d 742, 744-45
(7th Cir. 2002) (internal citations and quotations omitted).
The “purpose of the adverse employment action require-
ment is to provide a reasonable limiting principle for the
12 No. 06-2302
type of conduct actionable under the statute.” Phelan v.
Cook County, 463 F.3d 773, 780 (7th Cir. 2006). We use
the adverse employment action requirement in order to
distinguish meritorious cases from “trivial personnel
action[s]” brought by “irritable, chip-on-the-shoulder
employee[s].” Herrnreiter, 315 F.3d at 745 (citations
omitted). We do not condone bigotry or hatred, but we are
interpreting an employment discrimination statute, not
canons of individual virtue. See Hunt v. City of Markham,
Illinois, 219 F.3d 649, 653-54 (7th Cir. 2000) (citations
omitted).
Lewis’s proposed adverse employment actions are the
loss of two days of overtime totaling approximately $1,000
and the loss of the experience of training on the IMF
Detail that she claims to be a “once in a lifetime” training
event. The loss of the training opportunity dovetails into
an additional argument that Lewis has also lost future
employment opportunities because of her exclusion from
the IMF Detail. The defendants counter that the amount
of lost pay is trivial—only two days of overtime—and that
Lewis had no right to the overtime. They also question the
value of the IMF Detail training experience in Lewis’s
career as Lewis was able to participate in other large
detail events and did not list these other training events
on her resume.
Our circuit has not directly addressed the issue of
whether a denial of overtime is an adverse employment
action sufficient to implicate Title VII. We have held that
a denial of a raise can be an adverse employment action
while the denial of a “more transient” payment such as a
bonus is not. Barricks v. Eli Lilly and Co., 481 F.3d 556,
559 (7th Cir. 2007) (citing Farrell v. Butler Univ., 421 F.3d
609, 614 (7th Cir. 2005); Hildebrandt v. Ill. Dep’t of
Natural Res., 347 F.3d 1014, 1030 (7th Cir. 2003); Hunt,
219 F.3d at 654). “The difference is that raises are a
No. 06-2302 13
normal and expected element of an employee’s salary,
while bonuses generally are ‘sporadic, irregular, unpredict-
able, and wholly discretionary on the part of the em-
ployer.’ ” Fyfe v. City of Fort Wayne, 241 F.3d 597, 602 (7th
Cir. 2001) (quoting Hunt, 219 F.3d at 654).
Depending on the type of work, overtime can be a
significant and recurring part of an employee’s total
earnings similar to a recurring raise or it could be insignif-
icant and nonrecurring like a discretionary bonus. The
IMF Detail in Washington, D.C. in September 2002 was
a one time event. However, as Chief Maurer’s memoran-
dum noted, Chicago had its own IMF meeting scheduled
for November 2002. Additionally, large public gather-
ings requiring significant police presence are recurring
events in a large city like Chicago. Lewis can construct
from the evidence an argument that by denying her the
opportunity to participate in the IMF Detail, she lost her
ability to move forward in the component of her career of
being a police officer at recurring large scale public
gatherings. In turn, she can argue that she has lost the
potential to earn many hours of overtime, not just the
mere two days that she lost in September 2002. Conse-
quently, we conclude that Lewis can demonstrate a
genuine issue of material fact as to whether she has
experienced an adverse employment action.
We must add two final points before we conclude our
consideration of adverse employment actions. First, as
Title VII prohibits discrimination as to compensation,
terms, conditions and privileges of employment, it is the
“material, sufficiently important alterations of the employ-
ment relationship” that qualify as adverse employment
action. Brewer v. Bd. of Trs. of Univ. of Illinois, 479 F.3d
908, 916-17 (7th Cir. 2007) (citations omitted). A strict
adherence to labels leads to a meaningless cry of phrases
such as “bonus” or “salary” without reaching the critical
14 No. 06-2302
issue of whether the alleged discrimination caused a
material change in the employment relationship.
Second, although the adverse employment action re-
quirement is a limiting principle within the statute, we
cannot allow the need for a limiting principle to inadver-
tently create a loophole for discriminatory actions by
employers. Adverse employment actions should not be
defined so narrowly as to give an employer a “license to
discriminate.” Farrell, 421 F.3d at 614. An employer’s
“actions which deprived [the employee] of compensation
which [s]he otherwise would have earned clearly constitute
adverse employment action for purposes of Title VII.” Bass
v. Bd. of County Comm’rs, Orange County, Florida, 256
F.3d 1095, 1118 (11th Cir. 2001); cf. Phelan, 463 F.3d at
780 (finding an adverse employment action when the
employer terminated the employee for four months despite
the fact that the employer eventually reinstated the
employee and provided full back pay). We seek to avoid
both “trivial personnel action[s]” brought by “irritable,
chip-on-the-shoulder employee[s],” Herrnreiter, 315 F.3d
at 745 (citations omitted), and unlawful discrimination by
employers. An employer cannot discriminate against an
employee and then hide behind the argument that the
employee’s deprivation was not material. “ ‘[T]he ‘primary
objective’ of Title VII ‘is not to provide redress but to
avoid harm.’ ” Phelan, 463 F.3d at 780 (quoting Faragher
v. City of Boca Raton, 524 U.S. 775, 805-06 (1998)).
B. Retaliation Claim
“Title VII makes it unlawful for an ‘employer to discrimi-
nate against any of his employees . . . because [the em-
ployee] has opposed any practice made an unlawful
employment practice.’ ” Brewer, 479 F.3d at 923 (quoting
42 U.S.C. § 2000e-3(a)). The Supreme Court recently
instructed in Burlington N. and Santa Fe R.R. Co. v.
No. 06-2302 15
White, that “the range of conduct prohibited under [Title
VII’s anti-retaliation] provision is broader than Title VII’s
[anti-]discrimination provision.” Phelan, 463 F.3d at 787
(citing 126 S. Ct. 2405, 2414 (2006)).
“An employee can establish a prima facie case of retalia-
tion by proceeding under either the direct or indirect
method.” Roney v. Illinois Dep’t of Transp., 474 F.3d 455,
459 (7th Cir. 2007) (citing Sublett v. John Wiley & Sons,
Inc., 463 F.3d 731, 740 (7th Cir. 2006)). The defendants
argue that Lewis has pursued only the indirect method of
argument on appeal. However, Lewis has brought both a
direct and an indirect method argument before the dis-
trict court and on appeal. We conclude that Lewis suc-
ceeds in bringing her claim under the direct method.
“Under the direct method, [a plaintiff] must show
‘(1) [s]he engaged in a statutorily protected activity;
(2) [s]he suffered an adverse action taken by the employer;
and (3) there was a causal connection between the two.’ ”
Tomanovich v. City of Indianapolis, 457 F.3d 656, 663 (7th
Cir. 2006) (quoting Moser v. Indiana Dep’t of Corr., 406
F.3d 895, 903 (7th Cir. 2005)). There is no dispute that
Lewis satisfies the first element as she made complaints
to various supervisors, the Union and the EEOC about
the alleged discrimination by Williams with the IMF
Detail. See Durkin v. City of Chicago, 341 F.3d 606,
614 (7th Cir. 2003) (“Usually a claim for retaliation is
preceded by an obligatory complaint about discriminatory
conduct, so that the employer is aware of the mistreat-
ment and the corresponding protected activity.”).
As for the second element of suffering an adverse action
taken by the employer, “the discriminatory acts proscribed
by Title VII’s anti-retaliation provision are not limited to
those that affect the terms and conditions of one’s employ-
ment.” Roney, 474 F.3d at 461 (citing White, 126 S. Ct. at
2412-13). But, the “challenged action must be one that a
16 No. 06-2302
reasonable employee would find to be materially adverse
such that the employee would be dissuaded from engaging
in the protected activity.” Id. Lewis has provided sufficient
evidence in the record that Williams’s alleged retaliatory
action is such that a “reasonable employee would be
dissuaded from engaging in the protected activity.” Id. As
required in reviewing a summary judgment, we must
credit Lewis’s competent evidence that Williams singled
her out for otherwise dangerous assignments that were
beyond the level of treatment she was previously receiv-
ing as an officer before she made her complaints about
the IMF Detail. Additionally, Lewis provides evidence
that Williams singled her out for adverse treatment about
her job performance and refused a transfer in order to
allow him to continue his alleged acts of retaliation.
Finally, Lewis has provided evidence of a causal connec-
tion. “[T]he mere fact that one event preceded another does
nothing to prove that the first event caused the second; the
plaintiff also must put forth other evidence that reason-
ably suggests that her protected speech activities were
related to her employer’s discrimination.” Burks, 464 F.3d
at 758-59 (internal quotations and citations omitted); see,
e.g., Scaife v. Cook County, 446 F.3d 735, 742 (7th Cir.
2006) (“Close temporal proximity provides evidence of
causation and may permit a plaintiff to survive summary
judgment provided that there is other evidence that
supports the inference of a causal link.”) (quoting Lang v.
Illinois Dep’t of Children and Family Servs., 361 F.3d 416,
419 (7th Cir. 2004)). There is additional evidence in the
record beyond suspicious timing. Most notable is the
apparently active steps taken by Williams after Lewis
made her discrimination claim. Williams allegedly di-
rected Lewis to more dangerous assignments via the police
radio after her discrimination claims. This is an alleged
change in Williams’s actions that occurred after Lewis’s
discrimination claims against Williams. Williams did not
No. 06-2302 17
personally direct Lewis to an assignment via the radio
prior to the discrimination claim. This is sufficient to
survive summary judgment on this issue.
C. Monell Claim Against the City
Lewis’s § 1983 claim against the City must be evaluated
under Monell v. Dep’t of Social Servs. of the City of New
York, and its progeny. 436 U.S. 658 (1978). Misbehaving
employees are responsible for their own conduct, “units of
local government are responsible only for their policies
rather than misconduct by their workers.” Fairley v.
Fermaint, 482 F.3d 897, 904 (7th Cir. 2007); see, e.g.,
Jenkins v. Bartlett, 487 F.3d 482, 492 (7th Cir. 2007) (“A
municipality may not be held liable under § 1983 based on
a theory of respondeat superior or vicarious liability.”)
(citing Monell, 436 U.S. at 694).
“To establish liability, [Lewis] must produce evidence of
‘(1) an express policy that, when enforced, causes a
constitutional deprivation; (2) a widespread practice that,
although not authorized by written law or express munici-
pal policy, is so permanent and well settled as to con-
stitute a custom or usage with the final force of law; or
(3) an allegation that the constitutional injury was
caused by a person with final policymaking authority.”
Phelan, 463 F.3d at 789 (quoting Roach v. City of Evans-
ville, 111 F.3d 544, 548 (7th Cir. 1997)).
Lewis’s first argument against the City is that it had an
express policy discriminating against women for the IMF
Detail as set forth in Chief Maurer’s memorandum.
However, “[o]nly those individuals with the requisite
policymaking authority are capable of establishing ‘official
policy’ as required by Monell.” Chortek v. City of Milwau-
kee, 356 F.3d 740, 748-49 (7th Cir. 2004) (citing Cornfield
by Lewis v. Consol. High Sch. Dist. No. 230, 991 F.3d 1316,
18 No. 06-2302
1324-25 (7th Cir. 1993)). Lewis does not provide any
evidence to demonstrate that Chief Maurer has policy
making authority sufficient to bind the City in this case.
Lewis is not suing Chief Maurer for his alleged discrimina-
tory actions in implementing the IMF Detail but instead
seeks to hold the City liable. As she has failed to demon-
strate that Chief Maurer can create liability for the City,
we must reject this argument.
We must also reject Lewis’s second argument that the
City has a widespread practice of ignoring allegations
of gender discrimination and unlawful retaliation. “If
the same problem has arisen many times and the munici-
pality has acquiesced in the outcome, it is possible (though
not necessary) to infer that there is a policy at work.”
Phelan, 463 F.3d at 789 (quoting Calhoun v. Ramsey, 408
F.3d 375, 380 (7th Cir. 2005)). Lewis has failed to present
evidence of a widespread practice by the City of ignoring
gender discrimination and retaliation. Failing to meet her
burden, the district court properly entered judgment in
favor of the City on Lewis’s Monell claim.
III. CONCLUSION
The judgment of the district court as to Lewis’s Monell
claim against the City of Chicago is AFFIRMED. The
judgment of the district court as to Lewis’s Title VII claims
against the City and § 1983 claim against Williams is
REVERSED. The case is REMANDED to the district court for
additional proceedings consistent with this opinion.
No. 06-2302 19
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-26-07