Opinion
Cause No. 1:01-CV-160
June 25, 2002
MEMORANDUM OF DECISION AND ORDER
On April 17, 2001, plaintiff Kevin M. Rarey ("Rarey") filed a complaint against his former employer, the City of Fort Wayne and the Fort Wayne Police Department ("FWPD"). Rarey's complaint brought claims pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and alleged that Defendants discriminated against him on the basis of his race and his sex. On April 26, 2002, Defendants moved for summary judgment on all of Plaintiff's claims. Plaintiff Rarey filed his response on May 28, 2002, to which Defendants replied in support of their pending summary judgment motion on June 12, 2002.
For the reasons set forth herein, Defendants' motion for summary judgment will be GRANTED.
FACTUAL BACKGROUND I. Rarey's Employment with the FWPD
Kevin Rarey, a white male, has been employed as a police officer with the FWPD since late 1975. Rarey served in the Operations Division, the Vice and Narcotics Division, the Traffic Division, and served on the Emergency Services Team. In October 1994, Rarey was awarded the "bid position" of firearms instructor at the Fort Wayne Police Academy (the "Academy"). (A "bid position" provides greater job security to its holder than does an "exempt position" because the holder of an "exempt position" serves at the pleasure of police command. As a result, Rarey was only willing to consider the position at the Academy if it was made a bid position.)
The Academy staff is responsible for training new police recruits, providing firearms re-certification instruction to incumbent police officers, and, among other things, providing quarterly in-service training to officers. The instructor staff at the Academy is small. When Rarey started at the Academy, the staff consisted of three officers: Officer Rarey, holding a bid firearms instructor position; Officer Paul Whitesell ("Whitesell"), white male, holding an exempt instructor position; and Officer Tim Hannon ("Hannon"), white male, holding an exempt instructor position. Sergeant Rick Stoner ("Stoner"), white male, directly supervised these three instructors and Captain Woods, white male, acted as the Director of Training in charge of the Academy.
Rarey was the primary firearms instructor at the Academy. His primary responsibility was to teach firearms courses, although he also taught a course on high-risk traffic stops (a "S.T.O.P.S." class); a course on emergency vehicle operation (an "E.V.O.C." class); and on a few occasions, assisted with a defensive tactics course. In fact, Rarey was the only instructor at the academy certified to teach the S.T.O.P.S. and E.V.O.C. classes. Rarey maintains that his performance evaluations consistently reflected above average ratings.
Nevertheless, Rarey often took vacation and other time off during a recruit class, which ran 20 to 22 weeks. In fact, during the 52nd recruit class, which ran from August 9 to December 15, 1999, Rarey took thirty (30) days off for hunting and other personal pursuits. Stoner also observed that Rarey routinely worked less overtime than did Hannon and Whitesell. Stoner also concluded that while Rarey was an excellent firearms instructor, Rarey was a weak classroom instructor. Stoner believed Rarey to be the weakest instructor on the staff at the Academy. Officer Whitesell also believed Rarey to be a weak instructor and expressed his concerns about Rarey's performance to Stoner.
In October 1999, Sergeant Matt Enyeart ("Enyeart"), white male, replaced Stoner at the Academy. Enyeart was also a certified firearms instructor. Thus, all four of the Academy staff — Rarey, Whitesell, Hannon, and Enyeart, were certified firearms instructors.
II. Captain Dottie Davis Appointed Director of Training
In early March 2000, Captain Dottie Davis ("Davis"), white female, was appointed to the Academy as Director of Training, replacing Captain Woods. Chief Russell York ("York"), who appointed Davis, told Davis that she should evaluate the current staff at the Academy to ensure that they were being fully and efficiently utilized. York also told Davis to consider ways to use the Academy staff more fully to reduce the reliance of the Academy on temporary staff and guest lecturers. (In addition to the full-time staff at the Academy, during the 20-plus, week-long recruit classes, several officers, assigned to the Academy on a temporary basis, assist with the instruction of recruits. Additionally, members of the community are asked to come to the Academy as guest lecturers in subject areas that are not within the expertise of the Academy staff.)
Shortly after Davis was assigned to the Academy, York informed Davis that he wanted her to start recruiting applicants for the next recruit class and that he wanted her to focus on recruiting minorities and women. Davis observed that it would be nice if the Academy staff better mirrored the make up of the in-coming recruiting class.
III. Decision to Eliminate Rarey's Firearms Position
Davis began working at the Academy on March 5, 2000. She spent the next four to six weeks observing the staff, how they interacted with one another, and how they performed their daily assignments. She met with Sergeant Enyeart and other members of the staff to discuss each person's job and each person's strengths and weaknesses. Although Rarey had the most seniority of all the instructors and the most instructor certifications, Enyeart, Hannon, and Whitesell each individually identified Rarey as the weakest instructor at the Academy. Enyeart also advised that, in his opinion, Davis could eliminate Rarey's bid position and that Hannon could ably take over as primary firearms instructor. Davis did not meet with Rarey and Rarey claims she never personally observed him as an instructor.
After speaking with staff members, observing the staff, and reviewing the needs of the Academy, Davis concluded that Rarey was the weakest instructor on staff. Davis also realized that all of the instructors were certified as firearms instructors and that she did not need four firearms instructors. She decided to eliminate Rarey's bid position of firearms instructor, assign Hannon the primary firearms instructor duties, and create a new exempt position for a generalist instructor who would teach classes in areas where the current staff lacked expertise, thus reducing the Academy's need for outside instructors. Davis made this decision despite the fact that she would be replacing the only full-time instructor with E.V.O.C. and S.T.O.P.S. teaching certification.
In late April, 2000, Chief York and Deputy Chief Dwayne Hartup ("Hartup") approved Davis's recommendation for the elimination of Rarey's bid position, and Davis and Hartup scheduled a meeting to advise Rarey of the decision on May 2, 2000. However, due to a scheduling conflict the meeting was rescheduled for May 4, 2000.
IV. Condom Incident
On the morning of May 1, 2000, Rarey, Whitesell, and Hannon were standing in front of the administration office. Davis came in to pick up her mail and noticed a brown paper bag addressed to her from Karen Sorg of Drug Free Indiana. Davis opened the bag, started laughing, and turned to Rarey, Hannon, and Whitesell. She extended the bag and said that she had gotten something for them. Rarey looked in the bag and saw that there were condoms and lubricants in the bag and asked Davis what she meant. Davis explained that Hannon had teased her because she had installed feminine product dispensers in the women's restrooms but had not installed any machines in the men's restroom. Rarey then took some condoms out of the bag and put them in his pocket. Davis then set the bag on the counter and went to her office.
Rarey states he took the condoms to preserve evidence.
The next day, May 2, Rarey spoke to Davis in the hallway outside the Academy general office. Rarey told Davis that his wife was not happy that he had taken condoms home the night before. Davis interrupted Rarey and said, "You didn't tell her where you got those did you?," and Rarey replied, "Yes." According to Rarey, Davis then gave him a look of anger and surprise, walked to her office, and slammed the door. Rarey never told Davis he was personally offended that she had offered him condoms or that he believed he was the victim of sexual harassment. Hannon and Whitesell did not feel offended by Davis's conduct. Nor did Hannon and Whitesell believe the incident was sexually harassing.
V. Notice to Rarey of Job Elimination
On May 4, 2000, Hartup and Davis met with Rarey in Davis's office and Hartup told Rarey that his job at the Academy was being eliminated. According to Rarey, when he asked why his bid position was being eliminated, Hartup explained that they preferred to have a staff that was all exempt. Rarey states that he then asked whether he could remain at the Academy in an exempt status and Davis told Rarey no because she wanted to "culturally diversify" the staff through the elimination of Rarey's bid position and creation of an exempt position. Rarey believes that Davis meant she wanted to bring in someone of a different sex or ethnic background. Rarey also asked whether he could still teach at the Academy as a temporary instructor from time to time and he was told he could do so. Rarey also claims that he was told he would be able to keep the car assigned to him.
VI. Rarey's Assignment to the Hit Skip Division
During the May 4, 2000 meeting, Hartup told Rarey that they were willing to create a job for Rarey anywhere Rarey wanted. After thinking about it for several days, Rarey told Hartup that he would like a bid position created for him in the Hit Skip Division. Rarey was the successful bidder for the hit skip position created especially for him and he was transferred to that position effective May 28, 2000.
After Rarey was transferred, in late May 2000, Davis hired Lorna Russell ("Russell"), black female, to occupy the exempt generalist instructor position created in the restructuring of the Academy. Hannon replaced Rarey as primary firearms instructor. Davis did consider the benefits of enhancing the diversity of the staff by hiring an African-American as part of her decision to hire Russell.
Rarey's job in the Hit Skip Division requires him to review accident reports from the preceding day, looking for hits or skips, as well as review damage to city property reports and investigate the hits or skips and the damage to city property claims. His hours are 7:00 a.m. to 5:00 p.m. four days per week.
Rarey concedes that his job in the Hit Skip division resulted in no loss of pay, no loss of seniority, and no loss of promotion opportunities. Rarey's primary complaint is that his ability to earn overtime has been reduced by the lateral transfer to the Hit Skip Division. For every one hour of overtime worked, Rarey receives one hour of comp time. Rarey explains that more overtime hours are available at the Academy than are available through the Hit Skip Division.
While Rarey claims that he is earning less overtime comp hours since his transfer to the hit skip division, the FWPD records indicate that the overtime hours worked in 2000 before his transfer were about equal to his overtime hours worked after his transfer. Rarey's 1998 overtime hours were 77.75; his 1999 overtime hours were194.75; his 2000 overtime hours were 75.75; and his 2001 overtime hours were 72.00. Thus, other than the overtime Rarey earned in 1999, his overtime hours for 1998, 2000, and 2001 are roughly equivalent.
Moreover, Defendants point out that even if fewer overtime opportunities exist in the Hit Skip Division, numerous other overtime assignments are available to all officers. These overtime opportunities are awarded based on seniority. At the time complained of, Rarey had twenty-five years experience. Yet, Rarey submitted a bid request for only one of these overtime opportunities.
VII. Rarey's Sex Harassment Complaint to Internal Affairs
After Rarey's position in the Hit Skip Division was secure, on June 5 or 6, 2000, Rarey filed a complaint against Davis with the Internal Affairs Division of the FWPD. Rarey complained because he believed the condom incident and certain language that he had overheard Davis use were "improper at the Academy." Rarey claims that he heard Davis use the words "fuck" and "cunt" in the front office, but acknowledges that these comments were not directed at him. Rarey also concedes that Davis never engaged in any improper sexual advances toward Rarey. Rarey does not believe he was singled out by Davis and he does not believe Davis made any of these statements or engaged in any of the conduct of which Rarey complained because of Rarey's sex.
On August 23, 2000, after Internal Affairs had concluded its investigation, Davis was found to have violated policy 2-3.11, the policy prohibiting sexual harassment. Chief York reprimanded Davis and reiterated what his expectations were. Chief York further advised Davis that the condom incident caused embarrassment to the FWPD as well as to Captain Davis. Davis advised York that she understood completely.
VIII. Rarey's Car
Rarey also alleges that he was retaliated against because in early June 2000, Rarey was required to return the squad car he had previously been issued and had a different car issued in its place. The replacement car had nearly the same miles on it as the car Rarey had previously driven. During his deposition, Rarey was asked if there was a difference between the two cars. He responded, "Not now, but there was." Rarey went on to explain that the car which he previously drove was equipped with a shotgun rack and computer mount, but the replacement car was not. However, when Rarey complained to Deputy Chief Coleman about the car, Deputy Chief Coleman responded that Rarey's new car would be equipped with a shotgun rack and computer mount as well. Rarey's car was, in fact, so equipped.
IX. Rarey's Continued Occasional Instruction at the Academy
Rarey states that when Hartup and Davis transferred him to the Hit Skip Division, they told him he could still come over to the Academy and help instruct as needed. In mid-September 2000, during the 53rd recruit class, Rarey wrote to Enyeart asking if Rarey could help Lieutenant Stoner and Sergeant Bonar teach the driving skills portion of the E.V.O.C. course. Enyeart wrote back to Rarey and explained the Stoner and Bonar had requested three others to help with E.V.O.C. training and that Russell would be certified in time to help, for a total of six E.V.O.C. instructors, the maximum Enyeart could justify for the class.
Bonar later made a request — either to Enyeart or to Davis — to have Rarey help teach E.V.O.C. because a few of the people who had initially been scheduled were unable to assist. Bonar reports that Davis responded that Bonar could hire Rarey "over [her] fucking dead body." Later, she relented and indicated that Bonar could use Rarey if he "absolutely needed him." Stoner also requested that Rarey assist in teaching the E.V.O.C. class to the 53rd recruiting class. Stoner reports that Enyeart responded that "it was not going to happen." Defendants state there was too little time for Enyeart to make the arrangements for Rarey to teach during the 53rd recruit class.
Rarey was used as a secondary instructor for a portion of the E.V.O.C. class for the 54th recruit class in 2001. Rarey has also been invited to assist with the 55th recruit class. In addition, in 2001, Rarey was asked to assist on the shooting range during quarterly in-service firearm shoots. Because of these teaching opportunities, Rarey has been able to maintain all of his teaching certifications.
APPLICABLE LEGAL STANDARD
"Summary judgment is proper only 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.'" Gonzalez v. Ingersoll Milling Machine Co., 133 F.3d 1025, 1031 (7th Cir. 1998) (quoting Fed.R.Civ.P. 56(c)). While the moving party "always bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record, if any, which it believes demonstrate the absence of a [genuine issue of] material fact, there is nothing in Rule 56 that requires a moving party to negate an essential element of an opponent's claim for which the opponent will bear the ultimate burden at trial." Bank of Illinois v. Allied Signal Safety Restraint Sys., 75 F.3d 1162, 1168 (7th Cir. 1996) (citing Celotex Corp. v. Catrett, 477 U.S. 3178 (1986)). Rather, the standard for granting summary judgment requires the district court to grant summary judgment if the record before us "could not lead a rational trier of fact to find for the non-moving party." McClendon v. Indiana Sugars, Inc., 108 F.3d 789, 796 (7th Cir. 1997) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)).
The burden is therefore on the non-movant to set forth "specific facts showing that there is a genuine issue for trial." Eiland v. Trinity Hosp., 150 F.3d 747, 750 (7th Cir. 1998) (quoting Fed.R.Civ.P. 56(e)). "In determining whether a genuine issue of material fact exists, courts must construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in favor of that party." Debs v. Northeastern Illinois Univ., 153 F.3d 390, 394 (7th Cir. 1998). Substantive law determines which facts are "material"; that is, those facts which might affect the outcome of the suit under the governing law. See McGinn v. Burlington Northern R.R. Co., 102 F.3d 295, 299 (7th Cir. 1996). Consequently, a dispute over irrelevant or unnecessary facts does not preclude summary judgment. See Hardin v. S.C. Johnson Sons, Inc., 167 F.3d 340, 344 (7th Cir. 1999).
The non-moving party may not rest on the allegations of the pleadings in opposing a motion for summary judgment. See Crim v. Bd. of Educ. of Cairo Sch. Dist. No. 1, 147 F.3d 535, 540 (7th Cir. 1998). Rather, the non-moving party must produce some evidence sufficient to show that a genuine issue of material fact exists. "Futhermore, a `party needs more than a scintilla of evidence . . . to defeat summary judgment.'" Adusumilli v. City of Chicago, 164 F.3d 353, 361 (7th Cir. 1998) (quoting Senner v. Northcentral Technical College, 113 F.3d 750, 757 (7th Cir. 1997)). Thus, a summary judgment determination is essentially an inquiry as to whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.
DISCUSSION I. Sexual Harassment Claim
Rarey contends that Davis committed sexual harassment because of the condom incident and because of her use of crude language. Under Title VII, actionable sexual harassment can take either of two forms: "quid pro quo" harassment, where the employee suffers an adverse employment action because he or she refused to perform sexual acts, or "hostile environment" harassment, where the employee is subject to "severe and pervasive" harassment that "alters the conditions of [the victim's] working environment." Meritor Savings Bank, FSB v. Vincent, 477 U.S. 57, 67 (1986) (internal citations omitted).
Here, Rarey only alleges hostile environment sexual harassment. It is axiomatic that actionable sexual harassment under Title VII must be harassment which occurs because of the victim's sex. See Rizzo v. Sheahan, 266 F.3d 705, 712 (7th Cir. 2000). Rarey acknowledges that Davis's crude language was not used because Rarey's sex. In fact, the crude language was not even directed at Rarey. Accordingly, Rarey's hostile environment claim rests on the condom incident.
As noted above, for workplace conduct to constitute a hostile work environment under Title VII, the harassment "must be sufficiently severe and pervasive to alter the conditions of [the victim's] working environment . . ." Id. at 67. To demonstrate that the harassment was severe or pervasive, a plaintiff must show that he perceived (subjectively), and a reasonable person would perceive (objectively), the work environment to be abusive. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Saxton v. American Telephone Telegraph Co., 10 F.3d 526, 534 (7th Cir. 1993). The objective test is measured by a reasonable person's perception of the totality of the circumstances including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Saxton, 10 F.3d at 534. The criterion is not what a reasonable employee is capable of enduring, but whether the offensive acts alter the conditions of employment. See Dey v. Colt Construction Development Co., 28 F.3f 1446, 1455 (7th Cir. 1994) (internal quotation and citation omitted). However, "relatively isolated instances of non-severe misconduct will not support a claim of hostile environment." Filipovic v. KR Exp. Systems, Inc., 176 F.3d 390, 398 (7th Cir. 1999); see also Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) ("`simple teasing,' . . . offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the `terms and conditions of employment.'"). Indeed, "conduct must be extreme to amount to a change in the terms and conditions of employment. . . ." Faragher, 524 U.S. at 788.
Here, Rarey appears to be complaining about an "isolated instance of non-severe misconduct." Davis's conduct during the condom incident, while perhaps crude, was not physically threatening or humiliating, but rather an offensive utterance. Moreover, Rarey has offered no evidence that Davis's conduct interfered with his work performance or otherwise altered the conditions of his workplace environment. Additionally, the other two individuals the condom incident involved — Hannon and Whitesell — did not find Davis's conduct to be sexually harassing. Quite simply, this Court does not believe that the condom incident amounts to actionable hostile environment harassment. Summary judgment on Rarey's harassment claim will be granted.
II. Discrimination Claim
Rarey has also alleged that his transfer from the FWPD Academy to the Hit Skip Division was discriminatory. Rarey contends that Davis's decision to eliminate his position within the academy and create an exempt generalist instructor position was impermissibly based on Rarey's race and sex. Rarey alleges a type of "reverse discrimination," where he, a white male, was improperly replaced by a black female based upon his race and sex. However, Rarey's discrimination claim must fail because he has not shown that he suffered an adverse employment action.
Proof of an adverse employment action is a necessary element of Rarey's claim regardless of whether he proceeds under the direct method of proof or under the McDonnell-Douglas burden-shifting method. See Miller v. American Family of Mut. Ins. Co., 203 F.3d 997, 1006 (7th Cir. 2000) (stating that the lack of an adverse employment action was fatal to plaintiff's claim even where direct evidence of a discriminatory motive was present); Simpson v. Borg-Warner Automotive, Inc., 196 F.3d 873, 876 (7th Cir. 1999) (listing an adverse employment action as a necessary element of a McDonnell-Douglas prima facie case). Accordingly, for Rarey to survive summary judgment, he must provide evidence that he suffered an adverse employment action.
Here, Rarey has failed to meet his burden. In Williams v. Bristol-Meyers Squib Co., 85 F.3d 270 (7th Cir. 1996), the Seventh Circuit stated:
Obviously, a purely lateral transfer, that is, a transfer that does not involve a demotion in form or substance, cannot rise to the level of a materially adverse employment action. A transfer involving no reduction in pay and no more that a minor change in working conditions will not do, either.
Id. at 274. Rarey concedes that his transfer to the Hit Skip Division did not result in a loss of rank or income. Instead, Rarey maintains that his new assignment "involved a totally different working environment, . . . did not involve the same duties; . . . did not involve the same working conditions, . . . did not facilitate Kevin Rarey maintaining the same professional contacts, and . . . did not permit Kevin Rarey to continue to use and maintain the skills he had while an instructor at the Academy." Plaintiff's Statement in Opposition to Defendant's Motion for Summary Judgment at 17. The Court notes that the same can be said of almost any transfer, especially a transfer which results in the employee working in a different physical location. Moreover, a great many, if not all, transfers will result in a change in an employee's professional contacts and in the skills used by the employee in the course of his employment. And contrary to Rarey's assertion that he was unable to maintain his skills as an instructor, the evidence indicates that Rarey has maintained all of his instructor certifications. In short, Rarey's attempt to make a showing of adversity by pointing out that his new assignment was "different" from his former assignment misses the mark; a transfer by definition means an employee's new assignment will be "different" from his previous assignment. Rarey simply asserts that he experienced differences, but makes no attempt to suggest how the differences amounted to a materially adverse job action.
Rarey does assert that the transfer to the Hit Skip Division had an adverse effect on his ability to accrue overtime. At the outset, the Court notes that a loss of overtime benefits likely does not constitute a materially adverse employment action. See Hess v. Indiana Telephone Co., 1989 WL 36418 (N.D.Ill. 1989) (finding no adverse employment action where employee alleged, among other things, that he lost overtime wages and benefits). In addition, Rarey makes no attempt to refute the evidence presented by the Defendants that he worked approximately the same amount of overtime in the months leading up to his transfer as he did in the months after his transfer. Finally, Rarey makes no attempt to refute the Defendants' evidence that overtime hours are routinely offered to all officers, yet Rarey only bid on one of several of these overtime opportunities. In short, even if Rarey has worked less overtime since his transfer, he has done so as the result of his own choice.
As a result, this Court does not believe Rarey suffered an adverse employment action. Even if Rarey could meet the other elements of the McDonnell-Douglas prima facie case, and even considering Davis's direct admission that she considered race and sex in replacing Rarey with Russell, Rarey has failed to make a showing of an adverse employment action — a crucial element of his case. Accordingly, summary judgment on the discrimination claim will be granted.
III. Retaliation Claims
Rarey also claims that Davis and the FWPD retaliated against him for complaining to Davis about the condom incident and reporting Davis's behavior to Internal Affairs. As with discrimination claims, plaintiffs seeking to show retaliation in violation of Title VII can proceed according to a McDonnell-Douglas type burden-shifting analysis or by presenting direct evidence of a retaliatory motive. Also similar to discrimination claims, evidence of an adverse employment action is necessary to sustain a claim of retaliation under either the burden-shifting method of proof or the direct evidence method of proof. See King v. Preferred Technical Group, 166 F.3d 887, 892 (7th Cir. 1999) (listing an adverse employment action as a necessary element of a retaliation prima facie case); Stone v. City of Indianapolis Public Utilities, 281 F.3d 640, 644 (7th Cir. 2002) (stating that plaintiff who presents direct evidence in support of claim of retaliation must show that he engaged in protected activity "and as a result suffered an adverse employment action" to survive summary judgment) (emphasis added).
Here, Rarey alleges that (1) his transfer to the Hit Skip Division was retaliatory; (2) his assignment to a different squad car was retaliatory; and (3) his being refused an opportunity to assist in teaching the 53rd recruit class was retaliatory. The Court will now consider these allegations in turn.
A. Transfer to the Hit Skip Division
In addition to claiming that he was removed from the Academy because of his race and sex, Rarey alleges that he was removed from the staff in retaliation for complaining to Davis about the condom incident. As discussed in detail above, Rarey cannot show that his transfer to the Hit Skip Division was an adverse employment action. Therefore, Rarey's retaliation claims based on that transfer must also fail.
Furthermore, the Court notes that the evidence indicates the decision to transfer Rarey had been made in late April 2000, prior to the condom incident on May 1, 2000. Obviously, a decision made before the plaintiff engages in allegedly protected activity cannot be made in retaliation for the plaintiff having engaged in that conduct. See DeMato v. Jack Phelan Chevrolet GEO, Inc., 927 F. Supp. 283, 288 (N.D.Ill. 1996). Accordingly, the Court is not satisfied that Rarey's transfer to the Hit Skip Division was retaliatory.
B. Rarey's Car
Rarey also asserts that in early June 2000, he was required to turn in the squad car he had previously been driving and had a different car issued in its place. Rarey offers no case law, and this Court can find none, which supports the proposition that the substitution of a vehicle amounts to an adverse employment action. Moreover, Rarey acknowledges that the replacement car was similar to the car he was first issued. Both had approximately the same miles on them; both cars had shotgun racks and computer mounts (though Rarey had to specifically request that his replacement car be outfitted with a shotgun rack and computer mount). In short, Rarey offers no suggestion that the car he currently drives is in any way inferior to the car he previously drove. As a result, Rarey has not met his burden of proving that he suffered an adverse employment action with respect to the substitution of his car.
C. Defendants' Failure to Use Rarey in the 53rd Recruiting Class
Finally, Rarey claims that he suffered retaliation because his request to assist in teaching the E.V.O.C. class to the 53rd recruit class was denied. However, the Court is not satisfied that this decision amounts to an adverse employment action either. Clearly, it is for the employer, and not the employee, to determine the employee's job duties. This is the clear import of Williams and other cases recognizing that an employer can transfer an employee from one position to another without imposing a materially adverse job action. If Defendants could move Rarey from a full-time teaching position at the Academy to an entirely different position without imposing a materially adverse employment action, surely Defendants could decline to allow Rarey to teach at the Academy on an as-needed basis. Moreover, Rarey does not dispute Defendants' assertion that he was permitted to assist in training the 54th recruiting class and has been invited to assist with the 55th recruiting class, as well as assisting with quarterly in-service training for incumbent officers. Because the Defendants' failure to use Rarey as an instructor during the 54th recruiting class does not amount to an adverse employment action, it cannot form the basis of a retaliation claim. As a result, none of the actions of which Rarey complains amount to adverse job actions and summary judgment on Rarey's retaliation claims will be granted.
CONCLUSION
Based on the foregoing, Defendants' Motion for Summary Judgment is hereby GRANTED. The Clerk is DIRECTED to enter judgment on behalf of the Defendants.
SO ORDERED.