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Jail guard’s retaliation suit can proceed

Monday, November 19, 2018
Chicago Daily Law Bulletin
by Patricia Manson


Jail guard’s retaliation suit can proceed

A federal judge declined to throw out a jail guard’s lawsuit alleging she got flak from her supervisors because a colleague identified her in his bias complaint as a witness.

In a written opinion last week, U.S. District Judge Thomas M. Durkin did not rule on the merits of Hazel L. Derden’s allegation that the Cook County Sheriff’s Office targeted her for retaliation in violation of Title VII of the Civil Rights Act of 1964.

But Durkin held Derden has stated a claim that her supervisors took materially adverse actions against her after she was named in the charge her colleague filed with the U.S. Equal Employment Opportunity Commission.

Durkin acknowledged not all adverse actions can form the basis of a retaliation claim.

An action is materially adverse only if a reasonable employee “would be dissuaded from engaging” in such protected activity as serving as a witness in an EEOC investigation, Durkin wrote, quoting Koty v. DuPage County, 900 F.3d 515 (7th Cir. 2018).

Citing Hobbs v. City of Chicago, 573 F.3d 454 (7th Cir. 2009), he wrote that means the employee must experience something “more disruptive than a mere inconvenience or an alteration of job responsibilities.”

Some of the adverse actions Derden purportedly suffered “do not rise to the level of materially adverse actions,” Durkin wrote.

For example, he wrote, citing Pearson v. Advocate Health Care, 2017 WL 3478815 (N.D. Ill. Aug. 14, 2017), affirmed, 727 Fed. App’x 866 (7th Cir. 2018), being forced to reschedule a vacation “is a common workplace inconvenience.”

Threats of disciplinary measures that are not followed up also are not materially adverse actions, Durkin wrote.

And citing Boss v. Castro, 816 F.3d 910 (7th Cir. 2016), he wrote an unwarranted write-up that does not carry any consequences is not enough to constitute a materially adverse action.

“But Derden’s allegations she was denied access to a payroll system and that her shifts were understaffed are sufficient alterations to the conditions of her employment to allege material adverse actions,” Durkin wrote.

He wrote being required to do a job without the needed tools could prevent a reasonable employee from filing complaints about the workplace.

“That understaffing would affect the conditions of a prison guard’s employment needs no explanation,” Durkin continued, citing Dass v. Chicago Board of Education, 675 F.3d 1060 (7th Cir. 2012).

He noted the alleged understaffing may be “endemic to the Cook County corrections system” rather than a retaliatory measure taken against Derden.

But assuming Derden’s allegations are true, Durkin wrote, “the safety concerns raised by being forced to work understaffed shifts would certainly dissuade a reasonable person from filing complaints.”

Derden is an African-American woman who has worked as a correctional officer with the sheriff’s office since October 1993.

She filed an EEOC charge against the office in March 2017 and filed her suit in December 2017.

In addition to the retaliation claim, the suit includes a discrimination count alleging Derden was passed over for promotion in favor of white candidates several times from 2008 to 2016 because of her race.

In his opinion, Durkin wrote Derden waited too long to complain about most of the missed promotions she cited.

Any act that occurred more than 300 days before Derden filed her EEOC charge cannot be the basis of a Title VII claim, Durkin wrote, citing Roney v. Illinois Department of Transportation, 474 F.3d 455 (7th Cir. 2007).

He wrote that leaves a discrimination claim based on the alleged failure of the sheriff’s office to promote Derden in October 2016.

Durkin issued his opinion Thursday in Hazel L. Derden v. Sheriff of Cook County, No. 17 C 9095.

The lead attorney for Derden is Paul O. Otubusin of Otubusin & Associates P.C.

In a written statement, Otubusin contended discrimination against black officers in the sheriff’s office is widespread.

He also contended that most suits filed by black officers have failed and that these failures have encouraged further discrimination.

“Officer Hazel L. Derden has been vindicated by the Honorable Thomas J. Durkin’s ruling in her claims of racial animus due to a plethora of evidence and witnesses to back up her claims,” Otubusin said.

“We encourage other black officers to come forward and fight all forms of racial bias within the Sheriff of Cook County.”

The lead attorney for the sheriff’s office is Assistant State’s Attorney Jay Rahman.

The sheriff’s office did not have an immediate comment.


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