554 F.3d 1106 (7th Cir. 2009), 07-1157, Nagle v. Village of Calumet Park

Docket Nº:07-1157.
Citation:554 F.3d 1106
Party Name:William NAGLE, Plaintiff-Appellant, v. VILLAGE OF CALUMET PARK, Mark Davis, Susan I. Rockett, Buster B. Porch, Melvin Davis, and John Rigoni, Defendants-Appellees.
Case Date:February 04, 2009
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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554 F.3d 1106 (7th Cir. 2009)

William NAGLE, Plaintiff-Appellant,

v.

VILLAGE OF CALUMET PARK, Mark Davis, Susan I. Rockett, Buster B. Porch, Melvin Davis, and John Rigoni, Defendants-Appellees.

No. 07-1157.

United States Court of Appeals, Seventh Circuit.

February 4, 2009

Argued Dec. 5, 2007.

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Jonathan C. Goldman (argued), Chicago, IL, for Plaintiff-Appellant.

John B. Murphey, Rosenthal, Murphey, Coblentz & Janega, Chicago, IL, Julie Ann Hofherr Bruch (argued), Halloran, Kosoff, Geitner & Cook, Northbrook, IL, for Defendant-Appellee.

Before FLAUM, EVANS, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

William Nagle is a police officer with the Village of Calumet Park, Illinois Police Department. He is suing the Village and certain individual defendants, claiming he has been discriminated against because of his race and age. Nagle maintains that after he complained about his treatment and filed charges with the Equal Employment Opportunity Commission (" EEOC" ), the defendants retaliated against him. Nagle also brings a claim under 42 U.S.C. § 1983, alleging that the individual defendants violated his First and Fourteenth Amendment rights. He contends that he was retaliated against through unwarranted written reprimands and a suspension after he made statements at a union meeting regarding manpower reductions of police officers within the community.

We find that Nagle has not sufficiently shown that he was discriminated against on the basis of age and race or that he suffered retaliation because of his complaints. Furthermore, Nagle cannot show that he engaged in protected speech at the union meeting. Therefore, we affirm the district court's grant of summary judgment in its entirety.

I. BACKGROUND

William Nagle, a white male who was fifty-four at the time of the filing of this suit, is an officer with the Calumet Park Police Department. Nagle, who has served for twenty-eight years, is the officer with the most seniority in the department. In the early 1980s, Nagle helped form a local union to represent Calumet Park police officers. He has served as the union's vice-president and, most recently, as its safety and grievance officer. Between 2002 and the filing of this suit, he filed over 100 grievances on behalf of himself and the union's membership. The majority of the grievances were filed on behalf of the union.

In August 2002, Buster Porch, the black mayor of Calumet Park, appointed Mark Davis, a 59-year-old black male, as Chief of Police. Chief Davis then appointed Susan Rockett, a 48-year-old white female, to be Assistant Chief. Nagle maintains that after Davis's appointment, he subjected Nagle to age and race discrimination through unwarranted discipline and reassignment to undesirable duties on various occasions. This behavior allegedly started shortly after Davis's appointment where, during a conversation at another officer's retirement party, Chief Davis asked Nagle when he planned to retire.

Following this incident, Nagle contends that Chief Davis made other disparaging remarks regarding Nagle's age and race, and systematically treated younger, non-white officers better than older, white officers. Chief Davis allegedly referred to Nagle and his peers as " these old white mother f__ ers" approximately fifteen times over a three-year period. Nagle also maintains that Chief Davis made disparaging remarks based on age when reprimanding Nagle for his " failures" on the

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job. For example, on May 24, 2004, Nagle received a written reprimand for allowing a prisoner to escape with handcuffs on while Nagle was walking him to the car. According to Nagle, Chief Davis later commented that Nagle might be getting too old for the job and needed additional training in apprehending suspects, but did not similarly discipline Mario Smith, a " younger" officer, who allowed a prisoner to escape in June 2005. Furthermore, Nagle maintains that in February 2006, Mark Smith, a nonwhite, lateral officer under forty who was still on probation, shot an unarmed suspect but was not placed on administrative leave during the investigation as protocol would normally require.

On August 15, 2004, Nagle received a three-day suspension for failing to assist another officer during a domestic disturbance call. Nagle and Officer Willie Vaughn, a black male whose age is unspecified in the record, were dispatched to respond to a 911 call that a teenage girl was threatening her mother and grandmother with a knife. While both Nagle and Vaughn stood outside speaking with the mother, Sergeant Rigoni, a 49-year-old white male and also a defendant here, arrived and went inside where he was injured while handcuffing the girl. Sergeant John Rigoni recommended to Chief Davis that Nagle be terminated for failing to assist in the arrest, but instead, Chief Davis suspended Nagle for three days. Nagle maintains that his suspension was discriminatory because Officer Vaughn also failed to act while on this call, but was not similarly disciplined.

Nagle also claims he was reassigned to undesirable duties because of his age and race. In October 2003, Nagle was reassigned from patrol duty to the evidence locker. In March 2005, Chief Davis and Assistant Chief Rockett assigned Nagle to the newly created position of senior liaison after no other officers volunteered. In September 2005, Chief Davis created a new strip mall detail at the Raceway Shopping Plaza, and Nagle's job assignment was changed from street patrol to a fixed post at the shopping plaza. Nagle kept his same rate of pay; however, Nagle claims that only white officers were permanently assigned to strip mall detail while younger, non-white officers were assigned to the detail by sergeants at roll call.

Nagle also maintains that comments made by others within the department support his race and age discrimination claims and show that there was a general bias against older, white officers. Sometime around January 2005, the department engaged in an effort to bring in lateral transfers. According to Nagle, Commander Melvin Davis (a black male, age unknown, who is also a defendant here, to be distinguished from Chief Mark Davis) was placed in charge of choosing the new hires, and he chose primarily non-white officers under forty.1 Nagle contends that Commander Davis exhibited age-based bias when he told some new hirees during their orientation period that they did not have to show respect to Sergeant Mark Groszek, a white male over forty.

Nagle points to one other incident involving Commander Davis, where two out of five lateral transfers failed the shooting qualification course, and Commander Davis removed the instructor and hired another individual to teach the course. In his letter removing the instructor, Commander Davis wrote, " [t]his administration

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must start investing in our officers, who believe in the current leadership, and that can give this department another (20-30) years of positive service."

In December 2002, Chief Davis issued an order prohibiting officers from calling in sick on the day before or the day after their off-day. This was followed by a February 2003 order calling for progressive discipline concerning violations of the new sick leave policy. Nagle contends that Chief Davis used this policy to discriminate against Nagle because of speech that he engaged in pursuant to his union duties. On May 12, 2004, Nagle attended a Labor-Management meeting and expressed concerns about Chief Davis's proposed manpower reductions. On May 17, 2004, Nagle's first working day after the meeting, Chief Davis told Nagle that if he ever spoke to Chief Davis in the same manner as Nagle had in the meeting, Nagle would be disciplined. Chief Davis felt Nagle disrespected him in front of other officers. On May 19, 2004, Nagle received a two-day suspension for violating the sick leave policy. Nagle believes that this suspension was in retaliation for his comments at the Labor-Management meeting. Nagle was previously suspended for violating the sick leave policy in September 2003. In fact, half of the department had been suspended since the new policy was implemented. In April 2005, Nagle was again suspended for violating the sick leave policy, but he filed a grievance and the suspension was never served.

On January 19, 2005, Nagle filed a charge with the EEOC, alleging age discrimination. This charge came on the heels of Chief Davis's comments to Nagle that he was " tired of [Nagle's] bullsh-grievances" and his reminder to Nagle that " discipline is progressive." The EEOC charge was mailed to the police department to the attention of the personnel manager on January 27, 2005.

Nagle's second EEOC charge soon followed. On January 23, 2005, Chief Davis saw Nagle preparing a grievance form during lunch, which is considered on duty time at the department. On February 11, 2005, Chief Davis suspended Nagle for three days for this incident. Nagle filed a union grievance, and the Illinois Labor Relations Board overturned the suspension and ordered the department to reimburse Nagle for his losses. On February 23, 2005, Nagle filed a second EEOC charge alleging he had been suspended due to his age and race and in retaliation for his January EEOC filing.

On May 9, 2005, Nagle filed a third EEOC complaint alleging that his March 2005 assignment to senior liaison and his April 2005 suspension were due to his age and race and were in retaliation for his earlier EEOC complaints. On May 10, 2005, Assistant Chief Rockett rescheduled Nagle's " court key date," or the date in which he...

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