Opinion
CAUSE NO. IP 99-1521-C H/K
December 19, 2001
ENTRY ON MOTION FOR SUMMARY JUDGMENT
Lieutenant Brian R. Nanavaty is an Asian-American police officer with the Indianapolis Police Department. In this action against the City of Indianapolis and several city officials, Nanavaty claims that his rights under the First Amendment and Title VII of the Civil Rights Act of 1964 were violated. Under 42 U.S.C. § 1983, Nanavaty claims that defendants retaliated against him in violation of his First Amendment rights for speaking publicly in February 1998 regarding an ongoing criminal investigation of the Indianapolis Police Department. Under Title VII, Nanavaty claims that the former Chief of Police, defendant Michael H. Zunk, did not appoint him as a major in early 1999 on the basis of his race and national origin and in retaliation for his filing a charge of discrimination with the Equal Employment Opportunity Commission. Defendants have moved for summary judgment with respect to all Nanavaty's claims. As explained below, the court grants summary judgment to the defendants on all claims.
Summary Judgment Standard
The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Under Rule 56(c) of the Federal Rules of Civil Procedure, the court should grant summary judgment if and only if there is no genuine issue as to any material fact, and the moving parties are entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Pafford v. Herman, 148 F.3d 658, 665 (7th Cir. 1998).
On a motion for summary judgment, the moving party must first come forward and identify those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, which the party believes demonstrate the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party has met the threshold burden of supporting the motion, the opposing party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
In determining whether a genuine issue of material fact exists, the court must construe all facts in the light most favorable to and draw all reasonable inferences in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Haefling v. United Parcel Service, Inc., 169 F.3d 494, 497 (7th Cir. 1999). The proper inquiry is whether a rational trier of fact could reasonably find for the party opposing the motion with respect to the particular issue. See, e.g., Jordan v. Summers, 205 F.3d 337, 342 (7th Cir. 2000). When facts are addressed in this entry, they are addressed in light of the applicable standard on summary judgment, without attempting to evaluate the credibility of conflicting evidence or choosing between different reasonable inferences from the evidence. See, e.g., Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383, 388 (7th Cir. 2000) (reversing summary judgment for employer where parties presented conflicting evidence on reasons for plaintiff's lay-off).
Although intent and credibility are often critical issues in employment discrimination cases, there is no special version of Rule 56 that applies only to such cases. See, e.g., Alexander v. Wisconsin Dep't of Health and Family Services, 263 F.3d 673, 681 (7th Cir. 2001); Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir. 1997). In an employment discrimination case, as in any case, the court must carefully view the evidence in the record in the light reasonably most favorable to the non-moving party and determine whether there is a genuine issue of material fact. See Haugerud v. Amery School Dist., 259 F.3d 678, 689 (7th Cir. 2001) (same standard applies to any type of case).
Undisputed Facts
Plaintiff Brian R. Nanavaty is Asian-American. He became an officer with the Indianapolis Police Department (IPD) in 1984. Under the elaborate merit promotion system, Nanavaty advanced quickly through the ranks, promoted to sergeant in 1988 and lieutenant in 1992. In September 1995, former Chief of Police Donald Christ appointed Nanavaty deputy chief of the East District (one of five geographic districts for IPD).
When Nanavaty took over as deputy chief of the East District, defendant John Bent was also assigned to the East District. Nanavaty promptly transferred Bent to a new assignment against Bent's wishes. Nanavaty has testified that another police officer, Peter Koe, has told him that in November 1995, he overheard Bent in a restaurant discussing Nanavaty's appointment as deputy chief. Nanavaty testified that Koe told him that Bent said: "that f***ing Hadji boy Nanavaty" did not have the experience to be deputy chief. Nanavaty Dep. 79. Defendants have objected to this evidence as hearsay, and the objection is valid. Nanavaty has attempted to obtain admissible evidence of the alleged comment, but he has not done so. He has offered an affidavit from a legal assistant who interviewed Koe and obtained a written statement from him, but who reported that Koe was unwilling to sign an affidavit. See Pl. Ex. 6. The written statement from Koe is not sworn or otherwise admissible under 28 U.S.C. § 1746 (affidavits may be executed without oath if given under penalty of perjury). Thus, the bigoted comment attributed to Bent is not supported by admissible evidence and may not be considered when deciding the motion for summary judgment.
In January 1997, defendant Michael H. Zunk was named Chief of Police. Nanavaty had been identified publicly as one of four finalists for appointment as Chief. The Chief of Police appoints all deputy chiefs, assistant chiefs, and majors in IPD, and all such appointees serve at the pleasure of the Chief.
In his first month as chief, Zunk removed Nanavaty as deputy chief of the East District. Nanavaty then reverted back to his merit rank of lieutenant. Nanavaty requested that he be placed in a South District position on the late shift. Because there were no lieutenant positions available in the South District at that time, Zunk assigned Nanavaty to the late shift in the Downtown District. Nanavaty's position in the Downtown District required him to supervise two shifts of officers, the late and "late tac" shift (short for "late tactical"). There were a total of six to nine officers on each downtown shift. Under ordinary circumstances, lieutenants do not supervise two shifts of officers. However, most lieutenants supervise up to thirty officers on a single shift.
Nanavaty worked only the late shift, so he was not present to supervise the late tac officers directly. Nanavaty claims that his absence during the late tac shift made supervision of those officers more difficult and exposed the police department to greater liability. Shortly after Nanavaty joined the Downtown District, he told his supervisor, Deputy Chief Deborah Saunders, about his concerns. Saunders told him that the assignment to two shifts was temporary and that a late tac shift supervisor would be assigned after the 1997 departmental audit. In May 1998, Saunders sent a memo to Chief Zunk requesting a late tac shift supervisor for the Downtown District, as well as other personnel and resources. In November 1998, however, Saunders informed Nanavaty that he would be the primary supervisor for the late and late tac shifts indefinitely.
In 1997, the Indianapolis news media closely followed the criminal investigation of three IPD police officers suspected of criminal activity, including one who was charged with a murder arising from drug trafficking. In response, Chief Zunk and then Mayor Stephen Goldsmith asked the Federal Bureau of Investigation to conduct a criminal investigation of IPD.
In February 1998, an Indianapolis television reporter asked Nanavaty for an interview concerning his prior internal investigation of officers from the East District who were then targets of the FBI's criminal investigation. Nanavaty tried to contact Chief Zunk before the interview but reached Bob Lentz, Zunk's administrative assistant, instead. Lentz told Nanavaty that Zunk would not object to the interview because he had already decided to dismiss the targeted officer.
Nanavaty did the interview, which aired on the evening news on February 23, 1998. Nanavaty told the reporter that supervision in the case "presents a very weak link for this organization," and that he questioned whether one of the officers had been supervised properly. Pl. Ex. 16. Nanavaty also said that he had investigated one of the officers before, finding some evidence of domestic violence but not enough to prove the case. Nanavaty said: "For every front page story that we take action on there are probably five or six that slip through the cracks that no one ever knows about." Nanavaty added that a new "early warning system" for problem police officers was unlikely to detect the problem with the officer arrested for murder in connection with drug trafficking. Id.
Chief Zunk was disappointed with Nanavaty's interview. Zunk testified that the interview disappointed him because it gave him the impression that Nanavaty had not been forthcoming with information regarding serious wrongdoing within the department. Zunk Dep. at 102. Another witness testified that Zunk was upset and angry about the interview, and that Zunk told him he thought Nanavaty had used the interview to subvert Zunk and to make him look bad in retaliation for Zunk having removed Nanavaty from the deputy chief position. Mungovan Dep. at 28-29.
In November 1998, Nanavaty was still supervising two shifts of officers in the Downtown District. He requested that the department audit his workload and assign an additional supervisor for the late tac shift. Captain David Cupello of the human resources division replied to Nanavaty's audit request on December 13, 1998. Cupello asserted that the late tac shift had never been assigned its own supervisor and that nothing in a lieutenant's job description precluded him from supervising two shifts. Cupello stated that assigning a single lieutenant to supervise the late and late tac shift was a "common departmental practice" in the past. Pl. Ex. 2. Cupello also told Nanavaty that Assistant Chief Michael Spears agreed with his conclusions regarding the audit request, and that he had forwarded the request to Chief Zunk. Zunk later sent Nanavaty a memo stating that he agreed with Cupello's response.
In February 1999, Nanavaty submitted a formal grievance to Assistant Chief Spears and the human resources office. The grievance documented several instances in which Nanavaty believed he had been treated inappropriately by the department, including his assignment to supervise two shifts and the denial of his audit request. Spears told Nanavaty that a procedural rule, General Order 7.00, dictated that Nanavaty first submit the grievance to his immediate supervisor.
In January 1999, Chief Zunk appointed four new majors, three of whom were Caucasian. In March 4, 1999, Nanavaty filed an EEOC charge claiming race and national origin discrimination in Zunk's decision not to appoint him as a major. On March 16, 1999, Zunk appointed Lieutenant Tim Halligan to a major position in the Downtown District. Other facts are noted below as needed, keeping in mind the standard that applies on a motion for summary judgment.
Discussion I. The First Amendment Claim
Nanavaty has sued Zunk and Bent under 42 U.S.C. § 1983 for violating his First Amendment right to free speech. Nanavaty alleges that defendants took adverse action against him for statements he made in the televised interview regarding the criminal investigation of certain Indianapolis police officers. Defendants contend that Nanavaty's speech was not protected by the First Amendment. They also deny that the alleged actions were adverse or resulted from Nanavaty's interview, and the defendants also assert that they are entitled to qualified immunity.
To state a claim for retaliation in violation of the First Amendment, a public employee first must establish that his speech is constitutionally protected. An employee's speech is protected if it is on a matter of public concern and the employee's interest in the speech outweighs the state's interest in promoting the efficiency of its public services. Connick v. Myers, 461 U.S. 138, 142 (1983); Pickering v. Board of Education, 391 U.S. 563, 568 (1968). Once an employee has established that his speech is constitutionally protected, he must prove that the defendant took an adverse employment action against him that was motivated by the protected speech. Kuchenreuther v. City of Milwaukee, 221 F.3d 967, 973 (7th Cir. 2000). The defendant then has "the opportunity to demonstrate that it would have taken the same action in the absence of the plaintiff's exercise of his rights under the First Amendment." Id.
A. Speech on a Matter of "Public Concern"
On February 23, 1998, an Indianapolis television station broadcast an interview with Nanavaty regarding a criminal investigation of certain Indianapolis police officers. Defendants contend that Nanavaty's statements were not addressed to a matter of public concern because Nanavaty was trying to protect his own record and reputation as a police officer. Defendants' argument on this issue is not convincing.
To determine whether Nanavaty's speech addressed a matter of public concern, the court must consider the "content, form, and context" of the speech, but content is the most important factor. Campbell v. Towse, 99 F.3d 820, 827 (7th Cir. 1996). The Seventh Circuit regards most issues concerning the performance of a police department as matters of public concern. See Gustafson v. Jones, 117 F.3d 1015, 1019 (7th Cir. 1997) (speech was on matter of public interest where it "related to how police investigations are to be conducted, and what kind of balance between individual officer initiative and central control was to be struck"); Campbell v. Towse, 99 F.3d 820, 827-28 (7th Cir. 1996) (senior police official's letter criticizing chief's community policing program was speech on matter of public concern); Glass v. Dachel, 2 F.3d 733, 741 (7th Cir. 1993) (police officer's statement that superior officer had stolen property from evidence room addressed matter of public concern); Auriemma v. Rice, 910 F.2d 1449, 1460 (7th Cir. 1990) ("It would be difficult to find a matter of greater public concern in a large metropolitan area than police protection and public safety."). Nanavaty's speech addressed the police department's efforts and ability to detect corruption internally. These topics were clearly of interest to the general public and fall well within the realm of protected speech.
Defendants also argue that Nanavaty's speech was not protected because it was motivated by a desire to protect his own reputation. See Def. Reply Br. at 3. Such a motive is not rare. To be entitled to First Amendment protection, a public official or employee need not prove that his motives for speaking were entirely altruistic or disinterested.
B. The Pickering Balancing Test
For Nanavaty's comments on these matters of public interest to be protected from adverse employment actions, Nanavaty's First Amendment interests in his speech also must outweigh the city government's interest in promoting the efficiency of its public services. The Seventh Circuit has identified several factors that a court should consider when making this determination:
(1) whether the statement would create problems in maintaining discipline by immediate supervisors or harmony among co-workers;
(2) whether the employment relationship is one in which personal loyalty and confidence are necessary;
(3) whether the speech impeded the employee's ability to perform her daily responsibilities;
(4) the time, place, and manner of the speech;
(5) the context in which the underlying dispute arose;
(6) whether the matter was one on which debate was vital to informed decisionmaking; and
(7) whether the speaker should be regarded as a member of the general public.
Caruso v. De Luca, 81 F.3d 666, 670 (7th Cir. 1996). Defendants argue that Nanavaty's interview threatened to disrupt the police department by causing embarrassment to his superiors. They note that the interview prompted Zunk to be concerned that Nanavaty was withholding important information relating to the FBI criminal investigation.
The Seventh Circuit has given substantial deference to police departments' assessment of their employees' speech. See Kokkinis v. Ivkovich, 185 F.3d 840, 845 (7th Cir. 1999) (affirming summary judgment for police department on officer's claim under Section 1983 for violation of his First Amendment right to free speech). In Kokkinis, the Seventh Circuit wrote:
It has been recognized that a police department has a more significant interest than the typical government employer in regulating the speech activities of its employees in order "to promote efficiency, foster loyalty and obedience to superior officers, maintain morale, and instill public confidence."
Id. at 845, quoting Tyler v. City of Mountain Home, 72 F.3d 568, 570 (8th Cir. 1995) (internal citation omitted). In Kokkinis, the plaintiff police officer gave a television interview regarding allegations of sex discrimination within the police department. 185 F.3d at 842. The officer appeared behind a screen and wore a ski mask during the interview. His voice was electronically modified, and the reporter referred to him only as an officer of the police department. The officer told the reporter: "Everybody is so afraid of the Chief's vindictiveness. If you even dare to question any decision he makes, basically your life will be made miserable." Id. The officer's superiors and co-workers "believed that his appearance cast a negative light on the department and made the department look like a `bunch of clowns.'" Id. at 846. The Seventh Circuit held that the disruptive effects of this sensational presentation of the charges were sufficient to affirm summary judgment for defendants.
Unlike the officer's speech in Kokkinis, Nanavaty's speech did not clearly jeopardize the efficiency of the police department. Nanavaty's interview began with a shot of him sitting in a marked IPD vehicle. The reporter identified him as "Lieutenant Brian Nanavaty" and the former deputy chief of the East District. During the interview, Nanavaty was candid regarding the police department's ability to discover corruption internally. He said: "For every front page story that we take action on there are probably five or six that slip through the cracks that no one ever knows about." Pl. Ex. 16. Nanavaty did not accuse Zunk or any other officer with negligence or misconduct during the interview.
Zunk was concerned about the interview because he felt it conveyed that Nanavaty had not been forthcoming with information pertinent to the investigation. Shortly after the interview, Zunk reported to another television station that he had sent an "official letter" to Nanavaty requesting disclosure of any information pertinent to the investigation. Pl. Ex. 10. Zunk also directed Captain Foley to call Nanavaty about the interview. There is no evidence that Zunk actually sent a letter to Nanavaty. However, Foley did call Nanavaty to inquire generally about the interview and specifically whether Nanavaty was withholding any information. Nanavaty told Foley that he was not withholding information and that he had disclosed his prior investigation to Internal Affairs, as well as to an FBI agent. The department did not contact Nanavaty again regarding the interview.
There is little evidence that the police department as a whole suffered because of Nanavaty's interview. Peter Mungovan, Zunk's administrative assistant, testified that he did not think Nanavaty's comments during the interview were retaliatory toward Chief Zunk. Mungovan Dep. at 30. Nanavaty contacted Zunk's office prior to giving the interview and was told by an assistant that Zunk would not object.
The evidence indicates that Zunk was unhappy with Nanavaty's interview. The fact that a higher-level official is unhappy about an employee's public statements cannot be sufficient by itself to show that the statements cause so much distress that they are not protected. Any claim under Pickering and Connick necessarily assumes that a higher-level official was upset enough to take some material adverse action against the speaker.
As a lieutenant, Nanavaty was not in a position where a little friction between him and Chief Zunk would seriously affect the efficiency of the police department. As a lieutenant, Nanavaty was not in frequent contact with Zunk, and Zunk did not rely on Nanavaty as he would an appointed officer, such as a major, deputy chief, or assistant chief. There is also no indication that the interview impaired Nanavaty's ability to fulfill his duties as a lieutenant. Zunk testified that Nanavaty is a "very good employee." Zunk Dep. at 34. Assistant Chief Michael Spears also acknowledged that Nanavaty is a good employee and is aware of no performance problems. SMF 96; see Caruso v. De Luca, 81 F.3d 666, 669 (7th Cir. 1996) (court should consider "whether the speech impeded the employee's ability to perform her daily responsibilities").
Returning to the Pickering balance, Nanavaty gave the interview at a time when the news media were very interested in police affairs. One Indianapolis police officer had just been arrested for murder. Zunk Dep. at 92. Another officer was accused of drug trafficking. Id. at 95-96. A third officer was being investigated on charges of domestic violence. Id. at 96. Given the seriousness of these crimes, Zunk feared that the public's confidence in the police force might have been shaken. Id. at 92-93. At the time Nanavaty gave the interview, the FBI, at Zunk's request, was performing a criminal investigation of the Indianapolis Police Department. Given these circumstances, Nanavaty's statements to the media would have been of interest to many Indianapolis residents.
In this case, Nanavaty's First Amendment interest in his speech outweighs the police department's interest in promoting the efficiency of its services. Nanavaty's speech was on a timely topic of great interest to the local community, and there is no evidence that it caused or had the potential to cause any serious disruption of the police department. Nanavaty's statements thus satisfy both inquiries under Pickering and are protected speech.
The interview would have had a much greater impact on the police department and Nanavaty individually if he had been in an appointed position such as major. As a major, Nanavaty would have had greater responsibility and would have worked more closely with the Chief of Police. With respect to Nanavaty's claim that Zunk violated his rights by not appointing him as a major, the Pickering balance is considerably different, as discussed below at pages 25-26.
C. Whether Defendants' Actions were Adverse and Retaliatory
According to Nanavaty, the following employment actions taken by defendants were both adverse and in retaliation for his statements to the media: (1) Nanavaty was assigned to supervise two shifts of officers, (2) a requested audit of his workload was not performed, (3) a grievance filed with the department was not processed, (4) he was denied requested training, and (5) he was not appointed major in early 1999.In Power v. Summers, 226 F.3d 815 (7th Cir. 2000), the Seventh Circuit explained that under Section 1983 a plaintiff is not required to prove that his employer took an "adverse employment action," as that term is used under Title VII of the Civil Rights Act of 1964. Id. at 820. The plaintiffs in Power alleged that defendants had violated their First Amendment rights by denying them modest raises. The court explained that "[a]ny deprivation under color of law that is likely to deter the exercise of free speech . . . is actionable," provided that the circumstances are such that the defendant's action would be "an effective deterrent to the exercise of [that] fragile liberty." Id. at 820, citing, among other cases, Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982).
Nevertheless, even in First Amendment cases under Section 1983, a change in circumstances of employment "must be more disruptive than a mere inconvenience or an alteration of job responsibilities" to be sufficiently adverse. DeGuiseppe, 68 F.3d at 191-92; see also Serna v. City of San Antonio, 244 F.3d 479 (5th Cir. 2001) (holding that police officer's transfer to less desirable patrol unit was not a sufficiently adverse action to support his First Amendment claim); Thomsen v. Romeis, 198 F.3d 1022, 1027-28 (7th Cir. 2000) (affirming summary judgment for defendants in part because three reprimands were not adverse actions; adverse action need not be "monstrous" but must "create the potential for chilling employee speech on matters of public concern").
Examples of actions that might infringe an employee's First Amendment rights include a campaign of harassment if it is so severe as to deter a reasonable person from speech. See Pieczynski v. Duffy, 875 F.2d 1331, 1335 (7th Cir. 1989) (affirming verdict for plaintiff where evidence allowed jury to find a calculated campaign to humiliate her, drive her to resign, even break her health, in punishment for her association with political opponent of her boss); cf. Bart v. Telford, 677 F.2d at 624-25 (reversing dismissal of complaint but acknowledging "that a certain air of the ridiculous hangs over the harassment allegations," such as making fun of plaintiff for bringing a birthday cake to the office to celebrate another employee's birthday). In light of these standards, the court addresses each of defendants' allegedly adverse employment actions.
Supervision of Two Shifts: After Nanavaty was replaced as deputy chief of the East District, Chief Zunk assigned him to work the late shift in the Downtown District. There are two late shifts in the Downtown District: the late shift and the late tac shift. Nanavaty's duties as a lieutenant on the late shift included supervising other officers. Because there was no supervisor assigned to the late tac shift, Nanavaty was assigned to supervise officers on that shift as well. Nanavaty supervised approximately six to nine officers on each the late and late tac shifts. SMF 33. Most lieutenants supervise up to thirty officers. SMF 34. Chief Zunk testified that he knew other lieutenants supervised twice the total number of officers assigned to Nanavaty, with twice as many runs. SMF 35. For that reason, Zunk believed the supervision of two shifts did not place an unfair burden on Nanavaty.
It is unusual for a lieutenant to supervise two shifts of officers. Nanavaty contends that doing so required him to shoulder a greater burden than other lieutenants. In support, Nanavaty cites a memo from Deborah Saunders, deputy chief of the Downtown District, to Chief Zunk requesting the addition of a late tac shift supervisor. Pl. Ex. 11. Saunders wrote: "Having a supervisor on [the late tac] shift would permit flexibility allowing for utilization of this individual in regards to handling supervisory responsibilities when there is a need on middle shift and/or late shift." Id. While Saunders' memo indicates that a late tac supervisor would be useful, it does not suggest any urgency in filling the position.
In November 1998, Nanavaty requested that the department perform an audit of his workload. Captain David Cupello in the human resources division replied to Nanavaty's audit request. Cupello explained that although Nanavaty had to supervise two shifts, the total number of officers assigned to him was within the normal range. Cupello also stated that there had never been a separate supervisor on the late tac shift in the history of the department, so Nanavaty's suggestion that there should be one was unprecedented.
The undisputed facts on this point undermine Nanavaty's claim. The difference between supervising two small shifts and supervising one large shift is not, as a matter of law, so great as to create the potential to chill an officer's speech on matters of public concern. Nanavaty was not asked to work two consecutive shifts. He was asked to supervise a small number of officers on both the late and late tac shifts. In the end, Nanavaty supervised fewer officers than other lieutenants did. Although supervising two shifts might not have been Nanavaty's preference, it was not adverse action. Having found that the supervision of two shifts was not adverse action, the court also must find that the denial of Nanavaty's audit request was not adverse, since the audit request was intended to trigger a change in the shift situation.
The court also finds insufficient evidence that Nanavaty's protected speech even motivated defendants to assign him supervisory duties over two shifts. By the time Nanavaty gave his interview, he had already been supervising two shifts for roughly one year. Nanavaty argues that his assignment to two shifts would have been temporary but for his protected speech. The evidence does not support this speculative contention. There is no indication that, if Nanavaty had been transferred to a district where he could have supervised only a single shift, another lieutenant would not have had to supervise both shifts in his place.
Processing of Nanavaty's Grievance: Nanavaty also contends that the department did not process his grievance in retaliation for his protected speech. The grievance, filed February 15, 1999, mainly concerned Nanavaty's supervision of two shifts and the denial of his audit request. Nanavaty contends that the adverse action lay in how the department processed the grievance, not in the substance of the grievance itself. Nanavaty initially submitted the grievance to Assistant Chief Michael Spears and the human resources office. Spears believed that a procedural rule, General Order 7.00, mandated that Nanavaty submit the grievance to his captain first. Spears also testified that it would have been awkward investigating the grievance because it made allegations of misconduct specifically against Chief Zunk.
The court does not see how directing an officer to submit a formal grievance through the chain of command is adverse action, especially when the situation from which the grievance sought relief was not itself adverse action. Spears did not refuse to investigate the grievance or toss it in the trash. He simply asked Nanavaty to try to resolve the matter at the first level of supervision, pursuant to internal procedure.
Denial of Training: Nanavaty also alleges that defendants denied him training in retaliation for his protected speech. IPD denied Nanavaty's request to attend "FDIC" training in Maryland in early 1999, SMF 258, and to attend "Futures Training" in the summer of 1999. SMF 241. Nanavaty has not alleged that the denial of training impaired his performance or disqualified him from promotions or other advancement. Cf. Bylsma v. Bailey, 127 F. Supp.2d 1211, 1231 (M.D.Ala. 2001) (holding, in context of a Title VII retaliation claim, that the denial of additional training constitutes adverse action only where it adversely affects the plaintiff's employment). While actions that are not adverse under Title VII nonetheless can infringe an employee's First Amendment rights, Nanavaty still has not shown that his denial of training amounted to more than a mere inconvenience, nor that it would chill his exercise of his First Amendment rights.
Nanavaty argues that the FDIC training was especially appropriate for him because it concerned the supervision of large events, which was one of his responsibilities in the Downtown District. Pl. Br. at 21. However, there is a difference between training that is helpful and training that is a prerequisite to advancement. Nanavaty has not argued that he was ill-equipped to supervise large events without the training. There is no evidence that Nanavaty's supervision of such events led to poor evaluations or any reprimands from his supervisors.
Nanavaty also acknowledged that there are many instances where officers request training and are not approved for those trainings. SMF 50. He also testified that officers who perform additional duties, such as himself, are often provided training as a precautionary measure because it "saves the city from liability." Nanavaty Dep. at 45. The record does not suggest that Nanavaty was the kind of officer who needed further training to insulate the city from liability.
Nanavaty had supervised several large downtown events prior to requesting the FDIC training. He has not come forward with evidence that he was more entitled to additional training than any other officers, who are often denied such training. Because the denial of training did not have a negative impact on Nanavaty's performance either, there is no basis for the court to find that the denial had the potential to chill Nanavaty's speech.
Defendants also argue that Nanavaty cannot establish that his protected speech motivated the department to deny him training because he was not eligible to attend the FDIC training anyway. See SMF 259 260. However, Nanavaty testified that two lieutenants attended the training as well, neither of whom held appointed positions. See Pl. Resp. to SMF 259. Accepting the facts in the light most favorable to Nanavaty, the court assumes that Nanavaty was eligible to attend the seminar.
Nanavaty also has not shown that the denial of either FDIC or Futures training was motivated by his protected speech. Nanavaty testified that Captain Bolles and Captain Rothenberg had discretion to approve his training requests. Nanavaty has not provided any evidence that these captains were upset by his 1998 interview, nor has he otherwise linked these captains to his protected speech. Nanavaty has not come forward with evidence that would allow a reasonable jury to find that the denial of training was either adverse or motivated by his protected speech.
Appointment to Major: The last adverse action alleged by Nanavaty is that Chief Zunk did not appoint him as a major. Majors in IPD hold "appointed ranks made solely within the Chief of Police's discretion pursuant to police merit law." SMF 1. Individuals holding the position of major serve at the pleasure of the chief. SMF 3.
Nanavaty has come forward with evidence that Zunk's decision not to appoint him major was motivated at least in part by his protected speech. Zunk testified that he was disappointed by Nanavaty's interview. Officer Peter Mungovan testified that Zunk was not pleased with Nanavaty's interview. Captain Foley told Nanavaty that Zunk was "all up in arms" about the interview. Zunk made the contested appointments to major roughly one year after Nanavaty's interview. However, Zunk did not make any other appointments prior to the major appointments. Given Zunk's strong response, a reasonable juror could infer that Zunk still regarded Nanavaty's interview poorly a year after its broadcast. At the time he was deciding on the major appointments in early 1999, Zunk indicated that he would never appoint Nanavaty to a more senior position in IPD. See SMF 62. Nanavaty has come forward with evidence of a causal connection between Nanavaty's speech and Zunk's decision not to appoint him major.
In general, a denial of a promotion can be an adverse action for purposes of a Pickering claim under the First Amendment. In this case, however, the promotion in question was not a typical merit promotion. It was instead an appointment to one of a handful of appointed positions that are made at the discretion of the chief. In other words, the majors hold leadership positions in which the chief of police can appoint those officers in whom he has confidence to carry out his policies.
That fact means that the balance of Pickering factors weighs differently when considering Nanavaty's claim that he was being punished for his otherwise protected speech. The Seventh Circuit has held that the First Amendment does not prohibit even the discharge of a policymaking or confidential employee when that employee has engaged in speech on a matter of public concern in a manner that is critical of superiors or their stated policies. Vargas-Harrison v. Racine Unified School Dist., ___ F.3d ___, ___, 2001 WL 1518792, at *5 (7th Cir. Nov. 30, 2001), citing Warzon v. Drew, 60 F.3d 1234, 1239 (7th Cir. 1995); Wilbur v. Mahan, 3 F.3d 214, 219 (7th Cir. 1993); see also, e.g., Caruso v. De Luca, 81 F.3d 666, 671 (7th Cir. 1996) (affirming summary judgment for defendant county clerk who dismissed plaintiff chief deputy clerk who had run against her for reelection). The undisputed facts in this case show that majors in IPD are senior leaders who work closely with the chief and from whom the chief is entitled to expect confidence and support. Chief Zunk did not violate Nanavaty's First Amendment rights by taking into account, when making the major appointments, Nanavaty's public statements which, in Zunk's view, cast the department in a negative light.
Even if there were sufficient grounds for a trial on the merits of the claim, defendants would be entitled to qualified immunity because it was not clearly established in 1998 and early 1999 that a refusal to promote an officer to such a senior non-merit position based on protected speech would violate the officer's First Amendment rights. See generally Benson v. Allphin, 786 F.2d 268, 277-78 (7th Cir. 1986) (granting judgment as a matter of law on qualified immunity grounds on police officer's First Amendment claim that he was terminated for protected speech on matter of public concern; application of Pickering factors to situation was not clearly established at time decision was made).
I. Title VII Discrimination Claim
Nanavaty also alleges that the City violated Title VII by taking into account his race or nationality in denying him appointment to major. Pl. Br. at 27 (narrowing scope of claim). A person alleging discrimination under Title VII can prove his case in two principal ways. First, he can present direct evidence that the employment decision at issue was motivated by an impermissible purpose. Second, he can offer indirect proof of discrimination by introducing evidence adequate to create an inference that the adverse employment decision was based on an illegal criterion. See, e.g., Hasham v. California State Bd. of Equalization, 200 F.3d 1035, 1044 (7th Cir. 2000).The two methods are not mutually exclusive. Cases and theories do not always fit neatly in one category or the other. A plaintiff may also rely on what the Seventh Circuit has described as a "mosaic" of circumstantial evidence — such as comments by supervisors, suspicious timing, inconsistent explanations or behavior, and so on — that can support a reasonable inference of discrimination. See, e.g., Venters v. City of Delphi, 123 F.3d 956, 973 (7th Cir. 1997) (reversing summary judgment for employer; "remarks and other evidence that reflect a propensity by the decisionmaker to evaluate employees based on illegal criteria will suffice as direct evidence of discrimination even if the evidence stops short of a virtual admission of illegality"); Troupe v. May Department Stores Co., 20 F.3d 734, 736 (7th Cir. 1994) (circumstantial evidence — like suspicious timing, ambiguous statements oral or written, behavior — is admissible to provide a basis for drawing an inference of intentional discrimination).
At the summary judgment stage, a plaintiff relying on the indirect approach must come forward with evidence that would allow a reasonable jury to find: (1) he is a member of a protected class; (2) he applied for and was qualified for the position; (3) he was rejected for the position; and (4) those who were promoted had similar or lesser qualifications for the position, or other evidence from which one can infer that the plaintiff was denied the promotion for a discriminatory reason. Pafford v. Herman, 148 F.3d 658, 669 (7th Cir. 1998).
This prima facie case is intended to identify circumstances in which a jury could infer that the failure to promote the plaintiff, if not explained, was the product of illegal discrimination. However, if the employer can then articulate a legitimate, non-discriminatory reason for its decision, the burden shifts back to the plaintiff to show that the employer's stated reason is a pretext, a false explanation for the decision. See, e.g., Stockett v. Muncie Indiana Transit System, 221 F.3d 997, 1001 (7th Cir. 2000). If the explanation is false, such falsity can ordinarily support (though it does not require) an inference of discrimination. Gordon v. United Airlines, Inc., 246 F.3d 878, 890-91 (7th Cir. 2001).
Defendants contend that Nanavaty has failed to establish a prima facie case of discrimination under Title VII because he never actually applied for appointment as major. Def. Reply Br. at 12. However, there is no evidence to suggest that an application was necessary or even appropriate. Defendants do not assert that they advertised for the positions or solicited applications from interested candidates. Chief Zunk testified that all lieutenants with three years service were qualified to be major. Zunk Dep. at 150. There is no evidence that even the successful candidates submitted applications.
Given these circumstances, Nanavaty can establish a prima facie case for failure to promote without showing that he formally applied to be major. "Courts have generally recognized, however, that `failure to formally apply for a job opening will not bar a Title VII plaintiff from establishing a prima facie claim, . . . as long as the plaintiff made every reasonable attempt to convey his interest in the job to the employer.'" Chambers v. Wynne School District, 909 F.2d 1214, 1217 (8th Cir. 1990), quoting EEOC v. Metal Serv. Co., 892 F.2d 341, 348 (3d Cir. 1990). Since Chambers, the Eighth Circuit generally does not require a formal application to establish a prima facie case for failure to promote, provided that "the job opening was not officially posted or advertised and either (1) the plaintiff had no knowledge of the job from other sources until it was filled, or (2) the employer was aware of the plaintiff's interest in the job notwithstanding the plaintiff's failure to make a formal application." Gentry v. Georgia-Pacific Corp., 250 F.3d 646, 652 (8th Cir. 2001). Other courts also have declined to require a formal application where the plaintiff's failure to apply is justified by the circumstances. See, e.g., EEOC v. Metal Serv. Co., 892 F.2d at 349 (plaintiffs "followed precisely the procedure established by [defendant] for how a person applies for a job at the company"); Holsey v. Armour Co., 743 F.2d 199, 208-09 (4th Cir. 1984) (sales jobs were not posted and defendant's representatives testified that one way to move into the position was to talk with a supervisor as the plaintiff had done); Lederer v. Argonaut Insurance Co., 2000 WL 126933, *5 (N.D.Ill. 2000) (Plaintiff "made every reasonable effort to convey an interest in the claims analyst position, thus excusing a duty to formally apply.").
Nanavaty satisfies the other elements of a prima facie case. As an Asian-American, he is a member of a protected class. Nanavaty was a lieutenant whose experience as deputy chief of the East District qualified him to serve as major. The lieutenants who were appointed major instead of Nanavaty had similar or lesser qualifications for the positions and were not Asian-American.
Under the indirect approach, the burden shifts to the City to offer a legitimate non-discriminatory reason for the decision not to appoint Nanavaty major. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). To meet this burden, the City asserts that "Nanavaty was not someone Zunk wished to appoint per his discretion under merit law." Def. Mem. at 26. There is no doubt that Nanavaty was not high on Zunk's list of senior officers in whom he had great confidence, as discussed above regarding Nanavaty's television interview and Zunk's response to it. In his deposition, Zunk described an appointment process for majors that was both formal and informal. Zunk testified that he occasionally asked officers in supervisory positions about the performance of their lieutenants and that he might have requested candidate lists from some of his deputy and assistant chiefs. Zunk held meetings with his closest staff to discuss the candidates. Zunk also testified that Nanavaty's race and national origin were never discussed during the process of appointing or promoting staff during his tenure as Chief of Police.
The City's statement of a non-discriminatory reason for the appointments to major shifts the burden back to Nanavaty to show evidence of pretext. To carry this burden, Nanavaty must come forward with evidence that would allow a reasonable jury to find that the City's explanation is false. Wilson v. AM General Corp., 167 F.3d 1114, 1120 (7th Cir. 1999). In making this determination, the court must take care not to assume the role of the proverbial "super-personnel department" trying to ensure that an employer's personnel policies are prudent and wise. E.g., O'Regan v. Arbitration Forums, Inc., 246 F.3d 975, 984 (7th Cir. 2001); Malacara v. City of Madison, 224 F.3d 727, 731 (7th Cir. 2000) (employer may take negative employment actions "for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason"). Chief Zunk was entitled to appoint as majors officers in whom he had greater confidence than he had in Nanavaty.
In an attempt to show pretext, Nanavaty relies on the alleged slur by defendant John Bent in 1995. See Pl. Br. at 29-30. As discussed above, however, Nanavaty has been unable to come forward with admissible evidence that the remark was actually made. The court therefore may not consider the comment as part of the record on summary judgment. Nanavaty has not come forward with evidence that would allow a reasonable jury to find that the City's non-discriminatory reason was pretextual. The court grants the City's motion for summary judgment on the Title VII discrimination claim.
II. Title VII Retaliation Claim
Nanavaty also claims that the City retaliated against him for filing his charge with the EEOC. He bases his retaliation claim on the fact that Chief Zunk appointed Tim Halligan as major for the Downtown District on March 16, 1999, less than two weeks after Nanavaty filed his charge based on the January 1999 appointments to major. Nanavaty has failed to establish an adequate causal connection to support his retaliation claim.
To establish a prima facie case of retaliation under Title VII, Nanavaty must show: (1) he engaged in statutorily protected activity, (2) he suffered an adverse action, and (3) a causal connection between the protected activity and the adverse action. Maarouf v. Walker Mfg. Co., 210 F.3d 750, 755 (7th Cir. 2000).
Nanavaty satisfies the first and second elements of the prima facie case. Filing a charge of unlawful discrimination with the EEOC is a statutorily protected activity. 42 U.S.C. § 2000e-3(a). Being passed over for the Downtown District Major position was an adverse action. See, e.g., Pafford, 148 F.3d at 669 (setting out elements of a failure to promote claim under Title VII).
Nanavaty fails to satisfy the third element of his prima facie case, however, because he has not established a causal connection between his filing the charge and being passed over for major. Nanavaty argues that a close temporal relationship between the protected activity and the adverse action is sufficient to establish a causal connection. Pl. Br. at 31. However, the Seventh Circuit has not allowed timing alone to establish a causal connection where the plaintiff has not shown any other relationship between the protected activity and adverse action. See Foster v. Arthur Andersen, LLP, 168 F.3d 1029, 1034 (7th Cir. 1999) (plaintiff must show more than "temporal proximity" to establish causal connection); Adusumilli v. City of Chicago, 164 F.3d 353, 361 (7th Cir. 1998) (holding that although the "sequence of events could raise the inference of a causal connection, it cannot do so here because [plaintiff] has failed to show that she was fired in retaliation for her complaint rather than for her inability to do her job well").
To meet the causal connection requirement for establishing a prima facie case of retaliation, Nanavaty must come forward with evidence that would support a finding that the City "would not have taken the adverse action `but for' the protected expression." McKenzie v. Illinois Dep't of Transp., 92 F.3d 473, 483 (7th Cir. 1996), citing Klein v. Trustees of Indiana University, 766 F.2d 275, 280 (7th Cir. 1985). The City asserts that Chief Zunk would not have appointed Nanavaty to Downtown District Major regardless of whether he filed the EEOC charge.
Undisputed evidence supports the City's position. Chief Zunk appointed four new majors in January 1999, two months prior to his appointment of the Downtown District Major. Prior to the January appointments, Zunk asked his staff to submit candidates for major. Nanavaty's name was raised as a possible candidate by some of Zunk's advisors. SMF 59. Zunk rejected Nanavaty as one of those he wanted to appoint. SMF 60. Zunk even said in January or February 1999 that if it was his prerogative, Nanavaty would not be appointed under him. SMF 62; Mungovan Dep. at 36. The undisputed facts show that Zunk had made up his mind not to appoint Nanavaty to a senior position well before the EEOC charge was filed.
Nanavaty draws two conclusions from Michael Spears' deposition testimony to bolster the causal connection: (1) Zunk decided to appoint a Downtown District Major after he appointed the other four majors, and (2) Zunk was aware of the EEOC charge at the time he appointed the Downtown District Major. Pl. Br. at 33-34. These conclusions do not establish a causal connection.
At Spears' deposition, Nanavaty's attorney asked why Zunk appointed four majors in January 1999 and another separately two months later. Spears replied:
As I recall, the chief at the time was considering a major for each of the districts to include the downtown district. And for reasons which I don't recall, he chose to just make the four for the other districts. And then after some period of time he came to the conclusion that it would be helpful to have another major available to the downtown district.
Spears Dep. at 135. This testimony indicates that Zunk originally planned to appoint a Downtown District Major along with the other four majors, but decided against it. Later, Zunk concluded that a Downtown District Major was needed and appointed Tim Halligan to the position. This account is consistent with Zunk's testimony. See Zunk Dep. at 151. More important, Spears' testimony does not rebut defendants' evidence that Zunk had decided not to appoint Nanavaty to any high-ranking position well before he filed his EEOC charge.
Nanavaty has failed to present evidence from which a reasonable juror could infer a causal connection between the charge Nanavaty filed with the EEOC and the appointment of the Downtown District Major. Accordingly, the court grants defendants' motion for summary judgment with respect to the Title VII retaliation claim.
Conclusion
The court grants summary judgment to defendants on Nanavaty's Section 1983 claim for retaliation in violation of his First Amendment rights, Title VII claim for discrimination on the basis of race or nationality, and Title VII claim for retaliation for engaging in protected activity. Final judgment shall be entered accordingly.
So ordered.