Swearnigen-El v. Cook County Sheriff's Dept.

• Decision Date: 22 April 2010
• Docket Number: No. 09-2709.,09-2709.
• Citation: 602 F.3d 852
• Parties: Kenneth SWEARNIGEN-EL, Plaintiff-Appellant, v. COOK COUNTY SHERIFF'S DEPARTMENT, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

602 F.3d 852

Kenneth SWEARNIGEN-EL, Plaintiff-Appellant, v. COOK COUNTY SHERIFF'S DEPARTMENT, et al., Defendants-Appellees.

No. 09-2709.

United States Court of Appeals, Seventh Circuit.

Argued January 15, 2010.

Decided April 22, 2010.

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

John F. Curran, Office of Cook County State's Attorney, Daniel F. Gallagher (argued), Querrey & Harrow, Chicago, IL, for Defendants-Appellees.

Before WOOD, EVANS, and SYKES, Circuit Judges.

EVANS, Circuit Judge.

Kenneth Swearnigen-El was charged with custodial sexual misconduct while employed as a correctional officer in the Cook County jail's women's division and subsequently resigned.¹ After being acquitted of the charge in state court, Swearnigen 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; and the superintendent of the women's division, Katie Harrison. Swearnigen alleges that the defendants constructively discharged him because of his gender, race, and protected speech and initiated a malicious prosecution that caused him extreme emotional distress. The defendants, on the other hand, contend that they took no adverse action against Swearnigen, and even if they did, it was because of his sexual misconduct. The district judge sided with the defendants, dismissing one claim, see Swearingen-El v. Cook County Sheriff's Dep't, 416 F.Supp.2d 612, 616-17 (N.D.Ill.2006), and granting summary judgment on the rest. See Swearnigen-El v. Cook County Sheriff's Dep't, No. 05 C 1493, 2009 WL 1849809 (N.D.Ill. June 26, 2009). Swearnigen now appeals.

At this stage in the proceedings we must construe all facts and reasonable inferences in favor of Swearnigen.² As so viewed, the facts are that CCDOC General Order 3.8 forbids employees from engaging in (1) "activities unbecoming of county employees, or conduct that reflects unfavorably to the Office of the Sheriff of Cook County" and (2) "sexual conduct or sexual relationships, physical in nature, with a person in the custody and care of the CCDOC." It also directs employees to report code violations as follows:

It shall be the responsibility of every employee to immediately report to their divisional Superintendent/Unit Head and the department Internal Investigations Unit verbally and in writing, any fact or situation which may give rise to or be construed as corrupt, illegal or unethical behavior and/or a possible conflict of interest. This shall include, but not be limited to, reporting anything which could impair the employee's performance of their duties in a fair and impartial manner.

Swearnigen, a black³ male, began working as a correctional officer at the jail in 1986. He held various positions with the labor union that represented correctional officers from 1990 to 2001. Swearnigen also attempted to bring a new union into the CCDOC in February 2002. During his time in the women's division, Swearnigen voiced concerns about jail policies and helped other officers with their complaints against management—activities of which Harrison was aware.

According to Swearnigen, Harrison and he bumped heads in January 2003,⁴ when Harrison told him that her "first goal as Superintendent was to remove all the men out of the women's division" and therefore Swearnigen "must go." During this same conversation, Harrison also criticized Swearnigen's efforts to help another officer file a harassment complaint against her. Swearnigen responded that he would "fight" Harrison on her attempt to remove men from the division because it "was discriminatory and retaliatory." He also reported his concerns to other supervisors.

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 specifically name Swearnigen. Harrison sent the letter to Kurtovich and the CCDOC's Internal Affairs Department (IAD), which then forwarded the allegations to the CCSP. There is some evidence that Harrison made a phone call to the IAD that brought Swearnigen's name into the investigation, although Harrison disputes this contention. Detectives from the CCSP conducted interviews of female detainees, including Latoya Williams, who later claimed that detectives threatened her and offered her bribes to implicate Swearnigen. Approximately 20 male officers, about half of them black, were "suspects of interest" in the sweeping investigation. 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 Williams or the defendants. Harrison attended some of the detainees' interviews and purportedly questioned them, but the defendants otherwise were not involved. During the investigation, detainees said that Swearnigen was having inappropriate relations with detainee Portia Warrington. Warrington was interviewed by the ASAs and admitted that she had sex with Swearnigen. Telephone records also showed that between March 1 and May 31, 2003, Warrington made about 100 collect calls from the jail to Swearnigen's personal cell phone and that he accepted about 25 of those calls. Swearnigen now contends that he gave Warrington his phone number because she said that supervisors were threatening her and "messing with her case."

On July 3, 2003, the IAD de-deputized Swearnigen for "conduct unbecoming" and transferred him to an external operations post. A month later, Swearnigen began a scheduled vacation outside the country. While he was away, on August 13, 2003, a warrant for his arrest was issued and he was charged with custodial sexual misconduct. Two of the other 20 or so officers who were the subjects of the investigation, James Anthony and Iyare Egonmwan, were also charged. Like Swearnigen, Anthony and Egonmwan are black.

The ASAs testified that they did not consult with the defendants on their charging decisions and that the three officers were tagged due to consistent witnesses' statements and corroborative evidence. Sheahan held a press conference after the charges were issued, stating, "This is something where individuals made bad choices and put themselves in a position where they abused their power and they'll pay the consequences." Swearnigen also claims that another person heard Sheahan call him a "fugitive."

On August 26, 2003, Swearnigen 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 white officer, Paul Usyak, was also dedeputized and suspended with pay pending a Loudermill hearing for living with a former inmate. (Usyak was not, however, criminally charged.) Upon returning from vacation, Swearnigen surrendered to the CCSP. He later testified that someone told him that Kurtovich wanted him to be placed in a maximum security area, which caused him great distress. Swearnigen actually was placed in a one-person, unlocked cell in a psychological evaluation area. He bonded out a few hours later. As a result of these incidents, he now suffers from posttraumatic stress disorder.

On August 28, 2003, Swearnigen resigned, noting in his paperwork that he was leaving to attend school. He later testified that he really resigned because of the administrative proceedings but did not want to explain that to a future employer. 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.

At Swearnigen's state court bench trial, in June 2004, neither the defendants nor Swearnigen testified. Warrington, however, did testify and repeated her earlier statements that, while she was a detainee, she had sex with Swearnigen. The ASAs agreed to recommend a reduction in Warrington's sentence in exchange for her testimony. The parties stipulated that Warrington made 100 calls from the jail to Swearnigen's phone and that he accepted 25 of them. Despite this evidence, Swearnigen was acquitted.⁵

After the trial, Swearnigen filed an EEOC charge, alleging that he had been "discriminated against on the basis of my race, Black, and sex, male, in violation of Title VII of the Civil Rights Act of 1964, as amended." The charge did not mention retaliation. According to Swearnigen, however, the EEOC investigator refused to allow him to add this claim. Swearnigen received a "right to sue" letter and thereafter filed a six-count complaint alleging (1) gender and race discrimination and retaliation under Title VII of the Civil Rights Act of 1964; (2) gender and race discrimination under 42 U.S.C. § 1983; (3) race discrimination under 42 U.S.C. § 1981; (4) First Amendment retaliation under 42 U.S.C. § 1983; (5) malicious prosecution under Illinois law; and (6) intentional infliction of emotional distress under Illinois law. The district court dismissed Swearnigen's Title VII retaliation claim and later granted the defendants' motion for summary judgment on the remaining claims.

We review the grant of summary judgment de novo. Nagle v. Vill. of Calumet Park, 554 F.3d 1106, 1114 (7th Cir.2009). Summary judgment is appropriate where the admissible evidence shows that "there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c)(2). "A genuine issue of material fact arises only if sufficient evidence favoring the...