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Nicholson v. City of Peoria

United States Court of Appeals, Seventh Circuit

June 20, 2017

Donna Nicholson, Plaintiff-Appellant,
City of Peoria, Illinois, et al., Defendants-Appellees.

          Argued May 24, 2017

          Appeal from the United States District Court for the Central District of Illinois. No. l:14-cv-01369 - Michael M. Mihm, Judge.

          Before POSNER, Manion, and Kanne, Circuit Judges.

          Manion, Circuit Judge.

         Peoria police officer Donna Nicholson appeals from a judgment against her in this discrimination and retaliation case. She also appeals the denial of her motion for reconsideration and motion to disqualify Judge Mihm. For the reasons stated below, we agree with the district court that Nicholson did not present sufficient evidence to survive summary judgment on either claim. Moreover, the district court did not err in denying Nicholson's motion for reconsideration or the motion to disqualify Judge Mihm, which was frivolous. Therefore, we affirm the judgment below.

         I. Background

         Donna Nicholson has been a police officer in Peoria, Illinois since 1991. In 2003, she was assigned the position of Asset Forfeiture investigator. Five years later, Nicholson began having serious issues with fellow officer Jeffrey Wilson, whom she accused of using Peoria Police Department equipment to place her under surveillance. The Department conducted an internal affairs investigation into Wilson's behavior, after which he was suspended for twenty days (although Nicholson notes that the suspension was not directly for the alleged surveillance, but other things such as Wilson's lewd sexual remarks about Nicholson's daughter).[1] Thereafter, Nicholson filed a charge of discrimination with the Equal Employment Opportunity Commission and then a lawsuit related to Wilson's conduct. Her suit was settled and dismissed.

         In July 2012, Chief of Police Steven Settingsgaard issued a General Order Regarding Transfer and Rotation ("Rotation Policy"). The new Rotation Policy provided that all specialty assignments, like Nicholson's position of Asset Forfeiture investigator, would be subject to three-year rotations. The current occupant of each position could seek reappointment, however, and Nicholson did so, submitting her application in August 2012. She interviewed in October, and it did not go well. According to the panel that interviewed her, Nicholson "[interviewed very poorly, seemed angry [and] controlling." She began her interview by refusing to answer any questions until she read aloud a nine-page manifesto, clearly a highly unusual behavior. In the end, the panel concluded that Nicholson was "knowledgeable" but that the Department was

         "due for [a] change."[2] The panel selected Officer Troy Skaggs, who it said "[g]ave an outstanding interview." After her failure to retain the Asset Forfeiture position (and having not applied to any other positions), Nicholson was reassigned to patrol by default on January 6, 2013.

         Once Nicholson discovered that she would not remain in the Asset Forfeiture position, she filed a charge of discrimination with the EEOC, alleging that sex discrimination and unlawful retaliation cost her the job. After receiving a right-to-sue letter, she filed this case. The district court granted summary judgment for the defendants, and then denied Nicholson's motion for reconsideration. The court also denied Nicholson's motion to disqualify Judge Mihm, which was made on the ground that he was counsel for Peoria more than four decades ago. Nicholson timely appealed all three orders.

         II. Discussion

         A. Standard of Review

         We review the district court's grant of summary judgment de novo. Burton v. Bd. of Regents, 851 F.3d 690, 694 (7th Cir. 2017). Summary judgment is appropriate where "there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Therefore, we view all evidence in the light most favorable to Nicholson, who was the non-moving party. Burton, 851 F.3d at 694. The defendants are entitled to summary judgment if Nicholson "cannot present sufficient evidence to create a dispute of material fact regarding any essential element of her legal claims on which she bears the burden of proof." Id.

         We review the denial of a motion for reconsideration only for abuse of discretion. United Cent. Bank v. KMWC 845, LLC,800 F.3d 307, 309 (7th Cir. 2015). In this case, however, our review of the motion for reconsideration essentially merges with the merits of the summary judgment disposition. That is because Nicholson argued below that the district court failed to apply the correct legal standard under this court's decision in Ortiz v. Werner Enterprises, Inc.,834 F.3d 760 (7th Cir. 2016), and so the lower court addressed the merits of that ...

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