Pugh, Clyde v. City Attica IN ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-4169
CLYDE PUGH,
Plaintiff-Appellant,
v.
CITY OF ATTICA, INDIANA, ATTICA POLICE
DEPARTMENT, ATTICA BOARD OF WORKS, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 99 C 840--S. Hugh Dillin, Judge.
ARGUED JUNE 4, 2001--DECIDED July 26, 2001
Before RIPPLE, EVANS and WILLIAMS,
Circuit Judges.
RIPPLE, Circuit Judge. Clyde Pugh
brought an ADA discrimination claim and a
retaliatory discharge claim under 42
U.S.C. sec. 1983 against the City of
Attica, Indiana, and the Attica Board of
Works (collectively "the City")./1 The
City filed a motion for summary judgment.
The district court granted judgment to
the City. The court held that Mr. Pugh
failed to demonstrate that the City’s
proffered reason for his discharge was a
pretext, as required to succeed on the
ADA claim. The court also rejected Mr.
Pugh’s Section 1983 retaliatory discharge
claim because he did not establish the
requisite causal connection between his
protected First Amendment activity and
his termination. Mr. Pugh now appeals the
district court’s judgment on both claims.
For the reasons set forth in the
following opinion, we affirm the judgment
of the district court.
I
BACKGROUND
A. Facts/2
Mr. Pugh was employed as the animal
control officer for the City of Attica
from April 1987 until his discharge on
May 5, 1998. As animal control officer,
Mr. Pugh was responsible for transporting
animals to the Lafayette Humane Society
or the veterinarian, patrolling the city
for stray animals, and responding to
citizen complaints regarding animals. The
mayor appoints the animal control
officer, who works under the police
chief, the mayor, and the city clerk’s
office.
In a letter dated June 24, 1994, Timothy
Quinn, chief of the Attica Police
Department, informed Mr. Pugh that Mayor
Harold R. Long and he had received
reports from citizens that Mr. Pugh
smelled of alcohol while on duty. The
letter further directed Mr. Pugh to
refrain from the use of alcohol from 8
a.m. to 4 p.m. or when on call, in
accordance with the City of Attica’s
personnel policy manual. On January 26,
1996, the police received a citizen
complaint that Mr. Pugh had been drinking
and operating a city truck while
performing his duties as animal control
officer. In response to the complaint and
at the request of Chief Quinn, Assistant
Police Chief Robert Scherer located Mr.
Pugh at his residence and administered a
breathalyzer test. The test registered
.008 percent breath alcohol content
("BAC"), which indicated consumption but
not intoxication. In response to another
citizen complaint on July 18, 1997, Mayor
Long ordered a breathalyzer test for Mr.
Pugh. The officer who tested Mr. Pugh
reported a BAC of .04 percent and noted
that he detected an odor of alcohol on
Mr. Pugh’s breath.
In the six-month interim separating the
two tests, the City of Attica instituted
a drug and alcohol abuse policy; on March
19, 1997, Mr. Pugh signed a form that
attested to his having read and
understood the policy. Under the policy,
employees were prohibited from consuming
alcohol while on duty, and an employee
could be tested for alcohol if the city
had a "reasonable suspicion" of
consumption. R.30, Ex.B. An employee
whose test registered the presence of
alcohol could continue employment on a
conditional basis by consenting to
participation in certified counseling, by
remaining alcohol free, and by submitting
to periodic and unscheduled breathalyzer
tests.
Pursuant to the policy, Mayor Long sent
Mr. Pugh a letter on July 30, 1997,
requiring Mr. Pugh to undergo profession
al alcohol counseling and to submit to a
breathalyzer test each time he was on
duty if he wanted to retain his position
as animal control officer. Six days
later, after Mr. Pugh had driven a city
truck without submitting to a test, City
Attorney Thomas P. O’Connor sent Mr. Pugh
a letter of clarification restating the
breathalyzer test requirement. Mr. Pugh
subsequently began the testing. Mr. Pugh
also received an alcohol assessment at
Wabash Valley Hospital on September 25,
1997, after O’Connor sent him a letter,
dated August 22, 1997, reminding him of
his obligation to seek counseling. The
counseling and breathalyzer tests lasted
for approximately six weeks during August
and September 1997. On March 5, 1998,
after Mr. Pugh had completed the
requisite counseling program, he was
stopped by the police for a breathalyzer
test. The city claims it stopped Mr. Pugh
in response to a citizen complaint;
however, there is no report of the
complaint in the record. Nevertheless,
none of the daily tests nor the March 5th
test registered the presence of alcohol.
In late April 1998, Mr. Pugh contacted
an attorney, Brenda Clapper, to discuss
his belief that his rights were being
violated by Attica police officers.
According to Mr. Pugh, the police
officers had been following him when he
was off-duty after he completed the
alcohol counseling. Mr. Pugh claimed that
the officers parked in front of his home
and stayed until he had entered the
house, followed him from his home by car,
and waited for him at other locations to
continue following him. In her affidavit,
Ms. Clapper indicated that Mr. Pugh
complained about two drug tests, the
required alcohol counseling, the alleged
police surveillance, and mandatory
breathalyzer tests administered without
probable cause, both on and off duty. On
April 28, 1998, Ms. Clapper contacted
O’Connor to explore Mr. Pugh’s claims.
About the same time that Ms. Clapper
contacted O’Connor, Assistant Police
Chief Robert Scherer conducted an
internal investigation into allegations
that Mr. Pugh had misappropriated public
funds. Scherer’s report states that on
April 29, 1998, Mike Marquess and Joann
Tucker, officers of the Animal Welfare
League, came to the Attica Police
Department to discuss an incident in
which Mr. Pugh allegedly had mishandled
funds. According to Marquess and Tucker,
Mr. Pugh had collected a twenty-dollar
donation from a dog’s owners on April 19,
1998, in exchange for impounding the
animal. Mr. Pugh had filled out a release
form that was then signed by one of the
dog’s owners and contained a written
notation under the owner’s name that the
donation had been made. The release form
indicated that the owners had given the
dog to the City of Attica. According to
Scherer’s report, Mr. Pugh explained that
the form was posted at the pound where
people who wish to adopt a dog might see
the form. When the form was found posted
at the pound by Marquess and Tucker, the
portion of the paper containing the
donation amount had been torn off,
prompting Marquess and Tucker to contact
the police.
On April 30, 1998, Scherer met with the
dog’s owners, who confirmed the payment
to Mr. Pugh and the signature on the
form. One owner stated that he donated
the money when the "dog catcher told him
that the city would require some sort of
donation to take the dog." R.40, Ex.10.
Scherer then spoke with the city clerk’s
office, which indicated that no monies
had been deposited by Mr. Pugh nor was it
a policy for Mr. Pugh to collect
donations.
Scherer met with Mr. Pugh on May 3,
1998, at the police department. Unsure of
the conversation’s outcome, Scherer read
Mr. Pugh his Miranda rights. At Scherer’s
request, Mr. Pugh explained the events of
April 19, 1998. Mr. Pugh indicated that,
in response to an inquiry from the owner,
he had stated that the Animal Welfare
League usually asked for a donation. Mr.
Pugh further explained that he had
removed the bottom of the form where the
donation amount was listed because, when
individuals visit the pound to adopt a
dog, they often see the form posted and
believe that the donation amount is the
price of the animal. Finally, Mr. Pugh
claimed that he had intended to turn the
money over to either Marquess or Tucker
and had forgotten to give the twenty
dollars to Tucker a few days earlier when
he had seen her at the bank. In his
report, Scherer stated that Mr. Pugh was
aggravated at the implication that he had
mishandled the money but also agreed that
the circumstances were not favorable to
him. At Scherer’s suggestion, Mr. Pugh
then tendered the twenty dollars, for
which Scherer provided Mr. Pugh a
receipt.
Later, Tucker called Scherer to inform
him that Mr. Pugh had visited her
residence and had been visibly upset
about the twenty dollars. When Scherer
asked Tucker if Mr. Pugh had ever turned
money in to her in the past, she replied
that only once before had Mr. Pugh given
her money. Over a year earlier, Mr. Pugh
had collected a ten-dollar donation, and
Tucker claimed that Mr. Pugh was slow in
remitting it. Mr. Pugh asserted in his
deposition that he collected money from
animal owners approximately every two or
three weeks; however, he only deposited
the money with the animal league when he
saw Marquess or Tucker, which could be up
to three or four weeks later. Mr. Pugh
also stated that neither Marquess nor
Tucker ever gave him receipts for the
donations. At the conclusion of his
investigation, Scherer provided his
report to Chief Quinn and Mayor Long.
On May 5, 1998, the Board of Works
terminated Mr. Pugh after a motion was
made by O’Connor, the city attorney, to
discharge Mr. Pugh for misappropriation
of funds. According to the city’s
personnel policy, the Board of Works con
sists of three members, is controlled by
the mayor, and has broad powers. At the
time of the May 5th meeting, the Board of
Works members were Mayor Long, O’Connor,
and Deon (Butch) Swift.
B. Proceedings in the District Court
Mr. Pugh brought this action against the
City under the Americans with
Disabilities Act ("ADA"), 42 U.S.C. sec.
12101 et seq. In his complaint, Mr. Pugh
alleged that the City regarded him as
being an alcoholic and that the City
discriminated against him by "materially
affecting and altering the terms and
conditions of [his] employment," by
terminating him, and by subjecting him to
breathalyzer tests./3 R.1 at 1
para.para. 11, 30-31. In addition, Mr.
Pugh asserted retaliatory discharge under
Section 1983 based on his First Amendment
right to redress grievances with the
government. Mr. Pugh alleged that the
City terminated his employment because he
had contacted an attorney to pursue his
claim of police harassment./4 The City
filed a motion for summary judgment. In
its motion, the City asserted that Mr.
Pugh was discharged for misappropriation
of funds and not because of a perceived
disability or in retaliation for
protected activity./5
The district court granted summary
judgment in favor of the City. On the ADA
claim, the court first held that Mr. Pugh
established a prima facie case of
discrimination under the burden-shifting
test set forth in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973), because
the City perceived Mr. Pugh as an
alcoholic. The City then met its burden
to proffer a legitimate,
nondiscriminatory reason for Mr. Pugh’s
discharge by claiming that Mr. Pugh had
been terminated for misappropriation of
funds. In support, the City provided the
police incident report detailing the
investigation into Mr. Pugh’s alleged
mishandling of a twenty-dollar donation
and the minutes for the Board of Works
meeting at which Mr. Pugh was terminated.
The burden then shifted back to Mr. Pugh
to demonstrate that the City’s proffered
reason was a pretext for discrimination.
In contrast to the City’s support for its
nondiscriminatory reason for Mr. Pugh’s
discharge, Mr. Pugh offered only the
suspicious timing of his discharge and
his own unsupported deposition testimony
explaining his process for collecting and
remitting money. The district court found
discrepancies between Mr. Pugh’s alleged
practice of collecting donations over a
period of years and Tucker’s statement
that she had received money from Mr. Pugh
only once. The court also rejected Mr.
Pugh’s argument that the absence of an
explanation for his discharge in the
City’s termination letter was evidence of
pretext. The court held that, because Mr.
Pugh did not submit evidence to suggest
that the Board of Works terminated him
because it perceived him as an alcoholic
rather than for misappropriation of
funds, he did not demonstrate pretext.
Therefore, Mr. Pugh’s ADA claim failed.
The district court also granted summary
judgment to the City on Mr. Pugh’s
Section 1983 retaliatory discharge claim.
The court assumed, for the purposes of
the decision, that Mr. Pugh had
established that his contact with an
attorney to discuss harassment claims
against the City was protected conduct;
however, Mr. Pugh could not establish a
causal connection between his protected
activity and his termination. In the
court’s opinion, the record established
that Mr. Pugh was terminated for his
alleged misappropriation of funds, and,
therefore, the court held that Mr. Pugh
failed to demonstrate retaliation.
II
DISCUSSION
A. Standard of Review
We review a district court’s grant of
summary judgment de novo. See Lawson v.
CSX Transp., Inc., 245 F.3d 916, 922 (7th
Cir. 2001). Summary judgment is proper
when the record shows that "there is no
genuine issue as to any material fact and
that the moving party is entitled to a
judgment as a matter of law." Fed. R.
Civ. P. 56(c); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). In
evaluating the district court’s decision,
we "must construe all facts in the light
most favorable to the non-moving party
and draw all reasonable and justifiable
inferences in favor of that party."
Bellaver v. Quanex Corp., 200 F.3d 485,
491-92 (7th Cir. 2000). To avoid summary
judgment, Mr. Pugh must set forth
specific facts that demonstrate a genuine
issue of triable fact and must produce
more than a scintilla of evidence to sup
port his position. See Bekker v. Humana
Health Plan, Inc., 229 F.3d 662, 669 (7th
Cir. 2000). A genuine issue of triable
fact exists only if "the evidence is such
that a reasonable jury could return a
verdict for the nonmoving party."
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). With these standards in
mind, we turn to Mr. Pugh’s first claim.
B. The ADA Discrimination Claim
Mr. Pugh contends that the City violated
the ADA when it terminated his employment
as animal control officer. Mr. Pugh
asserts that the City discharged him
based upon its perception that he was an
alcoholic and not because it believed
that he had misappropriated funds.
Under the ADA, an employee may present
either direct or indirect evidence of
employer discrimination. See Bekker, 229
F.3d at 670. When relying on indirect
evidence at the summary judgment stage,
as Mr. Pugh does, a plaintiff must first
establish a prima facie case of
discrimination within the meaning of the
ADA, in accordance with the burden-
shifting method developed in McDonnell
Douglas. See Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 142 (2000);
Tyler v. Ispat Inland Inc., 245 F.3d 969,
972 (7th Cir. 2001); Bekker, 229 F.3d at
672.
To establish a prima facie case of
discrimination, Mr. Pugh must show that
(1) he is disabled within the meaning of
the ADA, (2) he is qualified to perform
the essential functions of his job either
with or without reasonable accommodation,
and (3) he suffered from an adverse
employment decision because of his
disability. See Bekker, 229 F.3d at 669-
70. A plaintiff may show that he is
disabled within the meaning of the ADA by
demonstrating that he is "regarded as"
having an impairment that "substantially
limits one or more of [his] major life
activities." 42 U.S.C. sec. 12102(2);/6
see also Bekker, 229 F.3d at 670; Wright
v. Ill. Dep’t of Corrections, 204 F.3d
727, 730-32 (7th Cir. 2000) (discussing
the guidelines for deciding when an
employee is "regarded as" having a
disability).
Once Mr. Pugh has established his prima
facie case, the burden shifts to the City
to articulate a legitimate,
nondiscriminatory reason for its adverse
employment decision. See Reeves, 530 U.S.
at 142-43; Tyler, 245 F.3d at 972;
Bekker, 229 F.3d at 672. If the City
meets its burden, the presumption of
intentional discrimination disappears,
and Mr. Pugh must prove, by a
preponderance of the evidence, that the
reason proffered by the City was a
pretext for intentional discrimination.
See Reeves, 530 U.S. at 143; Tyler, 245
F.3d at 972; Bekker, 229 F.3d at 672. Mr.
Pugh may demonstrate pretext by offering
evidence that the City’s "proffered
explanation is unworthy of credence."
Reeves, 530 U.S. at 143 (citation
omitted); Lawson, 245 F.3d at 931.
To survive a motion for summary
judgment, Mr. Pugh must produce evidence
that "create[s] an issue of fact as to
whether the reasons offered by the [City]
were sincere--in [ADA] lingo, not
pretextual." Green v. Nat’l Steel Corp.,
Midwest Div., 197 F.3d 894, 898-99 (7th
Cir. 1999) ("[ADA]" alteration in
original) (citation omitted). Under the
law of this circuit, Mr. Pugh must
provide more than his unsupported
declaration that the City was mistaken in
order to defeat the City’s motion for
summary judgment. See id. at 899. Even if
the City was incorrect in its belief, we
will not contest the City’s reasoning if
the City acted in good faith and held an
honest belief in the proffered reason for
Mr. Pugh’s termination. See Green, 197
F.3d at 899; Kariotis v. Navistar Int’l
Trans. Corp., 131 F.3d 672, 676-77 (7th
Cir. 1997). Under this framework, Mr.
Pugh retains, at all times, the ultimate
burden of proving intentional
discrimination by the City. See Reeves,
530 U.S. at 143.
The district court addressed the first
prong of the prima facie case and assumed
that the remaining prongs had been
satisfied. With respect to the first
prong, the court specifically found that
Mr. Pugh was disabled within the meaning
of the ADA. Mr. Pugh was "regarded as" an
alcoholic by the City in that the "record
evidence more than sufficiently
establishes that Mr. Pugh’s employers
perceived him as an alcoholic." R.52 at
9. Our view of the evidence leads us to
agree with the district court. Like the
district court, we shall assume that Mr.
Pugh has established the remaining two
prongs of the prima facie case.
The burden now shifts to the City to
present a legitimate, nondiscriminatory
reason for terminating Mr. Pugh. The City
successfully meets its burden by
contending that it discharged Mr. Pugh
for the misappropriation of public funds.
This decision was based on Assistant
Police Chief Scherer’s investigation into
the allegations made by Marquess and
Tucker of the Animal Welfare League.
Because the City offers a legitimate,
nondiscriminatory reason for discharging
Mr. Pugh, the burden shifts back to Mr.
Pugh to demonstrate that the City’s
proffered reason, the mishandling of
funds, is a pretext for discriminatory
intent.
Mr. Pugh fails to show that the City’s
proffered reason for his discharge is
unworthy of credence. It is insufficient
for Mr. Pugh simply to assert that he did
not misappropriate funds and that the
City’s belief was mistaken without
offering further evidentiary support. See
Green, 197 F.3d at 899. Rather, he must
present evidence to create a material
dispute as to the City’s honest belief
that he had mishandled the funds. See id.
Mr. Pugh advances three arguments in an
attempt to create an issue of material
fact as to whether the City’s belief in
his misappropriation of funds was
pretextual. We examine each argument in
turn.
Mr. Pugh first attempts to demonstrate
pretext by showing that the City’s belief
was mistaken because he had not
misappropriated funds. Mr. Pugh argues
that he solicited donations for the
humane society from animal owners
routinely every two to three weeks and
that he turned over the funds to Marquess
and Tucker. Mr. Pugh admits that he kept
the donations until he saw either
Marquess or Tucker and only then did he
turn them in, sometimes three to four
weeks after collecting the funds.
However, in support of this explanation,
Mr. Pugh offers no more than his own
deposition testimony. Mr. Pugh argues
that he should survive summary judgment
because he supported his answer to the
City’s motion for summary judgment with
designated materials as required by Local
Rule 56.1. Yet the cited materials are
simply his own responses in his
deposition as set forth in his statement
of additional material facts.
Regardless, Mr. Pugh’s argument is
misplaced. By arguing that he did not
mishandle funds, he has not cast any
doubt on the honesty of the City’s belief
that he had engaged in such conduct. Mr.
Pugh offers no evidence to suggest that
the City had additional information or
knowledge, such as records from the city
clerk or from the animal shelter, which
would have indicated that the City did
not truly believe that Mr. Pugh had
misappropriated funds. Nor does Mr. Pugh
offer evidence to imply that his
practices were sanctioned by the City.
In contrast, the City supported its
legitimate reason for terminating Mr.
Pugh with documented evidence and
affidavits./7 The City submitted
Scherer’s report of the internal
investigation that he had conducted after
the police were contacted by Marquess and
Tucker. Marquess and Tucker contacted the
police to express concern that Mr. Pugh
had collected the twenty dollars from a
dog owner and had not yet turned it in to
either of them. When Mr. Pugh took the
dog from the family and accepted the
twenty-dollar donation, he also collected
a document from the owners that included
an owner’s signature and the amount of
the donation. However, when the document
was posted at the pound, the portion of
the document containing the donation
amount was removed.
In the course of his investigation,
Scherer spoke with the city clerk, who
indicated that Mr. Pugh had not deposited
funds, nor was it a city policy for Mr.
Pugh to collect monies on behalf of the
city. When Scherer met with the dog
owners, he was told that Mr. Pugh had
said that some kind of donation would be
required in exchange for the city taking
the animal. The owner also stated that he
had signed the form with the twenty-
dollar donation indicated under his
signature. Two days later, Scherer met
with Mr. Pugh. Mr. Pugh claimed that he
had told the owner that the city usually
asked for donations in response to an
inquiry by the owner. He also explained
that he had torn off the bottom portion
of the form to prevent people from
thinking that the price of adoption was
twenty dollars. In explanation for not
having turned the twenty dollars over to
Tucker when he saw her, Mr. Pugh asserted
that he had intended to give Tucker the
money but had forgotten. Mr. Pugh then
gave the twenty dollars to Scherer at
Scherer’s suggestion. When Tucker
contacted Scherer by phone later that
day, Scherer asked if Tucker ever had
received funds from Mr. Pugh in the past.
She replied that Mr. Pugh turned in money
to her only once. Over a year earlier,
Tucker had received ten dollars from Mr.
Pugh, who had delayed turning in the
money.
Contrary to Mr. Pugh’s claim, the
district court did not weigh the
credibility of Mr. Pugh’s deposition when
it (1) labeled the deposition "self-
serving" and (2) noted the discrepancy
between Mr. Pugh’s assertion that he had
collected and remitted money regularly
and Tucker’s statement that she had
received money from Mr. Pugh on only one
occasion. The district court
appropriately evaluated the evidence
offered by both parties. The City was
entitled to rely on the allegations made
by Tucker and Marquess as well as the
results of Scherer’s investigative report
in its decision to terminate Mr. Pugh for
mishandling public funds. As a result,
the court determined that Mr. Pugh failed
to submit evidence from which a
reasonable jury could conclude that he
was terminated for anything other than
misappropriation of funds.
Mr. Pugh’s second claim, in his attempt
to demonstrate pretext, is that the
timing of his discharge was suspicious.
The Board of Works voted to terminate Mr.
Pugh one week after Mr. Pugh’s attorney
contacted City Attorney O’Connor to
discuss Mr. Pugh’s concerns with alleged
police harassment.
Suspicious timing does constitute
circumstantial, or indirect, evidence to
support a claim of discrimination. See
Foster v. Arthur Anderson, LLP, 168 F.3d
1029, 1034 (7th Cir. 1999). A time lapse
of one week may be sufficient, in
combination with additional evidence, to
demonstrate pretext. See King v.
Preferred Technical Group, 166 F.3d 887,
894 (7th Cir. 1999) (holding that the
lapse of one day, in combination with the
fact-specific affidavits of the plaintiff
and her husband, were sufficient to "cast
doubt" on the reasons offered by the
employer for the plaintiff’s termination
under the Family and Medical Leave Act).
However, timing alone does not create a
genuine issue as to pretext if the
plaintiff is unable to prove, through
other circumstantial evidence, that he
was terminated for a reason other than
that proffered by the employer. See
Foster, 168 F.3d at 1034.
The suspicious timing of Mr. Pugh’s
discharge is only sufficient to
demonstrate a showing of pretext if Mr.
Pugh also presents other evidence that
casts doubt on the veracity of the City’s
belief that Mr. Pugh had mishandled
funds. In contrast to the plaintiff in
King, who supplemented the claim of
suspicious timing with fact-filled
affidavits and testimony from her husband
and herself, see King, 166 F.3d at 894,
Mr. Pugh offers no more than a general
explanation in his own deposition. Even
if the City’s action appears precipitous
under the circumstances, we are not in a
position to question the wisdom of a
decision that was honestly made. See
Green, 197 F.3d at 899 ("[R]egardless of
whether it is correct in its beliefs, if
an employer acted in good faith and with
an honest belief, we will not second-
guess its decisions."); Kariotis, 131
F.3d at 677. Although Mr. Pugh’s
deposition avers that the City was
mistaken in its belief, the deposition
does not directly question the
credibility of that belief as required to
demonstrate pretext. Mr. Pugh has not met
the evidentiary burden necessary to rely
on the suspicious timing as evidence of
pretext.
Mr. Pugh’s third claim is that the City
did not come forward with the allegations
of misappropriation of funds until he
filed this suit. Mr. Pugh believes that
this claim is supported by his
termination letter from Mayor Long, which
did not state a reason for his discharge,
and Scherer’s inability to tell Mr. Pugh
the reason for his termination when
confronted by Mr. Pugh. This claim is
without merit. The Board’s decision to
discharge Mr. Pugh for misappropriation
of funds was formulated prior to the
suit, as evidenced by the minutes of the
Board’s meeting and Scherer’s
investigation report.
For all of the reasons stated above, Mr.
Pugh has failed to demonstrate that the
City’s legitimate, nondiscriminatory
explanation for discharging him was
unworthy of credence and thus pretextual.
We hold that the district court’s grant
of summary judgment in favor of the City
on the ADA discrimination claim was
proper.
C. The Section 1983 Retaliatory
Discharge Claim
Mr. Pugh asserts that he exercised his
First Amendment right to redress
grievances with the City when he contact
ed his attorney to discuss alleged police
harassment, the breathalyzer tests, and
the substance abuse counseling. Mr. Pugh
further contends that the City retaliated
against him for this protected activity
in violation of Section 1983 when it
terminated him one week after his
attorney contacted the city attorney to
discuss his grievances.
As our cases acknowledge,/8 the
Supreme Court’s decision in Mt. Healthy
City School District Board of Education
v. Doyle, 429 U.S. 274, 287 (1977), sets
forth the appropriate analysis for
evaluating a claim of retaliatory
discharge based on the First Amendment.
In Mt. Healthy, the Supreme Court held
that a plaintiff claiming such an injury
must show that his conduct was
constitutionally protected and that the
conduct was a "substantial factor" or a
"motivating factor" for the discharge.
Id. (internal quotation marks omitted)
(citing Village of Arlington Heights v.
Metro. Hous. Dev. Corp., 429 U.S. 252,
270-71 n.21 (1977)). If the plaintiff
succeeds in shouldering that burden, the
defendant must then establish that it
would have reached the same decision
"even in the absence of the protected
conduct." Id.
We assume for the purposes of appeal, as
the district court did, that Mr. Pugh’s
contact with his attorney was protected
conduct. Therefore, Mr. Pugh must
demonstrate that his conversation with
his attorney was a substantial or
motivating factor in the City’s decision
to dismiss him. Mr. Pugh has offered no
evidence to suggest that the City
terminated him in retaliation for his
having consulted with his attorney. The
timing of the action, without more, is
insufficient to establish the protected
activity as a motivating factor. Cf.
Contreras v. Suncast Corp., 237 F.3d 756,
765 (7th Cir. 2001) (holding that
evidence of timing, absent other evidence
of discrimination, is insufficient to
survive a motion for summary judgment
under an ADA or a Title VII retaliation
analysis). The evidence of record--
theminutes of the Board of Works meeting
and the internal investigation report
compiled by Scherer--establishes that the
City discharged Mr. Pugh for
misappropriation of funds. Therefore, we
hold that the district court properly
granted the City’s motion for summary
judgment on Mr. Pugh’s Section 1983
retaliatory discharge claim./9
Conclusion
For the reasons set forth in this
opinion, we affirm the judgment of the
district court.
AFFIRMED
FOOTNOTES
/1 Mr. Pugh also brought these claims against the
Attica Police Department and various officials of
the City of Attica, individually and in their
official capacities. The district court dismissed
the claims against these parties, and Mr. Pugh
does not appeal those dismissals.
/2 In its appellate brief, the City argues that Mr.
Pugh’s statement of facts should be stricken for
violations of Circuit Rule 28(c). The rule states
that the "statement of facts required by Fed. R.
App. P. 28(a)(7) shall be a fair summary without
argument or comment. No fact shall be stated in
this part of the brief unless it is supported by
a reference to the page or pages of the record or
the appendix where that fact appears." 7th Cir.
R. 28(c). Although Mr. Pugh technically violated
the rule, the omissions did not so impede our
consideration of the case as to warrant striking
the statement.
/3 Additionally, Mr. Pugh originally predicated his
ADA claim on the impairments of diabetes and an
earlier tracheotomy. Mr. Pugh abandoned the
alternate claims by failing to address them in
his response brief to the City’s motion for
summary judgment.
/4 Mr. Pugh also brought Section 1983 claims based
on the Fourth and Fourteenth Amendments but
subsequently abandoned both claims.
/5 Mr. Pugh subsequently filed a motion to strike
portions of the City’s statement of material
facts, which the district court denied. See infra
note 7.
/6 42 U.S.C. sec. 12102(2) provides in full:
The term "disability" means, with respect to an
individual--
(A) a physical or mental impairment that sub-
stantially limits one or more of the major life
activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.
/7 Mr. Pugh moved to strike those portions of the
City’s statement of material facts that included
City Attorney O’Connor’s response to an interrog-
atory, which referenced Scherer’s investigation
report. Mr. Pugh contends these facts are hearsay
within hearsay. The district court properly
denied Mr. Pugh’s motion to strike.
First, Scherer’s report does not constitute
hearsay because it is not offered to prove the
truth of the matter asserted--that Mr. Pugh
actually misappropriated funds. See United States
v. Linwood, 142 F.3d 418, 425 (7th Cir. 1998)
(citation omitted). The report is offered to
demonstrate why the City honestly believed Mr.
Pugh had misappropriated funds. Second, O’Con-
nor’s answers to the interrogatories were not
hearsay because the City had designated O’Connor
to testify to matters known or reasonably avail-
able to the City. See Fed. R. Civ. P. 30(b)(6)
(allowing an organization to designate a person
to testify on its behalf, who shall testify as to
"matters known or reasonably available to the
organization").
/8 See Thomsen v. Romeis, 198 F.3d 1022, 1027 (7th
Cir. 2000); Johnson v. Univ. of Wisconsin-Eau
Claire, 70 F.3d 469, 482 (7th Cir. 1995); Button
v. Harden, 814 F.2d 382, 383 (7th Cir. 1987).
/9 It appears that the district court relied on the
test for an ADA retaliatory discharge claim
rather than for retaliatory discharge under
Section 1983. Although Mr. Pugh brought his claim
under Section 1983, the tests are similar, and
his retaliation claim could have been brought
under the ADA. Claims of retaliation under the
ADA, like those brought under Title VII, employ
the burden-shifting method for indirect evidence.
The plaintiff must first establish a prima facie
case of retaliation by proving (1) that he en-
gaged in statutorily protected activity, (2) that
he suffered an adverse employment action, and (3)
that there is a causal connection between the two
events. See Contreras v. Suncast Corp., 237 F.3d
756, 765 (7th Cir. 2001).
Mr. Pugh relies, in part, on this test for his
Section 1983 retaliation claim; he contends that
he has established a prima facie inference of
retaliation and that the burden should shift to
the City to establish an affirmative defense. To
make the prima facie inference, he argues, he
must show only that the protected activity and
his termination were not "wholly unrelated."
Appellant’s Br. at 15. However, the only factor
to which he refers in attempting to establish the
requisite relatedness is the timing of his dis-
charge. We have made clear that this factor,
without more, is insufficient to establish the
defendant’s burden. In Contreras, this court held
that "absent other evidence of retaliation, a
temporal relation is insufficient evidence to
survive summary judgment" on a Title VII or ADA
retaliation claim. Contreras, 237 F.3d at 765
(citation omitted). Therefore, Mr. Pugh could not
establish a prima facie case of retaliation under
the ADA.