Linette Metzger v. Illinois State Police

Linette Metzger has been employed by the State Police
as a civilian, or non-sworn employee, since 1985. Metzger
had previously filed a lawsuit against the State Police
in 1998. In that suit, Metzger alleged, among other
things, that the State Police violated her rights under the
Illinois Whistleblower Act1 and the First Amendment by
retaliating against her for reporting two of her co-workers
for taking time off from work without using benefit time.
Metzger also alleged that the State Police violated Title VII
by discriminating against her on the basis of sex. Ultimately,
those claims were unsuccessful. See Metzger v.
DaRosa, 367 F.3d 699 (7th Cir. 2004).

The present suit concerns events that occurred after
Metzger's 1998 lawsuit. In 1998, Metzger was transferred
to the Firearms Services Bureau ("FSB").2 At the FSB,
Metzger reported to Linda Traylor, the manager of the
FOID3 section. Around the time of Metzger's transfer,
Kirk Lonbom became the bureau chief of the FSB and
started to reorganize it. As part of his reorganization,
Lonbom created the FOID enforcement section in February
2000 and placed Master Sergeant Mark Whitley, a sworn
State Police officer, in the position of section manager.4

Metzger was then moved to the new enforcement section
as Whitley's assistant. The duties of the FOID enforcement
section included explaining eligibility for
and the revocation of FOID cards to Illinois law enforcement
personnel, educating law enforcement officers
about what actions they must take in order to get firearms
out of the hands of potentially dangerous individuals,
revoking FOID cards for individuals who pose a clear
and present danger of significant harm, and assisting
law enforcement officers in the field.

In January 2002, Lieutenant Rick Kahrliker, another
sworn State Police officer, replaced Mark Whitley and
became the section manager of FOID enforcement. In
an affidavit submitted in the district court, Metzger
asserted that she performed the exact same job duties
Kahrliker performed during his tenure as FOID enforcement
section manager. Because of the work she performed,
Metzger sought a pay upgrade from Administrative
Assistant II, her current payroll title, to Public Services
Administrator ("PSA"). In February 2002, Metzger and
Kahrliker submitted a revised job description for Metzger's
position to Lonbom for approval. Lonbom did not agree
that Metzger's job duties warranted PSA classification,
and told Kahrliker that he could not promote Metzger
because of budgetary constraints. As a result, in May 2002
Metzger filed an employment discrimination charge
with the Illinois Department of Human Rights ("DHR")
alleging, among other things, that the State Police had
retaliated against her because of her testimony in her
1998 lawsuit by failing to promote her to PSA in February
2002. The charge was dismissed for lack of evidence in
August 2003.

In June 2002, Metzger requested an audit by the Illinois
Department of Central Management Services ("CMS") to
determine whether her position classification should
be upgraded to PSA. CMS is an agency independent
from the State Police that, along with the Illinois Civil
Service Commission, is in charge of determining pay
classifications for state employees. See 20 ILCS 415/8a(1).

Under the CMS Personnel Rules, another state agency
can request that CMS perform a job audit to determine
whether the employee's duties warrant an upgrade in
payroll classification. As part of the audit, Metzger and
Kahrliker completed a Position Audit Questionnaire listing
Metzger's job duties. Once Metzger and Kahrliker
completed the questionnaire, Lonbom received a copy of
it. Referring to the description of Metzger's job duties in
the questionnaire as "grandiose," Lonbom was concerned
that the questionnaire inaccurately inflated the level of
responsibility that Metzger's position had. Lonbom
testified at his deposition that he may have written a
memo to CMS setting forth his concern that Metzger's
questionnaire answers were inaccurate. While the audit
was proceeding, Kahrliker reported having a conversation
with Lonbom in December 2002 during which
Lonbom said that he did not care if Metzger was the
best "god damn" employee in the department, he would
never promote her.

In January 2003, CMS sent a letter to the director of
the State Police informing the director that it had completed its review and determined that Administrative
Assistant II, and not PSA, was the proper classification
for Metzger's position. The letter stated that CMS had
compared the duties assigned to Metzger's position with
other positions in the State Police, as well as similar
positions in other state agencies, and concluded that
they were typical of positions classified as Administrative
Assistant II. Metzger requested reconsideration of
CMS's decision and, in March 2003, CMS initiated a
review of its decision. In a letter dated August 2003,
CMS affirmed its previous decision. Included with the
letter was a four-page, single-spaced Reconsidered Decision
wherein CMS described how it reached its decision.

The Reconsidered Decision listed four different sources
that CMS had consulted in order to determine what
Metzger's duties and responsibilities were: Assistant
Bureau Chief Larry Grubb; Scott Giles, who had replaced
Lonbom as bureau chief5; the current official
job description for Metzger's position; and the Position
Audit Questionnaire produced by Metzger and Kahrliker.

CMS then compared its formulation of Metzger's job
duties with the job duties of the two PSA positions
that Metzger proffered as comparable in scope. CMS
found that the positions were not comparable.

While the reconsideration of CMS's audit was underway,
Kahrliker retired. Metzger had previously expressed
interest in his position to Lonbom, but Giles, as bureau
chief, recommended Master Sergeant Mark Atchison,
another sworn State Police officer, for the position. After
Atchison was selected in May 2003, Metzger filed another
retaliation charge with the DHR, this time alleging,
among other things, that Giles had interfered with
CMS's job audit and that the State Police had retaliated
against her by not promoting her to PSA in May 2003.

In January 2004, Metzger filed her complaint in this
action in the district court. After receiving her right-to-sue
letter for her May 2003 charge of retaliation, Metzger
amended her complaint to include allegations that the
State Police retaliated against her by failing to promote
her and interfering with her CMS job audit. The State
Police moved for summary judgment, and the district
court granted the State Police's motion on all of Metzger's
claims. Metzger appeals.

II.

On appeal, Metzger argues that the district court erred
in granting summary judgment on her retaliation
claims based on the CMS job audit and the failure of the
State Police to promote her to Kahrliker's position. We
review a district court's grant of summary judgment
de novo. Brown v. Ill. Dep't of Natural Res., 499 F.3d 675,
680 (7th Cir. 2007) (citing Merillat v. Metal Spinners, Inc.,
470 F.3d 685, 690 (7th Cir. 2006)). In doing so, we construe
all facts and reasonable inferences in the light most
favorable to the non-moving party, Metzger. Id. (citing
Healy v. City of Chicago, 450 F.3d 732, 738 (7th Cir. 2006)).

"Summary judgment is proper if ‘the pleadings, depositions,
answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of
law.' " Id. (quoting Fed. R. Civ. P. 56(c)).

The anti-retaliation provision of Title VII of the 1964
Civil Rights Act, 42 U.S.C. § 2000e-3(a), prohibits employer
actions that "discriminate against" an employee
because she has "opposed" practices that Title VII forbids
or because she has "made a charge, testified, assisted,
or participated in" a Title VII "investigation, proceeding,
or hearing." A plaintiff alleging retaliation can prove
her case either by the direct or indirect method of proof.
Syzmanski v. County of Cook, 468 F.3d 1027, 1029 (7th
Cir. 2006). Under the direct method, direct evidence of
retaliation is not required. Gates v. Caterpillar, Inc., 513
F.3d 680, 686 (7th Cir. 2008) ("This Court recently has
clarified that . . . ‘circumstantial evidence that is relevant
and probative on any of the elements of a direct case of
retaliation may be admitted and, if proven to the satisfaction
of the trier of fact, support a case of retaliation.'
" (quoting Treadwell v. Office of Ill. Sec'y of State,
455 F.3d 778, 781 (7th Cir. 2006))). Rather, a plaintiff
must show through either direct or circumstantial evidence
that (1) she engaged in statutorily protected activity;
(2) she suffered an adverse action taken by the employer;
and (3) there was a causal connection between the two.
Dorsey v. Morgan Stanley, 507 F.3d 624, 627 (7th Cir. 2007).

Under the indirect method, a plaintiff must establish a
prima facie case of retaliation by showing that (1) she
engaged in statutorily protected activity; (2) she met her
employer's legitimate expectations; (3) she suffered an
adverse action; and (4) she was treated less favorably
than similarly situated employees who did not engage
in statutorily protected activity. Nichols v. S. Ill. Univ.-
Edwardsville, 510 F.3d 772, 785 (7th Cir. 2007). If the plaintiff
succeeds in establishing a prima facie case, the burden
shifts to the employer to produce a non-discriminatory
reason for its employment action. Id. If the employer
meets its burden of production, the burden of proof
then remains with the plaintiff to show that the employer's
proffered reason is pretextual. Id.

On appeal, both of Metzger's retaliation claims hinge
on the alleged retaliatory animus of Kirk Lonbom, the
bureau chief, as evidenced in Lonbom's statement to
Kahrliker that he did not care if Metzger was the best
employee in the department because he would never
promote her. With respect to her claim of retaliation
involving her failure to obtain PSA classification, Metzger
contends that Lonbom unduly influenced CMS's decision
not to have her position reclassified to PSA.

Metzger did not raise this influence argument in the
district court. In her response brief in the district court,
Metzger argued that there was a triable issue of pretext
because the State Police gave conflicting reasons about
why Metzger was not upgraded to PSA. Cf. Pantoja v. Am.
NTN Bearing Mfg. Corp., 495 F.3d 840, 851 (7th Cir. 2007)
(noting that "[s]hifting and inconsistent explanations
can provide a basis for a finding of pretext"). In support
of that argument, Metzger pointed to Kahrliker's affidavit
that stated Lonbom told Kahrliker that Metzger could not
be upgrated to PSA for budgetary reasons, on the one
hand, and the evidence of CMS's decision, on the other.

Metzger has abandoned that argument here and, conceding
that CMS was the decisionmaker, now argues
that Lonbom unduly influenced CMS's decision. But
Metzger never asserted before the district court the argument
that Lonbom impermissibly influenced CMS's
decisionmaking process. Consequently, she has waived
her right to assert it here. Mote v. Aetna Life Ins. Co., 502
F.3d 601, 608 n.4 (7th Cir. 2007) ("On numerous occasions
we have held that if a party fails to press an argument
before the district court, he waives the right to present
that argument on appeal. . . . As we have made clear, it
is axiomatic that arguments not raised below are waived
on appeal." (quoting Heller v. Equitable Life Assurance
Soc'y, 833 F.2d 1253, 1261-62 (7th Cir. 1987) (citations and
quotation marks omitted))).

Nevertheless, the argument is without merit. As
was stated above, Metzger's claim hinges around the
retaliatory animus allegedly residing in Lonbom, and
Metzger now concedes that CMS, not Lonbom, made the
decision not to reclassify her position to PSA. Such a
concession is ordinarily fatal, since to prevail "under the
direct method a plaintiff must provide direct or circumstantial
evidence that the decisionmaker has acted for a
prohibited reason." See Rogers v. City of Chicago, 320 F.3d
748, 754 (7th Cir. 2003) (emphasis in original). Similarly,
under the indirect method, animus harbored by a nondecisionmaker
is usually ineffective to show pretext
where - as here - there is a non-retaliatory reason for the
employer's decision. See, e.g., Davis v. Con-Way Transp.
Cent. Express, Inc., 368 F.3d 776, 789 (7th Cir. 2004) ("Nor
are we any more convinced . . . that actions and statements
by non-decisionmakers reveal the pretextual nature
of Con-Way's decision."). Of course, in certain circumstances
a non-decisionmaker can exert influence of such
a degree as to make his employer liable for his actions.
See, e.g., Brewer v. Bd. of Trs. of Univ. of Ill., 479 F.3d 908, 917-
20 (7th Cir. 2007) (describing in detail the "cat's paw"
analysis). However, "where a decision maker is not
wholly dependent on a single source of information, but
instead conducts its own investigation into the facts
relevant to the decision, the employer is not liable for an
employee's submission of misinformation to the decision
maker." Id. at 918 (citing Byrd v. Ill. Dep't of Pub.
Health, 423 F.3d 696, 708 (7th Cir. 2005)). In this case
Metzger offered no evidence that Lonbom's communication
to CMS describing Metzger's job duties as "grandiose"
actually influenced CMS. Nor did Metzger present evidence
that CMS's audit was anything but independent
from Lonbom's influence. See id. at 917 ("For a nominal
non-decision-maker's influence to put an employer in
violation of Title VII, the employee must possess so
much influence as to basically be herself the true ‘functional[
] . . . decision-maker.' " (quoting Little v. Ill. Dep't
of Revenue, 369 F.3d 1007, 1015 (7th Cir. 2004) (alteration
in original))).

Indeed, an examination of CMS's reconsidered decision
belies Metzger's assertion that Lonbom exercised any
improper influence over CMS's decision. The reconsidered
decision listed four different sources that CMS
consulted in order to determine what Metzger's duties
and responsibilities were: Assistant Bureau Chief Larry
Grubb; Scott Giles, who had replaced Lonbom as bureau
chief; the current official job description of Metzger's
position; and the Position Audit Questionnaire produced
by Metzger and Kahrliker. While Metzger asks the court
to speculate that CMS relied more heavily on Lonbom's
characterization of her duties than the description submitted
by Metzger and Kahrliker (not to mention the
other sources of information CMS solicited), Metzger
produces no evidence that CMS did so. Cf. Dorsey, 507 F.3d
at 628 (noting that "mere speculation" that employee
unduly influenced employer's action is "insufficient to
overcome summary judgment"); see also Rozskowiak v. Vill.
of Arlington Heights, 415 F.3d 608, 613 (7th Cir. 2005) (no
evidence that police commander who was a member of
the command staff that recommended to terminate plaintiff
had "singular influence" over the command staff's
decision); Lucas v. Chicago Transit Auth., 367 F.3d 714, 730-
31 (7th Cir. 2004) (finding insufficient influence where
the statement given by the employee alleged to harbor
racial animus was only one element of a comprehensive
investigation into the incident that was the cause of the
plaintiff's discipline). Thus, because there is no evidence
that CMS's investigation was anything but independent
of Lonbom's influence, the State Police cannot be liable
for any alleged retaliatory animus Lonbom harbored
against Metzger.

In an attempt to avoid the above conclusion, Metzger
offers a novel theory of liability to save her claim. Metzger
asserts that the materially adverse action that forms
the basis of her retaliation claim is not CMS's decision
denying her a promotion to PSA, but simply Lonbom's
communication to CMS that Metzger's description of her
job duties was "grandiose."6 A "materially adverse
action" in the context of Title VII's anti-retaliation provision
means any conduct that might dissuade a reasonable
employee from lodging a discrimination charge.

Szymanski, 468 F.3d at 1029 (citing Burlington N. & Santa Fe.
Ry. Co. v. White, 126 S. Ct. 2405 (2006)). According to
Metzger, a rational employee would likely forego a claim
of discrimination if they knew that a higher-ranking
supervisor would make it more difficult for them to be
promoted. In the abstract, one can think of different
situations where that statement may ring true. However,
Metzger has failed to show that this case is one of them.
On that point our decision in Szymanksi v. County of Cook,
468 F.3d 1027 (7th Cir. 2006), is instructive. In Szymanksi,
the plaintiff alleged that, after her termination, her
former employer retaliated against her for engaging in
protected activity by giving poor recommendations to
potential employers. Id. at 1028. In affirming the district
court's grant of summary judgment in favor of the employer,
we stated that the evaluations by the plaintiff's
former supervisor - standing alone - were not enough to
show a materially adverse action:

It is hard to say in the abstract, for instance, that
rating someone as "good" is adverse. If [the plaintiff]
had produced evaluations of her work at Cook County
which showed her being consistently rated as "superior"
or "excellent" by [her supervisor], that might
be some evidence that his "good" ratings after her
termination were retaliatory. But nothing of the sort
exists in the record.

Id. at 1031. The same problem exists here. Metzger points
to no evidence in the record to show that Lonbom's
characterization of her self-description of her job duties
as "grandiose" was, in fact, adverse. Metzger claims
that there is a factual dispute as to whether Lonbom's
characterization was true because she argues it contradicted
the Position Audit Questionnaire that she, along
with Kahrliker, had provided CMS. However, Metzger
points to no evidence in the record that shows she accurately
described her duties and that Lonbom's characterization was therefore false or misleading. Thus, Metzger has
failed to create a genuine issue of material fact as to
whether Lonbom's "grandiose" characterization was
an adverse action. Accordingly, the district court properly
granted the State Police summary judgment on Metzger's
retaliation claim based on CMS's job audit and her failure
to attain PSA status.

Metzger's claim of retaliation based on the State Police's
failure to promote her to Kahrliker's position in May 2003
is similarly defective. The unrebutted evidence in the
record shows that Giles, not Lonbom, made the decision
to place Atchison in the position of FOID enforcement
section manager. Like the position audit by CMS, Lonbom
may have had some input into Giles's decision to select
Atchison.7 But regardless of Lonbom's input, Metzger's
claim ultimately fails because she has produced no evidence
undermining Giles's proffered reason for
Atchison's selection: namely, that Atchison was a sworn
officer and Metzger was not. See Rogers, 320 F.3d at 754;
Stone v. City of Indianapolis Pub. Utils. Div., 281 F.3d 640,
644 (7th Cir. 2002) ("If the defendant presents unrebutted
evidence of a noninvidious reason for the adverse action,
he is entitled to summary judgment."). The unrebutted
testimony of both Giles and Lonbom, who created the
FOID enforcement section, was that the position of FOID
enforcement manager required a sworn officer.8 Metzger
attempts to cast doubt on the existence of such a requirement,
arguing that the State Police never presented a
position description that contained such a requirement.

However, according to Metzger's own deposition testimony,
there was no need for a job description of a position
held by a sworn officer, since sworn officers were
not bound by the personnel code that applied to civilian
employees. More importantly, though, the practice of
the bureau confirms the existence of the requirement. It
is undisputed that since Lonbom created the position
in 2000 it has always been held by a sworn officer: first
by Master Sergeant Mark Whitley, then by Lieutenant
Rick Kahrliker, and currently by Master Sergeant
Mark Atchison.9 Both Lonbom and Giles in their deposition testimony gave several reasons why a sworn officer
heading the FOID enforcement section was preferable to
a civilian employee, including that having a sworn
officer in the position would foster better communication
between the FOID enforcement section and the other
law enforcement agencies with whom it had to liaise.10
Metzger, of course, disputes the preference for having
a sworn officer filling the position. Noting that the managers
of the four other sections in the bureau, as well as
the bureau chief and the assistant bureau chief, are
civilian rather than sworn employees, Metzger finds it
"difficult to understand" why the FOID enforcement
section manager had to be a sworn officer. Metzger offers
evidence that she performed all of the same duties as
her supervisor Kahrliker to show that the requirement of
a sworn officer makes little sense. Our task, however, is
not to pass judgment on the wisdom of having a
sworn versus an unsworn employee occupy the position
of FOID enforcement section manager. See Healy, 450
F.3d at 742 n.12 ("[T]his court ‘do[es] not sit as a
superpersonnel department where disappointed applicants
or employees can have the merits of an employer's
decision replayed to determine best business
practices.' " (quoting Blise v. Antaramian, 409 F.3d 861, 868
(7th Cir. 2005) (second alteration in original))). Indeed,
we are ill-equipped to make such determinations. We
lack the expertise in law enforcement generally, and the
structuring of law enforcement bureaucracies in particular,
that would be necessary to judge the pros and cons of
having a sworn officer in a certain position. Rather, our
role is simply to determine whether a rational jury,
when viewing the facts in the light most favorable to
Metzger, could find that the State Police violated Title VII
by promoting Atchison instead of Metzger to FOID enforcement
section manager. Because we find that a
jury could not, we conclude that the district court did not
err in granting summary judgment in favor of the State
Police on Metzger's claim of retaliation based upon
the State Police's failure to promote her to the position
of FOID enforcement section manager.

III.

The district court did not err in granting summary
judgment in favor of the State Police on Metzger's retaliation
claims. Metzger cannot show that the State Police
retaliated against her when CMS denied her an upgrade to
PSA because there is no evidence that CMS's decision
was influenced in any way by the retaliatory animus
Lonbom allegedly harbored against her. Metzger's claim
of retaliation involving her failure to be promoted into
the position of FOID enforcement section manager does
not survive summary judgment because she has not
produced sufficient evidence to create a genuine issue of
material fact as to whether retaliation, rather than the
requirement that the position be filled by a sworn officer,
was the reason for Giles's decision to select Atchison.

* * *

http://www.ca7.uscourts.gov/tmp/BV1FFVKW.pdf

We AFFIRM.

Unknown

Unknown

None