Donna Nicholson Federal Court Filing

1:14-cv-01369-MMM-JEH # 38
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E-FILED
Friday, 13 May, 2016 11:50:17 PM

Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
DONNA NICHOLSON,
Plaintiff,
v.
THE CITY OF PEORIA, ILLINOIS,
ET AL.,
Defendants.
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Case No. 1:14-cv-01369-MMM-JEH
PLAINTIFFS MEMORANDUM IN RESPONSE TO DEFENDANTS

MOTION FOR SUMMARY JUDGMENT
I.
INTRODUCTION
In this action, Plaintiff, a female and twenty-five year veteran of the Peoria Police
Department, seeks recovery against Defendants The City of Peoria (City) and its former Chief
of Police, Steven Settingsgaard (Settingsgaard), for discrimination and adverse employment
actions taken in retaliation for Plaintiffs lawful reporting and filing claims of repeated incidents
of outrageous and illegal stalking and sexual harassment by City police officers occurring from
2008 through 2011.
Plaintiff alleges claims against Defendant City for retaliation and sex discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq.
(Counts I and II) and against Defendant Settingsgaard for retaliation in violation of 42 U.S.C.
1983 (Count III).
Defendants now move for summary judgment on the grounds that: (1) Defendants
employment decision related to Plaintiff was not retaliatory and unrelated to Plaintiffs sex; (2)
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Plaintiffs complaints were not a matter of public concern; and (3) Defendant Settingsgaard is
entitled to qualified immunity.
Defendants Motion should be denied because genuine issues of material fact exist as to
whether Defendants retaliated and discriminated against Plaintiff based on her sex and whether
Defendant Settingsgaard is entitled to qualified immunity.
II.
PLAINTIFFS RESPONSE TO DEFENDANTS UNDISPUTED MATERIAL

FACTS
Pursuant to Local Rule 7.1 (D)(2)(b)(1-4), Plaintiff submits her responses to Defendants
Statement of Undisputed Material Facts, as follows:

A.
Undisputed Material Facts
Plaintiff concedes that the facts set forth in the following paragraphs of Section B of
Defendants Memorandum of Law are undisputed and material: 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 14,
15, 18, 19, 21, 22, 23, 25, 26, 32, 34, 36, 37, 38, 39, 40, and 46.
B.
Disputed Material Facts
Plaintiff disputes the material facts set forth in the following paragraphs of Section B of
Defendants Memorandum of Law.
12. Response: Nicholson alleges that in 2008 and in 2010, Wilson utilized the
Departments surveillance equipment to videotape Plaintiff in the SID/Vice office and in August
2010 monitored her department issued car movements with a GPS device. Doc. No. 12-1, 17,
19, 20, 25; see also Plaintiffs Statement of Additional Material Facts set forth in Section III
below (SAF) 23-27, 31-35, 45-47.
13. Response: When Eddlemon discovered Wilsons conduct in 2010, Wilson was
transferred to the Patrol Division because, according to Defendant Settingsgaard, it was best for
all parties involved. SAF 36.
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16. Response: On July 29, 2011, Sgt. Snow drafted a letter of termination for
Settingsgaard to give to Wilson. SAF 67. Settingsgaard did not give the letter to Wilson but
instead read the letter to Wilson and gave Wilson the opportunity to come back with his own
evidence. SAF 68, 69. In August 2011, Wilson provided Settingsgaard with the following
information: (a) the GPS was not as complicated as we believed it to be; and (b) Wilsons
laptop was accessible to others in SID. SAF 70. This information was not new, was
considered and rejected by Sgt. Snow, Detective Feehan and Judge Purham, who noted, among
other things, the several clips of Officer Wilson adjusting the camera where I see his face in
at least two of the clips, and then theres one clip where Officer Nicholsons chair is being
brought into focus. SAF 43-46, 54, 59-63, 70. Finally, Settingsgaard himself testified that
he thought Wilson was lying at the meeting at which he presented this information. SAF
72, 75.
17. Response: Officer Wilson was not disciplined by Defendants for stalking or
harassing Plaintiff as Fact 17 suggests; Wilson was only disciplined for: (a) insubordination for
violating orders to stay out of the Vice Office; and (2) making lewd sexual comment about
Plaintiffs daughter. Doc. 29-18.
30. Response: Settingsgaard testified that the reorganization plan was developed by
[m]yself and my management team, including Captain Mike Scally and Captain Lisa Snow.
Chief Dep., pp. 10:20-11:4.
33. Response: The CBA specifically states the committee is to be determined by the
Chief of Police. Plf. Dep. Ex. 2, Art. 30.3.
42. Response: Plaintiff concedes that the panel made this statement but disputes that
Skaggs was qualified, knew the material, knew the law, or that the interview process was
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anything other than a pretext for a decision that was made prior to the interview process. SAF
84-88, 91-92. As reflected in the testimony of his supervisor, Sgt. Kerrie Davis, and the
Affidavit of States Attorney Kim Nuss, [e]ven after he had been on the job for some time, Troy
Skaggs was unable to do a seizure warrant or an Article 36 seizure. Ex. __, Nuss Affidavit, 4,
SAF 99-101.
43. Response: According to the testimony of Lieutenant Davis, the SID/Vice Supervisor
in charge of the Asset Forfeiture position, the decision to transfer Plaintiff from Asset Forefeiture
was made before the interviews were even conducted. SAF 85-86, 93. The Affidavit of
States Attorney Kim Nuss further confirms that Officer Skaggs was not qualified. Ex. __, SAF
101.
44. Response: Settingsgaard had ultimate authority and was the ultimate decision-maker
for promotions and transfers. SAF 3.
C.
Disputed Immaterial Facts
None.
D.
Undisputed Immaterial Facts
10. Response: These events occurred in 2002, prior to Settingsgaard becoming Chief of
Police for the City of Peoria. Pl. Dep. 24:20-21.
20. Response: Plaintiff has made no allegation regarding this. Doc. 12-1, Am.
Complaint, 16.
24. Response: Plaintiff sought and obtained an Order of Protection against Officer
Wilson on July 11, 2011 from the Peoria County Circuit Court. SAF 61-64. In 2013, the
Order was upheld by the Illinois Court of Appeals and the Illinois Supreme Court in 2013. See
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Nicholson v. Wilson, 213 Ill.App.3d 110517 (3rd Dist. 2013) and Nicholson v. Wilson, 2 N.E. 3d
1046 (Ill. 2013), Petition for Leave to Appeal denied; see also SAF 102.
27. Response: Plaintiff makes no claim related to this Charge. Doc. 12-1, Am.
Complaint.
28. Response: Settingsgaard made the decisions regarding the transfer of officers and
Plaintiffs transfer from Asset Forfeiture. SAF 3, 91. Lt. Davis understood Plaintiff was
getting transferred before the interviews were even held. SAF 86.
29. Response: Settingsgaard made the decisions regarding the transfer of officers and
Plaintiffs transfer from Asset Forfeiture. SAF 3, 91.
31. Response: Settingsgaard eliminated the prior rotation policy when he arrived in
2005. Settingsgaard Aff. 5. Earlier rotation policies are immaterial.
35. Response: Plaintiff applied for the Asset Forfeiture Position and was denied that
position for discriminatory and retaliatory reasons. SAF 79-96. Plaintiff makes no claim that
she was denied another position. Doc. 12-1, Am. Complaint.
41. Response: Fact 41s suggestion that Plaintiff has changed her testimony or position
regarding the temperature of the interview room is not supported by any evidence.
45. Response: There were over 220 commissioned officers in the Department of which
18 were female. SAF 88. In the Fall of 2012, all of the SID/Vice officers, the Liquor
Investigator, Scott Jordan, and Plaintiff, re-applied for their same positions in TOU. SAF 79.
Each of the male officers in SID/Vice and Liquor received the position they applied for
irrespective of the length of their service. SAF 80. Liquor Investigator Scott Jordan, with over
seven years in his position, reapplied for and received the same position. SAF 81. SID/Vice
Officers Matt Lane and Corey Miller, each with over three years in their respective positions,
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applied for and received their same positions. SAF 82. Plaintiff, the only female in SID/Vice,
was the only person in SID/Vice who was not allowed to remain in her position. SAF 84.
III.
PLAINTIFFS STATEMENT OF ADDITIONAL MATERIAL FACTS

Pursuant to Local Rule 7.1 (D)(2)(b)(5), Plaintiff submits her Statement of Additional
Material Facts, as follows:

A.
The Parties
1.
Plaintiff Donna Nicholson has been employed by the Peoria Police Department as
a Police Officer since April 19, 1991. Doc. 21, Answer 10.
2.
Defendant City is an Illinois municipal corporation that provides governmental
services to City residents, including police protection through the Peoria Police Department (the
Department). Doc. 21, Answer 2.
3.
Defendant Settingsgaard was Chief of the Department from May 2005 until June
2014, having responsibility for management of the Department, including: (a) enforcement of the
Departments rules, regulations and policies; (b) transfer and discipline of officers; and (c) safety
and welfare of officers, including Plaintiff. Doc. 21, Answer 3, Doc. 29-1, Settingsgaard Depo
(the Chief Dep.) 8:23-9:13; 10:5-6, 81:17-20.
B.
The Departments Applicable Orders Regarding Conduct and Discipline

1.
4.
General Order 100.06 Rules and Regulations
The Departments General Order 100.06, Section VI.A provides that [n]o officer
shall violate any law, department policy, regulation, order rule, or procedure. Doc. 32-3,
General Order, VI.A.1; Doc. 29-1, Chief Dep. 83:15-21, 84:4-8.
5.
Section VI. B prohibits officers from engag[ing] in any conduct or activity on or
off duty that reflects discredit on the department or its officers, or tends to bring this department
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in disrepute, or impairs its efficient and effective operation. Doc. 32-3, General Order, VI.B;
Doc. 29-1, Chief Dep. 84:9-10.
6.
Section VI.C.4 requires that officers shall be accurate, complete and truthful in
all matters. Doc. 32-3, General Order, VI.C.4.

7.
Section VI.D prohibits officers from engag[ing] in acts that demean or harass or
intimidate another person (refer to sexual harassment general order 200.14). Doc. 32-3,
General Order, VI.D.2; Doc. 29-1, Chief Dep. 84:14-21.
8.
Section VI.G prohibits any officer from us[ing] or provid[ing] any city
equipment or service other than for official city business without the consent of the police chief
or his designee. Doc. 32-3, General Order, VI.G.1; Doc. 29-1, Chief Dep. 84:22-85:3.
9.
Section VIII provides that an officer may be subject to dismissal for violation of
department rules and regulations, a department order, or any established policy, practice or
procedure. Doc. 32-4, General Order, VIII.
2.
10.
General Order 200.14 Discrimination/Sexual Harassment
General Order 200.14 sets forth the Departments policy prohibiting
discrimination and sexual harassment:

It is the Policy of the Peoria Police Department to provide an
environment for its employees that is free of harassment and
discrimination.
Doc. 32-4, General Order, I.
11.
Section II.A defines discrimination:

Personal Discrimination. Any action taken by an individual to
deprive a person or group of a right because of age, color, ethnic
group, gender, national origin, race or religion. Such
discrimination can occur overtly, covertly, intentionally,
unintentionally, by an act, or by an omission.
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Doc. 32-4, General Order, II.A.2; Doc. 29-1, Chief Dep. 85:8-14.
12.
Section III.A states that [d]iscrimination, sexual harassment, or any form of
harassment by a specific act, inference, or omission by or against any member of the department
or by a member against a citizen or visitor to Peoria will not be permitted, tolerated, or
condoned. Doc. 32-4, General Order, III.A; Doc. 29-1, Chief Dep. 85:15-21.
13.
Section III.E prohibits retaliation against an employee for filing complaints of
harassment or discrimination:
There will be no retaliation against any employee or citizen for
filing a harassment or discrimination complaint or assisting,
testifying, or participating in the investigation of such complaint.
Doc. 32-4, General Order, III.E; Doc. 29-1, Chief Dep. 85:22-86:4.
3.
14.
The Citys Workplace Violence Prevention and Anti-Harassment

Policy
The Citys Workplace Violence Prevention and Anti-Harassment policy prohibits
[a]ny unwelcome behavior that degrades, demeans, humiliates, or embarrasses a person. Doc.
32-7, Policy, I; Doc. 29-1, Chief Dep. 86:9-10.
15.
The Policy identifies Examples of Workplace Violence, including:
Engaging in behavior that creates a reasonable fear of injury to

another person;
Engaging in behavior that subjects another individual to extreme

emotional distress;
Stalking or obscene phone calls; and
Retaliating against any employee who, in good faith, reports a

violation of this policy.
Doc. 32-7, Policy, II; Doc. 29-1, Chief Dep. 87:6-15.
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16.
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The Policy holds managers and supervisors responsible for preventing harassment
and workplace violence:

Not knowing is not an excuse. Supervisory personnel will still be
held responsible if they allow a situation to continue if a
reasonable person should have known that harassment was
occurring or that there was a potential for violence. Supervisory
personnel who ignore harassment and workplace violence will not
only face legal responsibility, but may be disciplined by the City of
Peoria.
Doc. 32-7, Policy, III.
17.
Persons who violate the Policy are subject to termination:

Any individual who violates a term or condition of this Policy
shall be subject to disciplinary action up to and including
termination. Discipline may also be given to a supervisor or
manager who willfully fails to appropriately investigate or
otherwise address complaints of harassment or workplace violence.
In addition to disciplinary measures, the employee and/or
supervisor may be required to take other corrective action such as
counseling or training.
Doc. 32-7, Policy, IV (emphasis added).

C.
Plaintiffs History As The Departments Asset Forfeiture Investigator
18.
From 2002 through 2012, Plaintiff served as the Departments Asset Forfeiture
Investigator within the Special Investigations Division (SID). Doc. 21, Answer 11; Doc. 281, Plf. Dep. 74:11-13; Doc. 29-1, Chief Dep. 47:12-20.
19.
Throughout her entire eleven year tenure as Asset Forfeiture Investigator, Plaintiff
was the only female in SID:

Q:
How many employees were in there, Vice and SID?
A:
I dont know. 20-some.
****
Q:
She was the only woman, right?

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A:
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I believe thats true.
Doc. 29-1, Chief Dep. 136:5-7, 14-15; see also 81:1-4.

20.
As Asset Forfeiture Investigator, Plaintiff was responsible for investigating and
collecting assets from criminal defendants such as bank accounts, personal property, automobiles
and real estate, complying with state and federal laws and agencies, managing state and federal
asset forfeiture accounts, and keeping accounts of all expenditures. Doc. 29-1, Chief Dep. 45:847:7.
21.
During her tenure, Plaintiff collected over $6.6 Million in assets from criminal
defendants for the Department. Ex. 1, Nicholson Affidavit, 2.

22.
Defendant Settingsgaard concedes that the Asset Forfeiture Investigator was an
important position within the Department and that Plaintiff was good at her job in investigating
and collecting assets from criminal defendants:
Q:
Was Officer Nicholson successful in investigating and

collecting assets from criminal defendants prior to her
transfer in 2012 during the period when you saw her from
'05 to 2012? Was she good at her job?
A:
Yes.
Doc. 29-1, Chief Dep. 47:4-7, 48:1-6 (emphasis added).

D.
The 2008 Surveillance of Plaintiff By Officer Wilson
23.
On the evening of April 12, 2008, Plaintiff discovered that a fellow SID Officer,
Jeffrey Wilson (Wilson), was using the Departments surveillance equipment to monitor
Plaintiff without her knowledge or consent. Doc. 30-1, Investigation Report, p. 5.
24.
Wilson was in charge of the Departments electronic surveillance equipment,
technology and GPS tracking devices and, according to SID Sgt. Jerry Bainter, had a great deal
of training and knowledge in the use of surveillance equipment [and] certified by the Illinois
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State Police Department in surveillance eavesdropping. Doc. 30-2, Investigation Report, p. 9;

Doc. 21, Answer 15.
25.
On Monday, April 14, 2008, Plaintiff reported the surveillance to her SID
supervisors, Sgt. Jerry Bainter and Lt. Jeff Adams, and requested that she not be videotaped.
Doc. 30-1, Investigation Report, p. 5; Doc. 21, Answer 18.
26.
According to Lt. Adams, Wilson was being tasked by the Chief with a project
that required his expertise in the use of cameras. . . . [and was] giving it priority because it was
coming from the Chiefs office. Doc. 30-2, Investigation Report, p. 12; Doc. 29-1, Chief Dep.
75:10-76:6.
27.
Sgt. Bainter instructed Wilson not to be recording any officer with this system
and if he needed a target area he could record my desk area because I dont care. . . . At no time
did I authorize Officer Wilson to video tape or conduct surveillance any active member of the
Peoria police department. Doc. 30-2, Investigation Report, p. 10.
E.
A GPS Tracking Device Is Placed On Plaintiffs Vehicle Following

Plaintiffs Objection To Settingsgaards Use Of Asset Forfeiture Funds
28.
On July 12, 2010, Defendant Settingsgaard requested the expenditure of $19,500
in funds from an Asset Forfeiture account to pay for the production of a video featuring
Settingsgaard to be distributed at an International Chiefs Conference. Doc. 29-1, Chief Dep.
50:9-51:5, 52:14-24; Doc. 29-5, Account Spreadsheet.
29.
Plaintiff objected to Settingsgaards proposed use of Asset Forfeiture funds for
himself:
Q:
Okay. Do you recall her saying anything to you about it,

about spending $19,500 on a video?
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A:
I have a very general recollection that I was aware she

didn't like it. I don't remember conversations or how I
learned it.
Q:
But you knew she didn't like it?
A:
Yeah. I believe that's an accurate statement.
Doc. 29-1, Chief Dep. 51:19-52:2; Doc.28-1, Plaintiffs Dep. 132:3-133:2.

30.
On August 10, 2010, Settingsgaard ordered Plaintiff to issue a $19,500 check
from an Asset Forfeiture account to pay for the video. Doc. 29-1, Chief Dep. 50:9-51:5, 53:1-3;
Doc. 29-5, Account Spreadsheet.
31.
That same day, August 10, 2010, without Plaintiffs knowledge, a Department
GPS tracking device was installed on Plaintiffs Department-issued vehicle:

Q:
On page 18, on August 10, 2010, at 3:02p.m. The

Sentinel GPS is installed and initiated on Officer
Nicholson's vehicle at the police department. The vehicle
is parked at the Peoria Police Department from 3:02 to 4:40
p.m. on the State Street side. Do you see that?
A:
I do.
Q:
That's the same day as the check or the payment was issued
on the video for the police chief's conference, right?
A:
I don't know.
Q:
Want to go back to that one? August 10. Let's go back and

look at Exhibit 3. Right here, I'll give it to you.
A:
It's the same date as the date that this says ordered.
Q:
So same day the check was ordered to pay for your video
and for the conference was the date this GPS was put on
Donna's car, August 10, 2010, right?
A:
I don't know that. No. I know it's the same date that that
document says ordered. I don't know if that means ordered
the check. I don't know what the reference is.
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Q:
Whatever ordered means
A:
The same date is recorded under ordered as this date.
Q:
That's the same date as the GPS was placed on her car that
afternoon?
A:
Yes.
Doc. 29-1, Chief Dep. 78:1-79:6; See also Doc. 35-5, Event Timeline, p. 3.
F.
The Departments Illegal Surveillance, Stalking And Harassment Of Plaintiff
32.
Three months later, on November 9, 2010, SID Sergeant Michael Eddlemon
discovered that Wilsons computer was actively monitoring Plaintiffs work area in the SID
office through a covert surveillance camera feed, labelled Office. Doc. 30-3, Special Report,
Sgt. Eddlemon, November 11, 2011, p. 9; Doc. 21, Answer 20. The camera was disguised
inside an electrical box such that [t]here was no way for an observer to realize that the camera
was recording due to its concealment inside this box. Doc. 30-1, Investigation Report, p. 1.
33.
By observing the View Commander on Wilsons computer, Eddlemon found
that the covert camera had been tracking Plaintiffs movements in the office and zooming in and
out as she sat at her desk:
Upon further review I also noticed that when Officer Nicholson
was present at her desk on Monday, November 8th, 2010 that the
camera was directed at her and was zoomed in versus the wide
angle that I originally observed. I also noticed that the camera
moves or tracks Officer Nicholson as she worked at her desk or
accessed the file cabinets located next to her desk. . . . I did not
see anyone else in the office tracked or zoomed in on with the
camera.
Doc. 30-3, Special Report, Sgt. Eddlemon, November 11, 2011, p. 10 (emphasis added).
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34.
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When Eddlemon questioned Wilson as to why the SID office was being covertly
recorded, Wilson responded that the camera had been on the cabinet for about six months and he
was unaware that it was recording. Doc. 30-1, Investigation Report, p. 3.
35.
When Eddlemon notified Plaintiff, Plaintiff became upset and advised Eddlemon
that she had caught Wilson videotaping her two years earlier. Doc. 21, Answer 20.
36.
On November 10, 2010, Captain Michael Scally, with Settingsgaards approval,
transferred Wilson to Patrol:

Q:
And why was Wilson transferred the next day to Patrol?
A:
Based on the allegations that were made against Jeff,

decided it was best for all parties involved to remove him
from the Vice Unit.
Doc. 29-1, Chief Dep. 62:16-20; Doc. 30-1, Transfer Order.

G.
The Investigation
37.
Plaintiff requested an external investigation of Wilsons activities. Doc. 21,
Answer 21.
38.
Defendant Settingsgaard denied Plaintiffs request and appointed Sergeant
Kenneth Snow of Internal Affairs to conduct the investigation:

Q:
You picked Ken Snow to run this investigation?
A:
Yes.
****
Q:
Did you think he was a good investigator?
A:
Yes.
Q:
Did you think he was an honorable and quality investigator,

fair?
A:
As far as I knew, yes.

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Q:
Anything happen during this investigation or through the

rest of your employment at Peoria to lead to believe that he
was anything other than fair and honest and thorough?
A:
No.
Doc. 29-1, Chief Dep. 44:13-15; 58:9-11; 61:6-62:3.

39.
Defendant Settingsgaard also appointed Officer James Feehan, the Departments
Cyber Crimes detective, to conduct an analysis of the videos:

Q:
Did you participate in the selection of Mr. Feehan,

Detective Feehan to conduct this investigation, video
analysis?
A:
Yes.
Q:
Is he a -- why?
A:
Feehan was our -- he was our resource with the greatest

level of expertise in technology. He was our Cyber Crimes
detective.
Doc. 29-1, Chief Dep. 76:13-20.

40.
On January 8, 2011, two months after the covert camera was discovered, Sgt.
Snow notified Wilson of the investigation:

On November 9, 2010, it was discovered that you had allegedly
been video recording the interior of the SID office at Peoria Police
headquarters. It is further alleged that you did so without the
knowledge and consent of those persons and employees recorded.
It is further alleged that you had been ordered by your supervisors
on two previous occasions not to conduct such activity.
Doc. 30-1, Notice of Investigation.
41.
During the investigation, Sgt. Snow conducted numerous interviews of present
and former SID personnel. Doc. 30-1, Investigation Report, p. 1.
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42.
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Sgt. Snows investigation also revealed that SID Officer Dan Duncan had
witnessed Wilson making numerous loud and inappropriate comments about Plaintiff, including:
(a) Where is the bitch Donna at?; (b) Where is the fat kunt?; and (c) in response to hearing
that Plaintiffs teenage daughter had teeth knocked out in a softball accident: Donna should
teach that bitch how to suck dick better and that wouldn't happen. Doc. 30-2, Investigation
Report, p. 10; Doc. 29-1, Chief Dep. 72:23-73:20.
43.
Detective Feehans forensic analysis of Wilsons computer and video recordings
revealed footage of Wilsons reflection in a television monitor, adjusting the covert camera.
Doc. 30-2, Investigation Report, p. 16.
44.
Feehans forensic analysis further revealed Wilsons access and proximity to the
installation of a Department GPS on Plaintiffs vehicle on August 10, 2010. Doc. 30-2,
Investigation Report, pp. 17-18; Doc. 30-3, Investigation Report, pp. 19-21.
45.
Sgt. Snow provided Defendant Settingsgaard with his Investigative Report,
wherein Snow concluded that, [Officer Wilson] is the only person in the unit that possesses the
collective knowledge to set up, manipulate, record, and remotely view the camera images from
the internet connections. Doc. 30-1, Investigation Report, p. 1; Doc. 29-1, Chief Dep. 64:12-15.
46.
Officer Feehan, in agreement with Sgt. Snow, concluded that Wilson was
responsible for the surveillance and GPS: He was the only one that [Feehan] knew of that knew
how to use it. He was the only one technical enough in the division to use it. Ex. 2, Testimony
of James Feehan, Hearing on Order of Protection, July 7, 2011, p.167.
47.
Settingsgaard agreed with Snow and Feehans conclusions and considered
Wilsons actions a serious problem:
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Q:
At the time on January 4th, 2011, when you received this,

you believed Sergeant Snow to be correct, that Wilson was
the only person who could have done this; is that right?
A:
Yes.
****
Q:
How did you feel when you saw -- when you learned that in
addition to the videotaping, in addition to the comments
that Duncan articulated, that there was a GPS placed on
Officer Nicholson's car and that your investigators, Feehan
and Snow, believed it was done by Wilson?
A:
How do I feel?
Q:
How did you feel at the time?
A:
I believed [Wilson] placed the GPS on her car at the time.
Q:
Would you consider that to be a serious problem?
A:
Yes.
Q:
Why?
A:
I think it's inappropriate. I think it's --
Q:
It's beyond inappropriate, isn't it?
A:
It's bizarre. I don't know the rationale for it, but it's very
bizarre.
Q:
Potentially dangerous?
A:
I guess there's potential for anything. I don't know. I don't

know what -- again, I don't know why it was placed on the
car, but there is a potential for anything really.
Q:
I mean, you've been in the business, been in law

enforcement for 27 years, right?
A:
36.
Q:
I'm sorry. My math. Wow. '79? I'm way off. 36 years.

You've got an armed police officer who based on your
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investigators seems to have a problem surveying a female,

the only female in the department, right? She was the
only woman in that department, right?
A:
What do you mean in that department?
Q:
In the SID, in Vice.
A:
I believe so.
Q:
Yeah. And there's reports of really ugly comments not

only about Donna but about her daughter, right?
A:
Correct.
****
Q:
Thats pretty bizarre, too?
A:
Yes.
Q:
Would you consider -- as chief, you're responsible for the

safety and welfare of your officers, including Officer
Nicholson, correct?
A:
Correct.
Doc. 29-1, Chief Dep. 65:13-17; 79:19-81:8, 17-20 (emphasis added).

48.
Settingsgaard failed to order a psychiatric evaluation of Wilson:

Q:
At this time, with the cameras in the office and the reports
that Bainter said don't do it two years earlier, and
Nicholson complaining about it and now it's two years later
and you've got secret covert filming and you've got
comments and now you're finding out there's a GPS on her
car and the guys you've entrusted in this investigation
believe and you believe it's him --right? -- did you order
any psychiatric evaluation of this guy?
A:
No.
Q:
Why not?
A:
I don't recall.
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Page 19 of 59
Q:
You think that might have been a good move in retrospect?
A:
I don't know. I don't know.
Q:
You don't know?
A:
No, I don't.
Doc. 29-1, Chief Dep. 82:4-20.

49.
Snow reported to Settingsgaard that Plaintiff was feeling violated and sick to her
stomach, extremely embarrassed and humiliated and betrayed. Doc. 30-1, Investigation
Report, p. 5.
50.
Settingsgaard testified that Plaintiffs reaction was understandable:

Q:
As you sit here today, do you view it as understandable that

she would feel humiliated, embarrassed, betrayed?
A:
Yes.
Q:
Violated, sick to her stomach?
A:
Yes.
Doc. 29-1, Chief Dep. 68:17-22.

H.
Plaintiffs Request To Defendants for Protection For Her, Her Co-workers

And The Department
51.
On February 28, 2011, Plaintiff wrote to Settingsgaard requesting the
Departments cooperation in her effort to obtain a Stalking No Contact Order against Wilson,
stating, I hope you realize this hasnt been an easy decision for me, but above all else, the safety
of my family, my home and me come first. . . . I do not believe he will ever take responsibility
for what he has done to me, my co-workers and the department. . . . I would like to present
evidence to the judge from the investigation and/or testimonial evidence from the officers
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Page 20 of 59
involved in the investigation. Doc. 29-6, Feb. 28, 2011 Letter from Nicholson to
Settingsgaard, p. 2; Doc. 29-1, Chief Dep. 90:16-21 (emphasis added).
52.
On March 1, 2011, Settingsgaard rejected Plaintiffs request, stating:
the Department will not release any information relative to

[Wilsons] ongoing investigation;
The Department is unable to assist . . . by providing information

regarding Officer Wilsons personal vehicles;
The Office of the Chief will not order officers to appear in court to
testify . . . .
Doc. 29-6, March 1, 2011 Letter from Settingsgaard to Nicholson, p. 3; Doc. 29-1, Chief Dep.
91:6-15.
53.
On March 10, 2011, Defendant Settingsgaard again wrote to Plaintiff, stating
there is no credible evidence that Officer Wilson poses a physical threat to you by continuing to
work:
[Wilson] is still an active employee and he needs to have the same
ability to perform his duties as you have. His incidental contact
with while you are both engaged in your official duties is not
prohibited. He has not been required to avoid a certain travel route
or a particular room of the building, simply because you happen to
be in the area. He is not required to retreat when he sees you.
....
You reported dissatisfaction that Officer Wilson is allowed to work
during this investigation. Officer Wilson has a right to due process
and his guilt or innocence relative to rule violations has yet to be
determined. Currently, there is no credible evidence that Officer
Wilson poses a physical threat to you by continuing to work. You
state what you believe he will do or what you believe he is capable
of doing, but no evidence has come forward to sustain those
beliefs.
Doc. 29-6, March 1, 2011 Letter from Settingsgaard to Nicholson, p. 6 (emphasis added).
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54.
Page 21 of 59
At the time of Settingsgaards letter, Snow and Feehan had reported to
Settingsgaard that Wilson was behind the illegal surveillance of Plaintiff:

Q:
Now, as of March 10, 2011, had your investigator reported

to you that they believe Wilson was behind both the GPS
and the cameras?
A:
Based on that January document we reviewed, yes.
Doc. 29-1, Chief Dep. 93:17-21.

I.
Plaintiffs Stalking No Contact Complaint, Hearing And Order
55.
On April 28, 2011, Plaintiff filed her initial Charge of Employment
Discrimination and sexual harassment against Wilson and the Department with the EEOC and
IDHR. Doc. 12-5, Complaint, Exhibit 4; Doc. 21, Answer 26.
56.
The following day, April 29, 2011, Plaintiff filed a Complaint for Stalking against
Wilson in Peoria County Circuit Court (the Stalking Complaint) and obtained an Emergency
Stalking No Contact Order: (1) prohibiting Wilson from stalking or contacting Plaintiff; (2)
requiring that Wilson stay 300 feet away from Plaintiff, her residence, and the Police
Department; and (3) prohibiting Wilson from possessing a firearm. Doc. 21, Answer 27; Doc.
29-7, Stalking Order.
57.
Defendant City hired and paid attorneys for Wilsons defense, which included
challenging the constitutionality of the Stalking No Contact statute. Ex. 3, Letter from Attorney
to Wilson.
58.
On July 7, 11 and 15, 2011, Judge Purham of the Peoria County Circuit Court
conducted a Plenary Hearing on the Stalking Complaint. See, Ex. 2, Hearing on Order of
Protection, July 7, 2011, Doc. 29-10, Hearing on Order of Protection, July 11, 2011, and Ex. 4,
Closing Arguments and Opinion, July 15, 2011.
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59.
Page 22 of 59
At the Plenary Hearing, Sgt. Snow testified to his conclusion that it was Officer
Wilson who initiated the covert videotaping and GPS surveillance of Plaintiff:
Q:
And after examining the computers and after examining the video
files, did you reach an opinion as to who initiated the videotaping?
A:
Yes.
Q:
And who was that person?
A:
Officer Wilson.
Q:
Okay. In your investigation, did you come across any evidence

that Officer Wilson had previously been instructed not to videotape
within the Vice Office?
A:
Yes.
****
Q:
Okay. All right. So, with regards to figuring out this whole GPS
business, what steps did you take to investigate how that GPS track
was created?
A:
Looked into who was back in the Vice Office that had the
knowledge, knowhow, access to that equipment, how to apply it,
how to power it, how to collect data from it and store it on the
computer.
Q:
And in the course of that investigation, were you able to form an

opinion as to who had that expertise and who could have
perpetrated the GPS on her vehicle?
A:
I sustained the allegation of who placed the GPS.
Q:
Who did you find placed the GPS on the vehicle?
A:
Jeffrey Wilson.
Ex. 2, Snow Testimony, Hearing on Order of Protection, July 7, 2011, pp. 200-202.
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60.
Page 23 of 59
Settingsgaard testified at the Plenary Hearing that, notwithstanding the
conclusions of his investigators over the seven-month investigation, he had not made a decision
whether to discipline Wilson:
Q:
What are your duties generally in regard to discipline administered

to police officers in the department?
A:
I review all investigative files that have discipline pending and

make a decision as to appropriate discipline.
****
Q:
Chief Settingsgaard, the investigation in this matter began in

November of 2010, correct?
A:
Correct.
Q:
And today it is July 11, 2011, and it is still not concluded, correct?
A:
Correct.
Q:
And you stated that in April approximately within a few days of

the filing of this petition that you were close to your resolution,
correct?
A:
Correct.
****
Q:
I understand, Chief. Can you please describe what was that new
evidence that came up after, in or around April 27, 2011, that
caused you to continue the investigation further? Was there
another special report made that led you to believe there should be
further research?
A:
It could be.
Q:
You dont recall?
A:
I dont recall.
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****
Q:
You have seen the record of the conclusions that have been
presented to you by Sergeant Snow?
A:
Yes.
Q:
And youre aware that seven of the accusations against Officer

Wilson were sustained by Sergeant Snow?
A:
Yes.
Q:
And youre aware that Sergeant Snow and Detective Feehans

conclusions were that Officer Wilson placed the GPS on Officer
Nicholsons vehicle, correct?
A:
Correct.
Doc. 29-10, Settingsgaard Testimony, July 11, 2011, pp. 80, 88-91.
61.
After a three day hearing, Judge Purham agreed with the conclusions of Snow and
Feehan and issued the Stalking No Contact Order against Wilson. Doc. 29-1, Chief Dep.
105:18-2; Ex. 5, Stalking Order 7/15/11.
62.
In particular, Judge Purham concluded that Wilson had videotaped Plaintiff
without her knowledge or consent, despite being repeatedly told not to do so:
Before I get off point, on April 14th, 2008, after the Petitioner thought she
saw her office being depicted on the Respondents laptop, inside his van at
the FBI search warrant, she complains to Lieutenant Adams and to
Sergeant Bainter. After meeting with them, they direct her to confront the
Respondent. She does . . . in no uncertain words that she did not want to
be videotaped anymore.
Further, its this Courts understanding that Sergeant Bainter shortly
thereafter did confront the Respondent and indicate that he was not to
videotape people in the work area, and that Officer Wilson understood.
My understanding in October 2010, Sergeant Eddlemon told Respondent
Wilson that he was not to videotape people in the office.
So November 9th, my understanding, Officer Mike Eddlemon comes in to
the office, goes to Officer Wilsons work area, goes to the laptop so he can
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Page 25 of 59
check his Fantasy Football scores or something about Fantasy Football,

and while hes there, he realizes theres been surveillance conducted
within the office itself. Theres two cameras that are recording, and one is
marked office. . . .
So what we have is . . . a pole cam of video about from November 8th,
2010, which is about 35 34 minutes depicting Officer Nicholson in the
videotape, and then, I believe theres five clips from either a pin camera or
ocular camera, . . .
I also note when looking at the various clips, there are several of Officer
Wilson adjusting the camera where I see his face in at least two of the
clips, and then theres one clip where Officer Nicholsons chair is being
brought into focus.
And I would note that this pole camera is on some type of cabinet or
storage cabinet inside of Officer Wilsons area. The storage cabinet is
about six feet high, . . . The only way that you could depict or focus it on
Officer Nicholson is to raise it, because if he had just kept it at desk
level, he would not be able to depict or capture Officer Nicholsons face
or her desk.
Ex. 4, Judge Purham Transcript, July 15, 2011, pp. 59-62 (emphasis added).
63.
Judge Purham also agreed with Snow and Feehans conclusions that it was
Wilson who placed the GPS on Plaintiffs vehicle:

Detective Feehan detailed for us why he felt that it was Officer Wilson
who placed the GPS on the vehicle of Officer Nicholson. . . . Im not
going to go through all the proximity card and all the logs for the
entrances, but I find that to be quite persuasive and strong
circumstantial evidence which I think more than meet the
preponderance standard.
Ex. 4, Judge Purham Transcript, July 15, 2011, pp. 62-63 (emphasis added).
64.
Finally, Judge Purham found [I]t is obvious to the Court that [Plaintiff] has
suffered significant emotional distress. Ex. 4, Judge Purham Transcript, July 15, 2011, p. 63.
65.
Settingsgaard concedes that Plaintiff suffered emotional distress during this
period.
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Q:
Did you observe emotional distress from Donna Nicholson

during this period?
A:
Yes.
Doc. 29-1, Chief Dep. 105:1-3.

66.
Settingsgaard also concedes that Plaintiffs fear of violence was reasonable:

Q:
Okay. You would acknowledge that a reasonable person

might be concerned for their own safety, a woman, under
those circumstances, a police officer with a badge and a
gun were found to be surreptitiously videotaping her after
being told not to do so and placing a GPS on her car and
speaking ill of her children? You would understand that to
be reasonable from her perspective?
A:
Yes.
Doc. 29-1, Chief Dep. 89:2-10.

I.
Defendants Failure to Discipline Wilson
67.
On July 29, 2011, Sgt. Snow drafted a letter of termination for Settingsgaard to
give to Wilson referencing Wilsons numerous violations of the Departments General Orders
100.06 V.A, VI.C, VI.D, VI.G and the Workplace Violence Prevention and Anti-Harassment
Policy:
Based upon the evidence, it has been proven that you violated the
following General Orders in that you did place, without
authorization, the Peoria Police Departments Sentinel GPS
tracking device on Nicholsons Department assigned vehicle on or
about August 10, 2010 and caused it to remain there until August
24, 2010. . . . Your lack of truthfulness in your interview
undermines your credibility and therefore ability to act as a police
officer. . . .
Based upon the evidence, it has been proven that you made grossly
offensive comments about Nicholson and her daughter, in the
presence of others. You were also untruthful in denying the
comments and therefore you violated the following General
Orders: . . .
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Any reasonable person would likely be disturbed by being secretly

monitored and would find this to be an invasion of privacy.
Nicholson was affected by this behavior to the point she began to
question the safety of both herself and children. Nicholson's level
of discomfort was magnified by the fact she had already been
subjected by you to being on camera without her knowledge, both
in 2008 and 2010. . . .
The totality of your behavior towards Officer Nicholson was
threatening, demeaning, and embarrassing to her, prompting her to
acquire both a temporary and permanent stalking no contact order
which was granted by Judge Purham. These court proceedings
were highly publicized and were much to the discredit of the
department's reputation. . . .
Your intentional misuse of the very technology that you were
entrusted to safeguard diminishes the sense of privacy and security
that every member of this department has a right to enjoy. . . .
The totality of your aforementioned actions not only violated
general orders but they violated the public trust, and their severity
is only compounded by your denials and untruthful responses.
You have demonstrated that your judgment and integrity have been
compromised to a level that, despite your lengthy and stellar work
record, precludes you from continuing to serve as a Peoria police
officer and I, therefore, terminate your employment with the City
of Peoria Police Department effective immediately.
Doc. 29-12, Draft Termination Letter; Doc. 29-1, Chief Dep. 106:2-13, 107:15-112:16.
68.
Settingsgaard did not give the letter to Wilson. Doc. 29-1, Chief Dep. 112:17-23.
69.
Instead, Settingsgaard read the letter to Wilson and gave Wilson an opportunity to
come back later with his own evidence. Doc. 29-1, Chief Dep. 112:24-113:7, 113:21-114:13.
70.
In August, Settingsgaard met with Wilson and Benevolent President Troy Skaggs,
at which time Wilson provided only the following explanations: (a) the GPS was not as
complicated as we believed it to be; and (b) Wilsons laptop was accessible to others in SID.
Doc. 29-1, Chief Dep. 116:2- 16, 118:4-11; Doc. 29-18, Letter of Discipline.
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71.
Page 28 of 59
In this meeting, Wilson suggested to Settingsgaard that Plaintiff may have been
behind the GPS:

Q:
And we have but you had no idea did Jeff offer up any
suggestions who that might be?
A:
At some point, Jeff suggested that Donna may have operated and
installed the GPS including on his own vehicle, his department
vehicle.
Q:
Did you and Donna may have operated the laptop; did he also
suggest that?
A:
I dont remember.
Q:
Because the laptop and GPS sort of go hand in hand, dont they?
A:
In a sense. I think the GPS will operate independently of the

laptop; but to download the data and view it, I think you need the
software on the laptop. Yes.
Q:
Did you think that was credible?
A:
I didnt believe it. I thought it was possible, but I didnt believe it.
Q:
I mean you knew Donna had gone through all these court hearings
and hired lawyers and spent thousands of dollars? That was an
issue, the fact that she had to pay for her lawyers and Wilson had a
free attorney. Remember all that?
A:
Yes. It wasnt believable to me. It was possible but not

believable.
Doc. 29-1, Chief Dep. 120:11-121:-10.

72.
Wilson also told Settingsgaard that, contrary to his initial statements to Sgt.
Eddlemon, he had been operating the camera with a technician:

A:
He also provided evidence -- and this speaks to the

allegation that he was tracking her movements in the office
with a pan-tilt zoom and he provided information that he
was working with a technician out of state over the phone
trying to repair that camera that wasn't functioning properly
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and that the technician should be able to verify the time and
date. . . .
Q:
But doesn't that suggest that the camera was him? Isn't that
a confession that he's the camera guy?
A:
It's an admission that he is the guy operating the camera at

that time. Yes.
****
Q:
Do you remember at some point in the investigation that he

denied having anything to do with the camera?
A:
I don't know.
Q:
He thought the camera was -- he didn't know it was

operating; wasn't that his first position? He had no idea the
camera was operating when Eddlemon first found it?
A:
He may have. I don't recall.
Q:
Wouldn't that now suggest he's now told two completely

different stories if he did tell that to Eddlemon? One, that
he's working like a beaver with some guy out of state to fix
his camera and, two, he doesn't know anything about any
camera?
A:
There's two different responses, yes, if that's what was

said.
Doc. 29-1, Chief Dep. 124:3-9, 20-23, 125:7-23 (emphasis added).

73.
On September 8, 2011, Settingsgaard issued a Letter of Discipline to Wilson
reversing the conclusions of his Investigators Snow and Feehan and of Judge Purham,
stating: (a) with respect to the videotaping of Plaintiff, no wrongdoing on your part in this
regard; (b) with respect to the GPS, I can no longer say with any degree of certainty who was
responsible. Since I cannot prove who is responsible, I cannot say that you were untruthful in
your denial that you were responsible; and (c) with respect to the offensive comments regarding
Plaintiff and her daughter, I however no longer believe you were intentionally being untruthful
Page 29 of 59
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Page 30 of 59
in your denial, but rather than your denial is based upon your inability to recall. Doc. 29-18,
Letter of Discipline.
74.
Settingsgaards Letter to Wilson is contrary to his own testimony regarding the
scope of prohibited conduct under the Departments Workplace Violence Prevention and AntiHarassment Policy:
Q:
That would include unauthorized videotaping of people in

the office, using profane, sexual comments about their
physical appearance or their children that Duncan talked
about, putting a GPS? All those things would be
considered harassment in your view; would they not?
A:
If they're intentional behaviors, yes. I guess it could be

harassment even if unintentional.
Doc. 29-1, Chief Dep. 86:12-1.

75.
Settingsgaards Letter also is contradicted by his testimony that Wilson was lying
to him, his investigators and the Court:

Q:
Why did you not at that point order an external

investigation, an outside investigation to determine whether
or not Wilson was telling the truth, whether you had some
other rogue in the office? I mean, why didn't you do that?
A:
I didn't believe it was necessary.
Q:
Well, if Wilson was right, if Wilson was right, you had

somebody else in there doing this and setting him up, right?
A:
I don't follow the question.
Q:
If Wilson was correct, somebody else had put the GPS on

Donna's car and somebody else had access to the laptop.
There was no secret about this. This was all over the
Peoria Star Journal (sic), wasn't it?
A:
Correct.
Q:
I mean, you testified at least once. You had officers

coming and going. You had the City Counselor's office
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Page 31 of 59
defending Wilson, went all the way to Court of Appeals.

Weren't you concerned that Wilson was either lying or that
he was telling the truth and you had somebody else in the
department who was not only doing this but was allowing
Wilson to take the fall and it was exposing the department
to complete public ridicule? Is that true? Is that a fair
assessment of the situation?
A:
I was -- I didn't believe that it was someone else who had

done it.
Q:
You thought it was Wilson?
A:
I still believe it was Wilson.
Q:
You did believe it was Wilson?
A:
I did and I still do.
Q:
Okay. You thought it was Wilson which means you

thought he was lying to you, right?
A:
Correct.
Q:
And you put Donna out on Patrol with him, right, same
department?
A:
Yes.
Doc. 29-1, Chief Dep. 132:5-8, 158:11-160:10 (emphasis added).

76.
Settingsgaards Letter to Wilson is not the first time Settingsgaard falsely re-
stated facts to exonerate an officer:

Q:
And at the time of this affidavit which is 2004, signed in 2004, I

believe the last page, March of 2004, you were the commander of
the Milwaukee Police Department Internal Affairs Division, right?
A:
Correct.
****
Q:
And you represented to the Court that you had personal knowledge
of this information in paragraph three, first page, correct?
Page 31 of 59
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Page 32 of 59
A:
Correct.
Q:
Okay. And you made some representatives here regarding Mr.

Fields regarding the shooting that were false; is that true?
A:
I remember that being an issue. I don't remember exactly the

details of it.
****
Q:
That was written under oath, signed under oath, and submitted to
a federal judge?
A:
I don't know if it was written under oath. I signed it under oath.
Q:
It turned out that was false, correct?
A:
Correct.
Q:
The emergency vehicle was not approaching with its lights on or

siren going, right?
A:
I believe that's correct. Yeah.
****
Q:
It was your duty to make sure before you signed it that what was
stated in the affidavit was correct?
A:
I think within reason, yes.
Q:
We're talking about a shooting death of somebody. So do you

think within reason it was reasonable, within reason, that you
would ensure that what you signed was truthful and accurate
before you filed it in federal court?
A:
Within reason.
Q:
What does within reason mean?
A:
What you are suggesting would require I would fact check every
word, every sentence throughout the 22-page document over
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Page 33 of 59
however many shootings of files that were several inches thick of

documents.
Q:
You don't think that's reasonable, that you would fact check every
sentence, every word regarding these 15 shootings?
A:
I trusted that our attorneys to get some of those minute facts

straight. I read them for content. They were consistent with my
recollection of the cases and my reading of the cases, but I didn't
compare word for word, no.
Q:
Okay. It was helpful to the officers that the -- to represent to the

Court that the emergency vehicle -- that the victim's car was not
giving the right-of-way to an emergency vehicle with its lights and
siren on; is that right?
A:
I don't know.
Q:
That improves their position; does it not?
A:
I don't know.
Doc. 29-1, Chief Dep. 36:1-5, 37:11-19, 38:5-13, 39:13-40:19 (emphasis added).
J.
Defendants Discriminatory Adverse Employment Action And Pattern Of

Discrimination
77.
In July 2012, Settingsgaard issued General Order 300.10, providing that officers
having three or more years of specialized assignments (non- Patrol) were subject to transfer.
Officers could reapply for the same position or any other vacant position. Doc. 29-13, General
Order, pp. 1-4; Doc. 29-1, Chief Dep. 12:18-24, 134:6-11.
78.
At the same time, SID/Vice, Asset Forfeiture and the Liquor Investigator became
merged into a newly-named Target Offenders Unit (TOU). Doc. 29-13, General Order, p. 2
6; Doc. 29-1, Chief Dep. 141:8-15.
79.
In the Fall of 2012, all of the SID/Vice officers, the Liquor Investigator, Scott
Jordan, and Plaintiff, applied for their same positions in TOU. Doc. 29-14; 29-15; Rotation
Assignments.
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80.
Page 34 of 59
Each of the male officers in SID/Vice and Liquor received the position they
applied for irrespective of the length of their service. Doc. 29-14; 29-16; Doc. 29-1, Chief Dep.
143:22-144:1.
81.
Liquor Investigator Scott Jordan, with over seven years in his position, reapplied
for and received the same position. Docs. 29-14, 29-15, 29-16, Rotation Assignments; Doc. 29-1,
Chief Dep. 139:1-140:5, 145:24-146:13.
82.
SID/Vice Officers Matt Lane and Corey Miller, each with over three years in their
respective positions, applied for and received their same positions. Doc. 29-14, 29-15 and 29-16,
Rotation Assignments; Doc. 29-1, Chief Dep. 140:6-141:21.
83.
SID/Vice Officers Clint Rezac, Todd Leach, Christopher White and Justin Sinks
also applied for and received their positions in TOU. Doc. 29-14, 29-15, 29-16, Rotation
Assignments. Doc. 29-1, Chief Dep. 143:11-144:12.
84.
Plaintiff, the only female in SID/Vice, was the only person in SID/Vice who was
not allowed to remain in her position. Doc. 29-14, 29-15, 29-16; Doc. 29-1, Chief Dep. 147:2-5;
Ex. 6, Kerrie Davis Dep. 119:8-10.
85.
Sergeant Kerrie Davis, who was being brought into TOU as supervisor over the
Asset Forfeiture, was not allowed to participate in the interviews for the position:
Q:
You werent present during the interviews for the Asset Forfeiture
position, right?
A:
No, I was not.
Q:
Have you had any conversations with anybody as to what

happened during the interviews for the Asset Forfeiture position?
A:
I did ask Lieutenant Eddlemon why I was not included in the

interviews for the Asset Forfeiture position and the other positions
in the Target Offender Unit.
****
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Q:
During that conversation, what did you say and what did he say?
A:
I said I asked him why I was not being included, that I would
think that I would be asked to help interview the people that Im
going to be supervising in the next year that were coming into the
unit. And he told me not to worry about it, that Sergeant
Mushinsky and Sergeant Dixon would be in the interview and that
was fine, that was enough.
Ex. 6, Davis Dep. 48:10-16, 48:24-49:8.

86.
Davis testified that, prior to the interview process, she understood that Plaintiff
would be transferred:
Q:
Did you have any reason to believe that Eddlemon

excluded you for any particular purpose?
A:
Well, you know to be honest, I felt like I was basically

the token female replacement for Officer Nicholson and I
figured that they didnt want me in the interview process
because they didnt really care what my opinion was.
****
Q:
You also testified that you heard through scuttlebutt that

Donna was not going to get the Asset Forfeiture position
before there were interviews held. Did I understand you
testimony correctly?
A:
Yes.
Ex. 6, Davis Dep. 50:5-12, 129:7-11.

87.
Davis testified that there was a pattern of discrimination against women within the
Department that specifically impacted Plaintiff, Katie Baer-Burwell and Davis. Ex. 6, Davis
Dep. 111:16-112:9.
88.
Prior to her deposition in March 2016, Davis reviewed the Departments EEOC
files, which disclosed that the Department had not hired a single female officer since 2008:
Q:
What did you observe after reviewing those documents?

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Page 36 of 59
A:
Well, I observed that the last female that we hired was in 2008,
Brittany Martzluf. Before that, we hired two females in 2006,
Amy Dotson and Denise White. So it's been coming up on eight
years since we hired a female officer in this department.
Q:
So did I understand correctly it was two females in 2006 and one

female in 2008?
A:
That's correct.
Q:
Am I correct that that would be three females hired for the nine
years Chief Settingsgaard was in charge; is that correct?
A:
There may have been one more in 2006. I can't recall.
Q:
Do you know how many females are on the entire Peoria Police
Department?
A:
18.
MR. ROSENFELD: How many men?
THE WITNESS: We have 220 commissioned, so 202.
BY MS. LYNCH:
Q:
You mentioned this EEOC count. What exactly is that? Who do

you receive it from?
A:
I believe it comes from City Hall, and it's just a break-down by

gender and race of the different personnel that we have currently
employed.
Q:
So it's a count of literally how many people there are? It's not a
count of how many EEOC claims?
A:
Right. That's correct.
Q:
That particular unit, the TOFU unit you were assigned to, how
many females were in that unit for the approximate year you were
in it?
A:
None besides me.
Q:
Was Donna Nicholson the only female in that unit for the prior
ten years?
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A:
Yes, she was.
Q:
Are there any females in that unit now?
A:
No.
Ex. 6, Davis Dep. 142:11-144:8.

89.
Davis testified that, in her own particular case, she became the subject of an
internal investigation and discipline on July 9, 2013, the day immediately after she asked for a
meeting with Chief Settingsgaard to discuss why I was skipped over for a promotion a second
time for a less a male that had scored less than me on the promotional exam. Ex. 6, Davis
Dep. 11:8-14 (emphasis added). Following the Departments investigation and discipline of
Davis, Davis filed a claim of sex discrimination with the EEOC which resulted in Davis
promotion to Lieutenant in October 2015. Ex. 6, Davis Dep. 10:9- 12:11, 14:20-15:14.
90.
At her interview for the Asset Forfeiture position, Plaintiff read a written
statement in order to be completely thorough with her qualifications and expertise. Doc. 28-1,
Plf. Dep. 118:2-9.
91.
Settingsgaard made the decision to transfer Plaintiff to Patrol and elevate Troy
Skaggs from Patrol to Asset Forfeiture Investigator:

Q:
And where did you put her?
A:
She went to Patrol.
Q:
That was your decision, correct?
A:
Yes.
Doc. 21, Answer, 34, 36; Doc. 29-14, Rotation Assignments, p. 1; Doc. 29-1, Chief Dep.
142:1-10; 147:2-5.
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92.
Page 38 of 59
Davis testified that assignments were [A]bsolutely, without a doubt based on
loyalty to the chief and that officers were hesitant to tell the truth for fear of retaliation
(Ex. 6, Davis Dep. 121:16-19, 140:11-15) and that each of the officers who participated in
Plaintiffs interview received a promotion following the interview:
Q:
To the best of your memory, has Mushinsky been promoted since

the fall of 2012?
A:
Oh, yes.
Q;
Has Marion been promoted since the fall of 2012?
A:
Yes.
Q:
Has Lisa Snow been promoted since the fall of 2012?
A:
Yes.
Q:
Has Mike Eddlemon been promoted since the fall of 2012?
A:
Yes.
Q:
Has Paul Deeb been promoted since the fall of 2012?
A:
I'm not sure of his date, but he has been promoted, yes.
Q:
Is Mushinsky in charge of the unit now?
A:
Yes, he is.
Ex. 6, Davis Dep. 141:2-19.

93.
According to Davis, transfer to Patrol was demeaning or degrading and a form
of punishment by Settingsgaard. Ex. 6, Davis Dep. 136:18-137:9.

94.
Settingsgaard concedes that, because of the transfer, Plaintiff lost perks that she
had earned over eleven years in SID and faced a more strenuous job:
Q:
She went out to Patrol. Folks in Patrol have the same perks and
benefits that they have in Vice, in Asset Forfeiture or Target
Offenders?
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Page 39 of 59
A:
Its a very different job. Vice they dont have some of the same
perks, no.
Q:
Not as many perks as being in Target Offender, right?
A:
I would say thats accurate.
****
Q:
What benefits would Donna lose by moving from Target

Offender or Asset Forfeiture to Patrol?
A:
Take-home car -- and, again, depending on who views

benefits -- who views something as a benefit, so some may
consider working plain clothes a benefit, others may not
want to work plain clothes. So you might construe working
in uniform and not plain clothes as a loss of something you
enjoy.
Q:
Is Asset Forfeiture plain clothes?
A:
Yes.
Q:
Is Patrol overtime more strenuous than overtime for plain

clothes or Asset Forfeiture physically?
A:
Yes and no. I think doing Asset Forfeiture might be less

strenuous. I think that Asset Forfeiture officer working
with Vice executing search warrants and going into some
pretty dangerous places can be strenuous. So I don't know
that you can give it a one or the other. On average, Patrol
is probably more strenuous.
Doc. 29-1, Chief Dep. 142:11-18; 154:9-155:3 (emphasis added).

95.
Settingsgaard also concedes that the transfer cost Plaintiff use of the unique
skillset that Plaintiff had developed, and which had made her effective, in her career in Asset
Forfeiture:
Q:
She had been in Asset Forfeiture for ten years at this time
roughly?
A:
Yes.
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Q:
And she developed a skill set that made her effective

investigating, tracking down assets for criminals or
defendants, right?
A:
She was effective. Yes.
Q:
And she wasn't going to be doing that on Patrol for at least

the next three years, right, until the next role?
A:
No. I believe she could have -- well, yeah. It wouldn't

have gone up for rotation for three more years.
Q:
So that skill set was going to be on ice for another three

years, right?
A:
Possibly.
Doc. 29-1, Chief Dep. 142:19-143:10 (emphasis added).

96.
Finally, Settingsgaard concedes that his transfer of Plaintiff to Patrol increased the
likelihood of contact with Wilson, who was still litigating his appeal of Judge Purhams Order:
Q:
Okay. Was there a concern by you that Patrol would put

Donna in the same proximity as Wilson who was in
Patrol?
A:
There was a chance that no matter where they worked in

the department they had an opportunity to be in the same
proximity at some point. I was concerned that both of
them being in Patrol could mean more likely, becoming
more likely that they'd have some contact.
Doc. 29-1, Chief Dep. 155:4-11 (emphasis added).

K.
Plaintiffs EEOC/IDHR Charge And Reapplication For Asset Forfeiture
97.
On December 13, 2012, Plaintiff filed the underlying EEOC Charge alleging that
Defendants failure to reassign her to Asset Forfeiture constituted retaliation and sex
discrimination and, after receiving a Right to Sue Notice, Plaintiff filed this action seeking
redress for the outrageous discriminatory and retaliatory acts, as set forth above. Doc. 21,
Answer, 35, 39-40.
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98.
Page 41 of 59
After Plaintiffs transfer to Patrol, the Asset Forfeiture funds decreased
dramatically. Ex. 6, Davis Dep. 114:24-115:1.

99.
Lt. Davis testified that Plaintiffs replacement, Skaggs, did only the bare
minimum and did not demonstrate any initiative or improvement:

A:
But in that, I think that in my opinion it seemed to me that

throughout the year he did -- he continued to do the bare
minimum. It was understandable at the beginning of the
year because he was brand new in that position and he
didn't fully know himself what all he was supposed to be
doing. But as he continued on in that position throughout
the year, he didn't demonstrate to me any improvement. He
didn't demonstrate to me any initiative. He would process
what seizures came in from the officers, what money they
seized, what money they seized during Patrol stops, traffic
stops, Vice raids or Target Offender Unit raids, what have
you. The money that other officers seized he would
process.
And I believe we had one car that Lieutenant/Captain
Eddlemon really wanted, so he figured his way out through
that. But other than that, he didn't go for any bank
accounts. He didn't go for any other personal property. He
just did the bare minimum from what I saw.
Ex. 6, Davis Dep. 113:10-114:4.

100.
Lt. Davis further testified that Illinois States Attorney Kim Nuss was
disappointed in the decrease in Asset Forfeiture funds following Plaintiffs transfer to Patrol:
A:
During that meeting, Miss Nuss was very upset about the
fact that we were not bringing in anywhere near the amount
that we had been when Officer Nicholson was the Asset
Forfeiture officer and that there were problems with
procedures, there were problems with things not being done
correctly, but a large portion of the time was talking about
the decrease in funds.
Ex. 6, Davis Dep. 115:19-116:1.
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101.
Page 42 of 59
States Attorney Kim Nuss, who worked with both Plaintiff and Skaggs in asset
forfeiture, states, under oath, as follows:

Donna Nicholson was an excellent asset forfeiture officer. Donna was
very familiar with the asset forfeiture laws and procedures governing asset
forfeiture. Donna . . . excelled as the City of Peorias asset forfeiture
position bringing in millions of dollars. Donna actively sought out assets,
including bank accounts, bonds in criminal cases and vehicles registered
to nominee owners.
Troy Skaggs was Donnas replacement. In my experience, Troy Skaggs
was a paper processor while Donna was an active investigator. Troy
Skaggs would just fill out the forfeiture request form while Donna
conducted asset forfeiture investigations. . . . Even after he had been on
the job for some time, Troy Skaggs was unable to do a seizure warrant
or an Article 36 seizure. This is very telling of the lack of investigation
on his part. When I confronted Troy Skaggs about these and other issues
that would come up while we were working together, his response was
that Donna Nicholson did not train him.
It is my understanding that since Donna Nicholsons transfer, there has
been a big decline in the asset forfeiture funds and I was informed that
there is little to no money in the City of Peoria asset forfeiture accounts.
Ex. 7, Affidavit of Kim Nuss, 3, 4, 5, 6 (emphasis added).
102.
On August 5, 2013, The Third District Court of Appeals affirmed Judge Purhams
Order, finding, inter alia

Here, the evidence clearly established that it was more likely true than not
true that Wilson had engaged in at least two such actions. While Wilson
denied engaging in such acts, there was sufficient evidence upon which
the Court could have disbelieved Wilson. Moreover, the evidence
supported the conclusion that, given Wilsons professional background
and expertise, with surveillance equipment, it was highly unlikely that he
accidentally videotaped Nicholson while testing his equipment.
Doc. 29-17, Opinion.
103.
In 2015, Plaintiff reapplied for Asset Forfeiture and again was denied in favor of
Skaggs. Ex. 1, Nicholson Affidavit, 3.
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IV.
Page 43 of 59
ARGUMENT
A.
The Legal Standard for Summary Judgment.
To obtain summary judgment, Defendants must show that there is no genuine issue as to
any material fact and that [they are] entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c). When ruling on a motion for summary judgment, a court should construe all facts in the
light most favorable to the nonmoving party and draw all reasonable and justifiable inferences in
the nonmoving party's favor. Id. at *19, citing Estate of Cole by Pardue v. Fromm, 94 F.3d 254,
257 (7th Cir. 1996).
[S]ummary judgment is improper in a discrimination case where a material issue
involves any weighing of conflicting indications of motive and intent. Kasten v. Saint-Gobain
Performance Plastics Corp., 703 F.3d 966, 974 (7th Cir. 2012), quoting Stumph v. Thomas &
Skinner, Inc., 770 F.2d 93, 98 (7th Cir. 1985). The Seventh Circuit has suggested that motions
for summary judgment in employment discrimination cases should be approached cautiously and
with added rigor . . . where intent and credibility are issues. Sarsha v. Sears, Roebuck & Co., 3
F.3d 1035, 1038 (7th Cir. 1993); see also Bagley v. Blagojevich, 646 F.3d 378, 389 (7th Cir.
2011).
Accordingly, [a]scertaining intent in a discrimination case is both sensitive and
difficult, and in opposition to a motion for summary judgment a plaintiff should be required to
do no more than offer proof which casts doubt upon the veracity of the employers stated reason
for its action. Stumph v. Thomas & Skinner, Inc., 770 F.2d 93, 98 (7th Cir. 1985), quoting U.S.
Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983); see also; Stumph, 770 F.2d
at 98; Sawyer v. Nicholson, 2010 U.S. Dist. LEXIS 115969, at *49-50 (N.D. Ill. 2010) (Intent
and credibility frequently are critical issues in employment cases that in many instances are
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Page 44 of 59
genuinely contestable and not appropriate for a court to decide on summary judgment.), citing
Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir. 1997).
In Baer-Burwell v. City of Peoria, 2012 U.S. Dist. LEXIS 150507 (C.D. Ill. Oct. 19,
2012), a prior sex discrimination and retaliation case against the City and Settingsgaard, this
Court applied these principles to deny the Defendants motion for summary judgment based on
questions of fact related to credibility and motive:
It is ultimately up to the jury to decide whether to believe
Settingsgaards explanation or alternatively to find Burwells
version to be more credible.
****
Although the City has offered what it asserts are legitimate, nondiscriminatory reasons for the differences in discipline, the
presence of genuine issues of material fact in the record mandates
that a jury determine whether the City's explanations are worthy of
credence or are merely a pretext for retaliation. The Citys Motion
for Summary Judgment must therefore be denied in this respect.
Id. at *36-37, 59.
Here, the factual record demonstrates substantial issues of fact relating to credibility and
motive that preclude summary judgment.
B.
Genuine Issues of Material Fact Preclude Summary Judgment on Plaintiffs

Claim for Retaliation under Title VII.
The anti-retaliation provision of Title VII prohibits an employer from retaliating against
an employee for opposing discrimination or an unlawful employment practice, or for making a
charge, testifying, assisting or participating in a Title VII investigation, proceeding or hearing.
Sawyer, 2010 U.S. Dist. LEXIS 115969, at *59, quoting, 42 U.S.C. 2000e-3(a).
A plaintiff in a Title VII case may prove a claim of retaliation under either the direct
method of proof or the indirect method. See Baer-Burwell, 2012 U.S. Dist. LEXIS 150507 at
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*57. Here, under either method, Plaintiff presents genuine issues of material facts which
preclude summary judgment.
1.
Defendant City Has Not Demonstrated The Absence Of Genuine

Issues Of Material Fact Under The Direct Method.
To avoid summary judgment on a retaliation claim under the direct method, [plaintiff]
must produce evidence from which a jury could conclude: (1) that she engaged in a statutorily
protected activity; (2) that she suffered a materially adverse action by her employer; and (3) there
was a causal link between the two. Benuzzi, 647 F.3d 652, 664 (7th Cir. 2011) (citation
omitted).
Here, the City does not dispute the first two elements of proof under the direct method:
that Plaintiff engaged in a protected activity or suffered an adverse employment. Instead, the
City contends that there is no genuine issue of material fact regarding a causal connection
between Plaintiffs complaints of discrimination, the Rotation Policy, and the decision to replace
Plaintiff with Skaggs as Asset Forfeiture Investigator. Doc. 27, p. 18.
To show causation under the direct method, [plaintiff] may rely on either direct evidence
of a causal link, or circumstantial evidence that is relevant and probative on any of the elements
of a direct case of retaliation. Kasten v. Saint-Gobain Performance Plastics Corp., 703 F.3d
966, 972 (7th Cir. 2012), quoting Treadwell v. Office of Ill. Sec. of State, 455 F.3d 778, 781 (7th
Cir. 2006). Circumstantial evidence may include: (1) suspicious timing, ambiguous statements
or behaviors; (2) evidence that similarly situated employees were treated differently; or (3) a
pretextual reason for adverse employment action. Kasten, 703 F.3d at 972. Circumstantial
evidence allows the trier of fact to infer retaliation, typically through a longer chain of
inferences. Sawyer v. Nicholson, 2010 U.S. Dist. LEXIS 115969, *83 (N.D. Ill. 2010)
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(summary judgment denied where employees offered a convincing mosaic of circumstantial

evidence to infer retaliation).
Here, the evidentiary record demonstrates ample evidence to satisfy not just one but all
three types of circumstantial evidence. For instance, with respect to suspicious timing,
ambiguous statements or behaviors, the evidence demonstrates that:
On August 10, 2010, the very same day that Plaintiff was ordered by
Settingsgaard, over Plaintiffs objection, to issue a $19,500 check from the Asset
Forfeiture account for the production of a video featuring Settingsgaard, a GPS
tracking device was placed on Plaintiffs vehicle (SAF 28-31);
After it was discovered in November, 2010, that Plaintiff was being illegally
videotaped at work, a protracted, seven month investigation and Court hearings
ensued which found that Wilson had had conducted both the GPS and video
surveillance of Plaintiff, for which Settingsgaard and the Department provided
no assistance to Plaintiff and imposed no punishment on Wilson (SAF 3275);
As Plaintiff pursued her civil complaint for stalking through Wilsons appeals, in
2012, Defendants instituted a rotation policy which resulted in Plaintiff, the only
female in the SID/Vice department, being the only SID/Vice officer transferred
from her current position to patrol, with a loss of perks, despite her undisputed
qualifications and effectiveness in the Asset Forfeiture position, as conceded by
Settingsgaard himself and testified to by the States Attorney working in Asset
Forfeiture (SAF 77-103);
Lt. Kerrie Davis, who was appointed as the supervisor over Asset Forfeiture, was
not allowed to participate in Plaintiffs Asset Forfeiture interview despite her
request to do so, and Lt. Davis understood, before the interviews were conducted,
that Plaintiff was going to be transferred from Asset Forfeiture position (SAF
85-86).
Plaintiff has similarly identified extensive circumstantial evidence from which a jury
could infer that similarly situated employees were treated differently and that Defendants reason
for its adverse employment action against Plaintiff was pretextual. See Section B.2 infra.
The City argues that there can be no causal relationship because too much time passed
between Plaintiffs discrimination charges and the reassignment. Doc. 27, p. 20. The cases on
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Page 47 of 59
which the City relies, however, rely on timing alone to support a causal connection. See, e.g.
Jajeh v. Cook County, 678 F.3d 560, 570 (7th Cir 2012) (timing of layoff did not, in itself,
support a causal connection) (emphasis added); Paluck v. Gooding Rubber Co., 221 F.3d 1003,
1010 (7th Cir. 2000) (the time between protected expression and termination alone did not infer
retaliation but that did not preclude plaintiff from coming forward with other evidence.)
Contrary to Jajeh and Paluck, Plaintiff presents a factual record demonstrating suspicious
behaviors and statements, in addition to suspect timing.
Defendants suspicious behavior, statements, and timing evidenced in the record allow
the trier of fact to infer retaliation and preclude summary judgment.
2.
Defendant City Has Not Demonstrated The Absence Of Genuine

Issues Of Material Fact Under The Indirect Method.
Retaliation may also be shown through the indirect, burden shifting method, which
requires proof that: (1) she engaged in a protected activity; (2) she suffered an adverse
employment action; (3) she was meeting her employers legitimate expectations; and (4)
similarly situated employees who did not engage in the statutorily protected activity suffered no
adverse employment action. Baer-Burwell, 2012 U.S. Dist. LEXIS 150507 at *57. Once the
plaintiff makes her showing, the burden shifts to the employer to provide a nondiscriminatory
reason for the employment action. If it does, the burden shifts back to [plaintiff], who must show
that a jury could find that proffered reason is pretextual. Benuzzi v. Bd. of Educ., 647 F.3d 652,
662 (7th Cir. 2011). A plaintiff can show a reason is pre-textual directly by persuading the court
that a discriminatory reason more likely motivated the [defendant] or indirectly by showing that
the [defendants] proffered explanation is unworthy of credence. Sawyer, 2010 U.S. Dist.
LEXIS 115969, at *108-109 (internal citations omitted).
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Here, the City concedes the first three elements of a prima facie case and only contends
that Plaintiffs claim fails because she cannot prove that she was treated less favorably than
similarly situated employees who did not engage in statutorily protected activity. Doc. 27, p.
18. Contrary to the Citys contention, the evidence shows:
Under the Rotation Policy, Plaintiff and all other SID/Vice

officers applied for the same positions in which they were
currently serving (SAF 79);
Plaintiff was the only female officer in SID/Vice (SAF 84);
Plaintiff engaged in statutorily protected activity by opposing

discrimination and unlawful employment practices, including:
lodging complaints of sexual harassment and stalking with the
Department, requesting Defendants protection, filing a charge
of discrimination, and filing and pursuing a stalking complaint
in Circuit Court and through the Illinois appellate courts (SAF
37, 51, 55, 56);
Every SID/Vice officer other than Plaintiff having an excess of

three years experience in their position received their same
position that they re-applied for, including Scott Jordan, who
had held his position of Liquor Investigator for over 7 years
(SAF 81-84);1
Plaintiffthe only female in SID/Vicewas the only

SID/Vice officer who did not receive the position for which she
applied (SAF 84).
Accordingly, Plaintiff has presented evidence to meet her prima facie case.
The Citys proffered legitimate, non-retaliatory reasons for Plaintiffs transfer to Patrol
rely on the Rotation Policy and interview performance. Doc. 27, p. 19. Plaintiff can establish
these reasons were pretextual by proving one of the following: (1) defendant's explanation had
no basis in fact; or (2) the explanation was not the real reason; or (3) at least, the reason stated
The City argues that Plaintiff was treated the same as her predecessor, Scott Jordan, who, in
2002, was transferred to Patrol under a different Chief and different Rotation Policy. Doc. 27, p.
18.
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was insufficient to warrant the adverse job action. Imhoff v. Kmart Stores of Ind., Inc., 149 F.
Supp. 2d 559, 568 (N.D. Ind. 2001) (internal quotation omitted)(summary judgment denied
where reasonable factfinder could conclude proffered reasons were not honestly believed).
The Citys reliance on the Rotation Policys premise that officers would be reassigned
after three years in order to cross train officers in specialized positions simply has no basis in fact
because Scott Jordan, the Liquor Investigator for seven years, was reassigned to his position of
Liquor Investigator. SAF 81. The interview process was also a sham because Lt. Davis
testified that she heard, before the interviews were conducted, that Plaintiff would not receive the
Asset Forfeiture position. SAF 86. Moreover, Lt. Davis, the Supervisor of Asset Forfeiture,
who requested to be involved in the interview process but was excluded, testified that she felt
like, basically the token female replacement for Officer Nicholson and [she] figured that they
didnt want [her] in the interview process because they didnt really care what [her] opinion was.
SAF 85.
The City erroneously contends that Hall v. Forest River, Inc., 536 F.3d 615 (77th Cir.
2008) is applicable here. Hall is a failure to promote case where summary judgment was
granted on an employees retaliation claim because she failed to offer any evidence other than
her longevity in her position. Id. at 620.
Here, unlike Hall, reassignment was not a promotion. Also, unlike Hall, Plaintiff has
more qualifications than just her tenure in the Asset Forfeiture position. Plaintiff collected over
$6 million while in Asset Forfeiture. SAF 21. Chief Settingsgaard concedes that Plaintiff was
good at her job and developed a skillset that made her effective in investigating and tracking
down assets. SAF 22, 95. Furthermore, the States Attorney, Kim Nuss, states that:
Donna Nicholson was an excellent asset forfeiture officer. Donna
was very familiar with the asset forfeiture laws and procedures
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Page 50 of 59
governing asset forfeiture. Donna Nicholson was on top of her

game and she excelled as the City of Peorias asset forfeiture
position bringing in millions of dollars. Donna actively sought out
assets, including bank accounts, bonds in criminal cases and
vehicles registered to nominee owners.
SAF 101.
Nuss regards Plaintiffs replacement, Skaggs, as a paper processor while
Plaintiff was an active investigator. Id.
Furthermore, the record provides reason to question the credibility of the stated reason for
the transfer. Settingsgaard, the ultimate decision-maker, has previously submitted a false
affidavit to a federal court to protect his officers from legal claims, calling the credibility of his
stated reason here into question. SAF 76.
Thus, plaintiff has offered proof which casts doubt upon the veracity of the employers
stated reason for its action. Stumph, 770 F.2d at 98. Accordingly, summary judgment should
be denied because, as this Court stated in Baer-Burwell, the presence of genuine issues of
material fact in the record mandates that a jury determine whether the Citys explanations are
worthy of credence or are merely a pretext for retaliation. 2012 US Dist. LEXIS 150507 at *59.
C.
Genuine Issues of Material Fact Exist with Respect to Plaintiffs Title VII
Claims for Sex Discrimination.
Title VII prohibits an employer from discriminating against any individual with respect
to [her] compensation, terms, conditions, or privileges of employment, because of such
individual's sex. 42 U.S.C. 2000e-2(a)(1).
Like retaliation claims, Plaintiff can prove intentional sex discrimination directly or
indirectly. See Volovsek, 344 F.3d 680 at 689 & n.7. Here, under either method, Plaintiff
presents genuine issues of material facts which preclude summary judgment.
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1.
Page 51 of 59
Defendant City Has Not Demonstrate It Is Entitled To Summary

Judgment Under The Direct Method.
Under the direct method, the plaintiff may avoid summary judgment by presenting
sufficient evidence, either direct or circumstantial, that the employers discriminatory animus
motivated an adverse employment action. Baer-Burwell, 2012 U.S. Dist. LEXIS 150507 at
*27, quoting Coleman v. Donahoe, 667 F.3d 835 (7th Cir. 2012). Circumstantial evidence can
include behavior toward or comments directed at other employees in the protected group.
Zafar Hasan v. Foley & Lardner LLP, 552 F.3d 520, 529 (7th Cir. 2008) (evidence of the
treatment of other employees in protected group was relevant to the mosaic of evidence to
survive summary judgment).
The City contends that Plaintiffs gender discrimination claims fails because there is no
direct evidence of discrimination. Plaintiff incorporates the evidence presented in her retaliation
analysis as if fully set forth herein and offers additional circumstantial evidence to show a
genuine issue exists as to whether Plaintiff was discriminated against based on her sex.
The Department only employs 18 females out of 220 officers and has not hired a female
officer since 2008. SAF 88. Plaintiff was the only female in SID/Vice during her 10 year
tenure. Id. Lt. Kerrie Davis was the only female in TOU during her time in that unit and there
are currently no females in TOU. Id. Lt. Davis testified that assignments were [A]bsolutely,
without a doubt based on loyalty to the chief and that officers were hesitant to tell the truth
for fear of retaliation. SAF 92. According to Davis, a transfer to Patrol was demeaning or
degrading and a form of punishment by Settingsgaard. Furthermore, Lt. Davis testified that
there was a pattern of discrimination against women within the Department that specifically
impacted Plaintiff, Katie Baer-Burwell and Davis. SAF 87.
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In Davis case, she became the subject of an internal investigation and discipline on July
9, 2013, the day immediately after she asked for a meeting with Chief Settingsgaard to
discuss why I was skipped over for a promotion a second time for a less a male that had
scored less than me on the promotional exam. SAF 89. Following the Departments
investigation and discipline of Davis, Davis filed a claim of sex discrimination with the EEOC
which resulted in Davis promotion to Lieutenant in October 2015. Id.
In Baer-Burwell v. City of Peoria, 2012 U.S. Dist. LEXIS 150507, 57-59 (C.D. Ill. 2012),
this Court denied summary judgment on gender discrimination and retaliation claims under Title
VII ruling that a reasonable jury could find liability for Settingsgaards actions and where
genuine issues of fact existed as to pretext. Katie Baer Burwell (Burwell), an officer in the
Department, complained of sexual harassment, including demeaning and sexual comments and
vulgar language by male officers in her unit. Id. at *10. After Burwell filed a complaint,
Settingsgaard ordered an internal, formal investigation which resulted in a three-day suspension.
Id. at *13. The evidence demonstrated a potential bias of the investigator and that Human
Resources recommended lesser punishment consistent with the discipline of thirteen other
officers. Id. at *16.
These claims are relevant to the mosaic of discriminatory treatment of women in the
Department. Like Davis and Baer-Burwell, Plaintiffs transfer to Patrol was punishment by
Settingsgaard for engaging in protected activities and is part of the pattern of disparate treatment
among women in the Department. Thus, based on the evidence taken in a light most favorable to
Plaintiff, a reasonable jury could conclude Plaintiffs transfer to Patrol was based on gender
discrimination.
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2.
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Defendant City Has Failed To Demonstrate That It Is Entitled To

Summary Judgment Under The Indirect Method.
Under the indirect or burden-shifting method, a plaintiff makes a prima facie case for
discrimination by showing that: (1) she is a member of a protected class; (2) she was meeting
legitimate employment expectations; (3) she suffered an adverse employment action; and (4)
similarly situated employees outside the protected class were treated more favorably than she
was. Baer-Burwell, 2012 U.S. Dist. LEXIS 150507, *27, citing Benuzzi v. Bd. of Educ., 647
F.3d 652, 662 (7th Cir. 2011). The burden then shifts to the defendant to show a
nondiscriminatory reason for the employment action, and, if done, the plaintiff must show facts
such that a jury could find the proffered reason is pretextual. See Benuzzi, 647 F.3d at 662.
The City again relies on the Rotation Policy and interview to argue that Plaintiffs claim
fails. However, Plaintiff has demonstrated that genuine issues of material fact exist with regard
to the pretextual nature of the Citys proffered reasons. As discussed above, Plaintiff was the
only female in SID/Vice and the only person in SID/Vice with three or more years that was
rotated out. SAF 19, 84. Jordan, Lane and Miller, all of whom were in their respective
positions in SID/VICE for over three years, maintained or received their requested position.
SAF 81, 82.
Moreover, the interview was fixed from the start. Lt. Davis heard Plaintiff would not be
reappointed to Asset Forfeiture and was excluded from the Asset Forfeiture interviews. SAF
85, 86. Lt. Davis, the Asset Forfeiture supervisor, testified that Skaggs did only the bare
minimum and showed no initiative or improvement. SAF 99. Under Skaggs time in Asset
Forfeiture the funds decreased dramatically. SAF 98, 101. In States Attorney Nuss
opinion, Skaggs was and is unqualified:
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Even after he had been on the job for some time, Troy Skaggs
was unable to do a seizure warrant or an Article 36 seizure. This
is very telling of the lack of investigation on his part. When I
confronted Troy Skaggs about these and other issues that would
come up while we were working together, his response was that
Donna Nicholson did not train him.
SAF 101.
Despite this, in 2015, Plaintiff was again denied the Asset Forfeiture position in favor of
Skaggs which reveals the real purpose of the transfer in 2012. SAF 103. Thus, there are
genuinely contestable issues which are not appropriate for summary judgment.
D.
Genuine Issues Of Material Fact Exist With Respect To Plaintiffs Section

1983 Claim Against Settingsgaard For Retaliation.
1.
Settingsgaard Is Not Entitled To Summary Judgment On Count Iii

Because Plaintiff States A Claim For 1983 Retaliation.
A public employee has a right, in certain circumstances, to speak as a citizen addressing

matters of public concern. Accordingly, the First Amendment, made applicable to the states
through the Fourteenth Amendment, prohibits the government from retaliating against its
employees for engaging in protected speech. Gross v. Town of Cicero, 619 F.3d 697, 703-04
(7th Cir. 2010), citing Garcetti v. Ceballos, 547 U.S. 410, 417 (2006); Milwaukee Deputy
Sheriff's Assn v. Clarke, 574 F.3d 370, 376 (7th Cir. 2009).
A claim for First Amendment retaliation under 42 U.S.C. 1983 involves a three-step
inquiry to determine whether: (1) the speech was constitutional protected; (2) the speech was a
but-for cause of the defendants action; and (3) the employee suffered a deprivation because of
the employers action. Id. at 704.
To determine whether speech is constitutionally protected the court looks at the
content, form and context of the speech to determine if the plaintiff intended to raise a matter
of public concern or only some private interest. Id. Public concern is the subject of legitimate
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1:14-cv-01369-MMM-JEH # 38
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news interest; that is, a subject of general interest and of value and concern to the public
Miller v. Jones, 444 F.3d 929, 935 (internal quotation omitted). In evaluating the speech, the
court looks at whether the employee sought to bring to light actual or potential wrongdoing or
breach of public trust. Id. at 935, citing Connick v. Myers, 461 U.S at 148 (1983). The content
of the speech must have a communicative element which puts the listener on notice that a
matter of public concern is being raised. Id. at 936. Police protection, public safety, and
government malfeasance are generally topics of public concern. Id. at 935-936. The courts have
also recognized the importance of an employees interest in pointing out a misuse of public
funds. See, e.g. Conner v. Reinhard, 847 F.2d 384, 390 (7th Cir. 1988).
Settingsgaard argues that Plaintiff fails to meet the first element because her speech
only involves matters of private interest, not public concern. Doc.27, p.20. Settingsgaard cites
cases such as Gross in which there was clearly no evidence whatsoever of any matters of public
concern. 619 F.3d at 705-709. Contrary to Settingsgaards cases, there is no per se rule
precluding individual claims for retaliation under Section 1983. See, e.g., Jackson v. Chicago
Sch. Reform Bd. Of Trustees, 1997 U.S. Dist. LEXIS 13312, 9 (N.D. Ill. 1997)(speech which
touches a matter of public concern, as revealed by the whole record, can be protected
regardless of the plaintiffs intent and individual concern.)
In Jackson, the District Court refused to dismiss a claim under Section 1983 where a
teachers complaints of sexual harassment to her supervisor brought light to actual wrongdoing
relevant to the performance evaluation of a public office. Id. at 11, quoting Azzaro v. County of
Allegheny, 110 F.3d 968, 978 (3rd Cir. 1997). Furthermore, the court held that even if there was
no violation of the First Amendment, her supervisors retaliation and failure to protect her could
violate Section 1983. Id. at 13. It is well established that the conscious failure of the employer
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1:14-cv-01369-MMM-JEH # 38
Page 56 of 59
to protect the plaintiff from the abusive conditions created by fellow employee [can amount] to
intentional discrimination in violation of the equal protection clause and Section 1983. Id.,
quoting Bohen v. City of East Chicago, Indiana, 799 F.2d 1180, 1187 (7th Cir. 1986).
Defendants continue to ignore the fundamental premise of Plaintiffs Amended
Complaint, to wit: she was punished and retaliated against for complaining to Settingsgaard
about another officers use of the Departments publicly-funded equipment and facilities to
conduct illegal surveillance and stalking of Plaintiff. Here, contrary to Defendants assertion, all
of Plaintiffs speech touches on some element of public concern. On August 10, 2010, Plaintiff
spoke out against Settingsgaards use of public funds for his individual benefit. SAF 29. On
that same day, a GPS was installed on her Department vehicle. SAF 31. On February 28,
2011, in her request to Settingsgaard for protection from Wilson Plaintiff states, I do not believe
[Wilson] will ever take the responsibility for what he has done to me, my coworkers, and the
department. SAF 51. Plaintiffs letter and her complaints bring to light wrongdoings of the
Department and clearly put Settingsgaard on notice that her claim is more than a private interest,
but a public concern.
Also, the continued discrimination and sexual harassment perpetrated and condoned by
the Department is a legitimate newsworthy matter of value and concern to the public. In fact, the
Peoria Journal Star extensively covered the history of this case. See, e.g. Ex. 8, Journal
Articles.
Furthermore, like Jackson, Chief Settingsgaard minimized Officer Wilsons conduct and
told Plaintiff to let it go. Doc. 20, Answer, 24. Settingsgaard also refused to offer Plaintiff
any protection from Wilson even though at the time of his refusal, Settingsgaards investigators
reported to him that they believed Wilson to be behind the cameras and GPS. SAF 52-54.
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1:14-cv-01369-MMM-JEH # 38
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Therefore, regardless of any personal stake Plaintiff may have in her concerns, Settingsgaards
failure to protect Plaintiff from Officer Wilsons harassment amounts to intentional
discrimination, a violation of Section 1983.
Settingsgaard also argues the Plaintiff cannot prevail on the second element that her
speech was the but-for cause of her denial of reappointment to Asset Forfeiture. Doc. 27, p.
22. Plaintiff has demonstrated that genuine issues of material fact exist regarding the pre-textual
nature of the Rotation Policy and the decision to appoint Skaggs as the Asset Forfeiture officer
over Plaintiff. Thus, taking the facts in a light most favorable to Plaintiff, summary judgment is
inappropriate on Plaintiffs Section 1983 claim.
2.
Settingsgaard Is Not Entitled To Summary Judgment On The Basis

Of Qualified Immunity.
Qualified immunity is granted to certain public officials because of the need to protect
officials who are required to exercise their discretion and the related public interest in
encouraging the vigorous exercise of official authority. Jackson, 1997 U.S. Dist. LEXIS
13312, at 15 (internal citations omitted). However, public officials are not shielded by qualified
immunity if their conduct would violate clearly established statutory or constitutional rights of
which a reasonable person would have known. Id. at 13; see also, Baer-Burwell, 2012 U.S.
Dist. LEXIS 150507, *42-45 (Settingsgaard denied qualified immunity because he should have
known that failing to take action on reports of sexual harassment and gender discrimination
violated the law); Miller v. Jones, 444 F.3d at 939 (Chief of Milwaukee police department not
entitled to qualified immunity because it was clearly established that a retaliatory transfer to
patrol for speech in opposition to chiefs actions violated officers First Amendment right).
In Jackson, the court held that plaintiffs supervisor at a public school was not entitled to
qualified immunity for three separate reasons: (1) his knowing failure to protect the plaintiff was
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a violation of the equal protection clause; (2) retribution against employees speaking on matters
of public concern was a violation of the First Amendment; and (3) retaliation against an
employee for filing a sexual harassment claim violates Title VII. 1997 U.S. Dist. LEXIS 13312,
at 14-15.
Defendants again erroneously argue that Plaintiffs speech is not a constitutionally
protected right because it relates to a personal grievance, and, therefore, Settingsgaard is
protected by qualified immunity. Doc. 27, p. 24. Plaintiff has demonstrated that her speech
touches on a public concern. However, like Jackson, Chief Settingsgaard also minimized
Plaintiffs complaints, failed to protect her from sexual harassment, and then retaliated against
for her sexual harassment complaints. Defendants have again overlooked that, even if there is no
First Amendment violation, Chief Settingsgaards conduct does not merit qualified immunity
because he, at a minimum, violated Title VII. Moreover, like the court held in Baer-Burwell,
Chief Settingsgaard should have known that his conduct was wrongful and illegal. The
Departments Policy even holds that not knowing is not an excuse and managers and
supervisors are responsible for preventing harassment:
Not knowing is not an excuse. Supervisory personnel will still be
held responsible if they allow a situation to continue if a
reasonable person should have known that harassment was
occurring or that there was a potential for violence. Supervisory
personnel who ignore harassment and workplace violence will not
only face legal responsibility, but may be disciplined by the City of
Peoria.
SAF 16.
Thus, Settingsgaard is not entitled to qualified immunity and summary judgment should
be denied.
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V.
Page 59 of 59
CONCLUSION
For the reasons set forth above, Plaintiff Donna Nicholson prays that this Court deny
Defendants Motion for Summary Judgment and for such further relief the Court deems just and
proper.
Respectfully submitted,
GOLDENBERG HELLER & ANTOGNOLI, P.C.
By: _/s/ Thomas P. Rosenfeld_________________

Thomas P. Rosenfeld, #6301406
tom@ghalaw.com
Teri L. Havron, #6304787
teri@ghalaw.com
2227 S. State Route 157
P.O. Box 959
Edwardsville, IL 62025
Telephone: (618) 656-5150
BORLA NORTH & ASSOCIATES, P.C.

Stacey E. Lynch, #6270194
slynch@borlanorth.com
6912 South Main Street, Suite 200
Downers Grove, IL 60516
Telephone: (630) 969-3903
Attorneys for Plaintiff
Certificate of Service
The undersigned hereby certifies that the foregoing was electronically filed with the
Court using the CM/ECF system on May 13, 2016 and notification of such filing was sent to all
parties of record.
/s/ Thomas P. Rosenfeld____________________
Page 59 of 59

Donna Nicholson Federal Court Filing

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1:14-cv-01369-MMM-JEH # 38

Friday, 13 May, 2016 11:50:17 PM

Case No. 1:14-cv-01369-MMM-JEH

PLAINTIFFS MEMORANDUM IN RESPONSE TO DEFENDANTS

PLAINTIFFS RESPONSE TO DEFENDANTS UNDISPUTED MATERIAL

Statement of Undisputed Material Facts, as follows:

Undisputed Material Facts

Disputed Material Facts

Disputed Immaterial Facts

Undisputed Immaterial Facts

PLAINTIFFS STATEMENT OF ADDITIONAL MATERIAL FACTS

Material Facts, as follows:

Defendant City is an Illinois municipal corporation that provides governmental

The Departments Applicable Orders Regarding Conduct and Discipline

General Order 100.06 Rules and Regulations

Section VI. B prohibits officers from engag[ing] in any conduct or activity on or

all matters. Doc. 32-3, General Order, VI.C.4.

General Order 200.14 Discrimination/Sexual Harassment

General Order 200.14 sets forth the Departments policy prohibiting

discrimination and sexual harassment:

Section II.A defines discrimination:

Section III.A states that [d]iscrimination, sexual harassment, or any form of

Section III.E prohibits retaliation against an employee for filing complaints of

The Citys Workplace Violence Prevention and Anti-Harassment

The Citys Workplace Violence Prevention and Anti-Harassment policy prohibits

The Policy identifies Examples of Workplace Violence, including:

Engaging in behavior that creates a reasonable fear of injury to

Engaging in behavior that subjects another individual to extreme

Stalking or obscene phone calls; and

Retaliating against any employee who, in good faith, reports a

Doc. 32-7, Policy, II; Doc. 29-1, Chief Dep. 87:6-15.

and workplace violence:

Persons who violate the Policy are subject to termination:

Doc. 32-7, Policy, IV (emphasis added).

Plaintiffs History As The Departments Asset Forfeiture Investigator

was the only female in SID:

How many employees were in there, Vice and SID?

I dont know. 20-some.

She was the only woman, right?

I believe thats true.

Doc. 29-1, Chief Dep. 136:5-7, 14-15; see also 81:1-4.

As Asset Forfeiture Investigator, Plaintiff was responsible for investigating and

defendants for the Department. Ex. 1, Nicholson Affidavit, 2.

Defendant Settingsgaard concedes that the Asset Forfeiture Investigator was an

Was Officer Nicholson successful in investigating and

Doc. 29-1, Chief Dep. 47:4-7, 48:1-6 (emphasis added).

The 2008 Surveillance of Plaintiff By Officer Wilson

Wilson was in charge of the Departments electronic surveillance equipment,

State Police Department in surveillance eavesdropping. Doc. 30-2, Investigation Report, p. 9;

A GPS Tracking Device Is Placed On Plaintiffs Vehicle Following

On July 12, 2010, Defendant Settingsgaard requested the expenditure of $19,500

Plaintiff objected to Settingsgaards proposed use of Asset Forfeiture funds for

Okay. Do you recall her saying anything to you about it,

I have a very general recollection that I was aware she

But you knew she didn't like it?

Yeah. I believe that's an accurate statement.

Doc. 29-1, Chief Dep. 51:19-52:2; Doc.28-1, Plaintiffs Dep. 132:3-133:2.

On August 10, 2010, Settingsgaard ordered Plaintiff to issue a $19,500 check

GPS tracking device was installed on Plaintiffs Department-issued vehicle:

On page 18, on August 10, 2010, at 3:02p.m. The

Want to go back to that one? August 10. Let's go back and

Whatever ordered means

The same date is recorded under ordered as this date.