Court Takes Exception When Chicago PD “Thumbs Its Municipal Nose” At Jury’s Retaliation Verdict

Diane O’Sullivan and Nancy Lipman are white employees of the Chicago Police Department. Both filed grievances against Commander Marienne Perry, accusing her of racial discrimination.

A little more than a month after the grievances were filed, Lipman received a 5:00 a.m. phone call from an Internal Affairs investigator. The investigator demanded to know why Lipman was not in his office – even though she had no notice that she should have been. He then ordered her to appear immediately with a thorough, written report to back up her grievance against Commander Perry. Lipman was unprepared and unable to do so on such short notice. The investigator then filed a disciplinary complaint against Lipman.

O’Sullivan had a similar experience with the Internal Affairs investigator. Like Lipman, O’Sullivan was the subject of a disciplinary complaint for failing to appear at Internal Affairs when scheduled to do so with a thorough report in support of her allegations against Commander Perry. After a two-and-one-half year investigation, the Internal Affairs investigator sustained the charges against Lipman and O’Sullivan, and recommended that they be reprimanded.

While all this was occurring, O’Sullivan and Lipman filed a federal court lawsuit alleging that the Department retaliated against them for their grievances against Perry. A jury awarded Lipman and O’Sullivan damage awards in the amounts of $250,000 and $50,000, respectively. Then, in the Court’s words, “on July 12, 2006, thumbing its municipal nose at the jury’s verdict, the City (acting through the Chicago Police Department), issued suspension notifications to Lipman and O’Sullivan based on the very charges that the jury found were a component of the City’s retaliatory efforts.”

O’Sullivan and Lipman then sought an injunction forbidding the City from imposing the suspensions. As the Court characterized it, “the City makes no attempt to legitimize the suspensions. Instead, it argues – at least in effect – that an employer who has been found guilty of violating Title VII can nonetheless impose punishment after the trial for the very charges of misconduct that constituted the retaliation, and that a federal court is powerless to do anything about it. This nullification of federal equitable power is based on the contention that the suspensions can only be considered ‘new’ acts of retaliation and therefore there must be new EEOC charges and a new lawsuit.”

The Court rejected the City’s arguments. The Court found that the City’s contentions ignore “the text and history of Title VII and the cases construing it. Successful Title VII plaintiffs are entitled to injunctive relief where the employer’s discriminatory conduct could possibly persist in the future. In the instant case, we deal not with the question of whether the City’s retaliatory conduct could possibly occur in the future. The suspensions, which are the culmination of the series of retaliatory actions against the plaintiffs, prove rather conclusively that an injunction should issue not only forbidding the suspensions in order that the plaintiffs will have the legal protection to which the jury’s verdict entitles them.”

The Court concluded by expressing bafflement at the City’s position: “The relief that the plaintiffs seek is no more than is necessary to make them whole and thus within the discretion allowed the Court to fashion equitable relief. It would be odd indeed, if the City could suspend a police officer based upon a charge of misconduct that the jury found was an act of retaliation in violation of Title VII. It would be odder still if a Court were powerless to do anything about so obvious an evasion of the verdict.”

O’Sullivan v. City of Chicago, 478 F.Supp.2d 1034(N.D. Ill. 2007).

This article appears in the June 2007 issue