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A hint of how city might react to Elgin cop’s lawsuit

Updated: February 8, 2013 6:10AM

ELGIN — After learning the details of a lawsuit filed Dec. 27 by Elgin Police Officer Phil Brown accusing the city and two supervising officers of racial discrimination, City Manager Sean Stegall said the case was without merit.

The city took the same position on similar discrimination claims Brown brought to the Equal Employment Opportunity Commission in 2011, saying the “charges fail for many reasons.”

According to a document obtained by The Courier-News through the Freedom of Information Act, on Sept. 26, 2012, the EEOC closed its file on the case, checking a box where the information states the commission “is unable to conclude that the information obtained establishes violations of the statutes. This does not certify that the respondent is in compliance with the statutes. No finding is made as to any other issues that might be construed as having been raised by the charge.”

The document also notes that Brown had 90 days from its receipt to file a lawsuit.

Brown’s suit accuses the city “of failing to redress unlawful racial discrimination occurring within the City Police Department, creating and perpetuating a hostile work environment, permitting officers and agents of the city to routinely use racial slurs against African American police officers like (Brown), a 16-plus-year veteran of the Elgin Police Department, treating African American officers like Officer Brown differently on the basis of race and failing to promptly and fully investigate allegations of race discrimination including those made by plaintiff, resulting in loss of employment opportunities and significant pain and suffering of plaintiff.”

Besides the city, it names police Lt. Sean Rafferty and Elgin Professional Standards Officer Jim Barnes, accusing them of “engaging in conduct that each knew constituted race discrimination.”

Brown also is claiming the city of violations of the Family and Medical Leave Act. He is seeking injunctive relief, statutory damages and compensatory damages from the city, Rafferty and Barnes.

City response

In a letter to the EEOC dated Dec. 20, 2011, Thomas Piskorski, the lawyer who was representing the city, states that “until March, 2011, Brown never notified the city of any comment or action he believed represented race discrimination...When he did notify the city of his belief ... the city immediately conducted a thorough investigation ... . At the end of the investigation, the city determined that most of the allegations were without merit.”

However, the investigation did lead to a five-day suspension issued to Rafferty in July 2011 for violating city policy about making race-based jokes. According to an order of suspension issued July 26, 2011, during a trip to Indianapolis in the late 1990s, Rafferty “posed for a picture making a joke about the Ku Klux Klan. Such behavior is unacceptable whether on-duty or off-duty.”

Brown told authorities he came into possession of the photo several years prior to 2011 after someone anonymously left it at his locker at the police station. Brown told authorities he recalled Rafferty making a racially inflammatory comment when the photo in Indianapolis was taken.

In a second instance, the order states that either in late 2009 or early 2010, Rafferty texted Brown a message and a photo of a photograph asking Brown, “Which one are you?” Rafferty was attending his daughter’s high school basketball game at Glenbard North in Carol Stream, where Brown graduated. The photo was one Rafferty spotted at the school of the baseball squad on which Brown was the only black player.

Brown went before an arbitrator in June 2011 regarding two suspensions of his own. As a result of the arbitration, Brown faced a two-day suspension.

Brown had challenged facing a 10-day suspension for conduct unbecoming a police officer. The matter stemmed from Brown being charged with a DUI and eluding Bartlett police in an incident that occurred after he attended a wedding reception for a fellow Elgin police officer several years ago, sources told The Courier-News at the time. Brown was acquitted of the charges.

Brown also challenged a suspension issued about four years prior that initially was supposed to be for five days after city officials said they learned from an FBI wiretap that Brown was associating with a known gang member.

Misconduct charges

Piskorski’s letter to the EEOC notes that, “beginning in 2009, Brown faced disciplinary suspensions for acts of misconduct. The relevance of these disciplinary proceedings is that Brown raised his allegation of racial discrimination just before those disciplinary proceedings reached mediation/arbitration under the collective bargaining agreement.”

In the lawsuit, Brown claims that in or around January 2011, Brown asked Police Chief Jeff Swoboda to have a photo taken with him while Brown wore a commemorative badge. The lawsuit claims Swoboda declined because of Brown’s facial hair and that Swoboda ordered the badge placed on a newly hired white officer who posed with Swoboda and that the picture “appeared on the front page of the local newspaper — the Chronicle News.”

The lawsuit claims that led Brown “to feel demeaned and humiliated” and that after the photo was published he was taunted and mocked as was so distressed “that he permanently ceased wearing his commemorative badge.”

In response to a similar complaint to the EEOC, Piskorski states, “Brown fails to include that the chief also prohibited white police officers with facial hair to be in the photograph ... a white officer with facial hair also was excluded from the photo shoot — which Brown was told and knew at the time ... (and) is yet another example of a patently false allegation made by Brown.”

In the lawsuit, Brown claims “the Elgin Police Department circulated a memorandum to its officers alerting the officers that certain individuals who belonged to a gang called “Hood N*****s” could be detained without probable cause. In fact, no such gang ‘Hood N*****s’ existed at that time.”

Responding to a similar charge Brown made to the EEOC, Piskorski’s letter states that the gang in question was a known sub-unit of the Gangster Disciples. It offered evidence from police bulletins of the gang operating in Elgin and of police bulletins also noting “no probable cause to detain exists.”

“That Brown asserts this gang is ‘fictitious’ raises serious concerns about his ability to perform his law enforcement duties,” Piskorski’s letter states.

Brown’s EEOC complaint also states that from March 2009 up to that filing, he had used 82 sick days because “the racial discrimination and hostile work environment had caused him to not be able to perform his job” and led him “to seek medical, psychological and counseling services.”

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