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Phillips v. City of South Bend

United States District Court, N.D. Indiana, South Bend Division

May 1, 2018

JOY PHILLIPS, Plaintiff,
CITY OF SOUTH BEND, Defendant. Year First Class Patrolman Annual Base Pay Phillips' Actual Earnings Multiplier to Calculate Actual Earnings Year SBPD Base Pay Phillips' Expected Yearly Salary at SBPD Phillips' Earnings at Elkhart Year SBPD Base Salary Phillips' Expected SBPD Salary Elkhart Base Salary Phillips' Expected Elkhart Salary Difference Between Expected SBPD and Expected Elkhart Salaries Year Front Pay Discount Value Present Value 2016 2017 2018 Lost Wages Interest Period Accrued Months Rate (compounded monthly) Interest



         Joy Phillips was a police officer with the South Bend Police Department, and after suffering alleged discrimination, sexual harassment, and retaliation, she resigned from the SBPD, on July 26, 2016, after 17 years with the force. Phillips then brought this lawsuit, arguing that she was passed up for a promotion because she was a woman, that she was subjected to sexual harassment, and that she was unfairly disciplined and retaliated against after filing an EEOC charge and complaining of discrimination. I granted summary judgment on Phillips' claims of sexual harassment and failure to promote. Phillips' claim of retaliation went to trial, and the jury returned a verdict in Phillips' favor, awarding her $35, 000 in compensatory damages.

         Phillips now seeks equitable relief in addition to the compensatory damages awarded to her by the jury. I held an evidentiary hearing to allow the introduction of additional evidence on the equitable relief question. Based on all of the evidence before me, I conclude that Phillips is entitled to equitable relief in the form of back pay and front pay, as well as prejudgment interest, as described more fully below.


         Joy Phillips served as a police officer for the City of South Bend from April 19, 1999 to July 26, 2016. She most recently held the rank of Patrolman First Class. In the Spring of 2015, Phillips sought a promotion to the rank of Sergeant and was one of 15 candidates who applied. Phillips was passed over in favor of three men who got the positions. She claimed that this failure to promote was an act of gender discrimination. Phillips also made claims of sexual harassment. I granted summary judgment in favor of the City on those two claims but allowed the case to proceed to trial on her retaliation claim.

         Here is what the evidence showed: Phillips filed a Charge of Discrimination with the EEOC on October 23, 2014. Following this date, there was a dramatic increase in the number of investigations and disciplinary actions brought against Phillips. Prior to her filing of the charge of discrimination, Phillips was the subject of three administrative investigations during the preceding 14 years on the force. But from October 23, 2014 until March 2, 2016, when she was relieved of duty, Phillips was the subject of a whopping 12 administrative investigations, resulting in seven imposed or proposed disciplines.

         The details of these investigations and disciplines were the subject of much of the trial testimony. The jury heard about the number of Internal Affairs investigations into Phillips' conduct as an officer following her EEOC charge as compared to before her EEOC charge, which, as noted above, was three investigations in 14 years versus 12 investigations in 16 months. Phillips testified that she was investigated or disciplined for the same actions she had taken without issue in the past, but suddenly, following the EEOC charge, this same conduct resulted in disciplinary investigations or actions.

         Phillips further testified that other officers engaged in the same exact conduct for which she had received discipline, but the other officers were not disciplined. For example, Phillips was informed on October 28, 2015 of violating policy by disregarding other officers from a Shot Spotter alert by telling other officers not to respond to a report of gunshots fired. Phillips was given a letter of reprimand even though, according to Phillips, this was a common practice in the department. Other officers involved in this same incident were counseled, but not formally disciplined. [DE 107 at 58-59.]

         The jury also heard testimony about several instances in which Phillips was disciplined for conduct that had occurred many months, and in some cases more than a year, prior to the SBPD opening an investigation. Importantly, Phillips' conduct at issue had occurred before her EEOC charge, yet the investigation or discipline took place after the EEOC charge. For example, Phillips testified about a five-day suspension she received for allegedly defaming a police officer candidate six weeks after she filed the EEOC charge, even though the conduct occurred before the filing. [Id. at 11-17.] Several of the investigations into her conduct lasted well over the 60 days called for in the police officers' collective bargaining agreement with the City, including ones that were left open and hovered over her for 441 days, 305 days, and 171 days. [Id. At 11-17, 33, 49.]

         In addition to the lengthy duration of the investigations, Phillips also testified as to some other suspicious circumstances surrounding the investigations, which occurred following the EEOC charge, including lost evidence of her interactions with civilians [id. at 21-22 ] and a complete change in the attitude of her superiors towards the credibility of the allegations against her [id. at 20]. The jury further heard a tape recording of a conversation between her superior Sergeant Mullins and Phillips which served as the basis for a five-day suspension that Phillips received for insubordination. On the tape recording, Phillips asked Mullins if she needed to speak to another officer about an issue, to which Mullins said that it was not necessary because he had already done so. Because she did not interpret this as a direct order, she later spoke with the other officer. [Id. at 63-65.] Phillips was nonetheless disciplined for violating this supposed order.

         Phillips testified that she knew her fellow officers were looking for her to fail. In support, she testified that she was either investigated or disciplined for a myriad of nitpicky or otherwise phony charges. For example, she was accused of allegedly defaming an officer when she complained about him making sexually inappropriate comments towards her. [Id. at 32-33]. So instead of the harassing officer getting into hot water, it was Phillips who found herself on the bad end of a grievance. There was another investigation related to a conversation her husband had at a bar in Chicago with a SBPD officer. [Id. at 34-35]. She was brought up on charges for responding to a call related to her duties as a hostage negotiator in a manner she had done many times in the past. [Id. at 47]. She was investigated for failing to submit a corrected a police report before she clocked out, when the reviewing officer denied her submission after her shift had ended (for which she received a three-day suspension). [Id. at 77-79]. And she was further investigated for failing to collect syringes related to an overdose and, then when she did collect them, submitting them into evidence when there had been no crime committed (for which she received a one-day suspension). [Id. at 72-74].

         Finally, Phillips testified about the most serious discipline imposed on her. Chief Ruszkowski accused Phillips of making contact with a barricaded subject without having been called to the scene by Dispatch or a commander. Phillips claimed that she had communicated by text message and by phone with the officer on the scene and with the commander of the Hostage Negotiation Team, and that they were aware that she was going to speak to the barricaded person. In order to prove her claims, Phillips requested the tapes of the Dispatch records. However, because she didn't get the Chief's approval to request the tapes, she was disciplined. [Id. at 38-48.]

         Phillips was ultimately relieved of duty on March 2, 2016, when Chief Ruszkowski summoned Phillips to his office and gave her charges that totaled a 54-day suspension without pay and removal from the Hostage Negotiation team. When Phillips refused to sign the documents acknowledging receipt, Ruszkowski relieved her of her duties indefinitely with pay. Although she continued to receive her salary, she was no longer able to collect substantial overtime pay for which she had grown accustomed to over the years.[1] What's more, she was actually prohibited from leaving St. Joseph's County and from continuing with training that was necessary to maintain certain certifications she held as a police officer. She was also required to turn in her badge and weapon. [DE 109 at 19.]

         Phillips appealed the suspensions and reprimands. The one, three, and five-day suspensions were upheld. Phillips also appealed the lengthiest of her suspensions (45 days) to the Board of Public Safety, which may review discipline exceeding a five-day suspension, but before a hearing took place, Phillips resigned from the SBPD saying she just couldn't take the retaliation any longer. She soon began working for the Elkhart Police Department, where she has since been promoted to Investigator.

         At trial, the City attempted to rebut Phillips' claims that these investigations and disciplinary actions constituted retaliation. It pointed to a new policy of increased oversight and discipline at the SBPD brought on by new leadership. It explained that the reason for the delay in disciplining Phillips was due to unexpected staffing disruptions, including the resignation of the Internal Affairs Investigator. The City also presented evidence that Phillips had committed the infractions at issue, and they were based on legitimate, non-retaliatory reasons. According to the City, all of the disciplines recommended against Phillips were based on verifiable violations of the SBPD Duty Manual and General Orders. They claimed that her relief from duty was not retaliation but rather personnel management.

         A jury disagreed with the City and found in favor of Phillips, awarding her $35, 000 in compensatory damages on her claim of retaliation.


         A victim of discrimination in violation of Title VII is presumptively entitled to complete relief. Hutchison v. Amateur Elec. Supp., Inc., 42 F.3d 1037, 1044 (7th Cir.1994) (citing Albemarle Paper Co. v. Moody, 422 U.S. 405, 418, (1975)). In that regard, a successful Title VII plaintiff may obtain appropriate injunctive relief, which may include (but is not limited to) reinstatement or hiring, with or without back pay, “or any other equitable relief as the court deems appropriate.” See 42 U.S.C. § 2000e-5(g). Where reinstatement is not appropriate, courts may order front pay as an equitable substitute for reinstatement. See Downes v. Volkswagen of Am., Inc., 41 F.3d 1132, 1141 (7th Cir. 1994).

         Eligibility for Back Pay/Constructive Discharge

         Once the jury has found that there has been employment discrimination, there is a presumption that the employee is entitled to back pay. David v. Caterpillar, Inc., 324 F.3d 851, 865 (7th Cir. 2003). The purpose of back pay is to put the plaintiff in the same position she would have been if the discrimination had not occurred. Harper v. Godfrey, Co., 45 F.3d 143, 149 (7th Cir. 1995). The plaintiff must establish the amount of damages, but she is presumptively entitled to full relief. Hutchison, 42 F.3d at 1044. Back pay extends from the date of the adverse employment action until the date of judgment. See Ortega v. Chi. Bd. of Ed., 280 F.Supp.3d 1072, 1099 (N.D. Ill. 2017) (citing McKnight v. General Motors Corp., 973 F.2d 1366, 1369 (7th Cir. 1992)).

         At the outset, there is a disagreement between the parties as to whether Phillips is entitled to any back pay at all. The City says that Phillips voluntarily resigned from the police force, which precludes any recovery of back pay. Phillips says she was constructively discharged. Obviously, the jury found in Phillips' favor finding that she had been retaliated against. But the jury never expressly said that the retaliation Phillips experienced was in the form of a constructive discharge. The problem is that no one asked for a special verdict on this point, and I didn't propose one myself. As the City would have it, the retaliation could have been two other employment actions - a five-day suspension or her relief from duty. Phillips unsurprisingly argues the opposite - that the jury implicitly found that she was constructively discharged. I am required to make equitable findings that are consistent with the jury's resolution of the issues implicitly reflected in its general verdict.

         Phillips' entitlement to back pay depends on whether she was constructively discharged, as a plaintiff “must show either an actual or constructive discharge in order to receive the equitable remedy of reinstatement, or back and front pay in lieu of reinstatement.” Hertzberg v. SRAM Corp., 261 F.3d 651, 659 (7th Cir. 2001). In the absence of such a showing, the exclusive remedies are compensatory and punitive damages, though here, the exclusive remedy would be only compensatory damages, as punitive damages are not available against a municipality. Id; 42 U.S.C. § 1981a(b)(1). “[I]n order to state a claim for constructive discharge, a plaintiff needs to show that her working conditions were so intolerable that a reasonable person would have been compelled to resign.” Chambers v. Am. Trans Air, Inc., 17 F.3d 998, 1005 (7th Cir. 1994). To be actionable, the conduct at issue must have the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive work environment. Johnson v. Nordstrom, Inc., 260 F.3d 727, 735 (7th Cir. 2001).

         Having considered the jury's verdict and the evidence from both the trial and the equitable remedies hearing, as well as the post-trial briefing, I find that there is sufficient evidence that Phillips was constructively discharged. First, after filing her charge of discrimination with the EEOC, Phillips was bombarded with disciplinary actions, many of which were downright silly. There was ample testimony at trial that, as a result of the many disciplines that Phillips received, the conditions at the SBPD for Phillips had become intolerable based on her inability to adequately perform the functions of her job, her decrease in income, and the restrictions placed on her by virtue of her being relieved of duty.

         Phillips credibly testified at length about the effects that the constant discipline had on her ability to do her job. Phillips testified that she felt her “life was put at stake” when she “stopped receiving backup.” According to Phillips, her fellow officers “wouldn't go to calls with me anymore because I had to record everything. They didn't want to be part of any [Internal Audit] to deal with me.” [DE 107 at 94.] Phillips described the Internal Audit process as a “limbo situation” in which officers were stressed out. [Id. at 27-28.] Because she was forced to respond to these Internal Audits so frequently, she wasn't able to do her job, and she started second-guessing herself. [Id. at 75.]

         Even when the charges against her were not sustained, she started wondering if she should even work anymore. She felt that she couldn't do anything right. [Id. at 76.] Phillips testified that, as a result of the many Internal Audits she received, she started hesitating on calls, which she called “the kiss of death being a police officer because you hesitate, it could cost you your life.” [Id. at 94.] Phillips testified that “[y]ou can't return to a job when you have to worry about whether or not you are coming home in the morning.” [DE 109 at 19.] She also testified that she was “forced out” and that she “couldn't function as a police officer.” [Id. at 18.]

         I find this testimony particularly compelling. Given the dangers inherent in being a police officer, the constant fear that she would be unfairly disciplined and that other officers would not provide backup makes it extremely likely that she would not be able to adequately fulfill her duties as police officer. Having to worry about whether her life was at stake certainly makes her working conditions intolerable.

         In addition to the effects of the discipline she faced, Phillips also experienced a loss in income after being relieved of duty, which made it difficult to maintain her standard of living, and she faced severe restrictions on her ability to travel and maintain certain certifications. When asked why she resigned from the SBPD, Phillips testified that she was the breadwinner of her family and that the extra work beyond her patrol work subsidized her lifestyle. After being relieved of duty, she was not able to work any overtime or in the security field (though as I mentioned before, Phillips did work a small amount of overtime related to court appearances). [DE 107 at 90-91.] ...

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