donna nicholson federal court filing

8/16/2019 Donna Nicholson federal court filing

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of 59Case No. 1:14-cv-01369-MMM-JEH

IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF ILLINOIS

PEORIA DIVISION

DONNA NICHOLSON, )

)Plaintiff, )

)

v. ) Case No. 1:14-cv-01369-MMM-JEH

)

THE CITY OF PEORIA, ILLINOIS, )

ET AL., )

)

Defendants. )

PLAINTIFF’S MEMORANDUM IN RESPONSE TO DEFENDANTS’

MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

In this action, Plaintiff, a female and twenty-five year veteran of the Peoria Police

Department, seeks recovery against Defendants The City of Peoria (“City”) and its former Chief

of Police, Steven Settingsgaard (“Settingsgaard”), for discrimination and adverse employment

actions taken in retaliation for Plaintiff’s lawful reporting and filing claims of repeated incidents

of outrageous and illegal stalking and sexual harassment by City police officers occurring from

2008 through 2011.

Plaintiff alleges claims against Defendant City for retaliation and sex discrimination in

violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.

(Counts I and II) and against Defendant Settingsgaard for retaliation in violation of 42 U.S.C. §

1983 (Count III).

Defendants now move for summary judgment on the grounds that: (1) Defendants’

employment decision related to Plaintiff was not retaliatory and unrelated to Plaintiff’s sex; (2)

E-FILE Friday, 13 May, 2016 11:50:17

Clerk, U.S. District Court, IL

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Plaintiff’s complaints were not a matter of public concern; and (3) Defendant Settingsgaard is

entitled to qualified immunity.

Defendants’ Motion should be denied because genuine issues of material fact exist as to

whether Defendants retaliated and discriminated against Plaintiff based on her sex and whether

Defendant Settingsgaard is entitled to qualified immunity.

II. PLAINTIFF’S RESPONSE TO DEFENDANTS’ UNDISPUTED MATERIAL

FACTS

Pursuant to Local Rule 7.1 (D)(2)(b)(1-4), Plaintiff submits her responses to Defendants’

Statement of Undisputed Material Facts, as follows:

A. Undisputed Material Facts

Plaintiff concedes that the facts set forth in the following paragraphs of Section B of

Defendants’ Memorandum of Law are undisputed and material: 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 14,

15, 18, 19, 21, 22, 23, 25, 26, 32, 34, 36, 37, 38, 39, 40, and 46.

B. Disputed Material Facts

Plaintiff disputes the material facts set forth in the following paragraphs of Section B of

Defendants’ Memorandum of Law.

12. Response: Nicholson alleges that in 2008 and in 2010, Wilson utilized the

Department’s surveillance equipment to videotape Plaintiff in the SID/Vice office and in August

2010 monitored her department issued car movements with a GPS device. Doc. No. 12-1, ¶¶ 17,

19, 20, 25; see also Plaintiff ’s Statement of Additional Material Facts set forth in Section III

below (“SAF”) ¶¶ 23-27, 31-35, 45-47.

13. Response: When Eddlemon discovered Wilson’s conduct in 2010, Wilson was

transferred to the Patrol Division because, according to Defendant Settingsgaard, “it was best for

all parties involved.” SAF ¶ 36.

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16. Response: On July 29, 2011, Sgt. Snow drafted a letter of termination for

Settingsgaard to give to Wilson. SAF ¶ 67. Settingsgaard did not give the letter to Wilson but

instead read the letter to Wilson and gave Wilson the opportunity to come back with his own

evidence. SAF ¶¶ 68, 69. In August 2011, Wilson provided Settingsgaard with the following

information: (a) “the GPS was not as complicated as we believed it to be”; and (b) Wilson’s

“laptop was accessible to others in SID.” SAF ¶ 70. This information was not new, was

considered and rejected by Sgt. Snow, Detective Feehan and Judge Purham , who noted, among

other things, the “several clips of Of f icer Wi lson adjusting the camera where I see his face in

at least two of the clips, and then there ’ s one cli p where Off icer Ni cholson ’s chair is being

brought into focus.” SAF ¶¶ 43-46, 54, 59-63, 70. Finally, Settingsgaard himself testified that

he thought Wilson was “lying” at the meeting at which he presented this “information. SAF ¶¶

72, 75.

17. Response: Officer Wilson was not disciplined by Defendants for stalking or

harassing Plaintiff as Fact 17 suggests; Wilson was only disciplined for: (a) insubordination for

violating orders to stay out of the Vice Office; and (2) making lewd sexual comment about

Plaintiff’s daughter. Doc. 29-18.

30. Response: Settingsgaard testified that the reorganization plan was developed by

“[m]yself and my management team,” including Captain Mike Scally and Captain Lisa Snow.

Chief Dep., pp. 10:20-11:4.

33. Response: The CBA specifically states the committee is to be determined by the

Chief of Police. Plf. Dep. Ex. 2, Art. 30.3.

42. Response: Plaintiff concedes that the panel made this statement but disputes that

Skaggs was qualified, “knew the material, knew the law,” or that the interview process was

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anything other than a pretext for a decision that was made prior to the interview process. SAF ¶¶

84-88, 91-92. As reflected in the testimony of his supervisor, Sgt. Kerrie Davis, and the

Affidavit of State’s Attorney Kim Nuss, “[e]ven after he had been on the job for some time, Troy

Skaggs was unable to do a seizure warrant or an Article 36 seizure.” Ex. __, Nuss Affidavit, ¶ 4,

SAF ¶¶ 99-101.

43. Response: According to the testimony of Lieutenant Davis, the SID/Vice Supervisor

in charge of the Asset Forfeiture position, the decision to transfer Plaintiff from Asset Forefeiture

was made before the interviews were even conducted. SAF ¶¶ 85-86, 93. The Affidavit of

State’s Attorney Kim Nuss further confirms that Officer Skaggs was not qualified. Ex. __, SAF ¶

101.

44. Response: Settingsgaard had ultimate authority and was the ultimate decision-maker

for promotions and transfers. SAF ¶ 3.

C. Disputed Immaterial Facts

None.

D. Undisputed Immaterial Facts

10. Response: These events occurred in 2002, prior to Settingsgaard becoming Chief of

Police for the City of Peoria. Pl. Dep. 24:20-21.

20. Response: Plaintiff has made no allegation regarding this. Doc. 12-1, Am.

Complaint, ¶ 16.

24. Response: Plaintiff sought and obtained an Order of Protection against Officer

Wilson on July 11, 2011 from the Peoria County Circuit Court. SAF ¶¶ 61-64. In 2013, the

Order was upheld by the Illinois Court of Appeals and the Illinois Supreme Court in 2013. See

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Nicholson v. Wilson, 213 Ill.App.3d 110517 (3rd Dist. 2013) and Nicholson v. Wilson, 2 N.E. 3d

1046 (Ill. 2013), Petition for Leave to Appeal denied; see also SAF ¶ 102.

27. Response: Plaintiff makes no claim related to this Charge. Doc. 12-1, Am.

Complaint.

28. Response: Settingsgaard made the decisions regarding the transfer of officers and

Plaintiff ’s transfer from Asset Forfeiture. SAF ¶ 3, 91. Lt. Davis understood Plaintiff was

getting transferred before the interviews were even held. SAF ¶ 86.

29. Response: Settingsgaard made the decisions regarding the transfer of officers and

Plaintiff ’s transfer from Asset Forfeiture. SAF ¶ 3, 91.

31. Response: Settingsgaard eliminated the prior rotation policy when he arrived in

2005. Settingsgaard Aff. ¶ 5. Earlier rotation policies are immaterial.

35. Response: Plaintiff applied for the Asset Forfeiture Position and was denied that

position for discriminatory and retaliatory reasons. SAF ¶¶ 79-96. Plaintiff makes no claim that

she was denied another position. Doc. 12-1, Am. Complaint.

41. Response: Fact 41’s suggestion that Plaintiff has changed her testimony or position

regarding the temperature of the interview room is not supported by any evidence.

45. Response: There were over 220 commissioned officers in the Department of which

18 were female. SAF ¶ 88. In the Fall of 2012, all of the SID/Vice officers, the Liquor

Investigator, Scott Jordan, and Plaintiff, re-applied for their same positions in TOU. SAF ¶ 79.

Each of the male officers in SID/Vice and Liquor received the position they applied for

irrespective of the length of their service. SAF ¶ 80. Liquor Investigator Scott Jordan, with over

seven years in his position, reapplied for and received the same position. SAF ¶ 81. SID/Vice

Officers Matt Lane and Corey Miller, each with over three years in their respective positions,

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applied for and received their same positions. SAF ¶ 82. Plaintiff, the only female in SID/Vice,

was the only person in SID/Vice who was not allowed to remain in her position. SAF ¶ 84.

III. PLAINTIFF’S STATEMENT OF ADDITIONAL MATERIAL FACTS

Pursuant to Local Rule 7.1 (D)(2)(b)(5), Plaintiff submits her Statement of Additional

Material Facts, as follows:

A. The Parties

1. Plaintiff Donna Nicholson has been employed by the Peoria Police Department as

a Police Officer since April 19, 1991. Doc. 21, Answer ¶ 10.

2.

Defendant City is an Illinois municipal corporation that provides governmental

services to City residents, including police protection through the Peoria Police Department (the

“Department”). Doc. 21, Answer ¶ 2.

3. Defendant Settingsgaard was Chief of the Department from May 2005 until June

2014, having responsibility for management of the Department, including: (a) enforcement of the

Department’s rules, regulations and policies; (b) transfer and discipline of officers; and (c) safety

and welfare of officers, including Plaintiff. Doc. 21, Answer ¶ 3, Doc. 29-1, Settingsgaard Depo

(the “Chief Dep.”) 8:23-9:13; 10:5-6, 81:17-20.

B. The Department’s Applicable Orders Regarding Conduct and Discipline

1. General Order 100.06 – Rules and Regulations

4. The Department’s General Order 100.06, Section VI.A provides that “[n]o officer

shall violate any law, department policy, regulation, order rule, or procedure.” Doc. 32-3,

General Order, § VI.A.1; Doc. 29-1, Chief Dep. 83:15-21, 84:4-8.

5. Section VI. B prohibits officer s from “engag[ing] in any conduct or activity on or

off duty that reflects discredit on the department or its officers, or tends to bring this department

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in disrepute, or impairs its efficient and effective operation.” Doc. 32-3, General Order, § VI.B;

Doc. 29-1, Chief Dep. 84:9-10.

6. Section VI.C.4 requires that “officers shall be accurate, complete and truthful in

all matters.” Doc. 32-3, General Order, § VI.C.4.

7. Section VI.D prohibits officers from “engag[ing] in acts that demean or harass or

intimidate another person (refer to sexual harassment general order 200.14).” Doc. 32-3,

General Order, § VI.D.2; Doc. 29-1, Chief Dep. 84:14-21.

8. Section VI.G prohibits any officer from “us[ing] or provid[ing] any city

equipment or service other than for official city business without the consent of the police chief

or his designee.” Doc. 32-3, General Order, § VI.G.1; Doc. 29-1, Chief Dep. 84:22-85:3.

9.

Section VIII provides that an officer may be subject to dismissal for violation of

department rules and regulations, a department order, or any established policy, practice or

procedure. Doc. 32-4, General Order, § VIII.

2. General Order 200.14 – Discrimination/Sexual Harassment

10.

General Order 200.14 sets forth the Department’s policy prohibiting

discrimination and sexual harassment:

It is the Policy of the Peoria Police Department to provide anenvironment for its employees that is free of harassment anddiscrimination.

Doc. 32-4, General Order, § I.

11. Section II.A defines discrimination:

Personal Discrimination. Any action taken by an individual todeprive a person or group of a right because of age, color, ethnicgroup, gender, national origin, race or religion. Suchdiscrimination can occur overtly, covertly, intentionally,unintentionally, by an act, or by an omission.

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Doc. 32-4, General Order, § II.A.2; Doc. 29-1, Chief Dep. 85:8-14.

12. Section III.A states that “[d]iscrimination, sexual harassment, or any form of

harassment by a specific act, inference, or omission by or against any member of the department

or by a member against a citizen or visitor to Peoria will not be permitted, tolerated, or

condoned.” Doc. 32-4, General Order, § III.A; Doc. 29-1, Chief Dep. 85:15-21.

13. Section III.E prohibits retaliation against an employee for filing complaints of

harassment or discrimination:

There will be no retaliation against any employee or citizen forfiling a harassment or discrimination complaint or assisting,

testifying, or participating in the investigation of such complaint.

Doc. 32-4, General Order, § III.E; Doc. 29-1, Chief Dep. 85:22-86:4.

3. The City’s Workplace Violence Prevention and Anti-Harassment

Policy

14. The City’s Workplace Violence Prevention and Anti-Harassment policy prohibits

“[a]ny unwelcome behavior that degrades, demeans, humiliates, or embarrasses a person.” Doc.

32-7, Policy, § I; Doc. 29-1, Chief Dep. 86:9-10.

15. The Policy identifies “Examples of Workplace Violence,” including:

Engaging in behavior that creates a reasonable fear of injury toanother person;

Engaging in behavior that subjects another individual to extremeemotional distress;

Stalking or obscene phone calls; and

Retaliating against any employee who, in good faith, reports aviolation of this policy.

Doc. 32-7, Policy, § II; Doc. 29-1, Chief Dep. 87:6-15.

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16. The Policy holds managers and supervisors responsible for preventing harassment

and workplace violence:

Not knowing is not an excuse. Supervisory personnel will still be

held responsible if they allow a situation to continue if areasonable person should have known that harassment wasoccurring or that there was a potential for violence. Supervisory personnel who ignore harassment and workplace violence will notonly face legal responsibility, but may be disciplined by the City ofPeoria.

Doc. 32-7, Policy, § III.

17. Persons who violate the Policy are subject to termination:

Any individual who violates a term or condition of this Policyshal l be subject to discipl inary action up to and including

termination . Discipline may also be given to a supervisor ormanager who willfully fails to appropriately investigate orotherwise address complaints of harassment or workplace violence.In addition to disciplinary measures, the employee and/orsupervisor may be required to take other corrective action such ascounseling or training.

Doc. 32-7, Policy, § IV (emphasis added).

C. Plaintiff’s History As The Department’s Asset Forfeiture Investigator

18. From 2002 through 2012, Plaintiff served as the Department’s Asset Forfeiture

Investigator within the Special Investigations Division (“SID”). Doc. 21, Answer ¶ 11; Doc. 28-

1, Plf. Dep. 74:11-13; Doc. 29-1, Chief Dep. 47:12-20.

19. Throughout her entire eleven year tenure as Asset Forfeiture Investigator, Plaintiff

was the only female in SID:

Q: How many employees were in there, Vice and SID?

A: I don’t know. 20-some.

* * * *

Q: She was the only woman, right?

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A: I believe that’s true.

Doc. 29-1, Chief Dep. 136:5-7, 14-15; see also 81:1-4.

20. As Asset Forfeiture Investigator, Plaintiff was responsible for investigating and

collecting assets from criminal defendants such as bank accounts, personal property, automobiles

and real estate, complying with state and federal laws and agencies, managing state and federal

asset forfeiture accounts, and keeping accounts of all expenditures. Doc. 29-1, Chief Dep. 45:8-

47:7.

21. During her tenure, Plaintiff collected over $6.6 Million in assets from criminal

defendants for the Department. Ex. 1, Nicholson Affidavit, ¶ 2.

22. Defendant Settingsgaard concedes that the Asset Forfeiture Investigator was an

important position within the Department and that Plaintiff was “good at her job” in investigating

and collecting assets from criminal defendants:

Q: Was Officer Nicholson successful in investigating andcollecting assets from criminal defendants prior to hertransfer in 2012 during the period when you saw her from'05 to 2012? Was she good at her job?

A: Yes.

Doc. 29-1, Chief Dep. 47:4-7, 48:1-6 (emphasis added).

D. The 2008 Surveillance of Plaintiff By Officer Wilson

23. On the evening of April 12, 2008, Plaintiff discovered that a fellow SID Officer,

Jeffrey Wilson (“Wilson”), was using the Department’s surveillance equipment to monitor

Plaintiff without her knowledge or consent. Doc. 30-1, Investigation Report, p. 5.

24. Wilson was in charge of the Department’s electronic surveillance equipment,

technology and GPS tracking devices and, according to SID Sgt. Jerry Bainter, “had a great deal

of training and knowledge in the use of surveillance equipment [and] certified by the Illinois

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State Police Department in surveillance eavesdropping.” Doc. 30-2, Investigation Report, p. 9;

Doc. 21, Answer ¶ 15.

25. On Monday, April 14, 2008, Plaintiff reported the surveillance to her SID

supervisors, Sgt. Jerry Bainter and Lt. Jeff Adams, and requested that she not be videotaped.

Doc. 30-1, Investigation Report, p. 5; Doc. 21, Answer ¶ 18.

26. According to Lt. Adams, “Wilson was being tasked by the Chief with a project

that required his expertise in the use of cameras. . . . [and was] giving it priority because it was

coming from the Chief’s office.” Doc. 30-2, Investigation Report, p. 12; Doc. 29-1, Chief Dep.

75:10-76:6.

27. Sgt. Bainter instructed Wilson “not to be recording any officer with this system

and if he needed a target area he could record my desk area because I don’t care. . . . At no time

did I authorize Officer Wilson to video tape or conduct surveillance any active member of the

Peoria police department.” Doc. 30-2, Investigation Report, p. 10.

E. A GPS Tracking Device Is Placed On Plaintiff’s Vehicle Following

Plaintiff’s Objection To Settingsgaard’s Use Of Asset Forfeiture Funds

28. On July 12, 2010, Defendant Settingsgaard requested the expenditure of $19,500

in funds from an Asset Forfeiture account to pay for the production of a video featuring

Settingsgaard to be distributed at an International Chiefs Conference. Doc. 29-1, Chief Dep.

50:9-51:5, 52:14-24; Doc. 29-5, Account Spreadsheet.

29. Plaintiff objected to Settingsgaard’s proposed use of Asset Forfeiture funds for

himself:

Q: Okay. Do you recall her saying anything to you about it,about spending $19,500 on a video?

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A: I have a very general recollection that I was aware shedidn't like it. I don't remember conversations or how Ilearned it.

Q: But you knew she didn't like it?

A: Yeah. I believe that's an accurate statement.

Doc. 29-1, Chief Dep. 51:19-52:2; Doc.28-1, Plaintiff’s Dep. 132:3-133:2.

30. On August 10, 2010, Settingsgaard ordered Plaintiff to issue a $19,500 check

from an Asset Forfeiture account to pay for the video. Doc. 29-1, Chief Dep. 50:9-51:5, 53:1-3;

Doc. 29-5, Account Spreadsheet.

31.

That same day, August 10, 2010, without Plaintiff’s knowledge, a Department

GPS tracking device was installed on Plaintiff’s Department-issued vehicle:

Q: On page 18, on August 10, 2010, at 3:02p.m. … “TheSentinel GPS is installed and initiated on Officer Nicholson's vehicle at the police department. The vehicleis parked at the Peoria Police Department from 3:02 to 4:40 p.m. on the State Street side.” Do you see that?

A: I do.

Q: That's the same day as the check or the payment was issuedon the video for the police chief's conference, right?

A: I don't know.

Q: Want to go back to that one? August 10. Let's go back andlook at Exhibit 3. Right here, I'll give it to you.

A: It's the same date as the date that this says ordered.

Q: So same day the check was ordered to pay for your videoand for the conference was the date this GPS was put onDonna's car, August 10, 2010, right?

A: I don't know that. No. I know it's the same date that thatdocument says ordered. I don't know if that means orderedthe check. I don't know what the reference is.

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Q: Whatever ordered means –

A: The same date is recorded under ordered as this date.

Q: That's the same date as the GPS was placed on her car that

afternoon?

A: Yes.

Doc. 29-1, Chief Dep. 78:1-79:6; See also Doc. 35-5, Event Timeline, p. 3.

F. The Department’s Illegal Surveillance, Stalking And Harassment Of Plaintiff

32. Three months later, on November 9, 2010, SID Sergeant Michael Eddlemon

discovered that Wilson’s computer was actively monitoring Plaintiff’s work area in the SID

office through a covert surveillance camera feed, labelled “Office.” Doc. 30-3, Special Report,

Sgt. Eddlemon, November 11, 2011, p. 9; Doc. 21, Answer ¶ 20. The camera was disguised

inside an electrical box such that “[t]here was no way for an observer to realize that the camera

was recording due to its concealment inside this box.” Doc. 30-1, Investigation Report, p. 1.

33. By observing the “View Commander” on Wilson’s computer, Eddlemon found

that the covert camera had been tracking Plaintiff’s movements in the office and zooming in and

out as she sat at her desk:

Upon further review I also noticed that when Officer Nicholsonwas present at her desk on Monday, November 8th, 2010 that thecamera was directed at her and was zoomed in versus the wideangle that I originally observed. I also noticed that the camera

moves or tracks Officer Ni cholson as she worked at her desk or

accessed the fi le cabinets located next to her desk. . . . I did not

see anyone else in the off ice tracked or zoomed in on wi th the

camera .

Doc. 30-3, Special Report, Sgt. Eddlemon, November 11, 2011, p. 10 (emphasis added).

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34. When Eddlemon questioned Wilson as to why the SID office was being covertly

recorded, Wilson responded that the camera had been on the cabinet for about six months and he

was unaware that it was recording. Doc. 30-1, Investigation Report, p. 3.

35. When Eddlemon notified Plaintiff, Plaintiff became upset and advised Eddlemon

that she had caught Wilson videotaping her two years earlier. Doc. 21, Answer ¶ 20.

36. On November 10, 2010, Captain Michael Scally, with Settingsgaard’s approval,

transferred Wilson to Patrol:

Q: And why was Wilson transferred the next day to Patrol?

A: Based on the allegations that were made against Jeff,decided it was best for all parties involved to remove himfrom the Vice Unit.

Doc. 29-1, Chief Dep. 62:16-20; Doc. 30-1, Transfer Order.

G. The Investigation

37. Plaintiff requested an external investigation of Wilson’s activities. Doc. 21,

Answer ¶ 21.

38.

Defendant Settingsgaard denied Plaintiff’s request and appointed Sergeant

Kenneth Snow of Internal Affairs to conduct the investigation:

Q: You picked Ken Snow to run this investigation?

A: Yes.

* * * *

Q: Did you think he was a good investigator?

A: Yes.

Q: Did you think he was an honorable and quality investigator,fair?

A: As far as I knew, yes.

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Q: Anything happen during this investigation or through therest of your employment at Peoria to lead to believe that hewas anything other than fair and honest and thorough?

A: No.

Doc. 29-1, Chief Dep. 44:13-15; 58:9-11; 61:6-62:3.

39. Defendant Settingsgaard also appointed Officer James Feehan, the Department’s

Cyber Crimes detective, to conduct an analysis of the videos:

Q: Did you participate in the selection of Mr. Feehan,Detective Feehan to conduct this investigation, videoanalysis?

A: Yes.

Q: Is he a -- why?

A: Feehan was our -- he was our resource with the greatestlevel of expertise in technology. He was our Cyber Crimesdetective.

Doc. 29-1, Chief Dep. 76:13-20.

40. On January 8, 2011, two months after the covert camera was discovered, Sgt.

Snow notified Wilson of the investigation:

On November 9, 2010, it was discovered that you had allegedly been video recording the interior of the SID office at Peoria Policeheadquarters. It is further alleged that you did so without theknowledge and consent of those persons and employees recorded.It is further alleged that you had been ordered by your supervisorson two previous occasions not to conduct such activity.

Doc. 30-1, Notice of Investigation.

41. During the investigation, Sgt. Snow conducted numerous interviews of present

and former SID personnel. Doc. 30-1, Investigation Report, p. 1.

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42. Sgt. Snow’s investigation also revealed that SID Officer Dan Duncan had

witnessed Wilson making numerous loud and inappropriate comments about Plaintiff, including:

(a) “Where is the bitch Donna at?”; (b) “Where is the fat kunt?”; and (c) in response to hearing

that Plaintiff’s teenage daughter had teeth knocked out in a softball accident: “Donna should

teach that bitch how to suck dick better and that wouldn't happen.” Doc. 30-2, Investigation

Report, p. 10; Doc. 29-1, Chief Dep. 72:23-73:20.

43. Detective Feehan’s forensic analysis of Wilson’s computer and video recordings

revealed footage of Wilson’s reflection in a television monitor, adjusting the covert camera.

Doc. 30-2, Investigation Report, p. 16.

44. Feehan’s forensic analysis further revealed Wilson’s access and proximity to the

installation of a Department GPS on Plaintiff’s vehicle on August 10, 2010. Doc. 30-2,

Investigation Report, pp. 17-18; Doc. 30-3, Investigation Report, pp. 19-21.

45. Sgt. Snow provided Defendant Settingsgaard with his Investigative Report,

wherein Snow concluded that, “[Officer Wilson] is the only person in the unit that possesses the

collective knowledge to set up, manipulate, record, and remotely view the camera images from

the internet connections.” Doc. 30-1, Investigation Report, p. 1; Doc. 29-1, Chief Dep. 64:12-15.

46. Officer Feehan, in agreement with Sgt. Snow, concluded that Wilson was

responsible for the surveillance and GPS: “He was the only one that [Feehan] knew of that knew

how to use it. He was the only one technical enough in the division to use it.” Ex. 2, Testimony

of James Feehan, Hearing on Order of Protection, July 7, 2011, p.167.

47. Settingsgaard agreed with Snow and Feehan’s conclusions and considered

Wilson’s actions a “serious problem”:

1:14-cv-01369-MMM-JEH # 38 Page 16 of 59




Q: At the time on January 4th, 2011, when you received this,you believed Sergeant Snow to be correct, that Wilson wasthe only person who could have done this; is that right?

A: Yes.

* * * *

Q: How did you feel when you saw -- when you learned that inaddition to the videotaping, in addition to the commentsthat Duncan articulated, that there was a GPS placed onOfficer Nicholson's car and that your investigators, Feehanand Snow, believed it was done by Wilson?

A: How do I feel?

Q: How did you feel at the time?

A: I believed [Wilson] placed the GPS on her car at the time.

Q: Would you consider that to be a ser ious problem?

A: Yes.

Q: Why?

A: I think it's inappropriate. I think it's --

Q: It's beyond inappropriate, isn't it?

A: I t's bizarre. I don' t know the rationale for it, but it' s very

bizarre.

Q: Potenti all y dangerous?

A: I guess there's potential for anything. I don't know. I don'tknow what -- again, I don' t know why it was placed on thecar, but there is a potential for anythi ng really .

Q: I mean, you've been in the business, been in lawenforcement for 27 years, right?

A: 36.

Q: I'm sorry. My math. Wow. '79? I'm way off. 36 years.You've got an armed police off icer who based on your

1:14-cv-01369-MMM-JEH # 38 Page 17 of 59




investigators seems to have a problem surveying a f emale,

the only female in the department, ri ght? She was the

only woman in that department, r ight?

A: What do you mean in that department?

Q: In the SID, in Vice.

A: I believe so.

Q: Yeah. And there's reports of really ugly comments not

only about Donna but about her daughter, r ight?

A: Correct.

* * * *

Q: That’s pretty bizarre, too?

A: Yes.

Q: Would you consider -- as chief, you're responsible for thesafety and welfare of your officers, including Officer Nicholson, correct?

A: Correct.

Doc. 29-1, Chief Dep. 65:13-17; 79:19-81:8, 17-20 (emphasis added).

48. Settingsgaard failed to order a psychiatric evaluation of Wilson:

Q: At this time, with the cameras in the office and the reportsthat Bainter said “don't do it” two years earlier, and Nicholson complaining about it and now it's two years laterand you've got secret covert filming and you've gotcomments and now you're finding out there's a GPS on hercar and the guys you've entrusted in this investigation believe and you believe it's him --right? -- did you orderany psychiatric evaluation of this guy?

A: No.

Q: Why not?

A: I don't recall.

1:14-cv-01369-MMM-JEH # 38 Page 18 of 59




Q: You think that might have been a good move in retrospect?

A: I don't know. I don't know.

Q: You don't know?

A: No, I don't.

Doc. 29-1, Chief Dep. 82:4-20.

49. Snow reported to Settingsgaard that Plaintiff was feeling “violated and sick to her

stomach,” “extremely embarrassed” and “humiliated and betrayed.” Doc. 30-1, Investigation

Report, p. 5.

50.

Settingsgaard testified that Plaintiff’s reaction was understandable:

Q: As you sit here today, do you view it as understandable thatshe would feel humiliated, embarrassed, betrayed?

A: Yes.

Q: Violated, sick to her stomach?

A: Yes.

Doc. 29-1, Chief Dep. 68:17-22.

H. Plaintiff’s Request To Defendants for Protection For Her, Her Co-workers

And The Department

51. On February 28, 2011, Plaintiff wrote to Settingsgaard requesting the

Department’s cooperation in her effort to obtain a Stalking No Contact Order against Wilson,

stating, “I hope you realize this hasn’t been an easy decision for me, but above all else, the safety

of my family, my home and me come first. . . . I do not believe he wil l ever take responsibi li ty

for what he has done to me, my co-workers and the department . . . . I would like to present

evidence to the judge from the investigation and/or testimonial evidence from the officers

1:14-cv-01369-MMM-JEH # 38 Page 19 of 59




involved in the investigation. ” Doc. 29-6, Feb. 28, 2011 Letter from Nicholson to

Settingsgaard, p. 2; Doc. 29-1, Chief Dep. 90:16-21 (emphasis added).

52. On March 1, 2011, Settingsgaard rejected Plaintiff ’s request, stating:

the Department “will not release any information relative to

[Wilson’s] ongoing investigation;”

“The Department is unable to assist . . . by providing informationregarding Officer Wilson’s personal vehicles;”

“The Office of the Chief will not order officers to appear in court totestify . . . .”

Doc. 29-6, March 1, 2011 Letter from Settingsgaard to Nicholson, p. 3; Doc. 29-1, Chief Dep.

91:6-15.

53. On March 10, 2011, Defendant Settingsgaard again wrote to Plaintiff, stating

“there is no credible evidence that Officer Wilson poses a physical threat to you by continuing to

work”:

[Wilson] is still an active employee and he needs to have the sameability to perform his duties as you have. His incidental contact

with while you are both engaged in your official duties is not prohibited. He has not been required to avoid a certain travel routeor a particular room of the building, simply because you happen to be in the area. He is not required to “retreat” when he sees you.

. . . .

You reported dissatisfaction that Officer Wilson is allowed to workduring this investigation. Officer Wilson has a right to due processand his guilt or innocence relative to rule violations has yet to bedetermined. Cur rentl y, there is no credible evidence that Off icer

Wi lson poses a physical thr eat to you by continuing to work. You

state what you believe he will do or what you believe he is capableof doing, but no evidence has come forward to sustain those beliefs.

Doc. 29-6, March 1, 2011 Letter from Settingsgaard to Nicholson, p. 6 (emphasis added).

1:14-cv-01369-MMM-JEH # 38 Page 20 of 59




54. At the time of Settingsgaard’s letter, Snow and Feehan had reported to

Settingsgaard that Wilson was behind the illegal surveillance of Plaintiff:

Q: Now, as of March 10, 2011, had your investigator reported

to you that they believe Wilson was behind both the GPSand the cameras?

A: Based on that January document we reviewed, yes.

Doc. 29-1, Chief Dep. 93:17-21.

I. Plaintiff’s Stalking No Contact Complaint, Hearing And Order

55. On April 28, 2011, Plaintiff filed her initial Charge of Employment

Discrimination and sexual harassment against Wilson and the Department with the EEOC and

IDHR. Doc. 12-5, Complaint, Exhibit 4; Doc. 21, Answer ¶ 26.

56.

The following day, April 29, 2011, Plaintiff filed a Complaint for Stalking against

Wilson in Peoria County Circuit Court (the “Stalking Complaint”) and obtained an Emergency

Stalking No Contact Order: (1) prohibiting Wilson from stalking or contacting Plaintiff; (2)

requiring that Wilson stay 300 feet away from Plaintiff, her residence, and the Police

Department; and (3) prohibiting Wilson from possessing a firearm. Doc. 21, Answer ¶ 27; Doc.

29-7, Stalking Order.

57. Defendant City hired and paid attorneys for Wilson’s defense, which included

challenging the constitutionality of the Stalking No Contact statute. Ex. 3, Letter from Attorney

to Wilson.

58. On July 7, 11 and 15, 2011, Judge Purham of the Peoria County Circuit Court

conducted a Plenary Hearing on the Stalking Complaint. See, Ex. 2, Hearing on Order of

Protection, July 7, 2011, Doc. 29-10, Hearing on Order of Protection, July 11, 2011, and Ex. 4,

Closing Arguments and Opinion, July 15, 2011.

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59. At the Plenary Hearing, Sgt. Snow testified to his conclusion that it was Officer

Wilson who initiated the covert videotaping and GPS surveillance of Plaintiff:

Q: And after examining the computers and after examining the video

files, did you reach an opinion as to who initiated the videotaping?

A: Yes.

Q: And who was that person?

A: Officer Wilson.

Q: Okay. In your investigation, did you come across any evidencethat Officer Wilson had previously been instructed not to videotapewithin the Vice Office?

A: Yes.

* * * *

Q: Okay. All right. So, with regards to figuring out this whole GPS business, what steps did you take to investigate how that GPS trackwas created?

A: Looked into who was back in the Vice Office that had theknowledge, knowhow, access to that equipment, how to apply it,how to power it, how to collect data from it and store it on thecomputer.

Q: And in the course of that investigation, were you able to form anopinion as to who had that expertise and who could have perpetrated the GPS on her vehicle?

A: I sustained the allegation of who placed the GPS.

Q: Who did you find placed the GPS on the vehicle?

A: Jeffrey Wilson.

Ex. 2, Snow Testimony, Hearing on Order of Protection, July 7, 2011, pp. 200-202.

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60. Settingsgaard testified at the Plenary Hearing that, notwithstanding the

conclusions of his investigators over the seven-month investigation, he had not made a decision

whether to discipline Wilson:

Q: What are your duties generally in regard to discipline administeredto police officers in the department?

A: I review all investigative files that have discipline pending andmake a decision as to appropriate discipline.

* * * *

Q: Chief Settingsgaard, the investigation in this matter began in November of 2010, correct?

A: Correct.

Q: And today it is July 11, 2011, and it is still not concluded, correct?

A: Correct.

Q: And you stated that in April approximately within a few days ofthe filing of this petition that you were close to your resolution,correct?

A: Correct.

* * * *

Q: I understand, Chief. Can you please describe what was that newevidence that came up after, in or around April 27, 2011, thatcaused you to continue the investigation further? Was thereanother special report made that led you to believe there should befurther research?

A: It could be.

Q: You don’t recall?

A: I don’t recall.

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* * * *

Q: You have seen the record of the conclusions that have been presented to you by Sergeant Snow?

A: Yes.

Q: And you’re aware that seven of the accusations against Officer

Wilson were sustained by Sergeant Snow?

A: Yes.

Q: And you’re aware that Sergeant Snow and Detective Feehan’s

conclusions were that Officer Wilson placed the GPS on Officer Nicholson’s vehicle, correct?

A: Correct.

Doc. 29-10, Settingsgaard Testimony, July 11, 2011, pp. 80, 88-91.

61.

After a three day hearing, Judge Purham agreed with the conclusions of Snow and

Feehan and issued the Stalking No Contact Order against Wilson. Doc. 29-1, Chief Dep.

105:18-2; Ex. 5, Stalking Order 7/15/11.

62. In particular, Judge Purham concluded that Wilson had videotaped Plaintiff

without her knowledge or consent, despite being repeatedly told not to do so:

Before I get off point, on April 14 th, 2008, after the Petitioner thought shesaw her office being depicted on the Respondent’s laptop, inside his van at

the FBI search warrant, she complains to Lieutenant Adams and toSergeant Bainter. After meeting with them, they direct her to confront theRespondent. She does . . . in no uncertain words that she did not want to be videotaped anymore.

Further, it’s this Court’s understanding that Sergeant Bainter shortlythereafter did confront the Respondent and indicate that he was not tovideotape people in the work area, and that Officer Wilson understood.

My understanding in October 2010, Sergeant Eddlemon told RespondentWilson that he was not to videotape people in the office.

So November 9th, my understanding, Officer Mike Eddlemon comes in tothe office, goes to Officer Wilson’s work area, goes to the laptop so he can

1:14-cv-01369-MMM-JEH # 38 Page 24 of 59




check his Fantasy Football scores or something about Fantasy Football,and while he’s there, he realizes there’s been surveillance conducted

within the office itself. There’s two cameras that are recording, and one ismarked office. . . .

So what we have is . . . a pole cam of video about – from November 8

th

,2010, which is about 35 – 34 minutes depicting Officer Nicholson in thevideotape, and then, I believe there’s five clips from either a pin camera or

ocular camera, . . .

I also note when looking at the various clips, there are several of Off icer

Wi lson adjusting the camera where I see hi s face in at least two of the

clips, and then there’s one clip where Officer Nicholson’s chair is being

brought into focus.

And I would note that this pole camera is on some type of cabinet or

storage cabinet inside of Officer Wilson’s area. The storage cabinet isabout six feet high, . . . The only way that you could depict or f ocus it on

Off icer Nicholson is to rai se it, because if he had just kept it at desk

level, he would not be able to depict or capture Officer Nicholson’s face

or her desk.

Ex. 4, Judge Purham Transcript, July 15, 2011, pp. 59-62 (emphasis added).

63. Judge Purham also agreed with Snow and Feehan’s conclusions that it was

Wilson who placed the GPS on Plaintiff’s vehicle:

Detective Feehan detailed for us why he felt that it was Officer Wilsonwho placed the GPS on the vehicle of Officer Nicholson. . . . I’m not

going to go through all the proximity card and all the logs for theentrances, but I f ind that to be qui te persuasive and strong

circumstantial evidence which I think mor e than meet the

preponderance standard .

Ex. 4, Judge Purham Transcript, July 15, 2011, pp. 62-63 (emphasis added).

64.

Finally, Judge Purham found “[I]t is obvious to the Court that [Plaintiff] has

suffered significant emotional distress.” Ex. 4, Judge Purham Transcript, July 15, 2011, p. 63.

65.

Settingsgaard concedes that Plaintiff suffered emotional distress during this

period.

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Q: Did you observe emotional distress from Donna Nicholsonduring this period?

A: Yes.

Doc. 29-1, Chief Dep. 105:1-3.

66. Settingsgaard also concedes that Plaintiff’s fear of violence was reasonable:

Q: Okay. You would acknowledge that a reasonable personmight be concerned for their own safety, a woman, underthose circumstances, a police officer with a badge and agun were found to be surreptitiously videotaping her after being told not to do so and placing a GPS on her car andspeaking ill of her children? You would understand that to be reasonable from her perspective?

A: Yes.

Doc. 29-1, Chief Dep. 89:2-10.

I. Defendants’ Failure to Discipline Wilson

67. On July 29, 2011, Sgt. Snow drafted a letter of termination for Settingsgaard to

give to Wilson referencing Wilson’s numerous violations of the Department’s General Orders

100.06 V.A, VI.C, VI.D, VI.G and the Workplace Violence Prevention and Anti-Harassment

Policy:

Based upon the evidence, it has been proven that you violated thefollowing General Orders in that you did place, withoutauthorization, the Peoria Police Department’s Sentinel GPStracking device on Nicholson’s Department assigned vehicle on or

about August 10, 2010 and caused it to remain there until August24, 2010. . . . Your lack of truthfulness in your interviewundermines your credibility and therefore ability to act as a policeofficer. . . .

Based upon the evidence, it has been proven that you made grosslyoffensive comments about Nicholson and her daughter, in the presence of others. You were also untruthful in denying thecomments and therefore you violated the following GeneralOrders: . . .

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Any reasonable person would likely be disturbed by being secretlymonitored and would find this to be an invasion of privacy. Nicholson was affected by this behavior to the point she began toquestion the safety of both herself and children. Nicholson's levelof discomfort was magnified by the fact she had already been

subjected by you to being on camera without her knowledge, bothin 2008 and 2010. . . .

The totality of your behavior towards Officer Nicholson wasthreatening, demeaning, and embarrassing to her, prompting her toacquire both a temporary and permanent stalking no contact orderwhich was granted by Judge Purham. These court proceedingswere highly publicized and were much to the discredit of thedepartment's reputation. . . .

Your intentional misuse of the very technology that you were

entrusted to safeguard diminishes the sense of privacy and securitythat every member of this department has a right to enjoy. . . .

The totality of your aforementioned actions not only violatedgeneral orders but they violated the public trust, and their severityis only compounded by your denials and untruthful responses.You have demonstrated that your judgment and integrity have beencompromised to a level that, despite your lengthy and stellar workrecord, precludes you from continuing to serve as a Peoria policeofficer and I, therefore, terminate your employment with the Cityof Peoria Police Department effective immediately.

Doc. 29-12, Draft Termination Letter; Doc. 29-1, Chief Dep. 106:2-13, 107:15-112:16.

68. Settingsgaard did not give the letter to Wilson. Doc. 29-1, Chief Dep. 112:17-23.

69. Instead, Settingsgaard read the letter to Wilson and gave Wilson an opportunity to

“come back” later “with his own evidence.” Doc. 29-1, Chief Dep. 112:24-113:7, 113:21-114:13.

70. In August, Settingsgaard met with Wilson and Benevolent President Troy Skaggs,

at which time Wilson provided only the following explanations: (a) “the GPS was not as

complicated as we believed it to be”; and ( b) Wilson’s “laptop was accessible to others in SID.”

Doc. 29-1, Chief Dep. 116:2- 16, 118:4-11; Doc. 29-18, Letter of Discipline.

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71. In this meeting, Wilson suggested to Settingsgaard that Plaintiff may have been

behind the GPS:

Q: And we have – but you had no idea – did Jeff offer up any

suggestions who that might be?

A: At some point, Jeff suggested that Donna may have operated andinstalled the GPS including on his own vehicle, his departmentvehicle.

Q: Did you – and Donna may have operated the laptop; did he alsosuggest that?

A: I don’t remember.

Q: Because the laptop and GPS sort of go hand in hand, don’t they?

A: In a sense. I think the GPS will operate independently of thelaptop; but to download the data and view it, I think you need thesoftware on the laptop. Yes.

Q: Did you think that was credible?

A: I didn’t believe it. I thought it was possible, but I didn’t believe it.

Q: I mean you knew Donna had gone through all these court hearingsand hired lawyers and spent thousands of dollars? That was anissue, the fact that she had to pay for her lawyers and Wilson had afree attorney. Remember all that?

A: Yes. It wasn’t believable to me. It was possible but not

believable.

Doc. 29-1, Chief Dep. 120:11-121:-10.

72. Wilson also told Settingsgaard that, contrary to his initial statements to Sgt.

Eddlemon, he had been operating the camera with a technician:

A: He also provided evidence -- and this speaks to theallegation that he was tracking her movements in the officewith a pan-tilt zoom and he provided information that hewas working with a technician out of state over the phonetrying to repair that camera that wasn't functioning properly

1:14-cv-01369-MMM-JEH # 38 Page 28 of 59




and that the technician should be able to verify the time anddate. . . .

Q: But doesn't that suggest that the camera was him? Isn't thata confession that he's the camera guy?

A: It's an admission that he is the guy operating the camera atthat time. Yes.

* * * *

Q: Do you remember at some point in the investigation that hedenied having anything to do with the camera?

A: I don't know.

Q: He thought the camera was -- he didn't know it wasoperating; wasn't that his first position? He had no idea thecamera was operating when Eddlemon first found it?

A: He may have. I don't recall.

Q: Wouldn' t that now suggest he's now told two completely

dif ferent stori es if he did tell that to Eddlemon? One, thathe's working like a beaver with some guy out of state to fixhis camera and, two, he doesn't know anything about anycamera?

A: There's two dif ferent responses, yes, if that' s what was

said.

Doc. 29-1, Chief Dep. 124:3-9, 20-23, 125:7-23 (emphasis added).

73. On September 8, 2011, Settingsgaard issued a Letter of Discipline to Wilson

reversing the conclusions of his I nvestigators Snow and Feehan and of Judge Purham ,

stating: (a) with respect to the videotaping of Plaintiff, “no wrongdoing on your part in this

regard;” ( b) with respect to the GPS, “I can no longer say with any degree of certainty who was

responsible. Since I cannot prove who is responsible, I cannot say that you were untruthful in

your denial that you were responsible;” and (c) with respect to the offensive comments regarding

Plaintiff and her daughter, “I however no longer believe you were intentionally being untruthful

1:14-cv-01369-MMM-JEH # 38 Page 29 of 59




in your denial, but rather than your denial is based upon your inability to recall.” Doc. 29-18,

Letter of Discipline.

74. Settingsgaard’s Letter to Wilson is contrary to his own testimony regarding the

scope of prohibited conduct under the Department’s Workplace Violence Prevention and Anti-

Harassment Policy:

Q: That would include unauthorized videotaping of people inthe office, using profane, sexual comments about their physical appearance or their children that Duncan talkedabout, putting a GPS? All those things would beconsidered harassment in your view; would they not?

A: If they're intentional behaviors, yes. I guess it could beharassment even if unintentional.

Doc. 29-1, Chief Dep. 86:12-1.

75. Settingsgaard’s Letter also is contradicted by his testimony that Wilson was lying

to him, his investigators and the Court:

Q: Why did you not at that point order an externalinvestigation, an outside investigation to determine whetheror not Wilson was telling the truth, whether you had someother rogue in the office? I mean, why didn't you do that?

A: I didn't believe it was necessary.

Q: Well, if Wilson was right, if Wilson was right, you hadsomebody else in there doing this and setting him up, right?

A: I don't follow the question.

Q: If Wilson was correct, somebody else had put the GPS onDonna's car and somebody else had access to the laptop.There was no secret about this. This was all over thePeoria Star Journal (sic), wasn't it?

A: Correct.

Q: I mean, you testified at least once. You had officerscoming and going. You had the City Counselor's office

1:14-cv-01369-MMM-JEH # 38 Page 30 of 59




defending Wilson, went all the way to Court of Appeals.Weren't you concerned that Wilson was either lying or thathe was telling the truth and you had somebody else in thedepartment who was not only doing this but was allowingWilson to take the fall and it was exposing the department

to complete public ridicule? Is that true? Is that a fairassessment of the situation?

A: I was -- I didn' t beli eve that it was someone else who had

done it.

Q: You thought it was Wil son?

A: I stil l beli eve it was Wi lson.

Q: You did believe it was Wilson?

A: I did and I still do.

Q: Okay. You thought it was Wi lson which means you

thought he was lying to you, ri ght?

A: Correct.

Q: And you put Donna out on Patrol with him, ri ght, same

department?

A: Yes.

Doc. 29-1, Chief Dep. 132:5-8, 158:11-160:10 (emphasis added).

76. Settingsgaard’s Letter to Wilson is not the first time Settingsgaard falsely re-

stated facts to exonerate an officer:

Q: And at the time of this affidavit which is 2004, signed in 2004, I believe the last page, March of 2004, you were the commander ofthe Milwaukee Police Department Internal Affairs Division, right?

A: Correct.

* * * *

Q: And you represented to the Court that you had personal knowledgeof this information in paragraph three, first page, correct?

1:14-cv-01369-MMM-JEH # 38 Page 31 of 59




A: Correct.

Q: Okay. And you made some representatives here regarding M r .

F ields regarding the shooting that were false; is that tr ue?

A: I remember that being an issue. I don't remember exactly thedetails of it.

* * * *

Q: That was wri tten under oath, signed under oath, and submitted to

a federal judge?

A: I don' t know if it was written under oath. I signed it under oath.

Q: I t tur ned out that was fal se, correct?

A: Correct.

Q: The emergency vehicle was not approaching with its lights on orsiren going, right?

A: I believe that's correct. Yeah.

* * * *

Q: It was your duty to make sure before you signed it that what wasstated in the affidavit was correct?

A: I think within reason, yes.

Q: We're talking about a shooting death of somebody. So do youthink within reason it was reasonable, within reason, that youwould ensure that what you signed was truthful and accurate before you filed it in federal court?

A: Within reason.

Q: What does within reason mean?

A: What you are suggesting would require I would fact check everyword, every sentence throughout the 22-page document over

1:14-cv-01369-MMM-JEH # 38 Page 32 of 59




however many shootings of files that were several inches thick ofdocuments.

Q: You don't think that's reasonable, that you would fact check everysentence, every word regarding these 15 shootings?

A: I trusted that our attorneys to get some of those minute factsstraight. I read them for content. They were consistent with myrecollection of the cases and my reading of the cases, but I didn'tcompare word for word, no.

Q: Okay. It was helpful to the officers that the -- to represent to theCourt that the emergency vehicle -- that the victim's car was notgiving the right-of-way to an emergency vehicle with its lights andsiren on; is that right?

A: I don't know.

Q: That improves their position; does it not?

A: I don't know.

Doc. 29-1, Chief Dep. 36:1-5, 37:11-19, 38:5-13, 39:13-40:19 (emphasis added).

J. Defendants’ Discriminatory Adverse Employment Action And Pattern Of

Discrimination

77. In July 2012, Settingsgaard issued General Order 300.10, providing that officers

having three or more years of specialized assignments (non- Patrol) were subject to transfer.

Officers could reapply for the same position or any other vacant position. Doc. 29-13, General

Order, pp. 1-4; Doc. 29-1, Chief Dep. 12:18-24, 134:6-11.

78. At the same time, SID/Vice, Asset Forfeiture and the Liquor Investigator became

merged into a newly-named Target Offender’s Unit (“TOU”). Doc. 29-13, General Order, p. 2

¶6; Doc. 29-1, Chief Dep. 141:8-15.

79. In the Fall of 2012, all of the SID/Vice officers, the Liquor Investigator, Scott

Jordan, and Plaintiff, applied for their same positions in TOU. Doc. 29-14; 29-15; Rotation

Assignments.

1:14-cv-01369-MMM-JEH # 38 Page 33 of 59




80. Each of the male officers in SID/Vice and Liquor received the position they

applied for irrespective of the length of their service. Doc. 29-14; 29-16; Doc. 29-1, Chief Dep.

143:22-144:1.

81. Liquor Investigator Scott Jordan, with over seven years in hi s posit ion , reapplied

for and received the same position. Docs. 29-14, 29-15, 29-16, Rotation Assignments; Doc. 29-1,

Chief Dep. 139:1-140:5, 145:24-146:13.

82. SID/Vice Officers Matt Lane and Corey Miller, each with over three years in their

respective positions, applied for and received their same positions. Doc. 29-14, 29-15 and 29-16,

Rotation Assignments; Doc. 29-1, Chief Dep. 140:6-141:21.

83. SID/Vice Officers Clint Rezac, Todd Leach, Christopher White and Justin Sinks

also applied for and received their positions in TOU. Doc. 29-14, 29-15, 29-16, Rotation

Assignments. Doc. 29-1, Chief Dep. 143:11-144:12.

84. Plaintiff, the only female in SID/Vice, was the only person in SID/Vice who was

not allowed to remain in her position. Doc. 29-14, 29-15, 29-16; Doc. 29-1, Chief Dep. 147:2-5;

Ex. 6, Kerrie Davis Dep. 119:8-10.

85. Sergeant Kerrie Davis, who was being brought into TOU as supervisor over the

Asset Forfeiture, was not allowed to participate in the interviews for the position:

Q: You weren’t present during the interviews for the Asset Forfeiture

position, right?

A: No, I was not.

Q: Have you had any conversations with anybody as to whathappened during the interviews for the Asset Forfeiture position?

A: I did ask Lieutenant Eddlemon why I was not included in theinterviews for the Asset Forfeiture position and the other positionsin the Target Offender Unit.

* * * *

1:14-cv-01369-MMM-JEH # 38 Page 34 of 59




Q: During that conversation, what did you say and what did he say?

A: I said – I asked him why I was not being included, that I wouldthink that I would be asked to help interview the people that I’m

going to be supervising in the next year that were coming into theunit. And he told me not to worry about it, that SergeantMushinsky and Sergeant Dixon would be in the interview and thatwas fine, that was enough.

Ex. 6, Davis Dep. 48:10-16, 48:24-49:8.

86.

Davis testified that, prior to the interview process, she understood that Plaintiff

would be transferred:

Q: Did you have any reason to believe that Eddlemonexcluded you for any particular purpose?

A: Well, you know – to be honest, I felt like I was basicallythe token female replacement for Officer Nicholson and Ifigured that they didn’t want me in the interview process

because they didn’t really care what my opinion was.

* * * *

Q: You also testified that you heard through scuttlebutt thatDonna was not going to get the Asset Forfeiture position

before there were interviews held. Did I understand youtestimony correctly?

A: Yes.

Ex. 6, Davis Dep. 50:5-12, 129:7-11.

87. Davis testified that there was a pattern of discrimination against women within the

Department that specifically impacted Plaintiff, Katie Baer-Burwell and Davis. Ex. 6, Davis

Dep. 111:16-112:9.

88. Prior to her deposition in March 2016, Davis reviewed the Department’s EEOC

files, which disclosed that the Department had not hired a single female officer since 2008:

Q: What did you observe after reviewing those documents?

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A: Well, I observed that the last female that we hired was in 2008,Brittany Martzluf. Before that, we hired two females in 2006,Amy Dotson and Denise White. So it' s been coming up on eight

years since we hi red a female off icer in th is department .

Q: So did I understand correctly it was two females in 2006 and onefemale in 2008?

A: That's correct.

Q: Am I correct that that would be three females hired for the nineyears Chief Settingsgaard was in charge; is that correct?

A: There may have been one more in 2006. I can't recall.

Q: Do you know how many females are on the entire Peoria Police

Department?

A: 18.

MR. ROSENFELD: How many men?

THE WITNESS: We have 220 commissioned, so 202.

BY MS. LYNCH:

Q: You mentioned this EEOC count. What exactly is that? Who doyou receive it from?

A: I believe it comes from City Hall, and it's just a break-down bygender and race of the different personnel that we have currentlyemployed.

Q: So it's a count of literally how many people there are? It's not acount of how many EEOC claims?

A: Right. That's correct.

Q: That particular unit, the TOFU unit you were assigned to, howmany females were in that unit for the approximate year you werein it?

A: None besides me.

Q: Was Donna Nicholson the only female in that uni t for the prior

ten years?

1:14-cv-01369-MMM-JEH # 38 Page 36 of 59




A: Yes, she was.

Q: Ar e there any females in that unit now?

A: No.

Ex. 6, Davis Dep. 142:11-144:8.

89. Davis testified that, in her own particular case, she became the subject of an

internal investigation and discipline on July 9, 2013, the day immediately af ter she asked “for a

meeting with Chief Setti ngsgaard to discuss why I was skipped over f or a promotion a second

time for a less – a male that had scored less than me on the promotional exam .” Ex. 6, Davis

Dep. 11:8-14 (emphasis added). Following the Department’s investigation and discipline of

Davis, Davis filed a claim of sex discrimination with the EEOC which resulted in Davis’

promotion to Lieutenant in October 2015. Ex. 6, Davis Dep. 10:9- 12:11, 14:20-15:14.

90. At her interview for the Asset Forfeiture position, Plaintiff read a written

statement in order to be “completely thorough” with her qualifications and expertise. Doc. 28-1,

Plf. Dep. 118:2-9.

91. Settingsgaard made the decision to transfer Plaintiff to Patrol and elevate Troy

Skaggs from Patrol to Asset Forfeiture Investigator:

Q: And where did you put her?

A: She went to Patrol.

Q: That was your decision, correct?

A: Yes.

Doc. 21, Answer, ¶¶ 34, 36; Doc. 29-14, Rotation Assignments, p. 1; Doc. 29-1, Chief Dep.

142:1-10; 147:2-5.

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92. Davis testified that assignments were “[A]bsolutely, without a doubt” based on

“loyalty to the chief” and that officers were “hesitant to tell the truth for fear of retaliation”

(Ex. 6, Davis Dep. 121:16-19, 140:11-15) and that each of the officers who participated in

Plaintiff’s interview received a promotion following the interview:

Q: To the best of your memory, has Mushinsky been promoted sincethe fall of 2012?

A: Oh, yes.

Q; Has Marion been promoted since the fall of 2012?

A: Yes.

Q: Has Lisa Snow been promoted since the fall of 2012?

A: Yes.

Q: Has Mike Eddlemon been promoted since the fall of 2012?

A: Yes.

Q: Has Paul Deeb been promoted since the fall of 2012?

A: I'm not sure of his date, but he has been promoted, yes.

Q: Is Mushinsky in charge of the unit now?

A: Yes, he is.

Ex. 6, Davis Dep. 141:2-19.

93. According to Davis, transfer to Patrol was “demeaning or degrading” and a form

of punishment by Settingsgaard. Ex. 6, Davis Dep. 136:18-137:9.

94.

Settingsgaard concedes that, because of the transfer, Plaintiff lost perks that she

had earned over eleven years in SID and faced a more strenuous job:

Q: She went out to Patrol. Folks in Patrol have the same perks and benefits that they have in Vice, in Asset Forfeiture or TargetOffenders?

1:14-cv-01369-MMM-JEH # 38 Page 38 of 59




A: It’s a very different job. Vice – they don’t have some of the same

perks, no.

Q: Not as many perks as being in Target Offender, right?

A: I would say that’s accurate.

* * * *

Q: What benefits would Donna lose by moving from TargetOffender or Asset Forfeiture to Patrol?

A: Take-home car -- and, again, depending on who views benefits -- who views something as a benefit, so some mayconsider working plain clothes a benefit, others may notwant to work plain clothes. So you might construe working

in uniform and not plain clothes as a loss of something youenjoy.

Q: Is Asset Forfeiture plain clothes?

A: Yes.

Q: I s Patrol overt ime more strenuous than overtime for plain

clothes or Asset F orfeiture physicall y?

A: Yes and no. I think doing Asset Forfeiture might be less

strenuous. I think that Asset Forfeiture officer workingwith Vice executing search warrants and going into some pretty dangerous places can be strenuous. So I don't knowthat you can give it a one or the other. On average, Patrol

is probably more strenuous.

Doc. 29-1, Chief Dep. 142:11-18; 154:9-155:3 (emphasis added).

95. Settingsgaard also concedes that the transfer cost Plaintiff use of the unique

skillset that Plaintiff had developed, and which had made her effective, in her career in Asset

Forfeiture:

Q: She had been in Asset Forfeiture for ten years at this timeroughly?

A: Yes.

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Q: And she developed a skill set that made her effectiveinvestigating, tracking down assets for criminals ordefendants, right?

A: She was effective. Yes.

Q: And she wasn't going to be doing that on Patrol for at leastthe next three years, right, until the next role?

A: No. I believe she could have -- well, yeah. It wouldn'thave gone up for rotation for three more years.

Q: So that ski ll set was going to be on ice for another three

years, right?

A: Possibly .

Doc. 29-1, Chief Dep. 142:19-143:10 (emphasis added).

96. Finally, Settingsgaard concedes that his transfer of Plaintiff to Patrol increased the

likelihood of contact with Wilson, who was still litigating his appeal of Judge Purham’s Order :

Q: Okay. Was there a concern by you that Patrol would put

Donna in the same proximity as Wilson who was in

Patrol?

A: There was a chance that no matter where they worked inthe department they had an opportunity to be in the same proximity at some point. I was concerned that both of

them being in Patrol could mean more li kely, becoming

more li kely that they'd have some contact .

Doc. 29-1, Chief Dep. 155:4-11 (emphasis added).

K. Plaintiff’s EEOC/IDHR Charge And Reapplication For Asset Forfeiture

97.

On December 13, 2012, Plaintiff filed the underlying EEOC Charge alleging that

Defendants’ failure to reassign her to Asset Forfeiture constituted retaliation and sex

discrimination and, after receiving a Right to Sue Notice, Plaintiff filed this action seeking

redress for the outrageous discriminatory and retaliatory acts, as set forth above. Doc. 21,

Answer, ¶ 35, 39-40.

1:14-cv-01369-MMM-JEH # 38 Page 40 of 59




98. After Plaintiff’s transfer to Patrol, the Asset Forfeiture funds “decreased

dramatically.” Ex. 6, Davis Dep. 114:24-115:1.

99. Lt. Davis testified that Plaintiff’s replacement, Skaggs, did only the “bare

minimum” and did not demonstrate any initiative or improvement:

A: But in that, I think that in my opinion it seemed to me thatthroughout the year he did -- he continued to do the bareminimum. It was understandable at the beginning of theyear because he was brand new in that position and hedidn't fully know himself what all he was supposed to bedoing. But as he continued on in that position throughoutthe year, he didn't demonstrate to me any improvement. Hedidn't demonstrate to me any initiative. He would process

what seizures came in from the officers, what money theyseized, what money they seized during Patrol stops, trafficstops, Vice raids or Target Offender Unit raids, what haveyou. The money that other officers seized he would process.

And I believe we had one car that Lieutenant/CaptainEddlemon really wanted, so he figured his way out throughthat. But other than that, he didn't go for any bankaccounts. He didn't go for any other personal property. He just did the bare minimum from what I saw.

Ex. 6, Davis Dep. 113:10-114:4.

100. Lt. Davis further testified that Illinois State’s Attorney Kim Nuss was

disappointed in the decrease in Asset Forfeiture funds following Plaintiff’s transfer to Patrol:

A: During that meeting, Miss Nuss was very upset about thefact that we were not bringing in anywhere near the amountthat we had been when Officer Nicholson was the AssetForfeiture officer and that there were problems with procedures, there were problems with things not being donecorrectly, but a large portion of the time was talking aboutthe decrease in funds.

Ex. 6, Davis Dep. 115:19-116:1.

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101. State’s Attorney Kim Nuss, who worked with both Plaintiff and Skaggs in asset

forfeiture, states, under oath, as follows:

Donna Nicholson was an excellent asset forfeiture officer. Donna was

very familiar with the asset forfeiture laws and procedures governing assetforfeiture. Donna . . . excelled as the City of Peoria’s asset forfeiture position bringing in millions of dollars. Donna actively sought out assets,including bank accounts, bonds in criminal cases and vehicles registeredto nominee owners.

Troy Skaggs was Donna’s replacement. In my experience, Troy Skaggswas a paper processor while Donna was an active investigator. TroySkaggs would just fill out the forfeiture request form while Donnaconducted asset forfeiture investigations. . . . Even after he had been on

the job for some time, Troy Skaggs was unable to do a seizure warrant

or an Art icle 36 seizure. This is very tell ing of the lack of investigation

on hi s part. When I confronted Troy Skaggs about these and other issuesthat would come up while we were working together, his response wasthat Donna Nicholson did not train him.

It is my understanding that since Donna Nicholson’s transfer, there has been a big decline in the asset forfeiture funds and I was informed thatthere is little to no money in the City of Peoria asset forfeiture accounts.

Ex. 7, Affidavit of Kim Nuss, ¶¶ 3, 4, 5, 6 (emphasis added).

102. On August 5, 2013, The Third District Court of Appeals affirmed Judge Purham’s

Order, finding, inter alia

Here, the evidence clearly established that it was more likely true than nottrue that Wilson had engaged in at least two such actions. While Wilsondenied engaging in such acts, there was sufficient evidence upon whichthe Court could have disbelieved Wilson. Moreover, the evidencesupported the conclusion that, given Wilson’s professional background

and expertise, with surveillance equipment, it was highly unlikely that he“accidentally” videotaped Nicholson while testing his equipment.

Doc. 29-17, Opinion.

103. In 2015, Plaintiff reapplied for Asset Forfeiture and again was denied in favor of

Skaggs. Ex. 1, Nicholson Affidavit, ¶ 3.

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IV. ARGUMENT

A. The Legal Standard for Summary Judgment.

To obtain summary judgment, Defendants must “show that there is no genuine issue as to

any material fact and that [they are] entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c). When ruling on a motion for summary judgment, a court should construe all facts in the

light most favorable to the nonmoving party and draw all reasonable and justifiable inferences in

the nonmoving party's favor. Id. at *19, citing Estate of Cole by Pardue v. Fromm, 94 F.3d 254,

257 (7th Cir. 1996).

“[S]ummary judgment is improper in a discrimination case where a material issue

involves any weighing of conflicting indications of motive and intent.” Kasten v. Saint-Gobain

Performance Plastics Corp., 703 F.3d 966, 974 (7th Cir. 2012), quoting Stumph v. Thomas &

Skinner, Inc., 770 F.2d 93, 98 (7th Cir. 1985). The Seventh Circuit has suggested that motions

for summary judgment in employment discrimination cases should be approached cautiously and

“with added rigor . . . where intent and credibility are issues.” Sarsha v. Sears, Roebuck & Co., 3

F.3d 1035, 1038 (7th Cir. 1993); see also Bagley v. Blagojevich, 646 F.3d 378, 389 (7th Cir.

2011).

Accordingly, “[a]scertaining intent in a discrimination case ‘is both sensitive and

difficult,’ and in opposition to a motion for summary judgment a plaintiff should be required to

do no more than offer proof which casts doubt upon the veracity of the employer ’s stated reason

for its action.” Stumph v. Thomas & Skinner, Inc., 770 F.2d 93, 98 (7th Cir. 1985), quoting U.S.

Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983); see also; Stumph, 770 F.2d

at 98; Sawyer v. Nicholson, 2010 U.S. Dist. LEXIS 115969, at *49-50 (N.D. Ill. 2010) (“Intent

and credibility frequently are critical issues in employment cases that in many instances are

1:14-cv-01369-MMM-JEH # 38 Page 43 of 59




genuinely contestable and not appropriate for a court to decide on summary judgment.”), citing

Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir. 1997).

In Baer-Burwell v. City of Peoria, 2012 U.S. Dist. LEXIS 150507 (C.D. Ill. Oct. 19,

2012), a prior sex discrimination and retaliation case against the City and Settingsgaard, this

Court applied these principles to deny the Defendants’ motion for summary judgment based on

questions of fact related to credibility and motive:

It is ultimately up to the jury to decide whether to believeSettingsgaard’s explanation or alternatively to find Burwell’sversion to be more credible.

* * * *

Although the City has offered what it asserts are legitimate, non-discriminatory reasons for the differences in discipline, the presence of genuine issues of material fact in the record mandatesthat a jury determine whether the City's explanations are worthy ofcredence or are merely a pretext for retaliation. The City’s Motionfor Summary Judgment must therefore be denied in this respect.

Id. at *36-37, 59.

Here, the factual record demonstrates substantial issues of fact relating to credibility and

motive that preclude summary judgment.

B. Genuine Issues of Material Fact Preclude Summary Judgment on Plaintiff ’s

Claim for Retaliation under Title VII.

The anti-retaliation provision of Title VII prohibits an employer from retaliating against

an employee for opposing discrimination or an unlawful employment practice, or for making a

charge, testifying, assisting or participating in a Title VII investigation, proceeding or hearing.

Sawyer, 2010 U.S. Dist. LEXIS 115969, at *59, quoting, 42 U.S.C. § 2000e-3(a).

A plaintiff in a Title VII case may prove a claim of retaliation under either the direct

method of proof or the indirect method. See Baer-Burwell , 2012 U.S. Dist. LEXIS 150507 at

1:14-cv-01369-MMM-JEH # 38 Page 44 of 59




(summary judgment denied where employees offered a convincing mosaic of circumstantial

evidence to infer retaliation).

Here, the evidentiary record demonstrates ample evidence to satisfy not just one but all

three types of circumstantial evidence. For instance, with respect to “suspicious timing,

ambiguous statements or behaviors,” the evidence demonstrates that:

On August 10, 2010, the very same day that Plaintiff was ordered bySettingsgaard, over Plaintiff ’s objection, to issue a $19,500 check from the AssetForfeiture account for the production of a video featuring Settingsgaard, a GPStracking device was placed on Plaintiff ’s vehicle (SAF ¶¶ 28-31);

After it was discovered in November, 2010, that Plaintiff was being illegally

videotaped at work, a protracted, seven month investigation and Court hearingsensued which found that Wilson had had conducted both the GPS and videosurveillance of Plaintiff, for wh ich Settingsgaard and the Department provided

no assistance to Plainti ff and imposed no pun ishment on Wi lson (SAF ¶¶ 32-75);

As Plaintiff pursued her civil complaint for stalking through Wilson’s appeals, in2012, Defendants instituted a rotation policy which resulted in Plaintiff, the onlyfemale in the SID/Vice department, being the only SID/Vice officer transferredfrom her current position to patrol, with a loss of perks, despite her undisputedqualifications and effectiveness in the Asset Forfeiture position, as conceded by

Settingsgaard himself and testified to by the State’s Attorney working in AssetForfeiture (SAF ¶¶ 77-103);

Lt. Kerrie Davis, who was appointed as the supervisor over Asset Forfeiture, wasnot allowed to participate in Plaintiff ’s Asset Forfeiture interview despite herrequest to do so, and Lt. Davis understood, before the interviews were conducted ,that Plaintiff was going to be transferred from Asset Forfeiture position (SAF ¶¶85-86).

Plaintiff has similarly identified extensive circumstantial evidence from which a jury

could infer that similarly situated employees were treated differently and that Defendants’ reason

for its adverse employment action against Plaintiff was pretextual. See Section B.2 infra.

The City argues that there can be no causal relationship because too much time passed

between Plaintiff’s discrimination charges and the reassignment. Doc. 27, p. 20. The cases on

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Here, the City concedes the first three elements of a prima facie case and only contends

that Plaintiff’s claim fails because she cannot prove that she was “treated less favorably than

similarly situated employees who did not engage in statutorily protected activity.” Doc. 27, p.

18. Contrary to the City’s contention, the evidence shows:

Under the Rotation Policy, Plaintiff and all other SID/Viceofficers applied for the same positions in which they werecurrently serving (SAF ¶ 79);

Plaintiff was the only female officer in SID/Vice (SAF ¶ 84);

Plaintiff engaged in statutorily protected activity by opposingdiscrimination and unlawful employment practices, including:lodging complaints of sexual harassment and stalking with theDepartment, requesting Defendants’ protection, filing a chargeof discrimination, and filing and pursuing a stalking complaintin Circuit Court and through the Illinois appellate courts (SAF ¶¶ 37, 51, 55, 56);

Every SID/Vice officer other than Plaintiff having an excess ofthree years’ experience in their position received their same position that they re-applied for, including Scott Jordan, whohad held his position of Liquor Investigator for over 7 years(SAF ¶¶ 81-84);1

Plaintiff — the only female in SID/Vice — was the only

SID/Vice officer who did not receive the position for which sheapplied (SAF ¶ 84).

Accordingly, Plaintiff has presented evidence to meet her prima facie case.

The City’s proffered legitimate, non-retaliatory reasons for Plaintiff’s transfer to Patrol

rely on the Rotation Policy and interview performance. Doc. 27, p. 19. Plaintiff can establish

these reasons were pretextual “by proving one of the following: ‘(1) defendant's explanation had

no basis in fact; or (2) the explanation was not the real reason; or (3) at least, the reason stated

1 The City argues that Plaintiff was treated the same as her predecessor, Scott Jordan, who, in2002, was transferred to Patrol under a different Chief and different Rotation Policy. Doc. 27, p.18.

1:14-cv-01369-MMM-JEH # 38 Page 48 of 59




was insufficient to warrant’ the adverse job action.” Imhoff v. Kmart Stores of Ind., Inc., 149 F.

Supp. 2d 559, 568 (N.D. Ind. 2001) (internal quotation omitted)(summary judgment denied

where reasonable factfinder could conclude proffered reasons were not honestly believed).

The City’s reliance on the Rotation Policy’s premise that officers would be reassigned

after three years in order to cross train officers in specialized positions simply has no basis in fact

because Scott Jordan, the Liquor Investigator for seven years, was reassigned to his position of

Liquor Investigator. SAF ¶ 81. The interview process was also a sham because Lt. Davis

testified that she heard, before the interviews were conducted , that Plaintiff would not receive the

Asset Forfeiture position. SAF ¶ 86. Moreover, Lt. Davis, the Supervisor of Asset Forfeiture,

who requested to be involved in the interview process but was excluded, testified that she felt

like, “ basically the token female replacement for Officer Nicholson and [she] figured that they

didn’t want [her] in the interview process because they didn’t really care what [her] opinion was.

SAF ¶ 85.

The City erroneously contends that Hall v. Forest River, Inc., 536 F.3d 615 (77th Cir.

2008) is applicable here. Hall is a “failure to promote” case where summary judgment was

granted on an employee’s retaliation claim because she failed to offer any evidence other than

her longevity in her position. Id. at 620.

Here, unlike Hall, reassignment was not a promotion. Also, unlike Hall , Plaintiff has

more qualifications than just her tenure in the Asset Forfeiture position. Plaintiff collected over

$6 million while in Asset Forfeiture. SAF ¶ 21. Chief Settingsgaard concedes that Plaintiff was

“good at her job” and developed a skillset that made her “effective” in investigating and tracking

down assets. SAF ¶¶ 22, 95. Furthermore, the State’s Attorney, Kim Nuss, states that:

Donna Nicholson was an excellent asset forfeiture officer. Donnawas very familiar with the asset forfeiture laws and procedures

1:14-cv-01369-MMM-JEH # 38 Page 49 of 59




governing asset forfeiture. Donna Nicholson was on top of hergame and she excelled as the City of Peoria’s asset forfeiture

position bringing in millions of dollars. Donna actively sought outassets, including bank accounts, bonds in criminal cases andvehicles registered to nominee owners.

SAF ¶ 101.

Nuss regards Plaintiff’s replacement, Skaggs, as a “paper processor” while

Plaintiff was an “active investigator”. Id.

Furthermore, the record provides reason to question the credibility of the stated reason for

the transfer. Settingsgaard, the ultimate decision-maker, has previously submitted a false

affidavit to a federal court to protect his officers from legal claims, calling the credibility of his

stated reason here into question. SAF ¶ 76.

Thus, plaintiff has offered proof “which casts doubt upon the veracity of the employer’s

stated reason for its action.” Stumph, 770 F.2d at 98. Accordingly, summary judgment should

be denied because, as this Court stated in Baer-Burwell , “the presence of genuine issues of

material fact in the record mandates that a jury determine whether the City’s explanations are

worthy of credence or are merely a pretext for retaliation.” 2012 US Dist. LEXIS 150507 at *59.

C. Genuine Issues of Material Fact Exist with Respect to Plaintiff’s Title VII

Claims for Sex Discrimination.

Title VII prohibits an employer from discriminating “against any individual with respect

to [her] compensation, terms, conditions, or privileges of employment, because of such

individual's …sex….” 42 U.S.C. § 2000e-2(a)(1).

Like retaliation claims, Plaintiff can prove intentional sex discrimination directly or

indirectly. See Volovsek , 344 F.3d 680 at 689 & n.7. Here, under either method, Plaintiff

presents genuine issues of material facts which preclude summary judgment.

1:14-cv-01369-MMM-JEH # 38 Page 50 of 59




Even after he had been on the job for some time, Troy Skaggs

was unable to do a seizure warrant or an Article 36 seizure. This

is very tell ing of the lack of investigation on his part. When Iconfronted Troy Skaggs about these and other issues that wouldcome up while we were working together, his response was that

Donna Nicholson did not train him.

SAF ¶ 101.

Despite this, in 2015, Plaintiff was again denied the Asset Forfeiture position in favor of

Skaggs which reveals the real purpose of the transfer in 2012. SAF ¶ 103. Thus, there are

genuinely contestable issues which are not appropriate for summary judgment.

D. Genuine Issues Of Material Fact Exist With Respect To Plaintiff’s Section

1983 Claim Against Settingsgaard For Retaliation.

1. Settingsgaard Is Not Entitled To Summary Judgment On Count Iii

Because Plaintiff States A Claim For §1983 Retaliation.

“A public employee has a right, in certain circumstances, to speak as a citizen addressing

matters of public concern. Accordingly, the First Amendment, made applicable to the states

through the Fourteenth Amendment, prohibits the government from retaliating against its

employees for engaging in protected speech.” Gross v. Town of Cicero, 619 F.3d 697, 703-04

(7th Cir. 2010), citing Garcetti v. Ceballos, 547 U.S. 410, 417 (2006); Milwaukee Deputy

Sheriff's Ass’ n v. Clarke, 574 F.3d 370, 376 (7th Cir. 2009).

A claim for First Amendment retaliation under 42 U.S.C. § 1983 involves a three-step

inquiry to determine whether: (1) the speech was constitutional protected; (2) the speech was a

but-for cause of the defendant’s action; and (3) the employee suffered a deprivation because of

the employer’s action. Id. at 704.

To determine whether speech is “constitutionally protected” the court looks at the

“content, form and context” of the speech to determine if the plaintiff intended to raise a matter

of public concern or only some private interest. Id. “Public concern is the ‘subject of legitimate

1:14-cv-01369-MMM-JEH # 38 Page 54 of 59

donna nicholson federal court filing

Documents