Michael Garofalo v. Village of Hazel Crest ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 12-1668 & 12-1681
MICHAEL J. GAROFALO and
MARK S. PEERS,
Plaintiffs-Appellants,
v.
VILLAGE OF HAZEL CREST, et al.,
Defendants-Appellees.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
Nos. 06 C 3674 & 06 C 3735 — William T. Hart, Judge.
____________________
ARGUED NOVEMBER 4, 2013 — DECIDED JUNE 12, 2014
____________________
Before EASTERBROOK, KANNE, and TINDER, Circuit Judges.
TINDER, Circuit Judge. Plaintiff-Appellants Michael
Garofalo and Mark Peers appeal from the district court’s
grant of summary judgment in favor of Defendant-
Appellees, the Village of Hazel Crest and its individual of-
ficers, in their race discrimination case. Garofalo and Peers,
both white, were sergeants on the Hazel Crest police force.
They were among four front-runners considered for a depu-
2 Nos. 12-1668 & 12-1681
ty police chief position, which ultimately went to a black of-
ficer who was not one of the four initially-discussed candi-
dates. Plaintiff-Appellants assert that the Village and its of-
ficers discriminated against them by promoting a black of-
ficer they contend is unqualified for the position. They sued
the Village under, inter alia, Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. §§ 1981, 1983,
as well as under Illinois state law.
We affirm the district court’s finding that Plaintiff-
Appellants failed to present sufficient evidence to withstand
Defendant-Appellees’ motion for summary judgment. Sum-
mary judgment was proper on Garofalo’s and Peers’s claims
of racial discrimination because they did not present suffi-
cient evidence to permit a reasonable jury to find that they
were the object of unlawful discrimination.
I. STANDARD OF REVIEW
We conduct de novo review of the district court’s deci-
sion involving the cross-motions for summary judgment.
Laskin v. Siegel, 728 F.3d 731, 734 (7th Cir. 2013). “As with any
summary judgment motion, we review cross-motions for
summary judgment construing all facts, and drawing all rea-
sonable inferences from those facts, in favor of the non-
moving party.” Id. (citation and internal quotation marks
omitted). Summary judgment is proper when “the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). Accordingly, we review the record
in the light most favorable to Garofalo and Peers. Our sum-
mary of facts thus reflects the facts set forth in a light most
favorable to them. “We do not vouch for their truth in any
Nos. 12-1668 & 12-1681 3
other sense.” Good v. Univ. of Chi. Med. Ctr., 673 F.3d 670, 673
(7th Cir. 2012).
On the procedural issue of whether the district court cor-
rectly found that Defendant-Appellees timely raised their
mixed-motives affirmative defense, we review for abuse of
discretion. Williams v. Lampe, 399 F.3d 867, 871 (7th Cir. 2005).
II. FACTUAL BACKGROUND
A. Demographics of the Village of Hazel Crest
It is undisputed that Hazel Crest was, at the time of the
disputed promotion, predominantly black. As measured by
the 2000 Census, the Village of Hazel Crest was over 75%
black and approximately 20% white, and as measured by the
2010 Census, it was 85.2% black and 10.2% white. Despite
these demographics, Hazel Crest had no black police officers
in the supervisory ranks well into 2005, when the village
elected Robert Donaldson, the Village’s second black mayor.
Donaldson had campaigned on the promise to increase ra-
cial diversity in the Hazel Crest work force, including the
police department.
B. Structure of Hazel Crest Police Department
Hazel Crest’s police hierarchy is very compact: at the
time of the events in question, the department comprised
one chief, two deputy chiefs, five sergeants, and patrol offic-
ers. The two deputy chiefs each had different responsibili-
ties. One deputy chief was Commander of the Patrol Divi-
sion (also known as Deputy Chief–Detectives) and the other
was Commander of the Support Services Division (Deputy
Chief–Support Services). The chief was appointed by the vil-
lage manager (at least nominally—more on the role of the
4 Nos. 12-1668 & 12-1681
mayor later), and the deputy chiefs were selected by the
chief.
Chief Peter Fee and one of his deputy chiefs, Richard
Lenz, resigned after the election of Donaldson to the mayor-
ship. After these resignations, deputy chief Gary Jones was
named acting police chief on April 22, 2005. Robert Palmer,
the village manager, asked Jones not to make any appoint-
ments to the deputy chief position until the ‘acting’ designa-
tion was removed from his title and he received a full ap-
pointment.
C. Hazel Crest’s Deputy Chief Promotion Policy
The Illinois Municipal Code, 65 ILCS 5/10-2.1-4, and a
Hazel Crest village ordinance provide that the two deputy
chiefs must be current members of the Hazel Crest police
force, who have each served at least five years in the village.
The chief is allowed a large amount of discretion in choosing
from the candidates who meet these criteria; there is no ap-
plication or test to qualify for the promotion.
Peter Fee, Gary Jones’s predecessor as chief, adopted a
description for the deputy chief position in 2001, which was
not part of the ordinance. The description was as follows:
DESIRED MINIMUM QUALIFICATIONS
Education and Experience
(A) High school diploma or equivalent; and
(B) Completion of the State Basic Training Academy
or equivalent academy; and
(C) Minimum of five (5) years work as a police officer
for the Hazel Crest Police Department; and
Nos. 12-1668 & 12-1681 5
(D) Minimum of two (2) years work experience as a
police sergeant or higher; and
(E) Although not required, desirable to possess at
least a bachelor’s degree in law enforcement or re-
lated curriculum from an accredited college or
university.
…
SPECIAL REQUIREMENTS
(A) Must possess a valid State of Illinois Driver’s Li-
cense.
(B) Basic Law Enforcement Training (or Police Officer
Standards and Training) certification or equiva-
lent.
(C) No felony convictions.
(D) Successful completion of police supervision course
of instruction from an accredited Illinois police
academy. In addition, it is desirable that the indi-
vidual have completed a mid-level police man-
agement course, such as the F.B.I. National Acad-
emy or the Northwestern University School of
Staff and Command.
(E) Working knowledge of modern police and busi-
ness information management systems.
The description also provided that,
The Deputy Police Chief is an exempt rank appointed by
the Chief of Police … . The job description does not con-
stitute an employment agreement between the employer
and employee and is subject to change by the employer
6 Nos. 12-1668 & 12-1681
as the needs of the employer and requirements of the job
change.
D. Gary Jones’s Conversations with Colleagues while
Acting Chief, then Chief
Upon his initial promotion to acting chief, Jones spoke to
a number of his colleagues about the officers he would like
to promote should he receive a full appointment as chief. He
had conversations with many people about filling the depu-
ty chief vacancies, including his predecessor, Fee, as well as
the officers he was considering for the spots. From the first,
Jones was set on appointing Sergeant Gary Gentzle, his long-
time friend and partner, to the position of Deputy Chief–
Detectives. Patrick Murray, Michael Garofalo, Mark Peers,
and David Nelson were all sergeants, and all were consid-
ered for the other promotion—the position of Deputy Chief–
Support Services.
Not all stood an equal chance of getting the promotion.
Indeed, in many of the conversations, including conversa-
tions with Peers and Garofalo, Jones spoke of his plans to
give Murray the promotion. In a conversation with Murray
himself, Jones stated that he was planning to name Murray
the Deputy Chief–Support Services. But in at least one con-
versation with the previous chief, Fee, Jones discussed why
Murray would not be suitable for the job, including the fact
that Fee found Murray untrustworthy, Murray’s past disci-
plinary history, as well as allegations against Murray that he
had inappropriately propositioned a subordinate officer’s
wife. It does not appear that Malcolm White was discussed
during any of these initial conversations as a candidate for
promotion. Nor does it appear that Garofalo or Peers was
ever discussed as a frontrunner or a lock for the promotion.
Nos. 12-1668 & 12-1681 7
It was nominally the Village Manager, Robert Palmer,
who appointed Jones the interim chief after Fee’s resignation,
then gave him the full appointment, but Mayor Robert Don-
aldson played an outsize role in charting the course of
Jones’s promotions. While Jones was serving as acting chief,
Palmer made clear to Jones that the mayor expected an in-
crease in racial diversity in the Hazel Crest workforce, in-
cluding the police department. Palmer explained to Jones
that the mayor expected the police force’s makeup to more
closely reflect the racial makeup of the community. It is un-
clear if Malcolm White’s name was specifically mentioned by
Palmer or Donaldson, but Donaldson did thank a “Malcom
White” for support in his acceptance speech. Donaldson’s
campaign materials also included a photograph showing
Donaldson and White, with a caption identifying both by
name.
Once these expectations were articulated to Jones, he
openly lamented about the expected appointment of White.
Jones told Gentzle that “the Mayor would like someone
black to be the second deputy chief.” In a conversation with
Richard Lenz, his former colleague, Jones stated that Don-
aldson had told Jones he had to promote White to deputy
chief. And Jones told Murray that despite their earlier con-
versation, Jones had to name a black deputy chief in order to
remain chief because Donaldson was demanding black rep-
resentation at all levels of the department. Jones then asked
Murray if he would accept the position of Administrative
Sergeant, a newly-created position.
On July 12, 2005, Jones appointed White deputy chief.
8 Nos. 12-1668 & 12-1681
E. Jones’s Conduct
From time to time, Jones made comments to his fellow
officers about the future of the department, apparently in
reference to the increasing importance of racial diversity fol-
lowing Donaldson’s election. For instance, before he was ap-
pointed chief, Jones recommended to his fellow officers that
they seek employment elsewhere, and stated that they
would have no opportunities at Hazel Crest because they
were “the wrong color” for promotions. In the process, Jones
used racial slurs in reference to Mayor Donaldson. Plaintiff-
Appellants also allege that management created a “hostile
environment that fostered racial tension,” but do not present
specific facts to support this statement. Once Jones capitulat-
ed to Donaldson’s plans for racial diversity by promoting
White, Garofalo and Jones felt their career advancement op-
portunities were foreclosed.
There were also isolated incidents in which Jones used
profanity while speaking with Garofalo, and in which White
used profanity to describe Garofalo to a fellow officer. When
an anonymous note was left in a suggestion box, apparently
one containing racially provocative content, a black officer
was upset and stated that he would “kill” the author of the
note.
F. The Relative Qualifications of the Candidates
Because Plaintiff-Appellants’ theory turns on the ques-
tion of relative qualifications—whether either officer stood a
chance of promotion, of which he was deprived by White’s
promotion—we briefly examine the qualifications of the four
sergeants who were widely considered frontrunners, as well
as White’s qualifications.
Nos. 12-1668 & 12-1681 9
1. Michael Garofalo
Garofalo met all of the desired minimum qualifications
and special requirements for the deputy chief position listed
in Fee’s position description. He possessed an associate’s de-
gree, bachelor’s degree, and master’s degree in criminal jus-
tice, and graduated from the Northwestern University
School of Police Staff and Command.
He was promoted to sergeant in October 2001, and had
ranked first in the sergeant selection process that year, which
included a written exam, oral interview, and an assessment
test of practical skills. And he served as a team leader and
team coordinator for the South Suburban Emergency Re-
sponse Team, which he described as “similar to a SWAT
team.” However, Jones stated that he believed Garofalo suf-
fered from a lack of leadership, as well as deficiencies in his
decision-making abilities, and former chief Fee also advised
Jones that Garofalo “was very hesitant to make a meaningful
decision.” Moreover, Jones stated that he had concerns with
Garofalo’s reliability, as he had resigned from at least two
appointments without serving out a full term.
2. Patrick Murray
Patrick Murray had been a sergeant since 1995. He held
bachelor’s and master’s degrees in law enforcement, and had
completed a police supervision course at the Northwestern
University School of Staff and Command. He met all of the
minimum and desired qualifications for the deputy chief po-
sition listed in Fee’s position description. Additionally, Jones
believed Murray to be the only candidate who could make
sure the department kept its accreditation by the Commis-
sion on Accreditation of Law Enforcement Agencies.
10 Nos. 12-1668 & 12-1681
However, Jones had been involved in an internal investi-
gation of Murray based on allegations by Nelson that Mur-
ray had made advances towards Nelson’s wife while Murray
was Nelson’s superior officer, and that Murray had also im-
properly interfered in a traffic accident in which Nelson was
involved. The internal investigation resulted in a three-day
suspension of Murray. Jones stated that he “did not feel that
he could place his trust and confidence in Murray” as a re-
sult of the investigation, and that he did not believe that the
rank-and-file officers would respect Murray as a deputy
chief. Jones’s predecessors, former chiefs Fee and Harold
Moore, apparently agreed with this assessment. Jones had
been told by Fee that Fee would never put Murray in a posi-
tion of trust in the department, and Jones received similar
counsel from Moore.
3. David Nelson
David Nelson held a bachelor’s degree in criminal justice,
and had been promoted to the position of Sergeant in 2003.
Nelson did not have two years of work experience as a ser-
geant (he barely missed the cutoff, as he had 23 months of
such experience), nor had he completed a mid-level police
management course, though he claims he was scheduled to
matriculate at the Northwestern University School of Police
Staff and Command.
Jones was advised by former chief Fee and Murray that
Nelson was not qualified for the position of deputy chief, as
he failed to meet the minimum qualification of two years as
a supervisor. Additionally, Jones stated that he felt Nelson
was “lackadaisical” in his attitude, and lacked the command
presence he was looking for in a deputy chief.
Nos. 12-1668 & 12-1681 11
4. Mark Peers
Peers did not possess a college degree, but met all the
other desired minimum qualifications and special require-
ments for the position of deputy chief stated in Fee’s position
description. He received an Award of Valor from the Village,
after demonstrating outstanding bravery and personal cour-
age in the apprehension of an armed and dangerous felon.
Peers had asked to be considered for the Deputy Chief of
Patrol position. Jones stated that Peers, told that Gary
Gentzle would be picked for the Deputy Chief–Patrol posi-
tion, stated that he would rather stay a patrol sergeant since
he would have the most seniority of any officer on the street
and could pick his own schedule. Moreover, Jones com-
mented that Peers was called “Hank” by the other officers, a
nickname referring to a character played by Jim Carrey in
the movie Me, Myself, and Irene. Jones asserted that this was
meant to highlight Peers’s “volatile and unstable personali-
ty,” and that he did not believe Peers had the respect of the
men he supervised.
5. Malcolm White
White had been a patrol officer in Hazel Crest for ap-
proximately eight years, and before that had been a tactical
officer with the City of Harvey. He held an associate’s degree
from a community college. He had not been promoted to
sergeant—he ranked sixth out of nine candidates on the ser-
geants’ promotional exam administered a year before his
promotion—but had previously served as a shift command-
er in the absence of a sergeant. White served as an elected
union representative for Hazel Crest officers, and represent-
12 Nos. 12-1668 & 12-1681
ed the union in union contract negotiations against Jones,
who was a management representative.
G. District Court Litigation
After they were not promoted, Garofalo, Murray, Nelson,
and Peers brought suit against the Village of Hazel Crest and
Donaldson, Jones, and Palmer. They alleged that the De-
fendant-Appellees had engaged in discriminatory and un-
lawful practices under Title VII of the Civil Rights Act, 42
U.S.C. § 2000e–2; violated 42 U.S.C. § 1983 by intentionally
interfering with plaintiffs’ civil rights under color of law;
violated 42 U.S.C. § 1981 by intentionally interfering with
Plaintiff-Appellants’ employment relationship based on race;
conspired to deprive the officers of their civil rights in viola-
tion of 42 U.S.C. § 1985; and, under Illinois law, breached the
contract between the Plaintiff-Appellants and the Defend-
ant-Appellees created by the Hazel Crest employee person-
nel manual.
After discovery, Defendant-Appellees and Plaintiff-
Appellants filed cross-motions for summary judgment, and
Nelson voluntarily withdrew from the case. The district
court granted Defendant-Appellees’ motion for summary
judgment on all of the claims relating to Garofalo and Peers,
and denied Garofalo’s and Peers’s summary judgment mo-
tions. The district court granted Defendant-Appellees’ mo-
tion for summary judgment on the state law claim, noting
that Plaintiff-Appellants had failed to respond to Hazel
Crest’s contention that the claim should be dismissed as the
employee personnel manual is not an enforceable contract.
As to the racial discrimination claims, the court granted
summary judgment against Garofalo and Peers on the
grounds that the officers had failed to present evidence that
Nos. 12-1668 & 12-1681 13
they had “any significant chance of being the one actually
selected as Deputy Chief,” as the evidence showed Murray
had been bound to get the promotion. The court asserted
that without evidence of this nature, Garofalo and Peers
could not succeed on a lost chance theory, even if the court
accepted as true the fact that race was considered in the
promotion process and Defendant-Appellees failed to show
that the policy was narrowly tailored to advance a compel-
ling interest. The court also granted summary judgment in
favor of Defendant-Appellees on all claims relating to con-
structive discharge.
However, the district court denied Defendant-Appellees’
motion for summary judgment as it related to Murray, as
well as Murray’s cross-motion, finding that disputed factual
issues required a trial on Murray’s failure to promote claim.
The court found the evidence on the record to be adequate to
raise a genuine factual dispute as to pretext, but that it was
not conclusively resolved whether “Jones’s stated legitimate
reasons [for not hiring Murray] are pretext.” The court stated
that “it cannot be assumed that Jones stated that he would
have selected Murray if he had not been pressured to instead
select an African American.”
Murray and the Defendant-Appellees settled before trial,
and entered a consent decree stipulating that Murray was
the most objectively qualified candidate for the Deputy
Chief of Support Services position. Garofalo and Peers time-
ly appealed. On appeal, they renew their argument that they
should survive summary judgment on a lost chance theory,
and also assert that the work environment in the Hazel Crest
police force under Jones constituted constructive discharge.
Plaintiff-Appellants also argue that Defendant-Appellees
14 Nos. 12-1668 & 12-1681
were not entitled to use the mixed motives affirmative de-
fense because they did not plead the affirmative defense ex-
plicitly.
III. DISCUSSION
First, we quickly dispose of three peripheral arguments
in the case: (1) Plaintiff-Appellants’ argument that Defend-
ant-Appellees’ mixed-motives affirmative defense was un-
timely, (2) Plaintiff-Appellants’ argument that the work envi-
ronment at Hazel Crest constituted constructive discharge,
and (3) Defendant-Appellees’ argument that the consent de-
cree precludes this appeal. All three are invalid arguments.
We then move to the major issues at play: whether the evi-
dence establishes a prima facie case of race discrimination,
and if so, whether Plaintiff-Appellants can survive summary
judgment. Because we conclude that Garofalo and Peers pre-
sent no evidence suggesting that they had a chance at the
promotion in the absence of the impermissible consideration
of race, we affirm the district court’s grant of summary
judgment.
A. Mixed-Motives Affirmative Defense
We are not moved by Garofalo’s and Peers’s contention
that the district court improperly granted summary judg-
ment on an affirmative defense that was waived. Plaintiff-
Appellants argue that Defendant-Appellees did not raise
their affirmative defense of mixed motives—the argument
that neither of the officers would have been promoted even
in the absence of race-based discrimination—until the sum-
mary judgment stage. We review this contention for an
abuse of discretion, and will only find that the district court
abused its discretion if the defendants’ delay caused the
Nos. 12-1668 & 12-1681 15
plaintiffs to suffer prejudice. Williams, 399 F.3d at 871. We do
not find any such prejudice here, and decline to find that the
district court abused its discretion.
Plaintiff-Appellants are correct that the Federal Rules of
Civil Procedure require that “a party must affirmatively
state any avoidance or affirmative defense … .” Fed. R. Civ.
P. 8(c). Our circuit considers mixed motives an affirmative
defense. Speedy v. Rexnord Corp., 243 F.3d 397, 401 (7th Cir.
2001) (stating that the Supreme Court case of PriceWaterhouse
v. Hopkins, 490 U.S. 228, 258 (1989), “established the ‘mixed-
motive’ affirmative defense”). However, “the rule that for-
feits an affirmative defense not pleaded in the answer (or by
an earlier motion) is, we want to make clear, not to be ap-
plied rigidly.” Matthews v. Wis. Energy Corp., Inc., 642 F.3d
565, 570 (7th Cir. 2011) (citation and internal quotation marks
omitted). We will generally find that “[t]he failure to plead
an affirmative defense in the answer works a forfeiture only
if the plaintiff is harmed by the defendant’s delay in assert-
ing it.” Id. (citation and internal quotation marks omitted).
Defendant-Appellees correctly argue that the argument was
obvious throughout the case, and that they raised it in detail
in their initial summary judgment brief, as well as in their
initial motion to disqualify one counsel from representing all
plaintiffs. Garofalo and Peers had the opportunity to chal-
lenge this argument in their own summary judgment sub-
missions, as well as in their opposition briefs to the Defend-
ant-Appellees’ summary judgment brief. Additionally, the
district court addressed this defense from the outset of the
case, when it stated that “[t]o the extent that one plaintiff
proves that he was the one who would have been promoted
if not for discrimination, he provides a defense against the
claims of the other three [plaintiffs].”
16 Nos. 12-1668 & 12-1681
Defendant-Appellees did not waive the affirmative de-
fense of mixed motives, and the district court did not abuse
its discretion in allowing this argument to be raised in the
summary judgment briefing.
B. Constructive Discharge
Likewise, we agree with the district court that summary
judgment was proper on Plaintiff-Appellants’ constructive
discharge claim. “[T]o establish ‘constructive discharge,’ the
plaintiff must … show that the abusive working environ-
ment became so intolerable that her resignation qualified as
a fitting response.” Penn. State Police v. Suders, 542 U.S. 129,
134 (2004); see also id. at 146–47 (stating that constructive dis-
charge “entails something more” than a mere hostile work
environment claim: the plaintiff “must show working condi-
tions so intolerable that a reasonable person would have felt
compelled to resign”). Constructive discharge “is deemed to
have occurred when the plaintiff shows that she was forced
to resign because her working conditions, from the stand-
point of the reasonable employee, had become unbearable.”
Fischer v. Avanade, Inc., 519 F.3d 393, 409 (7th Cir. 2008) (cita-
tion and internal quotation marks omitted). For instance,
“[a] person who is told repeatedly that he is not wanted, has
no future, and can’t count on ever getting another raise
would not be acting unreasonably if he decided that to re-
main with this employer would necessarily be inconsistent
with even a minimal sense of self-respect, and therefore in-
tolerable.“ Hunt v. City of Markham, Ill., 219 F.3d 649, 655 (7th
Cir. 2000). If we accept Plaintiff-Appellants’ logic—that their
failure to be promoted to deputy chief constituted construc-
tive discharge—almost every member of a municipal or gov-
ernmental hierarchy would end up being constructively dis-
Nos. 12-1668 & 12-1681 17
charged because hierarchies generally narrow at the top.
This cannot be the case.
Even accepting that Garofalo and Peers intend to make a
more specific case for how the working environment at Ha-
zel Crest worsened as to become intolerable, they fail to pro-
vide us with sufficient evidence for us to adduce that con-
clusion. Most of the statements of which Garofalo and Peers
complain were made by Jones prior to his promotion, and
none were made to suggest Garofalo and Peers could not
continue as sergeants. Cf. Fischer, 519 F.3d at 409 (noting that
constructive discharge occurs when “based on an employer’s
actions, the handwriting was on the wall and the axe was
about to fall”) (citation and internal quotation marks omit-
ted). Moreover, there is no evidence that these were repeated
statements by a person in position of authority—indeed,
Jones’s comments read like the frustrated statements of a col-
league commiserating with his fellows. Summary judgment
was proper on Garofalo’s and Peers’s claim of constructive
discharge.
C. Preclusive Effect of the Consent Decree
We are not convinced by Defendant-Appellees’ assertion
that the consent decree entered into between the Village and
Murray has preclusive effect over the present matter. The
consent decree, by its terms, did not “admit[] any fault or
conced[e] the veracity of any allegations,” and merely stipu-
lated in a conclusory statement that “[Murray and the vil-
lage] agree that Patrick Murray will be retroactively promot-
ed.” Moreover, the consent decree was entered into between
Murray and the Village, and did not involve either Garofalo
or Peers. It is a longstanding principle that “parties who
choose to resolve litigation through settlement may not dis-
18 Nos. 12-1668 & 12-1681
pose of the claims of a third party … . A court’s approval of a
consent decree between some of the parties therefore cannot
dispose of the valid claims of nonconsenting intervenors.”
Firefighters Local 93 v. City of Cleveland, 478 U.S. 501, 518
(1986). The consent decree cannot bar Garofalo and Peers
from pursuing their valid claims, as they were not parties to
the decree.
D. Racial Discrimination Claim
That brings us to the substantive heart of the case. In
challenging the grant of summary judgment, Garofalo and
Peers argue that they produced sufficient evidence of dis-
crimination, primarily under the direct method. Reviewing
the record de novo, we disagree. While “[n]o real evidence
has been submitted which would preclude a jury finding of
discrimination” on the part of the Village as to Garofalo and
Peers, the two Plaintiff-Appellants “offer[] no evidence that
would allow a trier of fact to find” that unlawful discrimina-
tion caused the two officers not to be promoted. See Bass v.
Joliet Pub. Sch. Dist. No. 86, 746 F.3d 835, 841 (7th Cir. 2014).
“[W]hen all is said and done, the fundamental question
at the summary judgment stage is simply whether a reason-
able jury could find prohibited discrimination.” Id. at 840
(citing Perez v. Thorntons, Inc., 731 F.3d 699, 703 (7th Cir.
2013); Coleman v. Donahoe, 667 F.3d 835, 863 (7th Cir. 2012)
(Wood, J., concurring)). While it can be debated whether it is
still useful to sharply distinguish between the direct and in-
direct methods of proof, under the direct method, “[a] plain-
tiff can survive summary judgment by producing either”
circumstantial or direct evidence, “as long as it creates a tri-
able issue on whether discrimination motivated the em-
Nos. 12-1668 & 12-1681 19
ployment action.” Diaz v. Kraft Foods Global, Inc., 653 F.3d
582, 587 (7th Cir. 2011).
Under the direct method, the case at hand is trickier than
Bass, where the plaintiff “presented no—literally no—
evidence that her firing was for a prohibited reason.” Id.
Here, there is evidence that White’s promotion was based on
the prohibited consideration of his race. Evidence, too, that
Murray’s sudden change of fortunes was due to Murray’s
race—Jones admitted as much. But we are skeptical that the
evidence that White was promoted based on his race, or the
fact that Murray did not receive the promotion based on his,
could be used by a reasonable jury in service of the conclu-
sion that Garofalo and Peers were not promoted because of
their race. There is no specific evidence, as it relates to
Garofalo or Peers, “that would allow a trier of fact to find
that [race] discrimination lay behind” the Village’s decision
not to promote the Plaintiff-Appellants. Id. As pertains to the
two Plaintiff-Appellants, “the record contains neither explic-
it declarations of a discriminatory motive nor sufficient cir-
cumstantial evidence for a rational jury to infer discrimina-
tion.” See Zayas v. Rockford Mem’l Hosp., 740 F.3d 1154, 1157
(7th Cir. 2014). Plaintiff-Appellants argue that they have pre-
sented evidence of Murray’s shortcomings, and that they
have established that his chance at the promotion, absent
Jones’s impermissible considerations of race, was not a sure
thing. But that is negative evidence that may lead a juror to
conclude that Murray would not have gotten the promotion.
Even construing that evidence in the light most favorable to
Garofalo and Peers, there is no affirmative evidence on
which a reasonable juror could—absent speculation or con-
jecture—decide that Garofalo or Peers would have received
20 Nos. 12-1668 & 12-1681
the promotion absent the impermissible consideration of
race.
The Plaintiff-Appellants fare slightly better under the in-
direct method, because they can get as far as establishing a
prima facie case. For a failure-to-promote claim, the indirect
method of proof required the Plaintiff-Appellants to offer
evidence that: (1) they were members of a protected class; (2)
they were qualified for the position sought; (3) they were re-
jected for the position; and (4) the employer promoted
someone outside the protected group who was not better
qualified than the Plaintiff-Appellants. See Johnson v. Gen. Bd.
of Pension & Health Benefits of United Methodist Church, 733
F.3d 722, 728–29 (7th Cir. 2013). They met the first prong of
the test. See, e.g., McDonald v. Santa Fe Trail Transp. Co., 427
U.S. 273, 280–81 (1976) (holding that Title VII prohibits dis-
criminatory preference for any racial group, including the
preference of black employees over white employees); Ever-
ett v. Cook Co., 655 F.3d 723, 730 (7th Cir. 2011) (explaining
that in a case alleging discrimination against white plaintiffs,
the first prong of the indirect method test requires that “the
plaintiff show ‘background circumstances’ suggesting that
the employer discriminates against the majority”) (internal
quotation marks and citation omitted). And they met the
second, as they introduced evidence that, if believed by the
trier of fact, would show that they were meeting the re-
quirements of their jobs, and that they met all or most of the
preferred and required qualifications for the Deputy Chief
position, and that they were well-regarded enough that they
were being discussed for the promotion. The third prong,
too, is uncontested. As for the fourth prong, construing the
evidence in the light most favorable to Garofalo and Peers
Nos. 12-1668 & 12-1681 21
would permit the conclusion that White was not better quali-
fied than the two Plaintiff-Appellants.
However, the Defendant-Appellees were entitled to
summary judgment because they “articulated non-
discriminatory reasons for the decisions not to promote”
Garofalo and Peers, reasons that Garofalo and Peers could
not prove were pretext. See Johnson, 733 F.3d at 729. Defend-
ant-Appellees offered evidence that Garofalo was not select-
ed for the promotion because Jones and others believed
Garofalo suffered from a lack of leadership and deficiencies
in his decision-making abilities. As for Peers, Defendant-
Appellees offered evidence that Peers was known by the
other officers to have a “volatile and unstable personality,”
and that Jones and others believed that Peers did not have
the respect of the men he supervised. Jones also believed
that Peers did not want the particular promotion in question.
Garofalo and Peers have not “presented evidence to counter
that explanation and permit a finding of pretext.” Id. Pretext
is shown by the plaintiff asserting evidence demonstrating
that “(1) the employer’s non-discriminatory reason was dis-
honest and (2) the employer’s true reason was based on a
discriminatory intent.” Stockwell v. City of Harvey, 597 F.3d
895, 901 (7th Cir. 2010). In this case, the Plaintiff-Appellants
must “raise an issue of fact regarding each of the reasons
proffered” for Jones’s decision not to promote them. Wolf v.
Buss (Am.), Inc., 77 F.3d 914, 920 (7th Cir. 1996). They failed
to do so. Accordingly, summary judgment was properly
granted.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
judgment.