Foggey v. City of Chicago

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

VINCENT FOGGEY,

Plaintiff,

No. 16 CV 10963

v.

Judge Manish S. Shah

CITY OF CHICAGO,

Defendant.

MEMORANDUM OPINION AND ORDER

At around 3:30 a.m. one morning, plaintiff Vincent Foggey, a black man and

eight-year veteran of the Chicago Police Department, walked into a Walgreens to take

what was supposed to be a fifteen-minute break. More than thirty minutes later,

Foggey’s partner Sanjin Hodzic (a white male officer on his third day on the job)

radioed to request a check in. Foggey left the Walgreens and encountered Hodzic

struggling to subdue a violent aggressor. The Chicago Police Board eventually

suspended and terminated Foggey for failing to adequately assist Hodzic. Foggey says

he was singled out for discriminatory treatment. The City’s motion for summary

judgment is granted because Foggey has presented no evidence from which a

reasonable juror could conclude that the City retaliated against him for complaining

about discrimination or that the reasons the City gave for suspending and

terminating him were pretextual justifications for race-based or sex-based

discrimination.

I. Legal Standards

Summary judgment is appropriate if there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ.

P. 56(a). The moving party must show that, after “construing all facts, and drawing

all reasonable inferences from those facts, in favor of the non-moving party,” United

States v. P.H. Glatfelter Co., 768 F.3d 662, 668 (7th Cir. 2014), a reasonable jury could

not return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986). The moving party is entitled to summary judgment when the

“nonmoving party has failed to make a sufficient showing on an essential element of

her case with respect to which she has the burden of proof.” Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986). “[A] scintilla of evidence in support of the nonmoving party’s

position will be insufficient to survive a summary judgment motion; there must be

evidence on which the jury could reasonably find in favor of the nonmoving party.”

Siegel v. Shell Oil Co., 612 F.3d 932, 937 (7th Cir. 2010). The party opposing summary

judgment has the responsibility to identify the evidence that would sufficiently raise

a disputed issue for trial. Bunn v. Fed. Deposit Ins. Corp. for Valley Bank Illinois, 908

F.3d 290, 297 (7th Cir. 2018). Perfunctory arguments, undeveloped arguments, and

arguments unsupported by pertinent authority are waived. Id.

II. Facts

Vincent Foggey, a black man, [140-2] 115:18–23, became a Chicago Police

Department officer in 2006. [140] ¶ 8; [148] ¶ 8.1 During the next eight years, he

1 Bracketed numbers refer to entries on the district court docket. Referenced page numbers

are taken from the CM/ECF header placed at the top of filings, except in the case of citations

received nearly thirty achievement awards and, six months before the events in

question, received a performance review that noted he was “exceeding expectations.”

[155] ¶¶ 1, 2.

At about 3:30 a.m. one morning, Foggey requested a fifteen-minute personal

break to meet with a friend inside of a Walgreens pharmacy. [140] ¶ 12; [148] ¶ 12.

His partner, Sanjin Hodzic, waited outside in the squad car. Id. More than fifteen

minutes later, Hodzic used his radio to request that Foggey check-in. [140] ¶¶ 12, 13;

[148] ¶¶ 12, 13. When Foggey responded, Hodzic said he needed him in the parking

lot. [140-2] 63:17–65:18; [140-5] 81:9–83:14. Foggey could hear yelling in the

background and considered it a priority to find out what was going on but did not

radio Hodzic back. [140] ¶ 15; [148] ¶ 15. He says he walked out of the store. [140]

¶¶ 16, 17; [148] ¶ 17. But see [148-5] at 3 (the friend Foggey was visiting says he

“jumped up and he ran” once the radio came on).

Hodzic, a white man who had been a fully certified police officer for three days,

radioed Foggey because he had just witnessed a fight break out in the parking lot.

See [140] ¶¶ 14, 15, 17; [148] ¶ 14; [140-5] 119:15–23, 126:18–21; [140-3] at 59. As

Foggey exited the Walgreens, he could see Hodzic and a man, William Brewer,

to depositions, which use the deposition transcript’s original page number. The facts are

largely taken from the parties’ Local Rule 56.1 statements. [140]; [148]; [155]. When the

parties raised arguments, included additional facts, or failed to cite to supporting material in

the record, I disregarded those portions of their statements or responses. See Local Rule 56.1;

Petty v. City of Chicago, 754 F.3d 416, 420 (7th Cir. 2014); Judson Atkinson Candies, Inc. v.

Latini-Hohberger Dhimantec, 529 F.3d 371, 382 n.2 (7th Cir. 2008) (“[i]t is inappropriate to

make legal arguments in a Rule 56.1 statement of facts”); Smith v. Lamz, 321 F.3d 680, 683

(7th Cir. 2003) (“a mere disagreement with the movant’s asserted facts is inadequate if made

without reference to specific supporting material”).

engaged in a struggle on the far side of their squad car. [140] ¶¶ 14, 17, 18; [148] ¶ 14,

17, 18. Foggey saw Hodzic and Brewer engage in a conversation before Hodzic jerked

Brewer towards the squad car and then tackled him to the ground. [140-2] 72:4–73:6.

Throughout, Foggey continued walking toward Hodzic and Brewer at roughly the

same pace. [140] ¶ 19; [148] ¶ 19.

As Foggey approached, Hodzic and Brewer were on the ground. [140] ¶ 20;

[148] ¶ 20. Brewer was face down with Hodzic on top of him. [140-2] 79:11–15. Foggey

leaned down, grabbed Brewer, and told him to put his hands behind his back. [140-2]

79:16–80:23. Hodzic handcuffed Brewer, Brewer was searched, and a knife was found.

[140] ¶ 22; [148] ¶ 22. Foggey used his radio (for the first time since leaving

Walgreens) to tell the dispatcher Brewer was in custody and secured Brewer within

the police car. Id.; [140-2] 82:18–83:3, 294:15–22.

Hodzic did not tell Foggey what was happening outside of the Walgreens in

either of the two radio transmissions that he made to Foggey that evening but his

training indicated that he should have done so. [140-5] 83:16–84:1, 86:14–87:9.

Hodzic also admitted that it was not “fully accurate” when he later told the person

charged with investigating whether Foggey committed misconduct (then-Sergeant,

now-Lieutenant Timothy Wolf, see [140] ¶ 32; [148] ¶ 32) that Foggey did not provide

assistance until Hodzic had already placed Brewer in handcuffs because, before that,

Foggey had also reached down and pulled on Brewer’s shirt while Hodzic was on top

of Brewer. [140-5] 274:10–276:23.

Sergeant Elise Padilla, a Hispanic woman who arrived on scene shortly after

Brewer was in custody, says that Foggey told her something to the effect of, “these

young kids are always getting involved in something.” [140-6] 93:3–94:8; [140] ¶ 10;

[148] ¶ 10. Foggey does not remember saying that. [140-2] 84:11–85:1.

The next day, as part of his duties as station supervisor, Sergeant Joaquin

Mendoza (a Hispanic male) viewed a video of the events in question in order to

determine whether there was probable cause to arrest Brewer for aggravated battery

of a police officer. [140-7] 73:16–74:22, 152:7–21; [140] ¶ 10; [148] ¶ 10. After viewing

that video, he initiated a complaint against Foggey for dereliction of duty (failing to

assist his partner with an active assailant). [140-7] 44:2–12, 46:15–17. Mendoza said

that Foggey had something in his hand as he exited the Walgreens (because the video

depicted Foggey’s elbow outstretched in front of him), but Mendoza also admitted that

he was not able to see Foggey’s hand at any point during the video. [140-7] 153:3–

160:11. Mendoza was aware of other videos of that event (e.g., videos from security

cameras inside the Walgreens) but he did not view those videos because they were

not relevant to his investigation (i.e., the investigation into whether there was

probable cause to believe that Brewer had committed aggravated battery). [140-7]

151:4–152:21. Instead, Mendoza believed the responsibility for obtaining and

reviewing those videos would fall to whichever detective was charged with

investigating his complaint against Foggey. Id. A different officer with the Bureau of

Internal Affairs (Lieutenant Wolf) conducted the investigation into the complaint

filed by Mendoza. [140] ¶ 32; [148] ¶ 32.

Foggey says that his coworkers later told him that Mendoza, Padilla, and

Sergeant Charles Gray played one of the videos of the incident in front of Foggey’s

coworkers. [140] ¶ 36; [148] ¶ 36. Foggey saw Sgt. Mendoza sitting at the front desk

of the station with a “crowd of officers … huddled around him watching” a video of

the events at Walgreens. [140-2] 109:2–111:1. Foggey could hear the audio of his radio

transmissions with Hodzic. [140-2] 110:5–110:19.

Mendoza did not intentionally display the video for other officers (other than

his supervisor). See [140-7] 242:4–244:24; [140] ¶ 37; [148] ¶ [37].2 Mendoza was

watching the video at his front desk because his computer was one of the only

computers capable of playing the video. [140-7] 243:6–12. Other officers may have

come up to him while he was watching the videos but they were doing so in order to

talk to him about other things. Id. 249:7–17.

Five days after the event in the Walgreens parking lot, Foggey was stripped of

his police powers and reassigned while the Bureau’s investigation proceeded. [140]

¶ 31; [148] ¶ 31. Foggey’s hearing before the Chicago Police Board took place in

November of 2015, [140] ¶ 59; [148] ¶ 59, [140-3] at 58, and Foggey filed his first claim

with the Equal Employment Opportunity Commission the following month. [140]

2 In response to the City’s assertions that Mendoza did not intentionally display the video to

other officers, see [140] ¶ 37, Foggey says only that he “lacks the knowledge to either admit

or deny” the evidence cited in the City’s statement of material facts because “he does not

know why Mendoza displayed the video.” [148] ¶ 37. See also [140-2] 115:5–17 (Foggey said

during his deposition that he could not know what Mendoza was thinking and that he did

not otherwise have much interaction with Mendoza). This does not controvert Mendoza’s

assertion of his intent, and the fact is deemed admitted.

¶ 63; [148] ¶ 63. He forwarded a copy of his EEOC claim to the Corporation Counsel’s

office for the City of Chicago that January. See [148-2] at 2.

A few months later, the Police Board wrote in its final Findings and Decision,

Officer Foggey offered no assistance with control tactics

(e.g. a wrist lock, arm bar or the use of pressure-sensitive

areas on the offender, or use of control instruments or

tactics), which Sergeant Larry Snelling of the Training

Academy testified were required. Nor did Officer Foggey

assist with the handcuffing of Mr. Brewer, which Sergeant

Snelling also testified was critical in this situation.

[140-3] at 60. The board concluded that Foggey had stayed in the Walgreens until

after 4:00 a.m. (roughly forty minutes after he began his break) and that his “failure

to assist his partner and failure to use the training provided to him clearly put his

partner in serious danger.” Id. at 61. The board’s decision mentions Foggey’s alleged

statement to Padilla about how “young officers get into all kinds of stuff,” and found

him guilty of taking actions which “impede[s] the Department’s efforts to achieve its

policy and goals or bring[s] discredit upon the Department,” failing to perform a duty,

disobedience of an order or directive, and incompetency. [140-3] at 59–63. The board

voted 9-0 in favor of Foggey’s discharge. [140-3] at 65.

III. Analysis

Foggey alleges that the City violated Title VII of the Civil Rights Act of 1964

by discriminating against him on the basis of his race and gender and in retaliation

for engaging in protected activity. [27] ¶¶ 58–72, 42 U.S.C. §§ 2000e–2000e-17,

§ 2000e-3(a). Title VII prohibits “discriminat[ing] against any individual … because

of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2.

It also prohibits discriminating against an individual because that individual has

“opposed any practice made an unlawful employment practice by this subchapter.” 42

U.S.C. § 2000e-3(a). The City moves for summary judgment on all three claims. [138]

at 2.

Foggey may prove his race-based and sex-based discrimination claims “either

directly or indirectly, and with a combination of direct and circumstantial evidence.”

McKinney v. Office of Sheriff of Whitley Cty., 866 F.3d 803, 807 (7th Cir. 2017). The

inquiry is “simply whether the evidence would permit a reasonable factfinder to

conclude that the plaintiff’s race, ethnicity, sex, religion, or other proscribed factor

caused the discharge or other adverse employment action.” Ortiz v. Werner

Enterprises, Inc., 834 F.3d 760, 765 (7th Cir. 2016).

Foggey invokes the burden-shifting framework from McDonnell Douglas Corp.

v. Green, 411 U.S. 792, 802–03 (1973). [149] at 4. See also McKinney, 866 F.3d at 807;

David v. Bd. of Trustees of Cmty. Coll. Dist. No. 508, 846 F.3d 216, 224 (7th Cir. 2017).

The McDonnell Douglas framework is “a means of organizing, presenting, and

assessing circumstantial evidence in frequently recurring factual patterns found in

discrimination cases.” David, 846 F.3d at 224. Under that framework, Foggey carries

the initial burden of establishing a prima facie case of discrimination. McKinney, 866

F.3d at 807; McDonnell Douglas, 411 U.S. at 802. He can accomplish this “by setting

forth evidence that: ‘(1) [he] is a member of a protected class, (2) [his] job performance

met [his employer’s] legitimate expectations, (3) [he] suffered an adverse employment

action, and (4) another similarly situated individual who was not in the protected

class was treated more favorably than [Foggey].’” McKinney, 866 F.3d at 807. If he

does so, he is entitled to a “presumption of discrimination,” and the burden shifts

back to the City “‘to articulate some legitimate, nondiscriminatory reason’ for its

employment decision.” McKinney, 866 F.3d at 807 (quoting McDonnell Douglas, 411

U.S. at 802). If the City carries its burden, the burden shifts back and Foggey “must

present evidence that the stated reason is a ‘pretext,’ which in turn permits an

inference of unlawful discrimination.” Id. (quoting Coleman v. Donahoe, 667 F.3d 835,

845 (7th Cir. 2012)).

The McDonnell Douglas framework is flexible. Flores v. Preferred Tech. Grp.,

182 F.3d 512, 515 (7th Cir. 1999). In some cases, the legitimate expectations inquiry

is unhelpful as a means of organizing and assessing evidence. David, 846 F.3d at 224;

Flores, 182 F.3d at 515. In some fact patterns, the inquiry should focus on whether

the reasons the employer gave for the firing were pretextual. Curry v. Menard, Inc.,

270 F.3d 473, 476 (7th Cir. 2001). See also Peele v. Country Mut. Ins. Co., 288 F.3d

319, 329 (7th Cir. 2002). Here, Foggey’s performance is tied to the proffered reasons

for the adverse action—the board found that he violated the rules he was expected to

follow.

In order to establish that the stated reasons for his suspension and termination

were pretextual, Foggey may provide a “detailed refutation” of the City’s version of

the events that led to his firing, so long as that refutation demonstrates that the City

“may not have honestly relied on the identified deficiencies in making its decision.”

Dey v. Colt Const. & Dev. Co., 28 F.3d 1446, 1460–61 (7th Cir. 1994). He can do so by

identifying “such weaknesses, implausibilities, inconsistencies, or contradictions” in

the City’s stated reason for terminating him “that a reasonable person could find [it]

unworthy of credence.” Harper v. C.R. England, Inc., 687 F.3d 297, 311 (7th Cir.

2012). The pretext inquiry “does not address the correctness or desirability of reasons

offered for employment decisions” and instead “addresses the issue of whether the

employer honestly believes in the reasons it offers.” McCoy v. WGN Cont’l Broad. Co.,

957 F.2d 368, 373 (7th Cir. 1992); Kulumani v. Blue Cross Blue Shield Ass’n, 224 F.3d

681, 685 (7th Cir. 2000) (“[P]retext means a dishonest explanation, a lie rather than

an oddity or an error”); Oliver v. Joint Logistics Managers, Inc., 893 F.3d 408, 413

(7th Cir. 2018).

Better treatment of a similarly situated comparator is also relevant to the

pretext inquiry. Coleman, 667 F.3d at 853. Whether comparators are similarly

situated is assessed “with respect to performance, qualifications, and conduct,” and

that assessment “normally entails a showing that the two employees dealt with the

same supervisor, were subject to the same standards, and had engaged in similar

conduct without such differentiating or mitigating circumstances as would

distinguish their conduct or the employer’s treatment of them.” Peele, 288 F.3d at 329

(emphasis in original removed). At bottom, however, the McDonnell Douglas

framework is “not the only way to assess circumstantial evidence of discrimination,”

and the central question remains simply whether Foggey has “produced sufficient

evidence to support a jury verdict of intentional discrimination.” David, 846 F.3d at

224.

The parties agree that Foggey is a member of a protected class because he is

black, [139] at 8, see also Bio v. Fed. Express Corp., 424 F.3d 593, 597 (7th Cir. 2005),

and both suspension without pay pending discharge and termination are adverse

employment actions. [139] at 8; Barton v. Zimmer, Inc., 662 F.3d 448, 456 (7th Cir.

2011); Whittaker v. N. Illinois Univ., 424 F.3d 640, 647 (7th Cir. 2005). The issue

Foggey presents with regard to his race-based discrimination claim is whether the

decisionmakers singled him out for discriminatory treatment while treating his

partner (a white man) preferentially. See [149] at 5–9.

The first person Foggey focuses on is Mendoza. [149] at 5. But Mendoza was

not one of the nine members of the board that voted to terminate or suspend Foggey.

He did initiate the complaint that eventually led to that vote, but Foggey has not

argued (nor cited any law that supports an argument) that the initiation of the

complaint was the consequential action here.

Mendoza says that he declined to obtain other videos of the incident because

those other videos went beyond the scope of his review (which was solely to determine

whether there was probable cause to arrest Brewer for aggravated assault) and that

Mendoza trusted the task of obtaining other evidence relevant to assessing Foggey’s

conduct to whomever was charged with investigating his complaint. Foggey offers no

argument (and cites no evidence) to refute this explanation. Foggey takes issue with

Mendoza’s complaint which allegedly accuses Foggey of carrying something as he

exited the Walgreens. Even though Mendoza did say that he could not see Foggey’s

hand on the video, Mendoza maintained that Foggey’s elbow was outstretched in

front of him as though he was carrying something. [140-7] at 159:9–160:10. This

discrepancy—between Mendoza claiming that he saw Foggey carrying something and

Mendoza merely inferring that Foggey was carrying something—does not raise a

genuine dispute over the rationale behind the board’s adverse employment decisions.3

Attempts to draw inferences from Hodzic’s preferential treatment are

unpersuasive, too. Foggey and Hodzic were not similarly qualified. As the board noted

in its decision, Foggey was a decorated eight-year veteran and Hodzic had been on

the job for less than a week. Hodzic violated his training by failing to tell Foggey over

3 Foggey’s argument faces another problem: the Police Board’s independent review of

Foggey’s conduct broke the chain of causation. After Mendoza initiated the complaint, Lt.

Wolf completed the Bureau of Internal Affairs’s investigation, found that Foggey had

committed misconduct, and recommended separation. [140] ¶¶ 51, 52; [148] ¶¶ 51, 52. Wolf’s

report was then approved by multiple other members of the Bureau, [140] ¶ 53; [148] ¶ 53,

before the superintendent of the Bureau filed charges. [140] ¶¶ 53, 57; [148] ¶¶ 53, 57. It was

not until the superintendent filed charges that Foggey was placed on suspension (by a

hearing officer who was not otherwise a part of the review of Mendoza’s complaint). [140] ¶

58; [148] ¶ 58. And this was all before the Police Board voted 9-0 in favor of discharge. [140]

¶¶ 59, 61; [148] ¶ 59, 61. Foggey does not explicitly argue that Wolf, the superintendent, the

hearing officer, or the Police Board discriminated against him, see [149], and only says in his

separate statement of facts that he “does not have sufficient knowledge to admit or deny how

Wolf reached his findings.” [148] ¶¶ 51–66. At the same time, he denies that “race and gender

played no role” in those findings, citing only Mendoza’s testimony suggesting that Hodzic

may have violated the department’s radio policies. [148] ¶ 52. If Foggey intended to raise a

cat’s paw theory of liability premised on Mendoza’s animus, he has failed to raise it with

sufficient specificity, and has therefore waived it. See Rozumalski v. W.F. Baird & Assocs.,

Ltd., 937 F.3d 919, 925–26 (7th Cir. 2019). In any event, “normally, outside of the ‘cat’s-paw’

context, [the person with the discriminatory animus] must be the decisionmaker.” Id. This is

an independent reason to grant judgment as a matter of law in favor of the City: Foggey has

not presented any evidence from which a reasonable juror could conclude that the ultimate

decision was informed by Mendoza’s alleged bias. Even if Mendoza’s initial complaint

contained a fabricated allegation that Foggey was carrying a beverage as he was walking out

of the Walgreens, Foggey has failed to show that the beverage allegation had anything to do

with the decision to suspend and terminate Foggey. Woods v. City of Berwyn, 803 F.3d 865,

871 (7th Cir. 2015) (“[i]n this case, the hearing broke the chain of causation because the

record shows that the Board did not rely on the facts presented by the presumably biased”

employee).

the radio that there was a physical fight going on in the parking lot. The fact that two

employees engaged in an “identical rule violations” provides some indication that the

offenses were of “comparable seriousness,” but even identical rule violations are not

conclusive. Davis v. Wisconsin Dept. of Corrections, 445 F.3d 971, 978 (7th Cir. 2006);

Johnson v. Artim Transp. Sys., Inc., 826 F.2d 538 (7th Cir. 1987). And Foggey’s and

Hodzic’s respective rule violations were not nearly as similar as were the alleged

respective rule violations in Flores v. Preferred Tech. Grp., 182 F.3d 512, 515 (7th Cir.

1999) and Curry v. Menard, Inc., 270 F.3d 473, 476 (7th Cir. 2001). In any event,

Hodzic did not communicate perfectly over the radio, but it was reasonable to be more

lenient with the rookie, and the overall conduct or performance of the two officers was

not similar enough to raise an inference that race explained the difference in their

treatment. Hodzic did not exceed the allotted time for personal breaks, did not delay

in arriving to assist his partner (he was instead the partner that needed assisting),

and did not make statements to a superior suggesting that the encounter was his

partner’s fault.4 These are all mitigating circumstances that justify the different

treatment Hodzic received. See Antonetti v. Abbott Labs., 563 F.3d 587, 592 (7th Cir.

2009) (“When ‘a plaintiff claims that he was disciplined ... more harshly than a

similarly situated employee,’ he ‘must [typically] show that ... the two employees ...

4 The City characterizes Foggey’s statement to Sergeant Padilla about how “young officers

get into all kinds of stuff” as suggesting that Hodzic should have “look[ed] the other way.”

[139] at 3. Taking that statement in the light most favorable to Foggey, it could simply have

meant that he believed Hodzic unnecessarily escalated the situation when he performed a

take-down of Mr. Brewer. But either way, it placed the blame on Hodzic and did not accept

responsibility.

engaged in similar conduct without such differentiating or mitigating circumstances

as would distinguish their conduct or the employer’s treatment of them.’”)

With regard to the efforts that Hodzic and Foggey took to secure Brewer,

Hodzic said during his deposition that he failed to employ some of the control tactics

that Foggey was criticized for failing to use and that—at least by the time Foggey

finished walking over to Hodzic and Brewer—both he and Foggey were in close

enough proximity to Brewer to use some of those techniques. See, e.g., [140-5] at

266:19–274:9. But there were also differences in their positioning; Hodzic was

straddling Brewer and Foggey was standing beside them. See, e.g., [140-5] at 245:17–

247:5; 266:19–274:9; [140-2] 79:11–15.

Foggey also says that other officers at the Chicago Police Department failed to

assist their partners but were treated more favorably, [140-2] at 379–383, and

specifically mentions three instances in which white or non-black officers allegedly

walked while moving to assist their partners and yet were not terminated. [140-2] at

379–80 (e.g., “Unknown White and Non-Black Officer Walking and Failing to Assist.

Identical to the Incident involving Plaintiff, yet these officers are still employed by

Defendant”). The cited pages (portions of Foggey’s responses to discovery issued by

the City) purport to contain log numbers and dates related to the incidents but list

no names and no other details about the encounters. Id. The responses are signed by

Foggey’s attorney and not Foggey himself. [140-2] at 397. No affidavit was introduced

establishing that Foggey (or anyone else) has personal knowledge of the events

described in Foggey’s summary of the other accusations of police misconduct. Scott v.

Edinburg, 346 F.3d 752, 759 (7th Cir. 2003) (a report “introduced into the record

without any supporting affidavit verifying its authenticity” was inadmissible and

could not be considered for purposes of summary judgment). See also RBS Citizens,

N.A. v. Sanyou Imp., Inc., 525 Fed. App’x 495, 499 (7th Cir. 2013) (“Appellants cannot

avoid summary judgment by relying on mere allegations in unverified pleadings”)

(citing Price v. Rochford, 947 F.2d 829, 832 (7th Cir. 1991)). Summary judgment is

the “put up or shut up” moment of the case. Siegel, 612 F.3d at 937. If there is

admissible evidence to corroborate the statements in the unverified discovery

responses Foggey cites in his summary judgment brief, Foggey was obligated to

present it here. What he has presented—a list of names, log numbers, and dates, with

his lawyer’s unsubstantiated summaries regarding events not otherwise corroborated

in the record—is not properly considered.

Foggey has some evidence that tends to refute some of the justifications the

board gave for his suspension and termination. One witness says that Foggey

“jumped up and ran” after receiving the radio request. [148-5] at 3. Foggey has also

at least partially countered the board’s conclusion that he “[a]t most … gave Mr.

Brewer verbal commands … and may have placed a hand on [Brewer]” by introducing

evidence that he also cleared Brewer of a dangerous weapon. [140-3] at 60; [140] ¶ 22;

[148] ¶ 22; [140-2] 82:21–83:2. And by explaining that Hodzic did not tell Foggey what

was going on outside in his initial radio communication, Foggey has made his decision

to walk to the door of Walgreens more reasonable. See, e.g., [140-5] 83:16–87:9, 90:17–

91:17. But this evidence at most suggests that the board got it wrong on the merits;

it does not raise an inference that the proffered explanations were pretextual. It also

does not address the board’s finding that Foggey exceeded his allotted break time,

failed to respond to Hodzic’s radio communications sufficiently, failed to approach

Hodzic with sufficient speed once he could see Hodzic and Brewer engaged in an

altercation, and later blamed the events on his partner while refusing to take

responsibility for his actions. See [140-3] at 59–64; Khowaja v. Sessions, 893 F.3d

1010, 1016 (7th Cir. 2018) (considering it significant to the similarly situated

comparator analysis that the comparator did not defend his mistakes). Foggey’s

refutation of the events underlying his dismissal is incomplete and does not support

a reasonable inference that the City did not honestly believe the reasons it gave for

suspending and terminating him.

Foggey’s failure to adduce sufficient evidence is just as plain under the broader

test from Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 765 (7th Cir. 2016). The

inquiry is “simply whether the evidence would permit a reasonable factfinder to

conclude that the plaintiff’s race, ethnicity, sex, religion, or other proscribed factor

caused the discharge or other adverse employment action.” Id. The evidence Foggey

has presented fails that test. At most, taking the facts in the light most favorable to

Foggey, a non-black junior officer on his third day on the job engaged in a few,

somewhat-similar rule violations to his eight-year senior black partner, who (in

addition to those somewhat similar rule violations) took an excessive break, delayed

in assisting his partner during a violent encounter, and did not accept responsibility

for any errors. In such circumstances, the fact that Foggey was disciplined and Hodzic

was not does not support an inference that race was behind their difference in

treatment. Foggey has also failed to allege facts showing that Mendoza’s initial

decision to initiate a complaint against Foggey itself amounted to (or caused) an

adverse employment action or that it was racially motivated. No reasonable

factfinder could conclude that Foggey’s race caused his suspension or termination.

The City’s motion for summary judgment on the race-discrimination claim is granted.

Foggey’s gender-based discrimination claim fails too. Foggey’s response does

not address any of the City’s arguments about his gender-based discrimination claim.

[149]. He cites no similarly situated comparators of a different gender, nor any of the

“fishy circumstances” that might otherwise allow one to infer that any of his male

supervisors discriminated against him in favor of women. Phelan v. City of Chicago,

347 F.3d 679, 684 (7th Cir. 2003); Farr v. St. Francis Hosp. & Health Centers, 570

F.3d 829, 833 (7th Cir. 2009) (“when a plaintiff is a member of a ‘majority’—for

instance, a male plaintiff alleging gender discrimination—we have said he must set

out ‘background circumstances’ that show that the employer discriminates against

the majority, or he must show there is something ‘fishy’ going on”). He provides

neither evidence nor argument to rebut the City’s motion for summary judgment on

his gender discrimination claims, [149], and as a result, waives his arguments in

support of that claim. Gaines v. K-Five Const. Corp., 742 F.3d 256, 261 (7th Cir. 2014);

Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466 (7th Cir. 2010) (“[f]ailure to respond to

an argument … results in waiver”); Johnson v. Advocate Health & Hosps. Corp., 892

F.3d 887, 898 (7th Cir. 2018). Because Foggey would have the burden to prove gender

discrimination at trial, and because Foggey has failed to submit either evidence or

argument that shows a reasonable jury could rule in his favor, the City’s motion for

summary judgment on the gender-discrimination claim is granted. See Celotex Corp.

v. Catrett, 477 U.S. 317, 323 (1986).

Foggey also alleges that he was humiliated by the public display of the video

of the events outside of Walgreens. See, e.g., [140] ¶ 37; [148] ¶ 37. Foggey’s brief

contains one sentence that references the incident, [149] at 5, and there is evidence

that Mendoza showed the video to others in a way that was possibly embarrassing to

Foggey. See [140-2] 109:2–110:24. But again, Foggey does not argue that Mendoza’s

actions in showing the video contributed to his suspension and discharge. See [149]

at 5. Nor does he cite any law, or make any argument, in favor of a finding that such

a display created a hostile work environment or otherwise amounted to gender or

racial discrimination. See id. Again, by failing to address that incident in his

summary judgment briefing, he has waived any arguments he might have had

against the City’s motion for summary judgment as to those claims. Gaines, 742 F.3d

at 261; Bonte, 624 F.3d at 466; Johnson, 892 F.3d at 898.

Foggey can only pursue a Title VII claim based on a hostile work environment

theory if one was adequately described in his complaint to the Equal Opportunity

Commission. Rush v. McDonald’s Corp., 966 F.2d 1104, 1110 (7th Cir. 1992) (“[T]he

scope of the subsequent judicial proceedings is limited by the nature of the charges

filed with the EEOC”). “[A]n aggrieved employee may not complain to the EEOC of

only certain instances of discrimination, and then seek judicial relief for different

instances of discrimination.” Id. Foggey’s first charge (from December 2015) with the

Commission mentions only his suspension. [140] ¶ 63; [148] ¶ 63. His second charge

(filed in June of 2016) mentions only his discharge. [140] ¶ 64; [148] ¶ 64. Neither

charge mentions the displaying of the video or a hostile environment. The City’s

motion for summary judgment argues that Foggey’s failure to raise a hostile work

environment claim with the Commission bars his bringing that claim in this case,

[139] at 14–15, and Foggey’s response does not address that point. See [149]. As a

result of the lack of further specificity or detail in his charge to the Commission,

Foggey’s claims about an instance of discrimination that allegedly took place when

Mendoza publicly displayed the video were not preserved. Rush, 966 F.2d at 1110.

The claim also fails because Foggey would have needed to show that his

workplace was so “permeated with discriminatory intimidation, ridicule, and insult,”

that was “sufficiently severe or persuasive to alter the conditions of the victim’s

employment.” Boss v. Castro, 816 F.3d 910, 920 (7th Cir. 2016). “Deciding whether a

work environment is hostile requires consideration of factors like the frequency of

improper conduct, its severity, whether it is physically threatening or humiliating (as

opposed to a mere offensive utterance), and whether it unreasonably interferes with

the employee’s work performance.” Id. Foggey mentions only one incident in which

the video was shown and does not allege that anything in the video was false. Foggey

was not physically threatened, either. The workplace may have been unpleasant for

Foggey in the days following the events outside of Walgreens, but he has failed to cite

to evidence in the record from which a reasonable jury could conclude that the

environment was permeated with intimidation, ridicule, or insult on the basis of race.

Lastly, Foggey argues that the Police Board’s decision to terminate him was

retaliatory. [149] at 10. The only fact that he advances in support of this theory is

that the decision to terminate him came less than three months after he sent a letter

to the City (addressed to the Corporation Counsel for the City of Chicago) notifying

them of the charge he made with the EEOC. [148-2]; [140] ¶ 62; [148] ¶ 62. “Title VII

retaliation claims require proof that the desire to retaliate was the but-for cause of

the challenged employment action.” Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S.

338, 339 (2013).5 Timing is “rarely … sufficient in and of itself to create a triable

issue,” and typically the gap between protected speech and adverse action cannot be

more than a few days. Kidwell v. Eisenhauer, 679 F.3d 957, 966 (7th Cir. 2012). Here,

more than two months passed between the date Foggey sent his letter, [148-2], and

the date that the board issued its decision. [140-3] at 65. Foggey has also failed to

produce evidence suggesting that his letter was the but-for cause of the board’s

decision. Especially in the absence of other evidence, this two-month delay does not

support an inference of retaliatory intent. The City’s motion for summary judgment

is granted.

5 Foggey’s complaint to the Equal Employment Opportunity Commission was not filed until

after Mendoza allowed others to view the video, so his EEOC claim—the only protected

activity Foggey identified—could not have been the cause of Mendoza’s decision to display

the video.

IV. Conclusion

The City’s motion for summary judgment, [138], is granted. The order on the

parties’ motions to dismiss, [92], resolved the other claims in the case. The clerk shall

enter judgment in favor of defendants and terminate the case.

ENTER:

Manish 8. Shah

United States District Judge

Date: January 13, 2020

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