167 F.3d 1084 (7th Cir. 1999), 97-2835, Kidd v. Illinois State Police

Docket Nº:97-2835.
Citation:167 F.3d 1084
Party Name:William KIDD III, Plaintiff-Appellant, v. ILLINOIS STATE POLICE, Defendant-Appellee.
Case Date:January 12, 1999
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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167 F.3d 1084 (7th Cir. 1999)

William KIDD III, Plaintiff-Appellant,

v.

ILLINOIS STATE POLICE, Defendant-Appellee.

No. 97-2835.

United States Court of Appeals, Seventh Circuit

January 12, 1999

Argued April 6, 1998.

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[Copyrighted Material Omitted]

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Daniel J. Hurtado (argued), Jenner & Block, Robert J. Peters, Brown & Peters, Chicago, IL, William Kidd, Chicago Heights, IL, for Plaintiff-Appellant.

Erik G. Light (argued), Office of the Atty. Gen., Chicago, IL, for Defendant-Appellee.

Before FLAUM, ROVNER, and DIANE P. WOOD, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

The Illinois State Police terminated William Kidd III from its employ shortly before he completed his probationary year of training and service as a state trooper. Kidd, who is African-American, filed suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a). Although Kidd concedes that he was not performing at an acceptable level at the time of his discharge, he contends that his discharge was nonetheless discriminatory because the ISP did not afford him remedial assistance comparable to the training and support it provided to a white trooper who had difficulties similar to Kidd's. The district court found in favor of the ISP after a bench trial. Kidd v. Illinois, No. 89 C 8504, (N.D. Ill. June 20, 1997). We remand for further consideration.

I.

As its name suggests, the Illinois State Police serves as the state's constabulary. Although its activities touch upon all aspects of law enforcement, the ISP is perhaps best known to us as the guardian of the state's highways, which its more than 1,500 troopers patrol.

The ISP hired Kidd as a probationary trainee in June 1988. At the same time, it hired as another prospective trooper Robert Tucker, who is white. Ultimately, the ISP would terminate both Tucker and Kidd, and in significant part for the same reason: both had remarkably poor communications skills as the result, apparently, of learning disabilities. The significant differences in the ways the ISP attempted to help the two candidates with this problem are what gave rise to Kidd's Title VII claim.

The ISP trains its troopers in three phases. In Phase I, "cadets" undergo twenty weeks of classroom training at the ISP academy in Springfield in a variety of subjects, including the Illinois Vehicular and Criminal Codes, firearms, first aid, field sobriety testing, and report writing. Trainees who complete this first phase satisfactorily are assigned to one of the ISP's district

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headquarters for Phase II field training. In this second phase, each trainee (now a "probationary trooper") participates in active patrol under the accompaniment and supervision of primary and alternate Field Training Officers (FTOs), typically for a period of ten to fourteen weeks. 1 FTOs complete Daily Observation Reports (DORs) documenting each probationary trooper's performance during this period. 2 A review board, which typically includes a candidate's primary and alternate FTOs, the District FTO Supervisor, and the State FTO Program Supervisor, determines if and when a probationary trooper will proceed to Phase III, where he will begin solo patrol duty. An FTO Supervisor will monitor the trooper during this final phase and complete Bi-Weekly Report Forms evaluating her progress. As the end of Phase III (and the trooper's one-year probationary period) approaches, a Phase III review board consisting of the District Commander, the Operations Lieutenant, the District FTO Supervisor, and the State FTO Program Supervisor will determine whether he should be advanced to permanent status or instead terminated. Senior ISP administrators review the board's assessment and make a final determination, but the decision of the review board is rarely disturbed.

Kidd, Tucker, and some eighty other cadets commenced Phase I training at the academy on June 13, 1988. That training included more than twenty hours of instruction in report writing, including form completion and narrative writing. Sergeant Frank DeBerry, the State FTO Program Supervisor, taught the class on report writing that year. In addition to the work that DeBerry assigned, cadets were required to write memoranda on an almost daily basis to their cadet supervisors. For example, in their first week at the academy, cadets were asked to write an essay explaining why they wanted to become ISP troopers. Cadets received written feedback on such assignments and, when errors were found, were often asked to turn in corrected drafts (multiple times, if necessary).

As the cadets progressed through the twenty weeks of Phase I, their supervisors at the academy completed bi-weekly observation reports rating their progress in nineteen categories, including two aspects of their report-writing skills: (1) "organization/details," and (2) "grammar/spelling/neatness/level of usage." Supervisors assigned a rating of 1 to 7 in each area, with 1 signifying that "extensive and detailed training" was "compulsory," 4 signifying that the cadet was "meeting minimal academy requirements" but that supervision was still required, and 7 meaning that the cadet was "exceed[ing] academy requirements" and required only general supervision. At no time during Phase I training did Kidd ever rate more than a 3 in either of the two designated report-writing categories. Tucker did little better, but he did manage during the final week of Phase I to rate a 4 in both categories.

The shortcomings in the writing skills of both Kidd and Tucker were apparent enough by the end of sixteenth week of Phase I that they were assigned to remedial training in both form completion and narrative writing along with ten other cadets. 3 By the end of the nineteenth week, all but two of the eighty-two cadets were sufficiently skilled to pass report writing. The two who failed were Robert Tucker and William Kidd.

DeBerry acknowledged in his testimony that it is cause for alarm when any cadet fails report writing at the academy. Tr. 206. Nonetheless, because they were performing satisfactorily in other respects, both Kidd and Tucker were permitted to graduate from the academy on October 28, 1994 and advance to Phase II. 4 Tucker was assigned to

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District 4, headquartered in Crestwood, Illinois for his field training, while Kidd was assigned to District 15, headquartered in Oak Brook.

Upon Tucker's graduation from the academy, ISP officials designed and implemented a remedial program aimed at addressing his writing difficulties. In early September, while he was still at the academy, Tucker had been sent for evaluation to a specialist in educational psychology. She had concluded that Tucker suffered from a learning disability characterized by difficulties in retaining and sequencing auditory information, which in turn contributed to his inability to spell words and construct sentences properly. On November 2, 1988, DeBerry reviewed that assessment with Sergeant Wayne Winterberg, Tucker's District FTO Supervisor, and together they developed a special "Field Training Program" for Tucker. This program was authorized by Deputy Director Ronald Grimming, who in turn sent a memo to Deputy Director William O'Sullivan, second-in-command at the ISP, outlining the following components of the program:

1. Tucker was to receive weekly remedial instruction from an educator sophisticated in learning disabilities. Tucker was expected to provide Winterberg with a weekly written summary of the time he had devoted to remedial training, the content of that training, and his progress.

2. Samples of various traffic incident reports were to be culled from the district's files and given to Tucker so that he would be aware of the proper format for these reports.

3. Tucker's supervisor would closely monitor Tucker's enforcement law efforts in the field to ensure that Tucker was not avoiding activity that would require written narratives in his reports.

4. The FTO Platoon Supervisor would meet with Tucker's FTO weekly to review Tucker's DORs, his response to auditory instruction, and his ability to remember instructions.

5. There would be an effort to minimize the time Tucker was required to spend on desk assignments or special details so that he would be exposed to a variety of police training activities.

6. Tucker would be required to proofread his reports before giving them to his FTO. His FTO would, in turn, assess their quality and photocopy them before forwarding them to headquarters.

7. Written instructions would be provided to Tucker in the event that his auditory memory disability created a training problem.

Plaintiff's Ex. 3. 5 In an effort to implement this plan, Winterberg spoke with individuals at eight different agencies so that Tucker would be able to choose from a number of qualified, low-cost tutors near his home. Winterberg also obtained articles on training and supervising individuals with learning disabilities and distributed them to Tucker's FTOs.

Tucker at first demonstrated somewhat less initiative in following through with this program than his superiors had in creating it. Six weeks after a tutor was selected, Tucker had kept only three appointments and had missed a number of others. DeBerry found some of the excuses for the missed appointments unacceptable. Tucker also balked when DeBerry asked him to sign a waiver authorizing his tutor to keep the ISP apprised of his progress. Ultimately, DeBerry heeded the advice of ISP counsel that he draft a more narrow waiver for Tucker to sign and thereby avoid creating an "adversary stigma" between Tucker and the ISP.

By March 1989, however, Tucker was seeing a tutor on a twice-weekly basis, and

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Winterberg reported that "[h]is sentence structure and spelling are improving to an acceptable level." Plaintiff's Ex. 4 at 1. 6 Although Tucker's Phase II review board had decided in February...

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