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Cannon v. City of South Bend

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

August 21, 2018




         Sergeant Nathan Cannon of the South Bend Police Department filed this action against the City of South Bend under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16 et seq., for employment discrimination and retaliation. The City has moved for summary judgment. [DE 36] For the reasons stated herein, the Court will grant the motion.


         On summary judgment, the moving party bears the burden of demonstrating that there “is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A “material” fact is one identified by the substantive law as affecting the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A “genuine issue” exists with respect to any material fact when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. Where a factual record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial, and summary judgment should be granted. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing Bank of Ariz. v. Cities Servs. Co., 391 U.S. 253, 289 (1968)). In determining whether a genuine issue of material fact exists, this Court must construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in that party's favor. Jackson v. Kotter, 541 F.3d 688, 697 (7th Cir. 2008); King v. Preferred Tech. Grp., 166 F.3d 887, 890 (7th Cir. 1999).


         Sergeant Nathan Cannon has been an officer with the South Bend Police Department since 1984. He started off as a patrolman, moved up in rank to corporal, and then received a promotion to sergeant in or around 1994. Five years later, he received a transfer from the uniformed patrol division to the detective bureau, and he has served in that unit ever since. Cannon is African-American.

         Sherri Taylor served as a lieutenant on the detective bureau's day shift.[1] When she decided to retire, the department notified all its lieutenants and sergeants in February 2014 that it would be accepting applications for the position of lieutenant on the detective bureau's day shift. Cannon then made two assumptions. First, he anticipated that the department would select only one individual for the position of lieutenant on the day shift, given that the job posting came on the heels of only one person's departure (Taylor's). Second, Cannon knew that another lieutenant on the detective bureau's afternoon shift, Marcus Wright, also African-American, put in for a lateral transfer from the afternoon to the day shift, and Cannon believed that Wright would automatically receive the transfer. In short, Cannon assumed that the department sought to fill only one lieutenant position on the day shift, and that it would fill that slot with Wright, so Cannon did not submit an application in response to the February 2014 job posting. Instead, he kept his eye on Wright's position as lieutenant on the afternoon shift, which he supposed would be vacated upon Wright's hoped-for transfer. In Cannon's own words, the afternoon lieutenant shift was the only position that interested him. [Cannon Dep. 69:22-23; 73:5-6; 74:12-14]

         Unfortunately for Cannon, he was mistaken in his assumptions. Nothing about the February 2014 job posting stated that the department would limit itself to selecting only one lieutenant for the day shift from the pool of applications received.[2] Indeed, Chief Scott Ruszkowski attested that the posting did not specify the number of available positions in order to allow the department “flexibility to decide how many officers to promote based on the size and quality of the applicant pool, changing workflow demands, available funding, and other issues that may be subject to change between the time of the posting and the time [the department is] ready to make promotions.” [Ruszkowski Aff. ¶¶ 5-6] According to Ruszkowski, several other promotions within the department have been handled similarly over the past four or five years. Id. ¶ 6. Furthermore, apart from Cannon's own impression, nothing supported his belief that Wright would automatically receive a lateral transfer. In fact, former chief Daryl Boykins testified that the department rarely allowed such transfers without requiring individuals to go through the same competitive process as all other applicants:

Q: Let me ask you, generally speaking, was it the practice of the police department to let people who already held the rank transfer from one shift to another before opening
A: Not often. If it happened, it was just very, very few times I remember. Usually always posted everything.

[Boykin Dep. 15:18-24] Chief Ruszkowski also confirmed that rank does not guarantee a requested shift transfer:

Q: [C]an you think of anyone, any officer who was denied a lateral transfer because someone else was promoted to the position that they were applying to transfer to?
A: I can't but when you say “denied, ” it would be, again, through the process, the interview process and everything else that that would entail, would be the deciding factor whether that person got to go to a different shift or not. It's not necessarily based on because of seniority or tenure that you would get that position.

[Ruszkowski Dep. 36:9-19]

         Ultimately, Wright did not receive his requested transfer to the day shift, and the department promoted three sergeants (all of them Caucasian) to the rank of lieutenant following an open interview process: Amy Bennett; Dominic Zultanski; and Anthony Bontrager. All three of these individuals had submitted applications in response to the February 2014 job posting, and the department assigned all three of them to the detective bureau's day shift. The department further assigned Zultanski to lead the newly created Group Violence Initiative (“GVI”) program, although the job posting made no mention of this position. As for Bennett, she became ...

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