Petition for Writ of Certiorari — Jacqueline A. Watkins, Petitioner v. City of Chicago, Illinois

App.la

OPINION OF THE UNITED STATES COURT

OF APPEAL FOR THE SEVENTH CIRCUIT

(JANUARY 11, 2023)

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

JACQUELINE A. WATKINS,

Plaintiff-Appellant,

v.

CITY OF CHICAGO,

Defendant-Appellee,

No. 20-1750

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division

[Hon. Edmond E. Chang, U.S. District Judge]

Before: Hamilton, St. Eve, and

Kirsch II, Circuit Judges.

*We have agreed to decide the case without oral

argument because the briefs and record adequately present the

facts and legal arguments, and oral argument would not

significantly aid the court. FED. R. APP. P. 34(a)(2)(C).

App.2a

Chicago police officer Jacqueline Watkins was

accused of ignoring a call to report to the scene of a

burglary, which led to a one-day suspension after a

after a years-long investigation. The suspension was

eventually reversed. Watkins has sued the City of

Chicago under Title VII of the Civil Rights Act of 1964

for discrimination based on her race and sex and for

retaliation based on her complaints that her

supervisor reported her because she is Black and a

woman. See 42 U.S.C. §§ 2000e-2 & 3. The district

court entered summary judgment for the City,

concluding that Watkins had not offered evidence that

would allow a reasonable jury to find discriminatory

or retaliatory motives on the part of the relevant

decision-makers. We affirm.

We present the factual record at summary

judgment in the light most favorable to Watkins, the

non-moving party. Eaton v. J.H. Findorff & Son, Inc.,

1 F.4th 508, 511 (7th Cir. 2021). One night in

September 2008, the police department’s radio

dispatcher reported a “priority one” burglary and

assigned a unit—not Watkins and her partner—to

respond. All available units are required to respond to

priority-one calls. Watkins and her partner had

reported to dispatch ten minutes earlier that their

previous call was “clear,” meaning finished. Their

shift was ending, and they were driving away from the

site of the burglary; they did not immediately answer

dispatch or make a U-turn. When Sergeant Francis

Higgins passed their car, he ordered them (by unit

number) to the scene. They hesitated in responding by

radio but turned around immediately and arrived as

little as ninety seconds after the sergeant.

App.3a

That night, without discussing the situation

with Watkins and her partner, Higgins filed an

interdepartmental complaint against them for driving

“AWAY from an all-call assignment.” (The

departmental jargon for such a report is “complaint

register” or “CR,” but we use “complaint” for

simplicity.) When Watkins received notice of this

complaint, which charged “inattention to duty,” she

wrote to the assistant superintendent of police that

she and her partner (also a Black woman) responded

properly to the burglary call, that Higgins falsely

accused her, and that Higgins discriminated against

her and her partner because of their race and sex. The

investigation into these accusations was folded into

the one opened by Higgins’ complaint, and because of

its subject, it had to be conducted outside the precinct

by the Internal Affairs Division.

The complaints took six years to resolve.

Sergeant Jamie Kane conducted the initial

investigation and did not make a recommendation for

almost two years, by which time Higgins had retired.

After reviewing the dispatch recordings and

interviewing

witnesses,

Kane

recommended

suspending Watkins for two days and her partner (the

driver) for one day for “failure to properly respond” to

the burglary call. Kane did not find cause to pursue

Watkins’ complaint of discrimination. Watkins attests

that during her interview, Kane had told her that her

allegations against Higgins defamed his reputation.

(This remark is not in the transcript, but because we

are reviewing a grant of summary judgment, we

assume that Kane said it off the record.)

App.4a

At the next stage, a committee of senior officers

(two deputy chiefs and a chief) rejected the

recommendation to suspend Watkins. They cited a

lack of objective evidence of her delayed arrival at the

burglary once summoned. Chief of Internal Affairs

Juan Rivera, the next reviewer, disagreed; he

concluded that the officers failed to respond

immediately over the radio to the priority-one call.

Rivera recommended a one-day suspension for

Watkins for being “inattentive to duty.” Garry

McCarthy, the police superintendent at that time,

received the file next. He approved Watkins’

suspension and imposed the same on her partner

(whom Rivera had recommended reprimanding).

Watkins filed a complaint through her union

about the suspension, which she alleged was

discriminatory. An arbitrator ultimately found that

there was no clear evidence that Watkins had broken

any rule in how she responded to the burglary. Her

suspension was reversed and she received backpay for

that day. Her record now reflects that a complaint was

filed but “not sustained.” Still, the complaint was on

her record for years. Watkins believes that it damaged

her chances of promotion, but she has not provided

evidence about any promotion decision.

Watkins also filed a charge with the Illinois

Department of Human Rights (the local counterpart

to the federal Equal Employment Opportunity

Commission). In the end, the agency made no findings

and issued a right-to-sue notice. That brings us to this

lawsuit against the City of Chicago under Title VII.

App.5a

Watkins alleged that Higgins’ complaint and

her suspension by the City were discriminatory acts

based on her race and sex and that the suspension was

retaliation for her complaints about Higgins.

(Watkins does not try to revive other claims that were

dismissed on the pleadings.) The City moved for

summary judgment. In granting the motion, the

district court explained that Watkins did not offer

evidence that would support a finding that the City

acted with discriminatory or retaliatory motives.

On appeal,

Watkins challenges these

conclusions, and we review the decision de novo.

Eaton, 1 F.4th at 511. Watkins first presses her claim

that Higgins filed the complaint, and that

Superintendent McCarthy ultimately suspended her,

because of her race and sex. For a discrimination

claim to survive summary judgment, a plaintiff must

offer evidence that would permit a reasonable jury to

conclude that the plaintiffs race or sex caused an

adverse employment action. Purtue v. Wisconsin Dep’t

of Corrections, 963 F.3d 598, 601 (7th Cir. 2020). The

plaintiff can use the burden-shifting framework of

McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973), or simply show that the totality of her evidence

could convince a reasonable jury that illegal

discrimination occurred. Purtue, 963 F.3d at 602.

Watkins argues that she prevails under any approach.

1 The City also presented the (non-jurisdictional)

affirmative defense that Watkins did not properly exhaust her

administrative remedies because her charge with the Illinois

Department of Human Rights was untimely. See Delgado v.

Merit Sys. Protec. Bd., 880 F.3d 913, 925 (7th Cir. 2018), citing

Zipes v. Trans World Airlines, Inc., 455 U.S.

App.6a

To show that racial animus motivated Higgins’

complaint, Watkins submitted evidence that Higgins

had a history of making racist comments, affording

preferential treatment to white and male officers, and

regarding Black women as lazy. We accept her

account of the facts at summary judgment. In

reviewing this grant of summary judgment, we need

not try to determine, at least as a matter of law,

whether the evidence amounts to so-called “stray

remarks” or permits reasonable inferences of race

and/or sex-based animus. Remarks reflecting a

supervisor’s unlawful animus may be evidence of his

or her attitudes generally and in ways that may have

affected the challenged decision. See Joll v.

Valparaiso Community Schools, 953 F.3d 923, 935

(7th Cir. 2020) (reversing summary judgment for

employer); cf. Blasdel v. Northwestern University, 687

F.3d 813, 820 (7th Cir. 2012) (“same actor” inference

permits but does not require inference that attitudes

of person who hired plaintiff, for example, would not

have changed by the time the same person fired

plaintiff).

For purposes of this appeal, we will assume

that Higgins filed the complaint with discriminatory

intent. This part of Watkins’ claim still comes up short

because filing the complaint was not an adverse

employment action. Adverse actions that can sustain

an employment-discrimination claim under Title VII

are limited to those that “affect employment or alter

*Watkins argued for equitable tolling because an agency

lawyer told her she could not file her charge until the internal

investigation ended. The district court did not decide the issue of

tolling, and the City does not argue about exhaustion on appeal.

App.7a

the conditions of the workplace.” Burlington Northern

& Santa Fe Railway Co. v. White, 548 U.S. 53, 62

(2006). The complaint alone did not affect Watkins’s

pay, benefits, or working conditions. She suspects that

it diminished her promotion prospects, but without

some additional evidence of a link between the open

complaint and a decision not to promote her, the

required “material consequences” are lacking. See

Porter v. City of Chicago, 700 F.3d 944, 955 (7th Cir.

2012) (explaining that reprimands and progressive

discipline do not qualify as adverse actions).

The suspension itself, however, cost Watkins a

day’s pay and qualifies as an adverse employment

action. The City is responsible for the suspension

because the superintendent—the final decision­

maker—imposed it. See Brooks v. Avancez, 39 F.4th

424, 439 (7th Cir. 2022). Still, more is required before

the City can be held liable. Watkins’ primary evidence

of a discriminatory suspension is Higgins’ history of

racist and sexist remarks. But Higgins was not the

decision-maker. The City can be liable for the conduct

of a biased employee only if that person’s bias

proximately caused the adverse employment action.

Staub v. Proctor Hospital, 562 U.S. 411, 420 (2011). If

the adverse action resulted from an untainted

investigation and rests on grounds independent of the

biased complaint, the City will not be liable. Id. at 421;

Woods v. City of Berwyn, 803 F.3d 865, 870 (7th Cir.

2015).

Because Higgins did no more than initiate an

independent investigation, and Watkins does not

show that he influenced the outcome, the evidence

App.8a

about him is insufficient to raise a jury question about

whether discrimination caused her suspension. See

Staub, 562 U.S. at 421. Several layers of review by

different officials, senior to Higgins and outside his

district, occurred before the suspension was imposed,

and Watkins does not show they all relied on Higgins’

report. See Brooks, 39 F.4th at 440; Woods, 803 F.3d

at 871. Indeed, evidence from other sources was

collected at the first stage, and three senior

Department officials later recommended against

Kane’s recommendation to suspend Watkins. The

investigation was not an exercise in rubberstamping.

Further, Rivera’s recommendation to suspend

Watkins related to the failure to use the radio in

response to the priority one call. That decision was

based on audio recordings and Rivera’s interpretation

of policy in addition to the accounts of Higgins and

other witnesses. The Superintendent then agreed

with Rivera about Watkins (though not about her

partner). Accordingly, this is not a case like Vega v.

Chicago Park District, in which we said that a jury

could conclude that the investigation was “too

superficial” to insulate the City from liability for a

complaint based on a supervisor’s animus. 954 F.3d

996, 1007 (7th Cir. 2020); see also Woods, 803 F.3d at

871 (affirming summary judgment for employer

where independent investigation broke chain of

causation relied upon by plaintiff). The evidence here

shows an investigation that similarly broke any chain

of causation between Higgins’ (presumed) bias and

plaintiffs suspension.

Watkins also sought to prove that her

suspension was discriminatory with statistical

App.9a

evidence that “neglect of duty” complaints are

sustained against Black women officers more often

than against white men. The problem with this

evidence is that Watkins asserts a claim of

discriminatory treatment against her as an

individual— not a pattern-or-practice claim. See

Matthews u. Waukesha County, 759 F.3d 821, 829 (7th

Cir. 2014).2 Proving disparate treatment requires

plaintiff-specific evidence of discriminatory intent.

Id.; see Ricci v. DeStefano, 557 U.S. 557, 577 (2009).

Of course, that evidence may be circumstantial, and it

may include “evidence, statistical or otherwise, that

similarly situated employees outside of the protected

group systematically receive better treatment.”

Downing v. Abbott Labs., 48 F.4th 793, 804 (7th Cir.

2022). But Watkins’ evidence falls short of raising a

genuine dispute of material fact.

Statistical (like individual) comparators need

not be identical to the plaintiff in every way, but they

must be similar in material ways. Purtue, 963 F.3d at

603. Watkins’ evidence, however, spans decades,

which at a minimum implicates different

decisionmakers. And the nature of the underlying

conduct, such as whether “priority one” situations

were involved, is unclear. This makes it “impossible to

determine” whether the statistical comparators are

like Watkins in the respects that matter most. See id.

Further, even if there were probative value in this

collection of district-wide statistics, it cannot carry the

day alone. Matthews, 759 F.3d at 829 (explaining that

“evidence of a pattern or practice can only be collateral

to evidence of specific discrimination against the

plaintiff herself’). Watkins has no other evidence—

App.lOa

excluding her account of Higgins’ conduct, which we

have already discussed—of the decision-makers’

discriminatory motives, for which the City could be

responsible.

Watkins’s final claim is that she was suspended

as retaliation for submitting her internal complaint

against Higgins and filing charges with her union and

the Illinois Department of Human Rights. As relevant

here, Watkins needed evidence sufficient to raise a

genuine issue of material fact about whether

retaliatory intent was a but-for cause of her

suspension. University of Texas Southwestern Medical

Center v. Nassar, 570 U.S. 338, 352 (2013). In other

words, Watkins must show she would not have been

suspended if she had not accused Higgins of

discrimination in various protected contexts.

2 Originally, Watkins also asserted a claim under 42

U.S.C. § 1983, which can provide a remedy for a constitutional

violation caused by a municipality’s policy, practice, or custom.

See Monell v. Department of Social Services, 436 U.S. 658, 690

(1978). On appeal, Watkins does not challenge the dismissal of

this claim, but regardless, we generally treat employmentrelated constitutional claims the same as those under Title VII.

Dunlevy v. Langfelder, 52 F.4th 349, 353 (7th Cir. 2022). Watkins

also has no claim of disparate impact. She is not challenging the

lopsided effects of a neutral employment practice. See Ricci v.

DeStefano, 557 U.S. 557, 578 (2009), citing 42 U.S.C. § 2000e2(k)(l)(A)(i).

App.lla

She falls short of doing so. She primarily cites

her evidence that Sergeant Kane, who first

investigated the dueling complaints, told her that she

was defaming Higgins’ reputation by accusing him of

racism and sexism. But Kane’s report went on to five

reviewers, and only the final two supported the

suspension.3 Even if we assume that Kane intended

for Watkins to incur discipline because she accused

Higgins, there is no evidence that Rivera or McCarthy

had the same motive, nor that Kane influenced their

decisions. See Vesey v. Envoy Air, Inc., 999 F.3d 456,

462 (7th Cir. 2021).

Watkins also asserts that the six years it took

to investigate the complaint against her shows

retaliatory motive. “Suspicious” timing can be

evidence of retaliation when the adverse action

follows closely on the heels of the plaintiffs protected

action. See Igasaki v. Illinois Dep’t of Financial and

Professional Regulation, 988 F.3d 948, 959 (7th Cir.

2021). Watkins does not explain how the slow

decision-making here shows retaliatory motive. We

agree that this investigation was hardly the prompt

action that can signify an employer’s reasonable

response to a discrimination charge. See Milligan v.

Bd. of Trustees of Southern Illinois University, 686

F.3d 378, 385 (7th Cir. 2012). And being under a cloud

3 In the district court, Watkins did not submit evidence

that Rivera was biased against Black people, and we cannot

consider the new evidence she submits on appeal. Carmody v.

Bd. of Trustees of Univ. of III., 893 F.3d 397, 402 (7th Cir. 2018).

App.l2a

obviously caused strain on Watkins. But she has no

evidence that the department slow-walked the

investigation to punish her and not, for example,

because of bureaucratic delay or, as Watkins suspects,

to wait out Higgins’ retirement (a fishy but nonretaliatory motive). More importantly, she did not

show that the length of the investigation caused harm

that would prevent a reasonable worker from

reporting discrimination, and so it was not a

materially adverse action for purposes of a retaliation

claim. Burlington Northern, 548 U.S. at 68; see

Poullard u. McDonald, 829 F.3d 844, 857 (7th Cir.

2016) (explaining that “threats of future discipline can

cause stress or worry” but are not themselves

materially adverse).

A final point: in her appellate brief, Watkins

maintains that the Chicago Police Department

perpetrates systemic racism and sexism against Black

women. We emphasize that we neither accept nor

reject these assertions about the institution. Our

decision resolves only the individual claims that

Watkins pursued in the district court and argues on

appeal. For the reasons we have explained, she did not

raise a genuine dispute of material fact about whether

her one-day suspension was discriminatory or

retaliatory.

AFFIRMED.

January 11, 2023

App.l3a

MEMORANDUM OPINION AND ORDER OF

THE UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

(MARCH 26, 2020)

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT COURT OF ILLINOIS

EASTERN DIVISION

CASE No. 17-cv-02028

JACQUELINE WATKINS,

Plaintiff,

v.

CITY OF CHICAGO

Defendant.

Before: Hon. Edmond E. Chang, U.S. District Judge

App.l4a

MEMORANDUM OPINION AND ORDER

Jacqueline Watkins is a Chicago Police Officer who

brings this Title VII employment discrimination case,

42 U.S.C. § 2000e et seq., against the City of Chicago.1

R. 18, Am. Compl.2 According to Watkins, the Chicago

Police Department discriminated against her on the

basis of race and gender and then retaliated against

her when she complained about the discrimination.

The City has moved for summary judgment. R. 89. For

the reasons explained below, the motion is granted.

I. BACKGROUND

The facts narrated below are undisputed unless

otherwise noted (and if disputed, the evidence is

viewed in Watkins’s favor).3 Jacqueline Watkins has

’The Court has federal question jurisdiction over this

case under 28 U.S.C. § 1331.

2Citation to the docket is “R.” followed by the entry

number and, when necessary, the relevant page or paragraph

number.

3Citations to the parties’ Local Rule 56.1 Statements of

Fact are identified as follows: “DSOF” for the City’s Statement of

Facts [R. 90] and “Pl.’s Resp. DSOF” for Watkins’s response to

the City’s Statement of Facts [R. 103]. As the City points out,

though, Watkins did not file a separate Statement of Additional

Facts with her response to the motion for summary judgment.

Instead, Watkins appears to have interspersed her new facts into

her response to the City’s Statement of Facts. In addition,

Watkins’s response to the DSOF contains numerous facts not

supported by any record citation.

App.l5a

been employed by the Chicago Police Department as a

Police Officer since 1999. DSOF % 1. Officer Watkins

is an African-American woman. Id.

A. Complaint Registers

In September 2008, Watkins was on patrol

with her partner, Officer Harriet White, who is also

an African-American woman. DSOF t 5. Watkins and

White were part of the third-watch shift in the CPD’s

22nd District. Id. The third watch was staffed by

around ten officers, including Watkins and White, and

was supervised by Sergeant Francis Higgins. Id. f 6.

Federal courts may enforce their local rules, such as

Local Rule 56.1, even as to pro se litigants like Watkins. See e.g.,

Cady v. Sheahan, 467 F.3d 1057, 1061 (7th Cir. 2006); Greer v.

Board of Educ. of City of Chicago, 267 F.3d 723, 727 (7th Cir.

2001). To be sure, the Court still views Watkins’s pro se filings

as expansively as reasonably possible, and she still gets the

benefit of viewing the evidence in the light favorable to her. But

to the extent that Watkins has alleged facts without any

evidentiary support (whether explicitly cited or readily located in

the record by the Court), the Court cannot credit them for

purposes of this motion.

As for Watkins’s additional facts, even though

Defendants are correct in that she failed to file a separate

statement of additional facts, the Court will nonetheless

construe any supported facts that she includes in her response to

the DSOF as one of her additional facts. The City helpfully

picked out Watkins’s new facts and placed them in a separate

document (along with the City’s responses), so the Court will go

ahead and construe that document as “Def.’s Resp. PSOF,” for

the City’s response to Watkins’s Statement of Additional Facts

[R. 109],

App.l6a

The third-watch patrol ran from 4 p.m. to

midnight. DSOF 1 5. At around 11:25 p.m. on

September 9, 2008, Watkins and White had just

finished up a suspicious person call and reported to

dispatch that they were “clear.” Id. If 7. A report of

“clear” means that the officers are available to

respond to new calls. Id. If 8. If an officer is not

available to respond to calls for whatever reason, then

the officer is supposed to report that they are

unavailable. Id.

That night, White was driving; Watkins was in

the passenger seat. DSOF If 5. At 11:35, ten minutes

after Watkins and White had reported themselves

“clear,” dispatch sent out a priority one call for a

burglary in progress. Id. 1f 10.

What happened next is disputed. According to

the City, “priority one” means that the call is urgent,

and all available officers must respond immediately.

DSOF Tf 11. As Sergeant Higgins was en route to

respond to the burglary-in-progress call, he saw

Watkins and White driving in the opposite direction

from the burglary scene. Id. f 12. At that point,

Higgins called dispatch to report Watkins and White.

Id. If 13. Specifically, at 11:36 p.m. (one minute after

the burglary call was made), Higgins placed a call to

dispatch in which he asked dispatch to order Watkins

and White to “turn around and head with me to that

burglary in progress.” Id. Accordingly, the dispatcher

called Watkins and White; there was a pause with no

response; and the dispatcher asked them if they

copied. Id. Higgins eventually arrived at the scene of

App.l7a

the burglary. Id. f 14. Four minutes later, Watkins

and White showed up. Id.

Watkins tells a different story. According to

Watkins, the 11:35 p.m. burglary in-progress call did

not require all available officers to respond

immediately. R. 100, Pl.’s Resp. DSOF f 10. Rather,

dispatch specifically assigned the call to a different

beat car, not to Watkins and White. Id. As a result,

Watkins disputes that she was required to

immediately respond to the call. Id. Nonetheless,

Watkins does not dispute that Higgins placed a call to

dispatch to ask dispatch to instruct Watkins and

White to respond to the burglary call. Id. f 11.

According to Watkins, Higgins was merely singling

them out “in a hostile tone.” Id. Even so, when

dispatch relayed Higgins’s orders to Watkins and

White, Watkins asserts that they immediately

responded to the assignment at that point. Id. Iff 1112. Watkins does not dispute that when she and White

arrived at the scene of the burglary, Higgins was

already there. Id. f 14. But Watkins asserts that it

only took them “a few seconds, a minute or less,” to

show up, not four minutes. Id. In short, Watkins

maintains that they did not immediately respond to

the burglary-in-progress call because it had been

assigned to a different beat car, but when dispatch

later assigned the call to Watkins and White, they

immediately responded. The bottom line, according to

Watkins, is that she and White did not break any

rules that night.

In any event, it is undisputed that a few hours

after this incident, Sergeant Higgins filed what is

App.l8a

called a “complaint register” (CR) against Watkins

and White. DSOF f 15; R. 90, DSOF, Exh. 10, Rivera

Decl., Exh. C, Investigation Records at DEF-WAT

000493.4 To provide some background, a CR is the

first step in initiating potential discipline against a

police officer. DSOF t 30. A member of the public can

file a CR against a CPD employee, or, as in this case,

a CPD employee can file a CR against a fellow

employee. Id. f 31. When a CR is filed, as pertinent

here, it is handled by the Internal Affairs Department

(LAD); IAD assigns each CR a log number and then

assigns a staff member to investigate the allegations

in the CR, create a summary of findings, and

recommend discipline (if appropriate). Id. 32. IAD

can issue one of four possible findings for a CR: (1)

sustained, which means there was sufficient evidence

to support the allegation of misconduct; (2) notsustained, which means there was not sufficient

evidence to support the allegation; (3) unfounded,

which means the alleged misconduct did not occur;

and (4) exonerated, which means the alleged conduct

did occur but was actually not a rule violation. Id. K

33.

4The investigation records for both Higgins’s CR against

Watkins and Watkins’s discrimination allegations against

Higgins are provided as Exhibit C to Sergeant Juan Rivera’s

Declaration, which is in turn attached as Exhibit 10 to the DSOF.

The investigation records encompass the original complaints

written by Higgins and Watkins; the dispatch phone records

from September 9, 2008; Sergeant Kane’s interview transcripts

with Higgins, Watkins, and White; Sergeant Kane’s summary

report; and other relevant letters and documents. The individual

documents are not broken down into their own exhibits. So, for

the sake of simplicity, from here on out, the Opinion will simply

cite all of these documents as “Investigation Records” and will

identify the specific page or pages by the “DEF-WAT” Bates

number provided by the parties.

App.l9a

Here, Higgins initiated the CR process by filing

an internal memorandum in which he detailed how

Watkins and White, “in spite of ample time and space

to make a U-turn,” drove “AWAY from an all call

assignment.” DSOF f 15; Investigation Records at

DEF-WAT 000493 (capitalization in original). Higgins

did not dispute Watkins’s assertion that the burglary

call was initially assigned to a different beat. See

Investigation Records at DEF-WAT 000493. But

Higgins maintained that Watkins and White were

still supposed to respond, because the call was an “all

call assignment,” which presumably means that even

though it had been specifically assigned to a beat car,

all other available units were still expected to

respond. Id. At the top of the memorandum, Higgins

characterized his allegations as “inattention to duty”

and “failure to provide police service.” Id. It is

undisputed that other than this CR against Watkins

and White, Higgins never issued any other CRs over

the course of his 29-year career. DSOF t 18.

On September 25, 2008, Sergeant Derrick

Shinn (also of the 22nd District) notified Watkins that

a CR had been opened against her. Pl.’s Resp. DSOF

U 17; Investigation Records at DEF-WAT 000511-12.

As mentioned above, Watkins sharply disagreed with

the factual basis for the CR (namely, that she failed to

respond to a burglary call). So, a week later, on

October 2, 2008, Watkins wrote her own internal

memorandum alleging that Higgins made a false

report against her simply because she was a Black

woman. DSOF f 21; Investigation Records at DEFWAT 000489-90. In her memorandum, Watkins

alleged that Higgins was motivated by “his own

App.20a

inward racial hatred and prejudice” to “make a false

allegation without fact or justification.” Investigation

Records at DEF-WAT 000490. She called his fifing of

the CR as an “outward act of discrimination” against

herself and White. Id.

B. First IDHR Charge

Around the same time that she filed the

memorandum internally with the department,

Watkins also attempted to file a charge of

discrimination with the Illinois Department of

Human Rights (commonly referred to as “IDHR”).

DSOF Tf 68. She filled out an IDHR Employment

Complainant Information Sheet, on which she stated

that the CPD discriminated against her on the basis

of race and gender when Higgins initiated the

allegedly false CR against her. See R. 90, DSOF, Exh.

15. But according to Watkins, before she could

officially file the charge, an IDHR representative

named Maryann Pettway told her that “unless there

was some punishment or other employment detriment

that ensued as a result of this action, the complaint

could not be filed and investigated.” DSOF f 69; Pl.’s

Resp. DSOF If 69. As a result, Watkins did not file the

IDHR charge. DSOF 69.

C. Internal Review of Complaints

Meanwhile, the CPD’s internal review process

for the two complaints—the inattention to duty CR

that Higgins filed against Watkins, and the

discrimination CR that Watkins filed against

Higgins—was just getting started. This process would

App.21a

ultimately go through multiple layers of review and

would last six years.

The first person to review the complaints was

Sergeant Derrick Shinn. (Shinn was just another

member of the 22nd District and was not a member of

IAD.) The record shows that Sergeant Shinn was first

assigned the case on September 16, 2008. See

Investigation Records at DEF-WAT-000487. (This

was

before

Watkins

accused

Higgins

of

discrimination.) On that date, a “complaint log

number” of 1019842 was assigned to Higgins’s CR

against Watkins. Id. at DEF-WAT 000494. Then, on

October 2, Shinn received Watkins’s complaint of

discrimination against Higgins. Id. As far as the

record shows, Watkins’s complaint was not assigned a

separate log number. Rather, it appears to have been

consolidated with Higgins’s existing log number,

although Watkins maintains that this shows the City

never bothered to assign her CR its own number. Pl.’s

Resp. DSOF f 34. A week later, on October 10,

Sergeant Shinn noted that he ultimately “found no

evidence during [his] investigation to support this

allegation against Sgt. Higgins.” Investigation

Records at DEF-WAT 000487. On that same day,

Shinn transferred the entire case number

(encompassing both the allegations against Watkins

and the allegations against Higgins) to IAD, because

IAD was responsible for investigating all

discrimination allegations. Id.

When CR No. 1019842 reached IAD in

November 2008, it was assigned to Sergeant Jamie

Kane for review. DSOF f 34; Investigation Records at

App.22a

DEF-WAT 000485. This meant that Kane would be

responsible for investigating both the inattention to

duty allegations as well as the discrimination

allegations. DSOF ^ 34. It is undisputed that as part

of this investigation, Kane interviewed Higgins,

Watkins, and White and also reviewed the dispatch

audio recordings from September 9, 2008 (the night of

the burglary call) and other documents from that

night. Id.

Specifically, Kane conducted two interviews

with Watkins on April 28, 2010. Investigation Records

at DEF-WAT 000528-31, DEF-WAT 000534-37. It is

unclear why these interviews took place nearly a year

and a half after the complaints were assigned to

Sergeant Kane. During the first interview, Kane

asked Watkins about the September 9, 2008 burglaryin-progress call. Id. at DEF-WAT 000528-31. Watkins

explained that when she and White heard the original

dispatch for the burglary call, they made a U-turn to

drive toward the job. Id. at DEF-WAT 000530. But

apparently they did not turn fast enough for Sergeant

Higgins, who “went over the air in a nasty tone, to tell

[Watkins and White] to turn around.” Id.

The second interview that afternoon focused

more on Watkins’s discrimination allegations against

Higgins. According to Watkins, Higgins could have

easily addressed any issues he had with her on the

scene of the burglary. Investigation Records at DEFWAT 000535. Instead, he went “to the extreme level

of obtaining the slanderous CR number and

automatically going into the [stereotype] of black

female officer, of assuming lazy, inefficient, and trying

App.23a

to avoid work.” Id. Watkins also mentioned that she

observed that when a white officer had an issue,

Higgins would simply discuss it with them as opposed

to filing a CR. Id. She could not point to any specific

white officers, but remarked that Higgins was

generally “friends with all of the white officers.” Id. at

DEF-WAT 000536. Watkins also mentioned that she

heard from two other Black female officers, one named

Sheila Fulks and the other named Linda (the last

name was not identified), that Sergeant Higgins had

also disciplined them in more extreme ways: for

Fulks, Higgins had allegedly put his hand on her back,

pushed her, and told her to get to roll call once when

she was late, and for Linda, he spoke to her supervisor

when she was late to an assignment. Id. Watkins also

accused Higgins of making racist remarks generally.

For instance, according to Watkins, when they were

dealing with Black suspects, Higgins would tell the

Black officers to “get your cousins.” Id. Higgins would

also apparently say “wake up” whenever he tried to

communicate to officers (though it is not clear if this

was to all officers or just Black officers). Id.

5Watkins describes this encounter in much stronger

language in her response brief. Specifically, Watkins asserts that

Kane actually “yelled” at her and stated “how dare you ruin this

man reputation with this discrimination allegation.” Pl.’s Resp.

Br. at 3. But that statement in the response brief is not

accompanied by any record cite. The only place in the record that

seems to support this fact is Watkins’s deposition transcript cited

above. See R. 90, Exh. 3, Watkins Dep. Tr. at 92:14-18. But

because the deposition transcript does not support either the

allegation that Kane “yelled” at Watkins, or the allegation that

Kane said the words “how dare you ruin this man[‘s] reputation,”

the Court cannot accept those allegations just from the response

brief.

App.24a

Watkins later asserted that the transcripts do

not capture the entire interview exchange. Most

notably, Watkins claims that during one of her

interviews with Kane, she accused Sergeant Higgins

of being a racist, and in response, Kane “was like

you’re defaming his reputation.” R. 90, DSOF, Exh. 3,

Watkins Dep. Tr. at 92:14-18.5

After the two interviews with Watkins on April

28, 2010, Kane then interviewed Sergeant Higgins

that same afternoon. Investigation Records at

DEFWAT 000519-21. Higgins largely reiterated the

allegations in his original complaint register, and

further noted that he did not remember if he spoke to

Watkins and White at the scene of the burglary

because he “was busy.” Id. at DEF-WAT 000521. The

next month, in May 2010, Kane also interviewed

White. Id. at DEF-WAT 000538- 41, DEF-WAT

000545-46. White mostly corroborated Watkins’s

version of events from the night of the burglary call.

White remembered hearing the dispatcher issuing the

burglary call, then calling out their beat, and then

Watkins and White made a U-turn and drove toward

the assignment. Id. at DEF-WAT 000540. According

to White, it took them less than 30 seconds to arrive

at the call. Id. at DEF-WAT 000541.

In November 2010, Sergeant Higgins retired

from the Department. DSOF ^ 6. According to

Watkins, he was “allowed to retire in good standing”

despite her pending discrimination claims against

him. Pl.’s Resp. DSOF U 17.

App.25a

Finally, in October 2011, Sergeant Kane

produced an eight-page summary report of her

findings. Investigation Records at DEF-WAT 00047179. In the summary report, Kane laid out the

arguments made by Higgins, Watkins, and White and

then Kane described what she heard on the audio

recording of the pertinent dispatch calls. Specifically,

Kane determined that, based on her impression of the

audio recording, the sequence of events happened like

this: (1) at 11:35 p.m., the dispatcher announced the

burglary-in-progress call and assigned it to a different

beat car, and that beat responded with “10-4”; (2) at

11:36:20, Higgins came on air and told the dispatcher

to “tell [Watkins and White] to turn around and head

with me to the burglary in progress”; (3) the

dispatcher called Watkins and White; (4) there was a

pause with no response; (5) the dispatcher asked “do

you copy”; (6) Watkins and White responded. Id. at

DEF-WAT 000474-75. Based on those findings, Kane

ultimately “sustained” the allegations against both

Watkins and White (which means she found sufficient

evidentiary support for them), and then recommended

a two-day suspension for Watkins and a one-day

suspension for White. Id. at DEF-WAT 000479. Kane

was not persuaded by the discrimination allegations

against Higgins. Id. at DEF-WAT 000477.

The next step in the review process was to send

Kane’s summary report up the chain of command.

Under this “Command Channel Review” process,

Kane’s findings would be reviewed by various CPD

supervisors, who would each issue their own

recommendations. R. 90, DSOF, Exh. 10, Rivera Decl.

ft 13-14. Afterwards, the case would then make its

App.26a

way up to the IAD Chief, who at the time was

Sergeant Juan Rivera, and finally the CPD

Superintendent, Garry McCarthy. DSOF

37-38.

Superintendent McCarthy would ultimately have the

authority to decide whether or not to adopt the

investigatory findings and to issue discipline if

applicable. Rivera Decl. H 15.

In this instance, the Command Review process

began with Dana Alexander, Eugene Williams, and A1

Wysinger. Pl.’s Resp. DSOF If 13. It is undisputed that

the three Command Reviewers disagreed with Kane’s

findings on the burglary call and opined instead that

they believed Watkins and White were not officially

assigned to the initial call (at 11:35 p.m.) until the

dispatcher specifically called out their beat number

(at 11:36 p.m.). Rivera Decl. 1f 21. At the first

Command Review step, in February 2012, Alexander

recommended changing the finding from “sustained”

to “not sustained.” Investigation Records at DEFWAT 000462-63. Alexander noted that there was no

evidence showing when Watkins and White actually

arrived on the burglary scene, but contrary to Kane’s

findings, Alexander never heard a “delay in response”

by Watkins and White. Id. Then, in June 2012, at the

next review step, Eugene Williams simply adopted

Alexander’s findings and also recommended changing

the CR to “not sustained.” Id. at DEF-WAT 000461.

And finally, in June 2012, Wysinger also

recommended a “not sustained” finding. Wysinger

also noted that there was no actual evidence of what

time Watkins and White arrived on the scene and

pointed out that “the officers are in error by stating

that the dispatcher assigned them to respond to the

App.27a

burglary in progress.” Id. Ultimately, however,

because Wysinger concluded that they did eventually

respond, he recommended not sustaining the CR. Id.

In June 2012, the case reached IAD Chief Juan

Rivera. (Rivera would be the final layer of review

before the case went up to Superintendent McCarthy.)

According to Rivera, he looked at the original CRs, the

printout of the dispatch audio records, Kane’s

summary report, and the Command Review findings.

Rivera Decl.

22. It is unclear if Rivera himself

listened to the actual audio recording of the dispatch

call. Rivera acknowledged that three of the Command

Reviewers had disagreed with the initial “sustained”

recommendation, but based on his own review, he

ultimately agreed with Kane’s findings. Id.

21-22.

Specifically, Rivera noted that whereas the Command

Reviewers did not believe Watkins and White had

been assigned the call until the dispatcher specifically

called out their beat, Rivera himself believed that they

should have responded immediately when the call

went out at 11:35 p.m. Id. ^ 22. Rivera ultimately

recommended that Watkins be suspended for one day.

DSOF If 40; Rivera Decl. t 25.

Finally, the case file went up to Superintendent

Garry McCarthy for review. In February 2014,

McCarthy accepted Rivera’s recommendations,

Rivera Decl. 1 30, and in March 2014, Watkins was

officially suspended for one day, R. 103-2, Pl.’s Resp.

DSOF, Exh. 1 at 13.

App.28a

D. Second IDHR Charge

After receiving the one-day suspension,

Watkins again tried to file a charge of discrimination

with the IDHR. This time she was successful. DSOF 1f

70. In the 2014 IDHR charge, Watkins alleged that

the one-day suspension was both discriminatory and

retaliatory. See R. 18-1, Am. Compl., Exh. 1. The

IDHR ultimately found in favor of the City, and the

EEOC adopted the IDHR’s finding. DSOF If 71.

Watkins received a notice of right to sue from the

EEOC in December 2016 and filed this lawsuit on

time. Id.

E. Aftermath of Suspension

In addition to fifing the charge of

discrimination with the IDHR, Watkins also

continued to fight the suspension through her union.

DSOF T| 48. Finally, December 2015, an arbitrator

ordered the City to change the CR finding against

Watkins from “sustained” to “not sustained.” Id.

(Recall that “not sustained” means there was not

sufficient evidence to support the allegation, but it

does not go so far as to deem the conduct “unfounded”

or “exonerated.” Id. | 33.) The arbitrator also ordered

the City to compensate Watkins for the one-day

suspension. Id. f 48. The City complied with both

orders. Id.

Despite the reversal of the suspension, Watkins

asserts that the damage was done. For one, she

alleges that both the CR and the suspension severely

hampered her chances at promotion within the

App.29a

Department. DSOF f 49. It is undisputed that out of

the two methods for advancement—test scores and

merit promotion—merit promotion was the only

available avenue for Watkins. Id. f 62. What that

means is Watkins would have needed to secure a

nomination from a commander as well as letters of

recommendation from supervisors in order to be

promoted. Pl.’s Resp. DSOF Tflf 63-64. According to

Watkins, she submitted multiple applications for

detective positions (as well as maybe sergeant

positions), and she also reached out to several

supervisors to ask for a recommendation and did not

hear back. See Pl.’s Resp. Br. at 11, 18; Pl.’s Resp.

DSOF

58, 67. Some of these instances definitely

occurred in 2016 or later, while the timing of the

others is unspecified. Pl.’s Resp. DSOF If If 58, 67. In

addition, Watkins asserts that the process of dealing

with the allegedly false CR and suspension caused her

immense emotional distress. Watkins Dep. Tr. at

133:24, 134:1-2.

II. Standard of Review

Summary judgment must be granted “if the

movant shows that 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). A

genuine issue of material fact exists if “the evidence is

such that a reasonable jury could return a verdict for

the nonmoving party.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). In evaluating summary

judgment motions, courts must “view the facts and

draw reasonable inferences in the light most favorable

to the” non-moving party. Scott v. Harris, 550 U.S.

App.30a

372, 378 (2007) (cleaned up).6 The Court “may not

weigh conflicting evidence or make credibility

determinations,” Omnicare, Inc. v. UnitedHealth

Grp., Inc., 629 F.3d 697, 704 (7th Cir. 2011) (cleaned

up), and must consider only evidence that can “be

presented in a form that would be admissible in

evidence.” Fed. R. Civ. P. 56(c)(2). The party seeking

summary judgment has the initial burden of showing

that there is no genuine dispute and that they are

entitled to judgment as a matter of law. Carmichael v.

Village of Palatine, 605 F.3d 451, 460 (7th Cir. 2010);

see also Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986). If this burden is met, the adverse party must

then “set forth specific facts showing that there is a

genuine issue for trial.” Anderson, 477 U.S. at 256.

III. Analysis

Title

VII

prohibits

employers

from

discriminating against employees on the basis of

“race, color, religion, sex or national origin.” 42 U.S.C.

§ 2000e-2(a). Title VTI also bars employers from

retaliating against employees who engage in

protected activity under Title VII. See Poullard v.

McDonald, 829 F.3d 844, 855-56 (7th Cir. 2016).

Watkins claims that the City did both. Specifically,

Watkins argues that the Chicago Police Department

discriminated against her on the basis of her race and

sex when Sergeant Higgins filed a false complaint

register against her in 2008, and again when she

received a suspension in 2014. Watkins also brings a

retaliation claim based on that 2014 suspension. At

the summary judgment stage, the Court views the

evidence in the light most favorable to Watkins and

App.31a

gives her the benefit of all reasonable inferences.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986). For the reasons explained below,

Watkins has failed to establish either a disparatetreatment claim or a retaliation claim.

A. Disparate Treatment

To survive summary judgment on the

disparate-treatment claim, Watkins must produce

evidence that would allow a reasonable jury to find

that the City’s adverse employment actions against

her were motivated by her race or sex. Ortiz v. Werner

Enters. Inc., 834 F.3d 760, 765 (7th Cir. 2016) (“The

legal standard ... is simply whether the evidence

would permit a reasonable factfinder to conclude that

the plaintiffs race, ethnicity, sex, religion, or other

proscribed factor caused the discharge or other

adverse employment action.”). The Seventh Circuit

has made clear that all relevant evidence must simply

be considered “as a whole.” Id. at 763. As a practical

matter, though, in this particular case there are two

main avenues to establishing a disparate treatment

claim.

The first option is for Watkins to try to

establish a prima facie case for discrimination, which

requires her to show that (1) she is a member of a

protected class; (2) her job performance met the City’s

legitimate expectations; (3) she suffered an adverse

employment action; and (4) the City treated another

similarly situated employee who was not a member of

the protected class more favorably. See McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973);

App.32a

LaRiviere v. Bd. of Trs. of Southern Ill. Univ., 926

F.3d 356, 360 (7th Cir. 2019). If Watkins is able to

establish a prima facie case, then the burden will shift

to the City to provide a legitimate, nondiscriminatory

reason for the adverse action. Coleman v. Donahue,

667 F.3d 835, 845 (7th Cir. 2012). If the City

successfully rebuts Watkins’s prima facie case, then

the burden will shift back to Watkins, “who must

present evidence that the stated reason is a pretext,

which in turn permits an inference of unlawful

discrimination.” Id. (cleaned up). Alternatively, even

if Watkins cannot establish a prima facie case, she can

still succeed on this claim as long as she points to

enough circumstantial evidence that would allow a

reasonable jury to infer that a decision was

attributable to discriminatory motivations. David v.

Bd. of Trs. of Cmty. Coll. Dist. No. 508, 846 F.3d 216,

224 (7th Cir. 2017).

Here, Watkins points to two actions by the City

that she alleges were discriminatory—the filing of the

2008 complaint register and the 2014 one-day

suspension. The City has moved for summary

judgment on both those decisions.

1. 2008 Complaint Register

Turning first to the 2008 complaint register

(CR), the argument here is that Sergeant Higgins filed

the CR against Watkins not because she did anything

wrong, but rather because of her race and gender. In

response, the City claims that the 2008 CR cannot be

the basis of any Title VII claim because Watkins failed

to file a timely charge of discrimination with the

App.33a

EEOC or IDHR, and even if the claim were timely, she

has also failed to establish as a substantive matter

that Higgins discriminated against her when he filed

the CR.

a. Timing of the Claim

As a threshold matter, the City argues that any

claims stemming out of the 2008 CR should be barred

because Watkins failed to file a timely charge with

either the Equal Employment Opportunity

Commission (EEOC) or the Illinois Department of

Human Rights (IDHR). R. 91, Def.’s Br. at 6. Filing a

timely charge of discrimination with either the EEOC

or the state equivalent (in this case, the IDHR) is a

prerequisite to bringing a Title VII claim. 42 U.S.C. §

2000e-5(e)(l); Moore v. Vital Prods., Inc., 641 F.3d

253, 256 (7th Cir. 2011).

Here, it is undisputed that Watkins did not file

a charge of discrimination on time. DSOF If 69.

Watkins explains that she tried to file an IDHR report

right after the CR was initiated back in 2008, but an

IDHR representative told her that she was not

allowed to because “unless there was some

punishment or other employment detriment that

ensued as a result of this action, the complaint could

not be filed and investigated.”? Id. ^ 69; Pl.’s Resp.

DSOF f 69. As a result, Watkins waited until 2014,

which is when the CR was finally resolved (as a

suspension), to try again to file a charge of

discrimination. DSOF f 70. Unfortunately, the

original IDHR representative’s advice was incorrect.

There is no rule requiring Watkins to wait for the CR

App.34a

against her to be formally resolved before she is

allowed to file a charge alleging that the CR was

discriminatorily lodged in the first place. (It is true

that an adverse employment action is needed to

ultimately win a substantive claim, but it does not

appear that an IDHR representative has the

authority to refuse to accept a charge.) So, the

question is whether some sort of equitable tolling

principle might apply to excuse Watson’s six-year

delay in fifing her charge of discrimination due to the

faulty advice of the IDHR representative.

Equitable tolling “is reserved for situations in

which the claimant has made a good faith error (such

as bringing suit in the wrong court) or has been

prevented in some extraordinary way from fifing his

complaint in time.” Threadgill v. Moore U.S.A., Inc.,

269 F.3d 848, 850 (7th Cir. 2001). As it turns out,

however, it is not necessary to resolve the factual

issue of whether equitable tolling should apply to a

scenario where an IDHR employee communicates an

incorrect rule to a plaintiff, thereby preventing the

plaintiff from fifing a charge on time.8 As the Court

will explain in more detail below, Watkins has failed

to establish a substantive claim for disparate

treatment on the 2008 CR. In other words, the Court

takes no position on whether the fact pattern alleged

here would have been enough to warrant equitable

tolling because the claim must be dismissed either

way.

6This Opinion uses (cleaned up) to indicate that internal

quotation marks, alterations, and citations have been omitted

from quotations. See Jack Metzler, Cleaning Up Quotations, 18

Journal of Appellate Practice and Process 143 (2017).

App.35a

b. Merits of the Claim on the 2008 CR

As mentioned above, in order to establish a

disparate-treatment claim based on the 2008 CR,

Watkins must provide enough evidence that would

allow a reasonable jury to infer that Higgins only

initiated the CR because of Watkins’s race or sex.

Ortiz, 834 F.3d at 765. Here, looking at all of the

evidence as a whole, there is simply not enough

factual support for a reasonable jury to infer that

Higgins filed the CR against Watkins because of her

race or sex.

For one, Watkins has failed to satisfy the

elements of a prima facie case of discrimination, to the

extent that she relies on that method of proof. There

is a dispute over whether the initiation of a CR counts

as a material adverse employment action, as well as

whether Watkins’s actions on the night of September

9, 2008 satisfied the City’s legitimate expectations.

But even if the Court were to resolve those disputes in

Watkins’s favor, the prima facie case must fail

because Watkins has failed to identify, any similarly

situated individuals outside of the protected classes

who were treated better than her.

7The City argues that this evidence should not be

considered because it is hearsay. Def.’s Br. at 7. That is incorrect.

The statement by the IDHR representative is not being offered

for the truth of the matter asserted, but rather for its effect on

Watkins. 8Another issue would have been whether the equitable

tolling inquiry should be a bench or a jury question. If Watkins

had successfully established a disparate-treatment claim based

on the 2008 CR, the Court would have solicited position papers

from both parties on the bench or jury question. But again,

because the disparate treatment-claim will not survive, there is

no need to resolve that issue at this point.

App.36a

The Seventh Circuit has defined “similarly

situated” to mean an individual who is directly

comparable to the plaintiff in all important ways.

Patterson v. Avery Dennison Corp., 281 F.3d 676, 680

(7th Cir. 2002). To be sure, the other employee need

not be identical to Watkins, nor is there a “mechanical

magic formula”—rather, the inquiry is “flexible,

common-sense, and factual. It asks essentially, are

there enough common features between the

individuals to allow a meaningful comparison?”

Johnson v. Advocate Health and Hosps. Corp., 892

F.3d 887, 895 (7th Cir. 2018) (cleaned up). Some

common features are “whether the employees being

compared (1) were supervised by the same person, (2)

were subject to the same standards, and (3) engaged

in similar conduct without such differentiating or

mitigating circumstances as would distinguish their

conduct or the employer’s treatment of them.” Id.

(cleaned up).

In this case, the best evidence Watkins could

have pointed to would have been a white male officer

who similarly exhibited a one-minute (or longer) delay

in responding to a burglary call (or even a crime of

similar urgency). But Watkins does not identify any

officer like that, nor does she really identify any

comparable officers in general, even when the

parameters for what counts as “similar” are loosened.

Watkins did mention during her 2010 interview with

Kane that she observed white men receiving more

lenient treatment from Higgins. Investigation

Records at DEFWAT 000536. But Watkins could not

identify who those men were, what they had done

wrong to receive more lenient discipline, or when her

App.37a

observations had happened. Id. Instead, Watkins’s

only conclusion was that there was no specific incident

she was thinking of; Higgins just tended to be friends

with all the white officers. Id. That alone is not enough

to satisfy the similarly situated employee requirement

for a prima facie case.

Nor is the data Watkins cites in her response

brief enough to raise an inference of discriminatory

intent on Higgins’s part. Specifically, Watkins points

to CR statistics she pulled from the Citizens Police

Data Project website. Pl.’s Resp. Br. at 21-22. But

even assuming these statistics are usable in her case,

they do not appear to support her claim. Specifically,

the statistics purport to illustrate the rate at which

CRs were found to be “sustained” or “unsustained” for

different racial and gender categories. Watkins

argues that a greater percentage of CRs initiated

against white men are ultimately “unsustained”

compared to the CRs initiated against Black women,

which suggests that Black women are disciplined

more harshly than white men. Id. at 22. But this part

of Watkins’s disparate-treatment claim is really about

the initiation of allegedly false CRs in the first place,

not their resolution. And here, Watkins has not

explained how the rate of sustained versus

unsustained CRs speaks to whether those CRs were

legitimately initiated in the first place. Nor does the

data demonstrate that a greater absolute number of

CRs were lodged against Black women compared to

white men.9 Id.

Looking beyond the prima facie framework,

Watkins’s main argument in support of the 2008 CR

App.38a

being discriminatory is that Higgins harbored implicit

biases toward Black women. Pl.’s Resp. Br. at 6.

Specifically, Watkins asserts that the only reason

Higgins filed the CR was because he believed the

stereotype that Black women officers were “lazy,

inefficient, and trying to avoid work.” Investigation

Records at DEF-WAT 000535. The problem is that

Watkins does not point to any evidence that Higgins

actually held this particular stereotype, or, more

importantly, that he acted on that stereotype when he

filed the CR. For instance, Watkins attributes words

like “lazy” and “negligent” to Higgins throughout her

filings, see Pl.’s Resp. DSOF ^ 19, but there do not

appear to be any actual citations to the record of

Higgins saying those types of things, so the Court

cannot credit these assertions.

9For these reasons, Watkins’s motion to file a sur-reply, R. 115,

is also denied. Specifically, Watkins seeks to introduce two new

exhibits9For these reasons, Watkins’s motion to file a sur-reply,

R. 115, is also denied. Specifically, Watkins seeks to introduce

two new exhibits: (1) another Citizens Police Data Project

excerpt and (2) a 2015 letter from the Illinois Attorney General.

But even under the more lenient guidelines applied to a pro se

plaintiff, it would be too much to allow a sur-reply: (1) another

Citizens Police Data Project excerpt and (9For these reasons,

Watkins’s motion to file a sur-reply, R. 115, is also denied.

Specifically, Watkins seeks to introduce two new exhibits: (1)

another Citizens Police Data Project excerpt and (2) a 2015 letter

from the Illinois Attorney General. But even under the more

lenient guidelines applied to a pro se plaintiff, it would be too

much to allow a sur-reply 2) a 2015 letter from the Illinois

Attorney General. But even under the more lenient guidelines

applied to a pro se plaintiff, it would be too much to allow a surreply based on data that was not identified during discovery and,

in any event, is not relevant to the similarly situated individual

point, as described above.

App.39a

Similarly, Watkins does offer evidence of other

racially related remarks that Higgins made during his

career, but there is no indication of when those

remarks were made, nor is there any indication that

those types of remarks were connected to Higgins’s

decision to initiate the CR for failure to respond to the

burglary call. For instance, during the 2010 interview

with Kane, Watkins claimed that when the officers

were dealing with Black suspects Higgins would tell

the Black officers to “get your cousins.” Investigation

Records at DEF-WAT 000536. Higgins also

apparently said “wake up” on several occasions when

he tried to communicate to officers over the radio,

though, as mentioned above, it is not clear if this

comment was directed only at Black officers. Id. The

“cousins” comment is especially troubling, but there

does not really seem to be a direct connection between

Higgins implying that all Black officers are related to

Black criminal defendants, on the one hand, and

Higgins’s alleged perception that Watkins and White

were slow to respond to a burglary call, on the other.

See Gorence v. Eagle Food Ctrs., Inc., 242 F.3d 759,

762 (7th Cir. 2001) (stray remark might provide

inference of discrimination when made in reference to

the adverse employment action). Similarly, without

knowing when the “wake up” comments were made or

who they were directed to, it is difficult to link those

words with Higgin’s 2008 decision to file a CR. See

Perry v. Dep’t of Human Servs., 793 F. App’x 440, 442

(7th Cir. 2020) (non-precedential disposition) (stray

remark might provide inference of discrimination

when made around the same time as the adverse

action).

App.40a

Moreover, even accepting as true Watkins’s

allegations about the night of the burglary call, it is

still undisputed that for at least a short while,

Watkins and White were driving in the opposite

direction of the assignment; the disagreement is about

how long it took for them to turn around. So it was not

completely baseless for Higgins to interpret the

situation as Watkins and White driving away from the

scene of the call and to then place the call to dispatch.

Perhaps Higgins was impatient (maybe even

unreasonably so), but there is no evidence that he

would have been more patient had Watkins not been

a Black woman. In other words, the fact that he

angrily called in to dispatch does not on its own

suggest discriminatory animus.

As for the decision to file the CR itself, the

record shows that Higgins sent in his memorandum

one day (at the most) after the incident. Investigation

Records at DEF-WAT 000493. Watkins asserts that

he should have talked to them at the scene of the

burglary or conducted an investigation first instead of

jumping straight to the drastic measure of filing a CR;

the fact that he did take such a drastic measure,

argues Watkins, is evidence of discrimination. Pl.’s

Resp. Br. at 12. But again, this decision standing

alone does not give rise to a reasonable inference of

race or sex discrimination. After all, it is undisputed

that Higgins never filed any other CRs before or after

this incident, and it is also undisputed that Higgins

supervised at least five other Black officers on the

night in question. DSOF t 18. The fact that Higgins

did not subject other Black officers to negative

treatment of course does not insulate Higgins from

App.41a

liability if he discriminated against Watkins. But in

this particular case, it does not help support Watkins’s

case.

All in all, the Court is sympathetic to Watkins’s

perception of implicit bias on the part of Higgins, and

the Court recognizes the difficulty of proving that a

particular action was motivated by racism or sexism,

where the decision-maker might not have even been

actively thinking about race or sex, yet was still

unconsciously driven by racist or sexist stereotypes.

This is not to say that implicit bias can never be the

basis for a Title VII claim. But in this particular case,

Watkins has failed to offer enough concrete evidence

to establish a causal connection between Higgins’s

alleged discriminatory attitudes toward Black women

and his 2008 decision to initiate a CR against

Watkins. Thus, the disparate-treatment claim based

on the 2008 CR must be dismissed.

2. 2014 Suspension

Similarly, Watkins has failed to produce

enough evidence to establish that the one-day

suspension she received in 2014 was motivated by her

race or sex. Just like above, she has failed to make out

a prima facie case of discrimination, in large part

because she has failed to identify any similarly

situated individuals who were treated better than her

(for instance, someone who did not receive a

suspension despite being accused of similar conduct).

The City has also offered evidence that the 2014

suspension, which was reversed by the arbitrator in

2015, did not materially affect Watkins’s chances at

App.42a

being promoted to detective. (To be clear, the issue

here is whether the suspension, not the presence of

the pending CR, affected Watkins’s chances at

promotion.) So, the question is whether Watkins has

pointed to any evidence that, in the time span between

when she received the suspension in 2014 and when

it was removed from her record in 2015, she applied

for a position and was denied because of the meritless

suspension. And unfortunately, the record does not

show that Watkins applied to any jobs between 2014

and 2015 that would have been affected by the

suspension. Some of the applications she points to

were definitively after the suspension had been

removed, while she does not specify the timing of the

other applications. See Pl.’s Resp. Br. at 11, 18; Pl.’s

Resp. DSOF

58, 67.

But the even bigger problem with the 2014

suspension is that any potential discriminatory

motive on the part of Higgins was insulated by

multiple layers of independent review by other CPD

supervisors—including the superintendent. Also,

unlike with the decision to file a CR itself, there is no

evidence that Sergeant Higgins had anything to do

with the decision to suspend Watkins, especially

considering the undisputed fact that he retired from

the department in 2010. In fact, the recommendation

to suspend Watkins originated with Sergeant Kane,

the IAD reviewer. And while, as discussed below,

Watkins has provided ample evidence that Kane may

have been motivated by retaliatory feelings, Watkins

has not provided any evidence that Kane, Rivera, and

McCarthy harbored discriminatory feelings toward

Black women. For instance, Watkins does not point to

App.43a

any statements made by any of those decision-makers

that would support an inference of race or sex

discrimination.

Nor does Watkins try to argue that McCarthy,

Rivera, and Kane were somehow influenced by

Higgins’s alleged biases. This is also known as the

cat’s paw theory of liability and will be discussed in

more depth in the next section. But for now, suffice to

say that “the cat’s paw theory requires both evidence

that the biased subordinate actually harbored

discriminatory animus against the victim of the

subject employment action, and evidence that the

biased subordinate’s scheme was the proximate cause

of the adverse employment action.” Johnson v.

Koppers, Inc., 726 F.3d 910, 914 (7th Cir. 2013). Here,

even if Watkins had raised that argument, it would

have been unsuccessful, because there is no evidence

that Higgins was so influential throughout the

multiple layers of review (especially after he retired in

2010), including all the way up to the superintendent,

that a reasonable jury could infer that he was the

proximate cause of McCarthy’s decision to suspend

Watkins. For these reasons, the disparate-treatment

claim based on the 2014 suspension must also be

dismissed.

B. Retaliation

Watkins also brings a retaliation claim

premised on the one-day suspension she received in

2014. According to Watkins, she was only suspended

because she had accused Sergeant Higgins of filing a

App.44a

false CR against her based on discriminatory motives.

Pl.’s Resp. Br. at 21.

In order to establish retaliation, Watkins must

prove that (1) she engaged in protected activity; (2)

she suffered an adverse employment action; and (3)

the adverse action was motivated by the protected

activity. Skiba v. Illinois Cent. R.R. Co., 884 F.3d 708,

718 (7th Cir. 2018). Ultimately, the plaintiff must

show that her protected activity was the but-for cause

of the adverse action. See Univ. of Tex. Sw. Med. Ctr.

v. Nassar, 570 U.S. 338, 360 (2013). Here, there is no

real dispute that Watkins’s October 2008

memorandum complaining of discrimination counts

as protected activity for purposes of her retaliation

claim. But the City argues that the 2014 oneday

suspension was not an “adverse employment action,”

and even if it were, that there was no causal

connection with Watkins’s 2008 complaint. Def.’s Br.

at 12-13. The materially adverse action argument is

unconvincing. But the Court ultimately agrees with

the City on the causation point.

1. Materially Adverse Action

For what it is worth, Watkins has sufficiently

shown that the suspension, even though it was only

for one day, constituted a materially adverse action

for purposes of her retaliation claim. The City

maintains that the suspension was not a materially

adverse action and cites the same reasons mentioned

above—that is, that the suspension did not affect

Watkins’s promotion chances. But this time, the City’s

argument fails because the standard for what

App.45a

constitutes an adverse action for purposes of a

retaliation claim is different from the standard for a

disparate treatment claim. Specifically, a materially

adverse action for retaliation purposes “need not be

one that affects the terms and conditions of

employment.” Lewis v. Wilkie, 909 F.3d 858, 867 (7th

Cir. 2018). Rather, it just has to dissuade a reasonable

employee from “engaging in the protected activity.” Id.

See also Robertson v. Wis. Dep't. of Health Servs., 949

F.3d 371, 382 (7th Cir. 2020). Here, the City has

provided no argument on how a one-day suspension

(handed down by an employee’s superiors) would not

dissuade a reasonable employee from complaining

about racial discrimination to those same superiors.

2. Causation

But Watkins cannot overcome the defense’s

causation argument. To be clear, Watkins has put

forth enough evidence for a reasonable jury to infer

that Sergeant Kane recommended the suspension due

to retaliatory motives. But the problem is that

Watkins has not offered similar evidence to explain

why Rivera and McCarthy also recommended and

implemented the suspension. With regard to Kane,

Watkins has provided just enough circumstantial

evidence to permit a reasonable jury to infer a causal

link between her 2008 memorandum and Kane’s 2011

recommendation for suspension. It is true that there

was a three-year gap between the complaint and the

recommendation. But the long passage of time

between the protected activity and the adverse action

is not dispositive, and “there are cases in which a

plaintiff can demonstrate causation despite a

App.46a

substantial time lag.” Baines v. Walgreen Co., 863

F.3d 656, 666 (7th Cir. 2017) (cleaned up). See also

Malin v. Hospira, Inc., 762 F.3d 552, 560 (7th Cir.

2014) (retaliation charges may proceed in the face of

long intervals when additional circumstances

demonstrate that employer’s acts may not be

legitimate). And here, the length of the investigation

actually cuts in favor of Watkins, because the City

does not offer a good reason for Kane’s year-and-a-half

delay in conducting interviews of Watkins, White, and

Higgins, or the year-and-a-half delay in putting

together a summary report. To be clear, the length of

the investigation itself is not an actionable basis for

Watkins’s retaliation claim. See R. 44, Order at 15-16.

In other words, Watkins is not allowed to argue that

the City retaliated against her by purposely

prolonging the

investigation

(and therefore

prolonging the stress of undergoing an investigation).

But the length of the investigation by Kane can still

serve as evidence that the ultimate suspension may

have been driven by retaliatory motives.

In addition to the length of the investigation,

Watkins has also provided evidence showing that

Sergeant Kane harbored a retaliatory animus against

her. According to Watkins, during one of her 2010

interviews with Kane, she accused Sergeant Higgins

of being a racist. Watkins Dep. Tr. at 92:14-18. In

response, Kane “was like you’re defaming his

reputation.” Id. It is true that this exchange is not

captured in the interview transcripts themselves, but

given that those transcripts were prepared by Kane

herself, the Court concludes that Watkins has at least

created a genuine dispute in material fact for

App.47a

purposes of the summary judgment stage. So,

accepting as true Watkins’s testimony that Kane was

angry at her for “defaming” Higgins, then a

reasonable jury could infer that Kane might have

recommended suspension based on a desire to punish

Watkins for making the discrimination allegation

against Higgins. This inference of retaliatory motive

is further strengthened by the fact that in Kane’s

October 2011 summary report of the investigation,

she ultimately recommended a two-day suspension for

Watkins, versus a one-day suspension for White, even

though White was the one driving the patrol car on

September 9, 2008, while Watkins was merely a

passenger. See Investigation Records at DEF-WAT

000479. The only difference, according to Watkins,

was that White “didn’t speak up,” whereas Watkins

“had the audacity” to continue accusing Sergeant

Higgins of racism. Watkins Dep. Tr. at 106:9-13. In

that context, even though Watkins’s suspension was

eventually reduced from two days to one day, the fact

that Kane initially recommended a disparate

punishment supports an inference of retaliatory

motive against Watkins.

But even if Kane acted with a retaliatory

motive, Kane did not have the ultimate authority to

unilaterally impose a suspension on Watkins. So,

Watkins must also explain why Rivera and McCarthy

decided to suspend her (or successfully invoke the

cat’s paw theory, as explained below). Here, the record

shows that Sergeant’s Kane’s recommendations were

reviewed by three other officers as part of the

Command Review process, before going to IAD Chief

Rivera and finally Superintendent McCarthy, who

App.48a

was the ultimate decision-maker responsible for the

suspension. DSOF

37-38. But unfortunately for

Watkins, there is not enough evidence in the record to

suggest that Rivera or McCarthy intended to retaliate

against her.

Addressing McCarthy first, there is no dispute

that he personally did not have a retaliatory motive

against Watkins. Pl.’s Resp. DSOF If 11. Rather,

Watkins asserts a sort-of cat’s-paw theory of liability

against McCarthy. Cat’s paw liability can “be imposed

on an employer where the plaintiff can show that an

employee with discriminatory animus provided

factual information or other input that may have

affected the adverse employment action.” Smith v.

Bray, 681 F.3d 888, 897 (7th Cir. 2012) (cleaned up).

Under this theory, “if a supervisor performs an act

motivated by a discriminatory or retaliatory animus

that is intended by the supervisor to cause an adverse

employment action, and if that act is a proximate

cause of the ultimate employment action, then the

employer is liable.” Hicks v. Forest Preserve Dist., 677

F.3d 781, 790 (7th Cir. 2012) (cleaned up). A

supervisor's discrimination may be the proximate

cause of an employment decision “where the party

nominally responsible for a decision is, by virtue of

[his] role in the [department], totally dependent on

another employee to supply the information on which

to base that decision.” Brewer v. Bd. of Trs. of Univ. of

Ill., 479 F.3d 908, 918 (7th Cir. 2007).

So, even if McCarthy himself did not have

retaliatory motives, Watkins could still prevail if she

shows that a biased supervisor (so, either Kane or

App.49a

Rivera or both) exerted influence over McCarthy’s

decision. Rozskowiak v. Vill. of Arlington Heights, 415

F.3d 608, 613 (7th Cir. 2005). In other words, there

are two possible ways for cat’s paw liability to work

here. First, Watkins can try to show that Kane

managed to exert influence over both Rivera and

McCarthy, such that Kane’s retaliatory motives were

the proximate cause of both Rivera’s recommendation

to suspend Watkins as well as McCarthy’s

implementation of that suspension. Alternatively,

Watkins can try to show that Rivera was also

retaliatory, and that Rivera’s retaliatory motives were

the proximate cause of McCarthy’s implementation of

the suspension. Under either theory, the evidence

does not hold up.

First, addressing the argument that Rivera

himself harbored a retaliatory motive, Watkins does

not offer any evidence that Rivera intended to

retaliate against her based on her 2008 discrimination

complaint against Higgins. Unlike with Kane, for

example, Watkins does not identify any statements by

Rivera showing that he was angry at her for

“defaming” Higgins, or that he was offended by the

fact that she complained about discrimination.

Rather, Watkins’s argument is that Rivera “didn’t do

nothing. He just looked at it, I’m going to protect

Sergeant Higgins so he won’t be disciplined and we’re

not going to defame his reputation. The nerve of this

young girl to get a CR number against him. That’s all

he did.” Watkins Dep. Tr. at 100:18-24. But Watkins

did not personally observe Rivera’s review process,

nor is there any indication that he simply rubberstamped Kane’s recommendations without looking at

App.50a

anything else (other than Watkins’s unsubstantiated

belief). Watkins’s only real piece of evidence in

support of a retaliatory motive is the outcome, that is,

the fact that Rivera chose to sustain the CR against

her even after three other Command Reviewers chose

not to sustain the CR. According to Watkins, the

outcome demonstrates that Rivera did not conduct his

own investigation, because if he had conducted his

own investigation, he would have chosen to not

sustain the CR.

But that fact standing alone is not enough for a

reasonable jury to infer retaliation on the part of

Rivera. For one, there is no indication that Rivera’s

review was deficient; Watkins does not allege that he

was required to conduct his own firstlevel review of

the allegations in the CR (for instance, by conducting

his own interviews). And here, Rivera averred that he

reviewed the existing investigative file materials,

including the CRs themselves, Kane’s interview

transcripts, the printout of the dispatch audio

transcript, and the recommendations of Kane and the

other CCR reviewers. Rivera Decl. If 22. Although

Watkins disputes that Rivera looked at anything in

the investigative file, she does not offer any factual

support for her position (other than the fact that he

came to a conclusion she disagreed with), so the Court

must accept as true that Rivera at least looked at the

files in the investigative record. And for what it is

worth, the “not sustained” findings of the three CCR

reviewers are not so clear-cut in themselves—one of

them is based on the reviewer’s impression that the

pause before the dispatcher asked Watkins and White

to copy was not as long as Kane thought it was; the

App.51a

other was based on the reviewer’s conclusion that as

long as Watkins and White eventually showed up at

the scene, they should not be found to have failed to

respond in general; and the third was simply an

adoption of the first finding without further

explanation. So it was not entirely unreasonable for

Rivera to come to a different conclusion.

Even if Rivera was careless in going through

the file, or was too harsh in judging the events of the

burglary call, or was even flat-out incorrect in

concluding that Watkins should have responded at

11:35 p.m. instead of 11:36 p.m., all of those things

standing alone do not permit a reasonable jury to infer

a retaliatory motive. If Watkins could have pointed to

some evidence that Rivera was personally angry

about the fact that she complained about

discrimination, or that he believed discrimination

complaints were a waste of time or unmeritorious or

something like that, for instance, then she might have

a claim. But there is no such evidence to move the

scale in the direction of retaliation. Instead, it is

undisputed that Rivera “recommended sustaining

hundreds of CR’s based on inattention to duty against

PO’s of both genders and different races.” DSOF f 44.

There are two other facts that Watkins asserts

against Rivera, but neither is convincing. First,

Watkins argues that Rivera “submitted fictitious

documents” to McCarthy. Watkins Dep. Tr. at 101:920. But when asked what those fictitious documents

were, Watkins just responded documents alleging

that she “didn’t go to the job.” Id. Without more

evidence, this sounds like Rivera just submitted

App.52a

documents describing Higgins’s allegations against

Watkins that she failed to respond to the burglary call

on time. Even though the facts of that night are

intensely disputed, it would not have been “fictitious”

for Rivera to submit either the original allegations or

his findings sustaining the allegations to McCarthy.

Watkins’s argument might be actionable, for instance,

if Rivera had falsified the findings of the other CCR

reviewers by changing them from “not sustained” to

“sustained,” for instance, to trick McCarthy into

thinking that this was a clear-cut case when in fact

different reviewers had come to different conclusions.

But Watkins does not provide any such evidence. The

other piece of evidence Watkins cites against Rivera

is the fact that he sent a “thank you letter” to Higgins

after the resolution of the CR against Watkins. Pl.’s

Resp. Br. at 6. But it is undisputed that Rivera did not

personally know Higgins (or Watkins), DSOF f 43,

and nothing in the letter suggests otherwise. R. 1032, Pl.’s Resp. DSOF, Exh. 1 at 16. This does not look

like a personal thank-you letter; rather, it appears to

be a typical IAD form letter meant to document the

close of a complaint. So, absent evidence showing that

Rivera had a retaliatory motive when he sustained the

CR and recommended suspension, that just leaves the

question of whether Sergeant Kane somehow

managed to influence both Rivera’s decision and

McCarthy’s decision. Unfortunately, even though

Watkins has provided sufficient evidence that Kane

might very well have harbored retaliatory feelings

toward Watkins, she has failed to provide any

evidence showing that Kane’s motives actually

worked their way up the chain of command to also

App.53a

influence Rivera and McCarthy. Thus, the retaliation

claim must also be dismissed.

If it is any consolation to Watkins, her potential

damages on the retaliation claim would have likely

been very limited. To the extent that she is arguing

that the 2014 one-day suspension hampered her

chances at being promoted to detective, the Court

agrees with the City that, based on the existing

record, no reasonable jury could find a connection

between the suspension and her applications for

detective. Thus, her damages would have been limited

to any emotional-distress damages that came with

receiving the suspension as well as the costs of

challenging that suspension in arbitration.

IV. Conclusion

For the reasons explained above, the City’s

motion for summary judgment is granted. Watkins’s

motion to file a sur-reply, R. 115, is denied. The status

hearing of April 1, 2020 is vacated, and the Court will

enter final judgment.

ENTERED:

/s/Edmond E. Chang

Honorable Edmond E. Chang

United States District Judge

DATE: March 26, 2020

App.54a

MEMORANDUM OPINION AND ORDER OF

THE UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

(JUNE 5, 2018)

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT COURT OF ILLINOIS

EASTERN DIVISION

CASE No. 17-cv-2028

JACQUELINE WATKINS,

Plaintiff,

v.

CITY OF CHICAGO

Defendant.

Before: Hon. Edmond E. Chang, U.S. District Judge

MEMORANDUM OPINION AND ORDER

Jacqueline Watkins, a Chicago police officer,

alleges that her employer discriminated against her

on the basis of her race (African American) and gender

(female). 1 R. 18, Am. Compl.2 In her Amended

App.55a

Complaint, Watkins advances a number of legal

theories, all more or less based on the allegation that,

in 2008, her supervisor filed a false complaint register

against her and that the City did not properly handle

Watkins’s grievances against the complaint register.

Id. The City moves to dismiss the complaint, arguing

that most of the conduct Watkins complains of is

outside the scope of the EEOC charge filed pre-suit,

and that her complaint fails to state a claim upon

which relief could be granted. R. 24, Def. Br. For the

reasons discussed below, the City’s motion is granted

in part and denied in part. Some of the claims are

indeed outside the scope of the EEOC charge, though

some fit comfortably within the charge (or it is not yet

possible to tell whether dismissal is required). And

some of Watkins’s theories plausibly state a claim to

relief, so her legal claims based on those theories

survive.

I. Background

For the purposes of this motion, the Court

accepts as true the allegations in the Amended

Complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007).

Watkins is a female African-American police officer

who has been working as a patrol officer for the

Chicago Police Department since 1999. Am. Compl. f

4. The events giving rise to this case began in

September 2008, when Watkins’s then-supervisor,3

Sergeant Francis Higgins, filed a complaint register

(CR) against Watkins. Id. f 11. Among other things, a

CR is a way of initiating discipline within the Chicago

Police Department. See id. IHf 9,13. If sustained, a CR

can lead to serious disciplinary action, including

App.56a

suspension, denial of promotion, denial of transfer,

and possible termination. Id. If 13. Watkins asserts

that the CR filed against her by Higgins was

intentionally false and motivated by her race and

gender. See id. t 11; Am. Compl. Exh. A.

Watkins immediately filed a complaint of race

and gender discrimination with the Illinois

Department of Human Rights. Am. Compl. % 14. The

IDHR allegedly refused to accept Watkins’s

complaint, and told her that a complaint could not be

filed or investigated unless some punishment or

employment detriment occurred as a result of the CR.

Id.

At some point (the complaint is unclear on

when),4 Watkins complained to the CPD’s Internal

Affairs Division that Higgins had filed a false CR

against her due to her race and gender.5 Am. Compl.

If 16. Watkins alleges that Internal Affairs took an

“uncharacteristically” long time—two years—to begin

investigating her complaints, and then took a total of

six years to complete its investigation. Id If 17. This

investigation took much longer than investigations of

other complaints filed by Watkins. Id. Watkins

believes that the long delays were an attempt to

prevent her from filing timely discrimination charges,

and to protect Higgins from reprisal. Id. til 17-18. At

some point, an Internal Affairs investigator, Sergeant

Kane, “excoriated” Watkins for bringing allegations of

race and gender bias against Higgins. Id. If 21. In

October 2011, Kane found the CR filed by Higgins to

be “sustained,” and recommended that Watkins be

suspended for two days. Am. Compl. Exh. C at 1.

App.57a

Sometime later (the complaint does not say when), the

Chief of Internal Affairs, Juan Rivera, documented

the CR as sustained and submitted it to then-Police

Superintendent Garry McCarthy for approval.6 Am.

Compl. f 24.

In March 2014, Watkins was suspended by

Sergeant Ronald Wilkerson, who told her that the

suspension was based on the CR filed by Higgins in

2008. Am. Compl. Exh. A. (It is unclear what

happened between 2011 and 2014; perhaps the CR

was undergoing further review, but the complaint

does not say.) Watkins filed another charge of

discrimination with IDHR, alleging again that

Higgins issued the CR because of Watkins’s race and

sex, and adding the allegation that the March 2014

suspension was motivated by race, sex, and a desire to

retaliate against Watkins for engaging in protected

activity. Am. Compl. Tf 15; Am. Compl. Exh. A.

In December 2015 (again, the complaint does

not say what happened in the intervening time,

though perhaps nothing happened), an arbitrator

found that the CR should not have been sustained.

Am. Compl. f 25; Am. Compl. Exh. C. The arbitrator

ordered that Watkins’s suspension should be set

aside, that Watkins’s record should reflect that the CR

was not sustained, and that the suspension should not

be part of her record. Am. Compl. Exh. C at 4.

Despite the arbitrator’s finding, the CR has

remained on Watkins’s record. Am. Compl. f 25.

Watkins has made numerous attempts to have the CR

“expunged,” but these attempts have been

App.58a

unsuccessful. Id. 1HJ 54, 27. Watkins states that

having the CR on her record has prevented her from

advancing in her career. She alleges that she was

denied a promotion to detective in December 2016,

and was denied the same promotion again in

February 2017.7 Id. T|U 8-9. Watkins also attributes

the lost promotion opportunities to retaliation for her

prior complaints of race and gender discrimination.

Id. 1 8. In addition to the failed promotion attempts,

Watkins says that her performance review rating has

been lowered recently. Id. 29. She attributes this to

retaliation and discriminatory animus. Id.

Apart from these factual allegations, Watkins

makes a number of accusations of racial and gender

bias, but the allegations are conclusions without

factual content. For example, she assets that during

her employment, she was “[s]ubjected to harassment

by employees and managers due to race and gender,

which was condoned by the Defendant” and

“[s]ubjected to a racially harassing, hostile and

intimidating employment environment.” Am. Compl.

U36. Watkins also claims that the police department

is biased against all non-white employees, but these

allegations are not backed up by any concrete facts or

examples. See, e.g., id. ^ 45 (“[Plaintiff] and other

minority employees are routinely ... subjected to

harsher discipline for similar behaviors than their

white counterparts”), 1 5 (noting the existence of a

Department of Justice report finding a “pattern and

practice of racist behavior” at the police department).

II. Legal Standard

App.59a

Under Federal Rule of Civil Procedure 8(a)(2),

a complaint generally need only include “a short and

plain statement of the claim showing that the pleader

is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This short

and plain statement must “give the defendant fair

notice of what the . . . claim is and the grounds upon

which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555 (2007) (cleaned up).8 The Seventh Circuit

has explained that this rule “reflects a liberal notice

pleading regime, which is intended to ‘focus litigation

on the merits of a claim’ rather than on technicalities

that might keep plaintiffs out of court.” Brooks v. Ross,

578 F.3d 574, 580 (7th Cir. 2009) (quoting

Swierkiewicz u. Sorema N.A., 534 U.S. 506, 514

(2002)).

“A motion under Rule 12(b)(6) challenges the

sufficiency of the complaint to state a claim upon

which relief may be granted.” Hallinan u. Fraternal

Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820

(7th Cir. 2009). “[A] complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S.

at 570). These allegations “must be enough to raise a

right to relief above the speculative level.” Twombly,

550 U.S. at 555. The allegations that are entitled to

the assumption of truth are those that are factual,

rather than mere legal conclusions. Iqbal, 556 U.S. at

678-79.

III. Analysis

App.60a

A. Title VII

1. IDHR/EEOC Charges

The first of many problems with the Amended

Complaint is that Watkins failed to file a charge with

the Equal Employment Opportunity Commission for

at least some of her Title VII claims. Fifing a charge

with the EEOC is a necessary precondition to filing

civil claims under Title VII. Huri v. Office of the Chief

Judge of the Circuit Court of Cook Cty., 804 F.3d 826,

831 (7th Cir. 2015). If the aggrieved individual first

files with a state or local agency, then the EEOC

charge must be filed within 300 days of the alleged

unlawful employment practice, or within thirty days

of the state or local agency’s termination, whichever is

earlier. 42 U.S.C. § 2000e-5(e)(l). Failure to file a

timely EEOC charge is an affirmative defense, and a

plaintiff need not plead around an affirmative

defense. See Salas v. Wis. Dept, of Corrections, 493

F.3d 913, 921 (7th Cir. 2007); Kawcynski v. F.E.

Moran, Inc., Fire Protection, 2015 WL 3484268, at *2

(N.D. Ill. June 1, 2015). But a plaintiff can plead

herself out of court by “alleging (and thus admitting)

the ingredients of a defense.” U.S. Gypsum Co. v. Ind.

Gas Co., Inc., 350 F.3d 623, 626 (7th Cir. 2003); see

also Indep. Trust Corp. u. Stewart Info. Seru. Corp.,

665 F.3d 930, 935 (7th Cir. 2012) (“[W]hen a plaintiff’s

complaint nonetheless sets out all of the elements of

an affirmative defense, dismissal under Rule 12(b)(6)

is appropriate.”).

In this case, Watkins alleged that she filed or

attempted to file two charges with the Illinois

App.61a

Department of Human Rights (which would be crossfiled with the EEOC as a matter of course, Collier v.

City of Chi., 2010 WL 476649, at *3 (N.D. Ill. Feb. 4,

2010); Marlowe v. Bottarelli, 938 F.2d 807, 809 (7th

Cir. 1991)). The first attempt was in 2008,9 when

Watkins complained of Higgins’s alleged race and

gender discrimination to the IDHR. The second

charge was filed in 2014 (this time successfully). The

Court will consider each in turn.

a. The 2008 Charge

Watkins alleges that she attempted to file a

charge of race and gender discrimination in 2008

immediately after Higgins filed a false CR against

her. Am. Compl. ^ 14. She asserts that the IDHR told

her that “unless there was some punishment or other

employment detriment that ensued as a result of this

action, the complaint could not be filed and

investigated.” Id. Taking this allegation as true (as

the Court is required to), the IDHR prevented

Watkins from filing a timely administrative charge by

mistakenly telling her it could not accept the charge

unless some more tangible employment detriment

occurred. Misleading conduct by an administrative

official which prevents a plaintiff from fifing a timely

EEOC charge can be the basis for equitable tolling of

the administrative statute of limitations. Early v.

Bankers Life and Cas. Co., 959 F.2d 75, 81 (7th Cir.

1992) (EEOC’s erroneous representation that

plaintiffs completion of intake questionnaire fulfilled

his administrative responsibilities tolled the 300-day

time limit for filing a charge); see also Anderson v.

Unisys Corp., 47 F.3d 302, 306-07 (8th Cir. 1995);

A

App.62a

Wilson v. Dep't of Veterans Affairs, 65 F.3d 402, 404

(5th Cir. 1995); Martinez v. Orr, 738 F.2d 1107, 111112 (10th Cir. 1984). The question then becomes

whether the plaintiff asserted her rights “as early as

[she] realistically could given [the] misinformation.”

Early, 959 F.2d at 81.

At this stage, it is not clear whether Watkins’s

charge of discrimination based on the 2008 CR was

untimely. Equitable tolling is a fact-intensive inquiry,

more appropriate for summary judgment or an

evidentiary hearing than a motion to dismiss. See

Socha v. Boughton, 763 F.3d 674, 684 (7th Cir. 2014)

(“The realm of equitable tolling is a highly factdependent area in which courts are expected to

employ flexible standards on a case-by-case basis.”)

(cleaned up). Watkins alleges that an IDHR

representative told her that she could not file a charge

until she was punished for the CR. Consistent with

that representation, Watkins waited until she was

suspended and filed again, alleging that the CR was

false and discriminatory. Watkins thus alleges that

she followed the instruction of the IDHR, and if she

did, then perhaps waiting to file was a reasonable

thing to do (though the Court cannot be sure without

more facts). See Sarsha v. Sears Roebuck and Co., 747

F. Supp. 454, 456 (N.D. Ill. 1990) (“The IDHR

investigator was someone whom [the plaintiff] could

objectively reasonably rely upon to be knowledgeable

on the proper filing procedures. It was therefore

reasonable for [the plaintiff], as he did, to rely upon

the IDHR investigator's instructions and follow

them.”). It is not clear precisely why six years passed

between the alleged discrimination and the filing of

App.63a

the IDHR charge. But that delay might have been due

more to the very slow Internal Affairs investigation

than to any dilatoriness on Watkins’s part. See Am.

Compl. If 17. The point is that, without some

additional factual development—and, eventually, an

evidentiary hearing—the Court cannot hold that as a

matter of law equitable tolling does not save

Watkins’s Title VII claims based on the filing of the

2008 CR.

b. The 2014 Charge

Watkins’s next attempt to file a charge of

discrimination went more smoothly. The IDHR

accepted her 2014 charge and conducted an

investigation. Am. Compl. If 15. The outcome of this

investigation was not favorable to Watkins, id., and

the EEOC (which adopted the IDHR’s finding), issued

a right to sue letter on December 16, 2016. Am.

Compl. Exh. A. Watkins filed this lawsuit on March

15, 2017, within the statutory ninety day window. See

42 U.S.C. § 2000e-5(f)(l). This means that any claims

related to the 2014 charge are timely and have been

properly exhausted. But some of Watkins’s claims are

not within the scope of the 2014 charge, as will be

discussed below.

2. Disparate Treatment

Title VII of the Civil Rights Act of 1964

prohibits discrimination in employment on the basis

of race, sex, and other protected characteristics. See

42 U.S.C. § 2000e-2. To succeed on a Title VII

disparate-treatment claim, a plaintiff must allege

App.64a

that an employer took a materially adverse jobrelated action against her, and that the action was

motivated by intentional discrimination. Alamo v.

Bliss, 864 F.3d 541, 552 (7th Cir. 2017). In Title VII

cases, the connection between the plaintiffs

membership in a protected class and the adverse

action—that is, the discriminatory intent—can be

alleged in general terms. Tamayo v. Blagojevich, 526

F.3d 1074, 1081 (7th Cir. 2008); Leuvano v. Wal-Mart

Stores, Inc., 722 F.3d 1014, 1028 (7th Cir. 2013).

a. The 2008 CR

Watkins alleges that the 2008 CR initiated by

Sergeant Higgins was motivated by Watkins’s race

and gender. Watkins has alleged enough well-pleaded

facts to state this claim, especially considering the

supporting materials she attached to her complaint.

The amended complaint states that on September 9,

2008, Watkins’s then-supervisor, Sergeant Higgins,

initiated a CR against her. Am. Compl. f 11. The CR

charged that Watkins failed to respond to a burglaryin progress call in a timely manner. Id. ^ 20. Watkins

says that this charge was completely false, and alleges

that the subsequent arbitration decision (which held

that the CR should not be sustained) confirms that the

charge was without merit. See id4H 11, 43. She claims

that Higgins intentionally filed a false report because

of racial and gender animus. Id. THI11,16; Am. Compl.

Exh. C at 2. All this is enough to state a claim of

intentional racial discrimination. The City argues

that the opening of the CR was not an adverse

employment action that could support a claim of

employment discrimination. Def. Reply at 5-6. It is

App.65a

true that “mere inconvenience [s]” do not qualify as

materially adverse employment actions. Stockett v.

Muncielnd. Transit Sys., 221 F.3d 997, 1001 (7th Cir.

2000) (quoting Crady v. Liberty Nat 7 Bank and Trust

Co., 993 F.2d 132, 136 (7th Cir. 1993)). But, taking

Watkins’s allegations as true, the issuance of a CR is

not a mere inconvenience. Watkins alleges that a CR

is considered “a serious disciplinary action,” especially

when brought by the officer’s supervisor. Am. Compl.

f 10. The complaint makes clear that a CR can have

serious negative employment consequences, including

suspension, denial of promotion or transfer, and

possibly termination. Id. 1 13. Indeed, Watkins

alleges that the CR in this case resulted in a

suspension and prevented her from being promoted.

Id. THf 9-10; Am. Compl. Exh. A. Based on these

allegations, it is clear that a CR can be the kind of

employment action “which visits upon a plaintiff a

significant change in employment status.” Boss v.

Castro, 816 F.3d 910, 917 (7th Cir. 2016) (cleaned up);

see also Whittaker v. N. III. Univ., 424 F.3d 640, 648

(7th Cir. 2005) (quoting Oest v. III. Dep’t of Corr., 240

F.3d 605, 613 (7th Cir. 2001)) (explaining that

reprimands that lead to consequences like

“ineligibility for job benefits like promotion, transfer

to a favorable location, or an advantageous increase in

responsibilities” could be adverse actions).

The City argues that “one reversed CR cannot

affect the merit promotion process,” Def. Br. at 4, but

this argument contradicts the factual allegations in

the complaint, and must be disregarded for now.

Watkins alleges that it is “a customary practice for

meritorious promotions to be denied when a CR

App.66a

appears on an officer’s personnel record.” Am. Compl.

U 10. Taking that allegation as true and reading it in

the light most favorable to Watkins, one CR can

prevent a merit-based promotion, and therefore has

immediate, tangible employment consequences. 10 On

the facts as alleged by Watkins, the filing of the

allegedly false CR could support a claim of intentional

employment discrimination.il To be sure, she

ultimately will bear the burden to prove the facts

underlying this claim, but it survives for now.

b. 2014 Suspension

The next plausible disparate-treatment claim

is based on Watkins’s 2014 suspension. In the IDHR

charge attached to Watkins’s complaint, Watkins

alleges that she was suspended in March 2014 based

on the false 2008 CR. She says that Sergeant Ronald

Wilkerson suspended her based on the CR, and that

white or male employees accused of similar

misconduct were not disciplined in this manner.12 Am.

Compl. Exh A. Although threadbare, these allegations

are enough to state a claim of discrimination under

Title VII. Watkins’s charge states that she was

subjected to an adverse employment action—

suspension—because of her race and gender. See, e.g.,

Hopkins u. Bd. of Ed. of City of Chi. 73 F. Supp. 3d

974, 987 (7th Cir. 2014) (suspension “plainly”

qualified as adverse action). That is all that is

required.

3. Retaliation

App.67a

To state a claim for retaliation under Title VII,

a plaintiff must allege that she engaged in protected

activity and was subjected to adverse employment

action as a result of that activity. Luevano, 722 F.3d

at 1029. Filing a complaint of race or gender

discrimination is a protected activity. See id;

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

(7th Cir. 2006). In the retaliation context, “adverse

employment action” means an action that would

dissuade a reasonable worker from engaging in

protected activity. Chaib v. Indiana, 744 F.3d 974,

986-87 (7th Cir. 2014), overruled on other grounds,

Ortiz v. Werner Enters., Inc., 834 F.3d 760 (7th Cir.

2016). Watkins alleges that her employer retaliated

against her for complaining about race and gender

discrimination in a number of ways, but not all are

viable claims.

a. The Police Department’s Handling of the CR

Watkins argues that the police department’s

handling of the CR—spanning from 2008 until the

present—was intended to retaliate against her for

complaining of race and gender discrimination.

Specifically, she alleges that Internal Affairs took an

inordinately long time to investigate her claim that

the CR was false and discriminatory, Am. Compl. If

17; that the Internal Affairs investigation was not

“thorough, full and impartial,” id. 1f 19; that one of the

investigators, Sergeant Kane, “excoriated” her for

accusing Higgins of bias, id. If 21; that the CR should

not have been recorded as sustained because three of

the four officers who investigated determined that it

was not sustained, id. f'f 23-24; and that the CR has

App.68a

inexplicably remained on her record to the present

day despite the arbitrator’s determination that the CR

should not appear as sustained on her record, id.

9, 25. Watkins attributes all this to retaliatory motive.

See Am. Compl.

53-54.

Watkins might have had a valid retaliation

claim based on some or all of these events, but she has

pleaded herself out of court by attaching her 2014

IDHR/EEOC charge, which shows that she did not

present these claims to the EEOC. Although “a Title

VII plaintiff need not allege in an EEOC charge each

and every fact that combines to form the basis of each

claim in her complaint,” her civil claims must at least

be “like or reasonably related to the allegations of the

charge.” Cheek v. W. & So. Life Ins. Co., 31 F.3d 497,

500 (7th Cir. 1994) (quoting Jenkins v. Blue Cross

Mut. Hosp. Ins., Inc., 538 F.2d 164, 167 (7th Cir. 1976)

(en banc)). “This means that the EEOC charge and the

complaint must, at minimum, describe the same

conduct and implicate the same individuals.” Cheek,

31 F.3d at 501 (emphasis in original).

Unfortunately for Watkins, the 2014 IDHR

charge does not even hint at the series of events

described above. Instead, it points to only two discrete

events: Sergeant Higgins’s filing of the false CR in

2008, and Sergeant Wilkerson’s March 2014

suspension of Watkins. The IDHR charge does not

allege that Internal Affairs improperly delayed its

investigation of the controversy over the CR, or

complain that the investigation was unfair. Nor does

it identify Sergeant Kane as a perpetrator of

retaliation or argue that the CR was recorded

App.69a

improperly. The allegations about the handling of the

CR are simply too far afield of the EEOC charge to

qualify as “reasonably related.” See Cheek, 31 F.3d at

500. The point of requiring employees to file charges

with the EEOC is to give the EEOC and the defendant

a chance to settle the dispute without litigation, and

to put the employer on notice of the conduct about

which the employee is aggrieved. Id.. The charge in

this case would not have been enough to put the City

or the EEOC on notice that Watkins was complaining

about the fairness of the investigation into the CR, or

the conduct of Sergeant Kane.

What’s more, some of the events Watkins

points to as retaliatory happened after the fifing of the

2014 charge. The arbitrator’s decision that the CR

should not be sustained happened in December 2015,

for example; and the refusal to remove the CR from

Watkins’s record (as required by the arbitrator’s

opinion) obviously happened after that. See Am.

Compl. f 25; Am. Compl. Exh. C. These are discrete

events that did not take place until over a year after

the 2014 charge was filed, so they are clearly not

within the scope of the charge. So, to the extent that

Watkins’s retaliation claim is based on the alleged

mishandling of her Internal Affairs complaint or the

police department’s failure to comply with the

arbitrator’s decision, that claim has not been

presented to the EEOC, and cannot be brought in a

civil suit.

c. 2014 Suspension

App.70a

Watkins’s 2014 suspension by Sergeant

Wilkerson, on the other hand, was clearly raised in

Watkins’s 2014IDHR charge. See Am. Compl. Exh. A.

The IDHR charge provides enough factual detail

about the suspension to state a claim: Watkins was

suspended by Wilkerson in 2014, the suspension was

a harsher punishment than white male officers

received in similar circumstances, and the suspension

followed Watkins’s participation in a protected

activity (presumably, her complaint that the CR was

discriminatory)13 “within such a period of time as to

raise an inference of retaliatory motivation.” Am.

Compl. Exh. A. It is true that the allegation about

timing is conclusory, but when read along with the

other allegations in the amended complaint (which

suggest that the investigation into Watkins’s

allegations of gender bias would have been ongoing in

2014), there are enough well-pleaded facts to state a

plausible claim that the 2014 suspension was

retaliatory.

d. Failure to Promote; Lowered

Performance Review

Watkins also alleges that she was denied a

promotion to detective twice, and that her

performance evaluation was recently lowered. Am.

Compl. ^11 8-9, 29. She sees these events as “further

evidence of harassing and retaliatory behavior” by her

employer. The problem is that the lost promotions and

the lowered performance rating occurred well after

the 2014 IDHR charge was filed, so they are not

included in the charge. What’s more, Watkins does not

even allege that the same individuals were involved

App.71a

in the performance review, the promotion decisions,

and the suspension, so it is difficult to see how the

events would be reasonably related to the conduct

described in the IDHR charge. These allegations are

not properly before the Court because they have not

yet been presented to the EEOC.

4. Hostile Environment/Harassment

Watkins’s next Title VII theory is that the

Chicago Police Department allowed or condoned

racial or gender-based harassment, which created a

hostile work environment for Watkins. See Am.

Compl. Tff 36-41. To state a Title VII hostile work

environment claim, a plaintiff must allege that (1) she

was subject to unwelcome harassment; (2) the

harassment was based on a protected characteristic,

such as race or gender; (3) the harassment was severe

or pervasive so as to alter the conditions of

employment and create a hostile or abusive working

environment; and (4) there is basis for employer

liability. Cooper-Schut v. Visteon Auto. Sys., 361 F.3d

421, 426 (7th Cir. 2004) (quoting Mason v. Southern

III. Univ. at Carbondale, 233 F.3d 1036,1043 (7th Cir.

2000)). But Watkins’s allegations of a hostile

environment are completely conclusory. She has

alleged the legal elements of a hostile work

environment claim—that she was harassed based on

race and gender, that a hostile environment was

created, and that her employer condoned it—but these

legal conclusions are not entitled to the presumption

of truth. Iqbal, 556 U.S. at 678-79.

The closest Watkins comes to stating actual

facts in support of her hostile environment claim is

App.72a

her allegation that she was teased by her colleagues

for failing to respond to a dispatch (the offense

charged by the false CR). Am. Compl. If 55. But that

is not race- or gender-based harassment; it is

harassment based on Watkins’s perceived disciplinary

record. And even if Watson had plausibly alleged that

the teasing was related to her race or gender, none of

her allegations suggest that it was severe or pervasive

enough to create a hostile work environment. Title VII

is not a “general civility code;” only harassment severe

enough to render the work environment abusive is

actionable. Oncale v. Sundower Offshore Servs.. Inc.,

523 U.S. 75, 80 (1998); Alexander v. Casino Queen,

Inc., 739 F.3d 972, 982 (7th Cir. 2014). There are no

facts whatsoever in the complaint to support a claim

that Watkins was subjected to that level of severe and

pervasive racial or gender-based harassment. This is

not to suggest that the law requires fact pleading. See

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513-14

(2002). But Watkins must allege some facts in order

to render her claims plausible and give the City notice

of the conduct she is complaining about. See id. at 514.

For the harassment claim, she has not done so.

Even if Watkins had stated a claim, however,

she would still be out of luck: the harassment claim

also was not presented to the IDHR, so it must be

dismissed for that reason as well.

5. General Allegations of CPD Discrimination

Watkins also argues that all minority employees of

the CPD are discriminated against in a variety of

ways. It is unclear whether she is alleging systematic

App.73a

intentional discrimination or that CPD employment

practices have disparate impact on nonwhite

employees. To make out a claim of an intentional

pattern or practice of discrimination, a plaintiff must

allege that “an employer regularly and purposefully

discriminates against a protected group” such that

“discrimination was the company’s standard

operating procedure.” See Puffer v. Allstate Ins. Co.

675 F.3d 709, 716 (7th Cir. 2012) (cleaned up). For a

disparate impact claim, on the other hand, a plaintiff

must “isolat[e] and identify the specific employment

practices that are allegedly responsible for any

observed statistical disparities.” Watson v. Fort Worth

Bank & Trust, 487 U.S. 977, 994 (1988). “[I]t is not

enough to simply allege that there is a disparate

impact on workers, or point to a generalized policy

that leads to such an impact.” Smith v. City of

Jackson, 544 U.S. 228, 241 (2005).

Whatever theory Watkins is advancing, her

complaint fails to state a claim upon which relief can

be granted. Like Watkins’s hostile-environment

claim, Watkins’s claims about the CPD’s general

discriminatory practices are supported entirely by

vague legal conclusions rather than well-pleaded

facts. For example, she alleges that minority

employees “are routinely, disproportionately and

improperly subjected to harsher discipline ... than

their white counterparts”; that minority officers “are

placed on performance improvement plans without

any clear articulation of performance deficiencies”;

and that African-American officers “are frequently

placed in lower level paid positions than white, less

educated and less experienced officers.” Am. Compl. f

App.74a

45. But these allegations merely state the conclusion

that discrimination exists, without alleging even the

basics of the who, the what, and the how. Watkins

does not say which officials or what policies cause the

discrimination, how the discrimination operates in

practice, or even give anecdotal examples of the

alleged disparities (apart from Watkins’s own

experience). This is not enough, especially to support

complex claims of institution wide intentional

discrimination or disparate impact. See McReynolds

v. Merrill Lynch & Co., Inc., 694 F.3d 873, 887 (7th

Cir. 2012) (“[U]nder Iqbal and Twombly, the required

level of factual specificity rises with the complexity of

the claim”) (quoting McCauley v. City of Chi., 671 F.3d

611, 616-17 (7th Cir. 2011)) (cleaned up).

Finally, even if Watkins had pled enough facts

to state a claim of CPD-wide discrimination, those

claims too would be improper because they were not

included in the 2014 IDHR charge. The City’s motion

to dismiss these claims is granted.

B. 42 U.S.C. § 1983

Next, Watkins asserts a claim under 42 U.S.C.

§ 1983. To start with, it is not clear what Watkins’s

theory of liability under Section 1983 is. On one hand,

it looks like she might be alleging a different version

of her various race and gender disparate-treatment

claims; but it is also possible that Watkins is trying to

bring some kind of due process claim based on the

App.75a

handling of her complaints about the CR. See Am.

Compl. t 48 (“Defendant ... has intentionally and

maliciously discriminated against Plaintiff under

color of law”); id. f 56 (“Defendant also violated

Plaintiffs due process rights in handling her

complaints of discriminatory treatment.”). But here

again, it does not matter what particular theory or

theories Watkins is pursuing, because her claim fails

either way. The only defendant in this case is the City

of Chicago, and a city can only be liable under Section

1983 “if the unconstitutional act complained of is

caused by: (1) an official policy adopted and

promulgated by its officers; (2) a governmental

practice or custom that, although not officially

authorized, is widespread and well settled; or (3) an

official with final policy-making authority.” Thomas v.

Cook Cty. Sheriffs Dep’t, 604 F.3d 293, 303 (7th Cir.

2009); Monell v. N.Y. City Dept, of Social Servs., 436

U.S. 658, 690 (1978).

Watkins has alleged no facts that would

support any of the three theories of municipal

liability. There is no allegation in the complaint that

any official policy caused the problems she complains

of. There are also no facts sufficient to state a claim of

a widespread and well-settled custom that led to the

alleged violations of Watkins’s rights. As discussed

above, Watkins’s allegations of poor treatment of

African-American officers are too vague and

conclusory to count as well-pleaded facts. Finally,

there is no allegation that any of the alleged rights

violations were caused by an individual with final

policymaking authority. The complaint does state

that the Chief of Internal Affairs, Juan Rivera,

App.76a

documented Watkins’s CR as sustained. Am. Compl.

1 24. But no fact allegations suggest that Rivera was

a final policymaker (or, for that matter, suggest that

Rivera knew that the CR was false and

discriminatory). Watkins also alleges that Rivera

submitted the CR to Police Superintendent Garry

McCarthy for final approval. Id. McCarthy might well

have been a final policymaker, but the Amended

Complaint does not allege that he actually did

anything—only that Rivera submitted the CR to him.

Id. The Amended Complaint does not even allege that

McCarthy approved the sustained CR.15 Id. With

McCarthy the only possible final policymaker in sight,

the last basis for Monell liability against the City of

Chicago fails too. Watkins has therefore fallen short

of stating a plausible claim for relief under 42 U.S.C.

§ 1983.

C. Breach of Contract

Watkins’s final claim is a claim of breach of

contract under Illinois common law. This claim

consists of a single paragraph of vague assertions

about the alleged contract between Watkins and her

employer. Am. Compl. If 56. Watkins states that the

City breached its contractual “duty” to “subject

Plaintiff to equitable and reasonable terms and

conditions of employment relative to non-minority

and nonfemale employees.” 16 Id. This claim too fails

for want of any factual support. Watkins does not say

how her employment contract was formed, who the

parties were, or what contractual provisions gave rise

to the duty Watkins identifies. She just says that the

contract existed, that the contract was valid and

App.77a

enforceable, and that the City breached a contractual

duty not to discriminate. Those allegations merely

restate the elements of breach of contract under

Illinois law. See Van Der Molen v. Wash. Mut.

Finance, Inc., 835 N.E.2d 61, 69 (Ill. App. Ct. 2005)

(reciting the elements of breach of contract). If

Watkins wants to rely on Illinois common law for

relief, then she needs to allege the facts that would

enable her to plausibly make that claim rather than

simply stating the conclusion. The breach of contract

claim is dismissed.

D. The City’s Motion to Strike

Watkins’s response to the City’s motion to

dismiss mostly repeated the factual allegations in her

complaint, with some minor added facts. For example,

Watkins expanded on her allegation that the IDHR

refused to accept her 2008 charge by providing the

name of the IDHR investigator who allegedly refused

the charge and giving the control number of the

charge. PI. Resp. 1ft 5-6. The response also alleged

some completely new facts—for instance, that the

Chicago Police Department has a policy of utilizing

progressive discipline. Id. 115. Watkins also attached

a few new exhibits to the response brief, including a

letter granting a FOIA request for complaint registers

naming Watkins. See PL Resp. Exh. H. The City

moves to strike these new facts and exhibits.

The City’s motion is denied as unnecessary. To

the extent that the new allegations attempted to

explain Watkins’s administrative exhaustion efforts,

those allegations are not necessarily improper,

App.78a

because Watkins is not required to plead those facts

in the first place. To the extent that Watkins tried to

add other new facts, those were disregarded in the

Court’s consideration of the motion to dismiss. It is

true that a plaintiff cannot amend her complaint in

her response brief, and that is arguably what Watkins

has tried to do by using her brief to allege new facts

and provide new exhibits. But in any event, the new

allegations and exhibits would not have helped

Watkins’s arguments. They were mostly irrelevant or,

at best, minor expansions of the allegations already

made in the complaint. The fact that Watkins’s

disciplinary record is available to public via FOIA

requests, for example, does not add anything to her

claims. Similarly, the job posting for merit promotion

to lieutenant, which is one of the new exhibits

attached to the response brief, appears to have

nothing at all to do with Watkins’s claims. See PL

Resp. Exh. J. There is no need to strike these exhibits

and allegations, because the Court did not rely on

them.

IV. Conclusion

For the reasons discussed, the City’s motion to

dismiss is granted in part and denied in part.

Watkins’s disparate treatment claims based on the

issuance of the 2008 CR and the 2014 suspension

survive, as does her retaliation claim based on the

2014 suspension. The rest of her claims are dismissed.

The City’s motion to strike is denied.

App.79a

The status hearing of June 6, 2018 is reset to

June 19, 2018, at 9:15 a.m. The parties shall confer

about the discovery plan going forward, and file a joint

status report on June 15, 2018. At the status hearing,

the Court will discuss the litigation plan with the

parties.

ENTERED:

/s/Edmond E. Chang

Honorable Edmond E. Chang

United States District Judge

June 5, 2018