Egonmwan v. Cook County Sheriff's Dept.

• Decision Date: 22 April 2010
• Docket Number: No. 09-2764.,09-2764.
• Parties: Iyare EGONMWAN, Plaintiff-Appellant, v. COOK COUNTY SHERIFF'S DEPARTMENT, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

602 F.3d 845

Iyare EGONMWAN, Plaintiff-Appellant, v. COOK COUNTY SHERIFF'S DEPARTMENT, et al., Defendants-Appellees.

No. 09-2764.

United States Court of Appeals, Seventh Circuit.

Argued February 25, 2010.

Decided April 22, 2010.

Dana L. Kurtz (argued), Kurtz Law Offices, LLC, Lockport, IL, for Plaintiff-Appellant.

Daniel F. Gallagher (argued), Querrey & Harrow, Chicago, IL, for Defendants-Appellees.

Before CUDAHY, EVANS, and SYKES, Circuit Judges.

EVANS, Circuit Judge.

Iyare Egonmwan was charged with custodial sexual misconduct while employed as a correctional officer in the Cook County jail's women's division and subsequently terminated.¹ After being acquitted of the charges, Egonmwan brought this lawsuit against the Cook County Sheriff's Department, which operates the Cook County Department of Corrections (CCDOC) and Sheriff's Police (CCSP); the County of Cook; the sheriff, Michael Sheahan; two CCDOC directors, Callie Baird and Scott Kurtovich; the superintendent of the women's division, Katie Harrison; the chief of the CCDOC's Internal Affairs Division (IAD), Timothy Kaufmann, deceased; and an IAD investigator, Miriam Rentas. Egonmwan alleges that the defendants initiated a frivolous criminal prosecution and ultimately terminated him because of his gender, race, and protected speech. The defendants, on the other hand, contend that they terminated Egonmwan because of his sexual misconduct and were uninvolved with his criminal proceedings. The district judge sided with the defendants, granting their motion for summary judgment, see Egonmwan v. Cook County Sheriff's Dep't, No. 06 C 4764, 2009 WL 1139150 (N.D.Ill. Apr. 27, 2009), and denying Egonmwan's subsequent motion for reconsideration. Egonmwan now appeals.

At this stage in the proceedings we must construe all facts and reasonable inferences in favor of Egonmwan.² As so viewed, the facts are that CCDOC General Order 4.1 provides that "serious misconduct," such as disregarding federal, state, or local laws or engaging in conduct unbecoming to an employee, is grounds for disciplinary action. General Order 3.8 forbids employees from engaging in "sexual conduct or sexual relationships, physical in nature, with a person in the custody and care of the CCDOC" and further states that a detainee is incapable of consent. Illinois law similarly provides that a penal system employee commits the offense of custodial sexual misconduct by "engaging in sexual conduct or sexual penetration with a person who is in the custody of that penal system" and that an inmate is incapable of consent. See 720 ILCS 5/11-9.2.

Egonmwan, an African-American³ male, began working as a correctional officer at the jail in 1999 and transferred to the women's division in the summer of 2001. On September 1, 2002, Harrison de-deputized Egonmwan for violating the jail's ethics and standard of conduct regarding an incident that occurred in April 2001— that is, before his transfer to the women's division. On September 11, 2002, Egonmwan filed an internal sexual harassment complaint against Harrison, claiming that she used sexual innuendos and pressured him for dates. The IAD investigated the claim and deemed it unfounded. A week later, Harrison told Egonmwan, while referring to a terminated employee, "There's someone else that will be getting out of here real soon." A week after that, Egonmwan was suspended for 10 days without pay, again regarding the April 2001 incident. (He never served the sentence, however, because he was still grieving it when he was arrested in August 2003.)

In January 2003,⁴ Harrison told Kenneth Swearnigen-El, another African-American correctional officer in the women's division, that she wanted to remove all the men from the women's division. In February 2003, Egonmwan received a performance evaluation indicating that he was meeting standards overall but needed improvement on "promptness/absences." In March or April 2003, Nicole Burns, a female detainee, gave Harrison a letter alleging that male correctional officers were engaging in sexual intercourse with her and other detainees in the women's division. The letter did not name any individual officers. Harrison met with Burns to discuss the letter and made a report, which stated that Burns named officers Robert Buchanan and Fred McBride, both African-American, as culprits. In her deposition several years later, Harrison initially testified inaccurately that Burns named Egonmwan.

Harrison sent the letter to Kurtovich and Kaufmann, who then forwarded the allegations to the CCSP. Detectives from the CCSP conducted interviews of numerous female detainees. Approximately 20 male officers, about half of them African-American, were "suspects of interest," including Buchanan and McBride. The detectives reported their findings to the Cook County State's Attorney.

In June 2003, two assistant state's attorneys (ASAs) began interviewing detainees. They did not interview the defendants. Harrison and Rentas attended some of the detainees' interviews and purportedly questioned them, but the defendants otherwise were not involved. During the investigation, detainee Aurora Acuna told the ASAs that she and her cell mate, Portia Warrington, had a sexual encounter with Egonmwan. Warrington was interviewed and confirmed Acuna's story. Acuna also said that Egonmwan agreed to pay her for sexual favors and deliver the money to her brother. The ASAs met with Aurora's brother, Gonzalo. He told them that, on two occasions, Egonmwan drove to his house to deliver money for Acuna.

On July 30, 2003, the IAD de-deputized Egonmwan. On August 13, 2003, the CCSP arrested him. That same day, the ASAs approved felony charges for custodial sexual misconduct against Egonmwan. Swearnigen and another African-American officer, James Anthony, were also charged. The ASAs testified that they did not consult with the defendants on their decisions and that those three officers were charged due to consistent witnesses and corroborative evidence. Three days later, Egonmwan was suspended with pay pending a hearing pursuant to Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), as only the merit board could terminate his employment. See 55 ILCS 5/3-7012. One Caucasian officer, Paul Usyak, was also de-deputized and suspended with pay pending a Loudermill hearing for living with a former inmate. (Usyak was not, however, criminally charged.) The women's division was subsequently converted into a unit monitored almost exclusively by female officers. The female-only policy was deemed a bona fide occupational qualification. Male officers in that division were transferred, not terminated.

On August 22, 2003, the hearing board sustained the charges against Egonmwan, suspending him without pay pending merit board action. Sheahan then filed a merit board complaint seeking Egonmwan's removal for violating general orders. The merit board hearing, which initially began in July 2004, was postponed until December 2004 to enable Egonmwan to obtain legal representation. At that time, Egonmwan was denied an additional continuance and left the hearing, foregoing his option to proceed pro se. Warrington and Acuna testified at the hearing regarding their sexual contact with Egonmwan. Acuna's brother testified about receiving money from Egonmwan. And a jail administrator authenticated Egonmwan's records, which confirmed that he was assigned to Warrington's and Acuna's tier on the day of their alleged sexual encounter. No defendant testified. In January 2005, the board issued its order, finding by a preponderance of evidence that Egonmwan violated General Orders 3.8 and 4.1 and terminating his employment effective August 25, 2003. Egonmwan did not appeal the decision.

Egonmwan's criminal proceedings also moved forward. In September 2003, a grand jury indicted Egonmwan. A bench trial ensued. Again, neither the defendants nor Egonmwan testified. Warrington and the Acuna siblings, however, did testify consistent with their earlier statements. The ASAs agreed to recommend reductions in the two detainees' sentences in exchange for their testimony. Despite this evidence, Egonmwan was acquitted in August 2004.⁵

After the trial, Egonmwan filed a four-count complaint alleging (1) race discrimination under 42 U.S.C. § 1981; (2) gender and race discrimination under 42 U.S.C. § 1983; (3) retaliation under 42 U.S.C. § 1981; and (4) First Amendment retaliation under 42 U.S.C. § 1983. In June 2008, a few weeks before the close of discovery, Egonmwan mailed a copy of the declaration of a female detainee, Latoya Williams, to the defendants. (Williams was interviewed by the CCSP investigators but not the ASAs.) In the declaration, Williams claimed that investigators pressured her to falsely implicate Egonmwan, which Williams refused to do. Williams also stated that Acuna and Warrington told her that investigators told them to lie about having sex with officers. After receiving the declaration, the defendants scheduled Williams's deposition, but she failed to appear. The defendants then filed a motion for a rule to show cause. The district judge denied the motion but barred Egonmwan from using Williams's declaration.

After the defendants moved for summary judgment, Egonmwan dropped his § 1981 retaliation claim. Three months later, Williams was deposed in the related Swearnigen-El case. The district court subsequently granted the defendants' motion for summary judgment on all of Egonmwan's remaining claims. Egonmwan moved to reconsider the judgment and also to supplement his response with Williams's deposition. The district judge denied the motion, finding that "Rule 59(e) is not a vehicle for Egonmwan's counsel to undue her own failures, namely, her failure to take and defend a timely deposition of Williams, especially because counsel had contact with Williams from at least June 2008."

We review the grant of summary judgment de novo.⁶ Nagle v....