Lewis, Donna L. v. Chicago Police Dept

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 06-2302

DONNA L. LEWIS,

Plaintiff-Appellant,

v.

CITY OF CHICAGO and TERENCE WILLIAMS,1

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 04 C 6050—Ruben Castillo, Judge.

____________

ARGUED FEBRUARY 6, 2007—DECIDED JULY 26, 2007

____________

Before KANNE, WOOD, and WILLIAMS, Circuit Judges.

KANNE, Circuit Judge. Plaintiff Donna Lewis is a police

officer in the Chicago Police Department. She alleges

sex discrimination and retaliation claims under Title VII

and 42 U.S.C. § 1983 against her former supervisor

Lieutenant Terence Williams, the Department and the

City of Chicago. The district court granted the defendants’

1

The City of Chicago is the real party in interest for claims

against the Chicago Police Department and therefore we have

adjusted the caption accordingly. See Chan v. Wodnicki, 123

F.3d 1005, 1007 (7th Cir. 1997).

2 No. 06-2302

motion for summary judgment on all claims. We affirm the

judgment as to the Monell claim against the City but

otherwise reverse.

I. HISTORY

Lewis graduated from the Chicago police academy in

1998 and began her career in the Department as a patrol

officer. In 2000, she was transferred to a Tactical Unit

where she was a plain clothes officer dealing regularly

with drug dealers and gangs. At the Tactical Unit, the

chain of command had Lewis reporting directly to a

sergeant who in turn was supervised by a lieutenant.

By 2002, defendant Williams was Lewis’s supervising

Lieutenant.

In the late summer of 2002, the Washington, D.C. police

department sought assistance from various police depart-

ments, including Chicago’s, in anticipation of likely

demonstrations during a forthcoming International

Monetary Fund meeting. Chicago’s Chief of Patrol, James

A. Maurer, issued a memorandum on September 11, 2002

to various units in the Department setting forth a re-

quest for volunteers and establishing a selection proce-

dure.

Pursuant to the memorandum:

! Participating officers would travel to Washington,

D.C. on Friday, September 27th, work on Saturday

and Sunday, September 28th and 29th, and return

to Chicago on September 30th.

! Only Tactical, Gang or Special Operations Sections

officers who completed riot training in September

2002 were eligible to participate.

! Qualifying officers would need to be on either

furlough or regular days off to qualify.

No. 06-2302 3

! Officers would receive overtime pay for the time

they spent traveling and working in Washington,

D.C.

The memorandum also noted that the Department

might send “several hundred officers and supervisors” to

the IMF rally, and “that this could serve as an excellent

on-the-job training exercise” in light of a future demon-

stration then scheduled for Chicago in November 2002.

Appellant’s Appx. 885.

Additionally, the memorandum stated that, “Because of

hotel accommodations, a lone female officer will not be

sent since there are two (2) persons to each room. There-

fore, recommend a minimum of two (2) female officers.” Id.

Despite Chief Maurer’s use of the phrase “lone female

officer” in the memorandum, the defendants claim that

“Chief . . . Maurer intended to convey that [the Depart-

ment] had a limited number of hotel rooms, so an odd

number of either gender would not be chosen.” Appellees’

Brief at 9.

Lewis qualified for the IMF Detail and wanted to attend.

She completed the necessary form and provided it to

her supervisor, Sergeant Melean, in a timely fashion in

compliance with the procedure established by Chief Mau-

rer’s memorandum. Her name was initially placed on the

list of IMF attendees from her unit. However, Lewis’s

name was removed from the final list submitted from her

unit and she would not go to Washington, D.C.

The defendants’ explanation is that Lewis’s unit did not

have another qualified female officer interested in going

to Washington, D.C. Lieutenant Williams determined

that Lewis was the “odd woman out” and therefore re-

moved her name from the list in conformance with Chief

Maurer’s memorandum.

Lewis, however, believes the defendants’ explanation is

hogwash. According to Lewis, she questioned Williams

4 No. 06-2302

about being removed from the list. Williams allegedly

responded that he took her name off the list “because [she]

was a female,” and that “it was going to be a working trip,

and he thought it would be dangerous and that [she] would

thank him for it later.” Appellant’s Brief at 7. Williams

denies making this statement.

Lewis argues that the issue of avoiding an odd number

of officers for rooming purposes is a pretextual argument

masking discrimination against her. She claims that a

fellow qualified female officer, Officer Regan, was never

informed about the IMF Detail. Thus, Lewis implies that

Williams intentionally tried to prevent her from obtain-

ing a partnering officer for the IMF Detail. Additionally,

Lewis claims that other units in the Department contacted

each other in an attempt to pair up single officers.

If Chief Maurer’s intention was to avoid an odd number

of participants of either gender on the IMF Detail for

rooming purposes, the Department was unsuccessful in

achieving this task. The record contains a document

entitled “Fall 2002 IMF / World Bank Conference—

Washington, D.C.” that lists the officers who attended the

IMF Detail and corresponding hotel room numbers for

these officers. Appellant’s Appx. 873-80. According to

this list, 245 male officers and 17 female officers attended

the IMF Detail in Washington, D.C. Most officers shared

a hotel room with a fellow officer of the same gender.

However, four officers had a room to themselves. Three of

the four were male officers: Lt. Flynn in Room 338, Officer

Marin in Room 363, and Officer Saez in Room 446. The

fourth officer, a female, Officer Varela is listed by herself

in Room 426. The record is silent as to whether there

were accommodations available for three officers in a

single room such as a roll-away bed.

The parties dispute whether Lewis was denied any

benefit due to her absence from the IMF Detail. Lewis

No. 06-2302 5

argues that she lost out on approximately $1,000 in

overtime earnings. She also believes that the IMF Detail

was a “once in a lifetime opportunity” that would have

been “great” on her resume. The defendants counter that

Lewis does not point to any lost promotional opportunities.

The defendants also note that Lewis was able to partici-

pate in other similar details in Chicago and Lewis did not

place these details on her resume.

At the end of September 2002, Lewis filed a grievance

with the union over the IMF Detail and later filed a

complaint with the EEOC. She alleges that Williams

retaliated against her in response to her complaints. The

alleged retaliation included sending Lewis on dangerous

assignments without sufficient support in violation of

Department policy. She was also transferred from the

Tactical Unit to a Gang Unit. The transfer, according to

Lewis, was in retaliation as the Gang Unit provided her

less opportunities for advancement and overtime. The

transfers and disruptions also included new partners that

Lewis did not know or trust leading her to believe that

Williams was trying to place her in compromising and

dangerous situations. Lewis also requested a transfer to

the Special Operations Section but this request was

denied. The Special Operations Section was not supervised

by Williams. Lewis believes that Williams denied her

request for a transfer in order to continue his retaliation

against her. Lewis also claims that she made several

complaints to various supervisors above Williams about

his discrimination and retaliation. She argues that

these other supervisors failed to take action and this

is part of a pattern and practice in the Department to

ignore discrimination claims.

Lewis is now on permanent disability leave after a fellow

officer hit her in the head with a sledgehammer when she

was assisting in a forced entry during a narcotics investi-

gation. Lewis does not provide any evidence that her

6 No. 06-2302

injury was anything other than an accident. However, she

does point out that Williams ordered her to assist the

narcotics team and she also complains about the City’s

failure to provide her proper medical care.

II. ANALYSIS

“We review grants of summary judgment de novo.”

Lummis v. State Farm Fire & Cas. Co., 469 F.3d 1098,

1099-1100 (7th Cir. 2006) (citing Hrobowski v. Worthington

Steel Co., 358 F.3d 473, 475 (7th Cir. 2004); Rogers v. City

of Chicago, 320 F.3d 748, 752 (7th Cir. 2003)). Summary

judgment is proper “if the pleadings, depositions, answers

to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue

as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” FED. R. CIV. P.

56(c).

A. Sex Discrimination Claims as to the IMF Detail

Lewis’s claims against the City arise under Title VII

and her claim against Williams is brought pursuant to

§ 1983. See Fairley v. Fermaint, 482 F.3d 897, 903-04 (7th

Cir. 2007). However, we analyze Lewis’s Title VII and

§ 1983 sex discrimination claims arising from her inability

to participate in the IMF Detail in the same manner.

Burks v. Wisconsin Dep’t of Transp., 464 F.3d 744, 750 n.2

(7th Cir. 2006) (citing Williams v. Seniff, 342 F.3d 774, 788

n.13 (7th Cir. 2003)).

It is unlawful to “discriminate against any individual

with respect to [her] compensation, terms, conditions, or

privileges of employment, because of such individual’s

race, color, religion, sex, or national origin.” Thanongsinh

v. Bd. of Educ., Dist. U-46, 462 F.3d 762, 772 (7th Cir.

No. 06-2302 7

2006) (quoting 42 U.S.C. § 2000e-2(a)(1)). A plaintiff “can

avert summary judgment ‘either by putting in enough

evidence, whether direct or circumstantial, of discrimina-

tory motivation to create a triable issue or by establish-

ing a prima facie case under the McDonnell Douglas

formula.’ ” Paz v. Wauconda Healthcare and Rehab. Ctr.,

LLC, 464 F.3d 659, 665 (7th Cir. 2006) (quoting Rudin v.

Lincoln Land Cmty. Coll., 420 F.3d 712, 719 (7th Cir.

2005)).

1. Direct Method for Demonstrating Discrimination

The terminology in this area of law can be a bit confus-

ing as the word “direct” is used both for the “direct

method” and “direct evidence.” See Rudin, 420 F.3d at 720

n.3. “Direct evidence,” one of the two types of proof used

in the direct method for establishing a triable issue of

fact, is “an admission by the decision-maker that his

actions were based upon the prohibited animus. Needless

to say, such admissions are rarely encountered.” Rogers,

320 F.3d at 753 (citing Hoffman v. Caterpillar, Inc., 256

F.3d 568, 576 (7th Cir. 2001); Radue v. Kimberly-Clark

Corp., 219 F.3d 612, 616 (7th Cir. 2000) (internal quota-

tions omitted)). Evidence used in the direct method is “not

limited to near-admissions by the employer that its

decisions were based on a proscribed criterion . . ., but also

includes circumstantial evidence which suggests discrimi-

nation albeit through a longer chain of inferences.” Luks

v. Baxter Healthcare Corp., 467 F.3d 1049, 1052 (7th

Cir. 2006) (citing Sylvester v. SOS Children’s Villages

Illinois, Inc., 453 F.3d 900, 902-03 (7th Cir. 2006);

Ptasznik v. St. Joseph Hosp., 464 F.3d 691, 695 (7th Cir.

2006)). In the present case, Lewis provides both direct

evidence and circumstantial evidence against the defen-

dants sufficient to survive summary judgment under

the direct method.

8 No. 06-2302

Lewis provides direct evidence of alleged discrimination

through Williams’s statement that he prevented her

from participating on the IMF Detail because she was a

female and that “it was going to be a working trip, and he

thought it would be dangerous and that [she] would thank

him for it later.” Appellant’s Brief at 7. This is sufficient

evidence to create a genuine issue of material fact as to

whether the defendants discriminated against Lewis.

The district court, however, rejected this evidence. It

determined that “Williams’s comment must be considered

in the context in which it was made. . . . Williams’s alleged

statement that Lewis could not go on the IMF Detail

because she is ‘female’ cannot be characterized as direct

evidence of discrimination without a presumption that

gender is completely irrelevant to the IMF Detail. [Chief

Maurer’s memorandum] indicates that gender was rele-

vant to the rooming arrangements.” Lewis v. City of

Chicago Police Dep’t, 428 F. Supp. 2d 783, 792-93 (N.D. Ill.

2006).

The district court erred by improperly weighing the

parties’ evidence during summary judgment. In ruling on

a motion for summary judgment, the evidence of the

nonmovant must be believed and all justifiable inferences

must be drawn in the nonmovant’s favor. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The district

court should not weigh the evidence and determine the

truth of the matter but rather determine whether there is

a genuine issue for trial. See Albiero v. City of Kankakee,

246 F.3d 927, 932 (7th Cir. 2001).

The record presents a swearing contest between Lewis

and Williams as to Williams’s alleged statement as to why

he excluded Lewis from the IMF Detail. The reason for

that exclusion, whether Williams had discriminatory

intent or because of a legitimate non-discriminatory

reason, is a question of fact for a jury to decide at trial, not

No. 06-2302 9

for a district court to consider at summary judgment.

Lewis is a competent witness to testify because she was

present when Williams made the alleged statement, it is

an admission by a party-opponent and, if true, is direct

evidence of discriminatory intent. FED. R. EVID. 801(d)(2);

see, e.g., Stinnett v. Iron Works Gym/Executive Health Spa,

Inc., 301 F.3d 610, 613 (7th Cir. 2002) (noting that the

evidence relied upon in defending a motion for summary

judgment must be competent evidence of a type other-

wise admissible at trial).

The defendants provide a secondary argument that

Williams’s comments must also be ignored because he

was not a decision maker. Although he consulted with his

supervisor, Commander Brown, the record contains

evidence to demonstrate that Williams was involved in the

process of determining who would be put on the IMF

Detail. Therefore, Williams’s comments can qualify as

direct evidence of discrimination. See Rozskowiak v. Vill.

of Arlington Heights, 415 F.3d 608, 612 (7th Cir. 2005)

(explaining that a decision maker is one who is involved in

the process of making the employment decision at issue).

Furthermore, a plaintiff can use either direct evidence,

circumstantial evidence or a combination of the two types

of evidence, to meet her burden under the direct method.

Troupe v. May Dep’t Stores Co., 20 F.3d 734, 736 (7th Cir.

1994). “Circumstantial evidence demonstrating inten-

tional discrimination includes: ‘(1) suspicious timing, am-

biguous oral or written statements, or behavior toward

or comments directed at other employees in the protected

group; (2) evidence, whether or not rigorously statistical,

that similarly situated employees outside the protected

class received systematically better treatment; and

(3) evidence that the employee was qualified for the job

in question but was passed over in favor of a person out-

side the protected class and the employer’s reason is a pre-

10 No. 06-2302

text for discrimination.’ ” Hemsworth v. Quotesmith.com,

Inc., 476 F.3d 487, 491 (7th Cir. 2007) (quoting Sun v. Bd.

of Tr. of Univ. of Illinois, 473 F.3d 799, 812 (7th Cir.

2007)). Chief Maurer’s memorandum and the ultimate

rooming arrangements made in Washington, D.C. provide

circumstantial evidence of discrimination that Lewis

can also use under the direct method.

Chief Maurer’s memorandum, when viewed in the light

most favorable to Lewis, does not convey a gender neutral

concern in regard to hotel arrangements as suggested by

the defendants. The Department has the same privacy

and efficiency concerns in its rooming arrangements

regardless of whether there is a lone female or lone male

officer. Despite the universal nature of privacy and

efficiency concerns to rooming arrangements for both

genders, the memorandum uses the phrase “lone female”

instead of “lone female or lone male” or “lone officer.”

Additionally, the defendants’ argument that the Depart-

ment’s purpose was to avoid single officers in a hotel

room does not stand up to the reality that the Department

ultimately sent an odd number of male and female officers

to the IMF Detail and that four lone officers, three men

and one woman, had individual rooms to themselves.

Lewis has provided sufficient direct and circumstantial

evidence to satisfy the direct method of proof on this issue.

A genuine issue of material fact exists as to whether

the defendants discriminated against Lewis on the basis

of her gender.

2. Evidence of Materially Adverse Employment Action

Despite the existence of a genuine issue of material fact

on one element of Lewis’s claim, summary judgment is

still appropriate if Lewis cannot provide evidence to sup-

port all elements of the claim. Celotex Corp. v. Catrett, 477

U.S. 317, 324 (1986); see, e.g., Koszola v. Bd. of Educ. of the

No. 06-2302 11

City of Chicago, 385 F.3d 1104, 1111 (7th Cir. 2004) (citing

Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th

Cir. 2003)). Lewis must also demonstrate a materially

adverse employment action that resulted from the alleged

discrimination. See Rhodes v. Illinois Dep’t of Transp., 359

F.3d 498, 504 (7th Cir. 2004) (“Whether the plaintiff

proceeds by the direct or indirect method of proof, [s]he

must show a materially adverse employment action.”)

(citing Haugerud v. Amery Sch. Dist., 259 F.3d 678, 691

(7th Cir. 2001)).

“Although we define adverse employment action broadly,

not everything that makes an employee unhappy is an

actionable adverse action. For an employment action to be

actionable, it must be a significant change in employment

status, such as hiring, firing, failing to promote, reassign-

ment with significantly different responsibility, or a

decision causing a significant change in benefits.” Bell v.

E.P.A., 232 F.3d 546, 555 (7th Cir. 2000) (citing Burlington

Indus. v. Ellerth, 524 U.S. 742, 761 (1998); Ribando v.

United Airlines, Inc., 200 F.3d 507, 511 (7th Cir. 1999);

Smart v. Ball State Univ., 89 F.3d 437, 440 (7th Cir. 1996)

(internal quotations omitted)). We have noted that materi-

ally adverse employment action can be categorized into

three groups of cases involving: (1) the employee’s current

wealth such as compensation, fringe benefits, and financial

terms of employment including termination; (2) the em-

ployee’s career prospects thus impacting the employee’s

future wealth; and (3) changes to the employee’s work

conditions including subjecting her to “humiliating,

degrading, unsafe, unhealthy, or otherwise significant

negative alteration in [her] work place environment.”

Herrnreiter v. Chicago Hous. Auth., 315 F.3d 742, 744-45

(7th Cir. 2002) (internal citations and quotations omitted).

The “purpose of the adverse employment action require-

ment is to provide a reasonable limiting principle for the

12 No. 06-2302

type of conduct actionable under the statute.” Phelan v.

Cook County, 463 F.3d 773, 780 (7th Cir. 2006). We use

the adverse employment action requirement in order to

distinguish meritorious cases from “trivial personnel

action[s]” brought by “irritable, chip-on-the-shoulder

employee[s].” Herrnreiter, 315 F.3d at 745 (citations

omitted). We do not condone bigotry or hatred, but we are

interpreting an employment discrimination statute, not

canons of individual virtue. See Hunt v. City of Markham,

Illinois, 219 F.3d 649, 653-54 (7th Cir. 2000) (citations

omitted).

Lewis’s proposed adverse employment actions are the

loss of two days of overtime totaling approximately $1,000

and the loss of the experience of training on the IMF

Detail that she claims to be a “once in a lifetime” training

event. The loss of the training opportunity dovetails into

an additional argument that Lewis has also lost future

employment opportunities because of her exclusion from

the IMF Detail. The defendants counter that the amount

of lost pay is trivial—only two days of overtime—and that

Lewis had no right to the overtime. They also question the

value of the IMF Detail training experience in Lewis’s

career as Lewis was able to participate in other large

detail events and did not list these other training events

on her resume.

Our circuit has not directly addressed the issue of

whether a denial of overtime is an adverse employment

action sufficient to implicate Title VII. We have held that

a denial of a raise can be an adverse employment action

while the denial of a “more transient” payment such as a

bonus is not. Barricks v. Eli Lilly and Co., 481 F.3d 556,

559 (7th Cir. 2007) (citing Farrell v. Butler Univ., 421 F.3d

609, 614 (7th Cir. 2005); Hildebrandt v. Ill. Dep’t of

Natural Res., 347 F.3d 1014, 1030 (7th Cir. 2003); Hunt,

219 F.3d at 654). “The difference is that raises are a

No. 06-2302 13

normal and expected element of an employee’s salary,

while bonuses generally are ‘sporadic, irregular, unpredict-

able, and wholly discretionary on the part of the em-

ployer.’ ” Fyfe v. City of Fort Wayne, 241 F.3d 597, 602 (7th

Cir. 2001) (quoting Hunt, 219 F.3d at 654).

Depending on the type of work, overtime can be a

significant and recurring part of an employee’s total

earnings similar to a recurring raise or it could be insignif-

icant and nonrecurring like a discretionary bonus. The

IMF Detail in Washington, D.C. in September 2002 was

a one time event. However, as Chief Maurer’s memoran-

dum noted, Chicago had its own IMF meeting scheduled

for November 2002. Additionally, large public gather-

ings requiring significant police presence are recurring

events in a large city like Chicago. Lewis can construct

from the evidence an argument that by denying her the

opportunity to participate in the IMF Detail, she lost her

ability to move forward in the component of her career of

being a police officer at recurring large scale public

gatherings. In turn, she can argue that she has lost the

potential to earn many hours of overtime, not just the

mere two days that she lost in September 2002. Conse-

quently, we conclude that Lewis can demonstrate a

genuine issue of material fact as to whether she has

experienced an adverse employment action.

We must add two final points before we conclude our

consideration of adverse employment actions. First, as

Title VII prohibits discrimination as to compensation,

terms, conditions and privileges of employment, it is the

“material, sufficiently important alterations of the employ-

ment relationship” that qualify as adverse employment

action. Brewer v. Bd. of Trs. of Univ. of Illinois, 479 F.3d

908, 916-17 (7th Cir. 2007) (citations omitted). A strict

adherence to labels leads to a meaningless cry of phrases

such as “bonus” or “salary” without reaching the critical

14 No. 06-2302

issue of whether the alleged discrimination caused a

material change in the employment relationship.

Second, although the adverse employment action re-

quirement is a limiting principle within the statute, we

cannot allow the need for a limiting principle to inadver-

tently create a loophole for discriminatory actions by

employers. Adverse employment actions should not be

defined so narrowly as to give an employer a “license to

discriminate.” Farrell, 421 F.3d at 614. An employer’s

“actions which deprived [the employee] of compensation

which [s]he otherwise would have earned clearly constitute

adverse employment action for purposes of Title VII.” Bass

v. Bd. of County Comm’rs, Orange County, Florida, 256

F.3d 1095, 1118 (11th Cir. 2001); cf. Phelan, 463 F.3d at

780 (finding an adverse employment action when the

employer terminated the employee for four months despite

the fact that the employer eventually reinstated the

employee and provided full back pay). We seek to avoid

both “trivial personnel action[s]” brought by “irritable,

chip-on-the-shoulder employee[s],” Herrnreiter, 315 F.3d

at 745 (citations omitted), and unlawful discrimination by

employers. An employer cannot discriminate against an

employee and then hide behind the argument that the

employee’s deprivation was not material. “ ‘[T]he ‘primary

objective’ of Title VII ‘is not to provide redress but to

avoid harm.’ ” Phelan, 463 F.3d at 780 (quoting Faragher

v. City of Boca Raton, 524 U.S. 775, 805-06 (1998)).

B. Retaliation Claim

“Title VII makes it unlawful for an ‘employer to discrimi-

nate against any of his employees . . . because [the em-

ployee] has opposed any practice made an unlawful

employment practice.’ ” Brewer, 479 F.3d at 923 (quoting

42 U.S.C. § 2000e-3(a)). The Supreme Court recently

instructed in Burlington N. and Santa Fe R.R. Co. v.

No. 06-2302 15

White, that “the range of conduct prohibited under [Title

VII’s anti-retaliation] provision is broader than Title VII’s

[anti-]discrimination provision.” Phelan, 463 F.3d at 787

(citing 126 S. Ct. 2405, 2414 (2006)).

“An employee can establish a prima facie case of retalia-

tion by proceeding under either the direct or indirect

method.” Roney v. Illinois Dep’t of Transp., 474 F.3d 455,

459 (7th Cir. 2007) (citing Sublett v. John Wiley & Sons,

Inc., 463 F.3d 731, 740 (7th Cir. 2006)). The defendants

argue that Lewis has pursued only the indirect method of

argument on appeal. However, Lewis has brought both a

direct and an indirect method argument before the dis-

trict court and on appeal. We conclude that Lewis suc-

ceeds in bringing her claim under the direct method.

“Under the direct method, [a plaintiff] must show

‘(1) [s]he engaged in a statutorily protected activity;

(2) [s]he suffered an adverse action taken by the employer;

and (3) there was a causal connection between the two.’ ”

Tomanovich v. City of Indianapolis, 457 F.3d 656, 663 (7th

Cir. 2006) (quoting Moser v. Indiana Dep’t of Corr., 406

F.3d 895, 903 (7th Cir. 2005)). There is no dispute that

Lewis satisfies the first element as she made complaints

to various supervisors, the Union and the EEOC about

the alleged discrimination by Williams with the IMF

Detail. See Durkin v. City of Chicago, 341 F.3d 606,

614 (7th Cir. 2003) (“Usually a claim for retaliation is

preceded by an obligatory complaint about discriminatory

conduct, so that the employer is aware of the mistreat-

ment and the corresponding protected activity.”).

As for the second element of suffering an adverse action

taken by the employer, “the discriminatory acts proscribed

by Title VII’s anti-retaliation provision are not limited to

those that affect the terms and conditions of one’s employ-

ment.” Roney, 474 F.3d at 461 (citing White, 126 S. Ct. at

2412-13). But, the “challenged action must be one that a

16 No. 06-2302

reasonable employee would find to be materially adverse

such that the employee would be dissuaded from engaging

in the protected activity.” Id. Lewis has provided sufficient

evidence in the record that Williams’s alleged retaliatory

action is such that a “reasonable employee would be

dissuaded from engaging in the protected activity.” Id. As

required in reviewing a summary judgment, we must

credit Lewis’s competent evidence that Williams singled

her out for otherwise dangerous assignments that were

beyond the level of treatment she was previously receiv-

ing as an officer before she made her complaints about

the IMF Detail. Additionally, Lewis provides evidence

that Williams singled her out for adverse treatment about

her job performance and refused a transfer in order to

allow him to continue his alleged acts of retaliation.

Finally, Lewis has provided evidence of a causal connec-

tion. “[T]he mere fact that one event preceded another does

nothing to prove that the first event caused the second; the

plaintiff also must put forth other evidence that reason-

ably suggests that her protected speech activities were

related to her employer’s discrimination.” Burks, 464 F.3d

at 758-59 (internal quotations and citations omitted); see,

e.g., Scaife v. Cook County, 446 F.3d 735, 742 (7th Cir.

2006) (“Close temporal proximity provides evidence of

causation and may permit a plaintiff to survive summary

judgment provided that there is other evidence that

supports the inference of a causal link.”) (quoting Lang v.

Illinois Dep’t of Children and Family Servs., 361 F.3d 416,

419 (7th Cir. 2004)). There is additional evidence in the

record beyond suspicious timing. Most notable is the

apparently active steps taken by Williams after Lewis

made her discrimination claim. Williams allegedly di-

rected Lewis to more dangerous assignments via the police

radio after her discrimination claims. This is an alleged

change in Williams’s actions that occurred after Lewis’s

discrimination claims against Williams. Williams did not

No. 06-2302 17

personally direct Lewis to an assignment via the radio

prior to the discrimination claim. This is sufficient to

survive summary judgment on this issue.

C. Monell Claim Against the City

Lewis’s § 1983 claim against the City must be evaluated

under Monell v. Dep’t of Social Servs. of the City of New

York, and its progeny. 436 U.S. 658 (1978). Misbehaving

employees are responsible for their own conduct, “units of

local government are responsible only for their policies

rather than misconduct by their workers.” Fairley v.

Fermaint, 482 F.3d 897, 904 (7th Cir. 2007); see, e.g.,

Jenkins v. Bartlett, 487 F.3d 482, 492 (7th Cir. 2007) (“A

municipality may not be held liable under § 1983 based on

a theory of respondeat superior or vicarious liability.”)

(citing Monell, 436 U.S. at 694).

“To establish liability, [Lewis] must produce evidence of

‘(1) an express policy that, when enforced, causes a

constitutional deprivation; (2) a widespread practice that,

although not authorized by written law or express munici-

pal policy, is so permanent and well settled as to con-

stitute a custom or usage with the final force of law; or

(3) an allegation that the constitutional injury was

caused by a person with final policymaking authority.”

Phelan, 463 F.3d at 789 (quoting Roach v. City of Evans-

ville, 111 F.3d 544, 548 (7th Cir. 1997)).

Lewis’s first argument against the City is that it had an

express policy discriminating against women for the IMF

Detail as set forth in Chief Maurer’s memorandum.

However, “[o]nly those individuals with the requisite

policymaking authority are capable of establishing ‘official

policy’ as required by Monell.” Chortek v. City of Milwau-

kee, 356 F.3d 740, 748-49 (7th Cir. 2004) (citing Cornfield

by Lewis v. Consol. High Sch. Dist. No. 230, 991 F.3d 1316,

18 No. 06-2302

1324-25 (7th Cir. 1993)). Lewis does not provide any

evidence to demonstrate that Chief Maurer has policy

making authority sufficient to bind the City in this case.

Lewis is not suing Chief Maurer for his alleged discrimina-

tory actions in implementing the IMF Detail but instead

seeks to hold the City liable. As she has failed to demon-

strate that Chief Maurer can create liability for the City,

we must reject this argument.

We must also reject Lewis’s second argument that the

City has a widespread practice of ignoring allegations

of gender discrimination and unlawful retaliation. “If

the same problem has arisen many times and the munici-

pality has acquiesced in the outcome, it is possible (though

not necessary) to infer that there is a policy at work.”

Phelan, 463 F.3d at 789 (quoting Calhoun v. Ramsey, 408

F.3d 375, 380 (7th Cir. 2005)). Lewis has failed to present

evidence of a widespread practice by the City of ignoring

gender discrimination and retaliation. Failing to meet her

burden, the district court properly entered judgment in

favor of the City on Lewis’s Monell claim.

III. CONCLUSION

The judgment of the district court as to Lewis’s Monell

claim against the City of Chicago is AFFIRMED. The

judgment of the district court as to Lewis’s Title VII claims

against the City and § 1983 claim against Williams is

REVERSED. The case is REMANDED to the district court for

additional proceedings consistent with this opinion.

No. 06-2302 19

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—7-26-07