Ballance, David v. Springfield Police ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3410
DAVID BALLANCE,
Plaintiff-Appellant,
v.
CITY OF SPRINGFIELD, ILLINOIS POLICE DEPARTMENT,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 02-C-3296—Jeanne E. Scott, Judge.
____________
ARGUED JUNE 6, 2005—DECIDED SEPTEMBER 19, 2005
____________
Before ROVNER, WOOD, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. David Ballance, a former police
officer, sued the Springfield Police Department for
race discrimination under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq., for matters arising
from his termination. The issue before us is whether the
district court erred by finding that no genuine issue of
material fact existed for trial on Ballance’s reverse race
discrimination claim. We find that although Ballance
has established his prima facie case, he has failed to satisfy
his burden of showing that the police department’s legiti-
mate, non-discriminatory reasons for terminating him were
pretextual, and therefore, affirm.
2 No. 04-3410
I. BACKGROUND
We give a brief outline of the facts here, and will discuss
them in greater detail where relevant to our analysis.
Ballance, a white male, was a police officer with the
Springfield, Illinois Police Department from October 1989
until his termination on October 17, 2000 by then-police
Chief John Harris. Chief Harris stated that he termi-
nated Ballance for three reasons: first, Ballance’s involve-
ment in a July 27, 2000 event where he allegedly battered
his wife; second, Chief Harris’s finding that Ballance had
obstructed the internal affairs interview regarding this
domestic battery; and third, Ballance’s prior record of
disciplinary actions.1 Ballance ultimately brought a reverse
race discrimination suit against the department in the
United States District Court for the Central District of
Illinois. Specifically, Ballance claims that the department
discriminated against him based on his race because Chief
Harris would not have fired an African-American officer for
the same reasons that he terminated Ballance.
The district court granted summary judgment in favor
of the police department, and Ballance timely appeals.
II. ANALYSIS
A. Standard of Review
We review de novo a district court’s grant of summary
judgment. Lamers Dairy Inc. v. United States Dep’t of
Agric., 379 F.3d 466, 472 (7th Cir. 2004); Ind. Family &
1
Ballance and his wife, Christine Ramsey (“Chris”), both dispute
that the domestic battery occurred. Ramsey initially reported the
alleged abuse, and then retracted her statement, stating that her
injuries were self-inflicted. Ramsey suffered the following injuries:
bleeding, scrapes on her elbows, bruising and swelling on her
body, two broken ribs, and blood in her urine.
No. 04-3410 3
Soc. Servs. Admin. v. Thompson, 286 F.3d 476, 479 (7th Cir.
2002). Summary judgment is properly granted when “the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and
the moving party is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). When determining whether a genuine issue
of material fact exists, we consider evidence in the light
most favorable to the nonmoving party. See Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986). Material facts are facts that “might affect the
outcome of the suit” under the applicable substantive law.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A dispute over material facts is genuine if “the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Id.B. Ballance’s Reverse Race Discrimination Claim
Title VII prohibits employers from discriminating against
employees on the basis of sex or gender. 42 U.S.C. § 2000e-
2(a)(1) (2005). Plaintiffs in employment discrimination
cases can avert summary judgment by presenting either
direct or indirect evidence showing discriminatory intent by
the defendant or its agents. O’Regan v. Arbitration Forms,
Inc., 246 F.3d 975, 983 (7th Cir. 2001). Given that Ballance
does not provide any direct evidence of discrimination on
the basis of race, he must proceed under the familiar four-
part burden-shifting test established in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973) and refined in Texas
Department of Community Affairs v. Burdine, 450 U.S. 248(1981). Under the McDonnell Douglas scheme, the plaintiff
bears the initial burden of establishing a prima facie case.
McDonnell Douglas, 411 U.S. at 802; O’Regan, 246 F.3d at
983.
4 No. 04-3410
Under McDonnell Douglas, a plaintiff attempting to
establish a claim of race discrimination must establish four
prongs: first, that he is a member of a protected
class; second, that he was meeting his employer’s legitimate
performance expectations; third, that he suffered
an adverse employment action; and fourth, that he was
treated less favorably than similarly situated individuals
who are not members of his protected class. See Ineichen v.
Ameritech, 410 F.3d 956, 959 (7th Cir. 2005). It is well
settled law that the protections of Title VII are not limited
to members of historically discriminated-against groups.
McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273(1976); Greenslade v. Chicago Sun-Times, Inc., 112 F.3d
853, 863 (7th Cir. 1997). When analyzing reverse dis-
crimination plaintiffs, we have held that in order to estab-
lish a prima facie case, in addition to meeting the second,
third and fourth prongs above, such a plaintiff must show
that “background circumstances” exist to show an inference
that the employer has “reason or inclination to discriminate
invidiously against whites” or evidence that “there is
something ‘fishy’ about the facts at hand.” Phelan v. City of
Chicago, 347 F.3d 679, 684-85 (7th Cir. 2003); see also Mills
v. Health Care Serv. Corp., 171 F.3d 450, 455-57 (7th Cir.
1999).
Once the plaintiff has established a prima facie case, the
burden of production shifts to the defendant to provide
a legitimate, nondiscriminatory reason for the decision.
McDonnell Douglas, 411 U.S. at 802; Ineichen, 410 F.3d
at 961. If the defendant satisfies its burden, the burden
shifts back to the plaintiff to show that the defendant’s
explanation was pretextual. Id. at 961. Pretext requires
more than showing that the decision was “mistaken, ill
considered or foolish, [and] so long as [the employer]
honestly believes those reasons, pretext has not been
shown.” Jordan v. Summers, 205 F.3d 337, 343 (7th Cir.
2000). Pretext “means a dishonest explanation, a lie rather
No. 04-3410 5
than an oddity or an error.” Kulumani v. Blue Cross Blue
Shield Ass’n, 224 F.3d 681, 685 (7th Cir. 2000).
The police department argues that the district court erred
by finding that Ballance established his prima facie case.
We disagree. In this case, the district court was correct to
find that background circumstances existed to show an
inference that the police department may discriminate
against whites. The district court noted that the City of
Springfield commissioned Husch & Eppenberger, LLC, a
law firm, to investigate charges of racism in the police
department. Husch & Eppenberger produced a report which
stated in part:
Many expressed resentment that women and
minorities appeared to get special treatment . . .
Based upon several interviews, including Chief
Harris’, race and gender are taken into consider-
ation at various stages, including hiring, work
assignments, promotion, and determination of
disciplinary action or determination of the need
for an internal affairs investigation.
Husch & Eppenberger Report at 58-59 (emphasis in origi-
nal). We agree with the district court’s finding that this
report supports the inference that the police department,
through Chief Harris, gave preferences to minorities and
women in the disciplinary process.
We also agree with the district court’s analysis that
Ballance was meeting his employer’s expectations. Although
Ballance’s record shows that he was disciplined by the
police department (as we will examine more in detail in our
pretext analysis), he was also highly commended during his
career. Ballance received the police department’s Porter
Williams Award for bravery, as a result of an incident on
Thanksgiving Day 1995 when Ballance attempted to make
a traffic stop. The driver ran from the car and pointed a gun
at Ballance. Ballance shot and killed the driver in self-
6 No. 04-3410
defense. In 1999, Ballance found a baby that had been shot
in the head. Ballance immediately called emergency
medical personnel who took the baby to the hospital. The
baby ultimately survived. An independent commission
recommended that Ballance receive the police department’s
highest award, the Silver Suarez Award, for actions above
and beyond the call of duty. Chief Harris rejected the
recommendation of the commission but gave Ballance a
letter of commendation for his actions. The police depart-
ment argues that Ballance’s disciplinary issues overshadow
any issue of material fact that he was meeting the police
department’s legitimate performance expectations. We
disagree. Although Ballance was disciplined (he received 31
days of disciplinary suspension time at different times in
his career while employed with the police department), the
award, letter of commendation, and nomination for the
top award in the police department help create a genuine
issue of fact concerning whether he was meeting his em-
ployer’s legitimate expectations.
The parties also disagree as to whether Ballance can show
that he was treated less favorably than African-Americans
at the police department. Ballance argues that Chief Harris
treated an African-American police officer, Larry Stelivan,
more favorably than he. Stelivan was arrested for domestic
battery after slapping his wife twice during a weekend
drive. In his motion opposing the police department’s
motion for summary judgment, Ballance presented evidence
that Stelivan lied during his internal affairs interview when
he denied slapping his wife. Lying during an internal
affairs interview is automatic grounds for dismissal for
violation of Police Department Rule 27.2 Yet Stelivan was
2
Springfield Police Department Rule 27 provides:
A. Members will, upon the order of the Chief of Police
or his designee, truthfully answer all questions
specifically directed and narrowly related to the
(continued...)
No. 04-3410 7
never charged with a Rule 27 violation.
Ballance was confrontational during his internal affairs
interview. However, according to Ballance, he answered all
of the questions truthfully. Yet, the police department
charged and terminated him for a Rule 27 violation. The
police department argues that Ballance and Stelivan
are not similarly situated, because although both Ballance
and Stelivan were arrested for domestic battery, Ballance
allegedly battered his wife more severely than Stelivan. The
police department notes that Ramsey, Ballance’s
wife, suffered broken bones and bleeding, while Stelivan’s
wife did not. This argument is unconvincing. Within this
particular set of facts, we find that domestic batterers
are comparable to each other, regardless of the degree of the
battery involved. The police department also argues that
Ballance’s disciplinary record is not comparable to
Stelivan’s. Again, the police department notes that Ballance
received 31 days of disciplinary suspension time while
employed with the police department, while Stelivan has
received 12 days of suspension while employed with the
police department, mostly, with the exception of three days’
suspension for the domestic incident with his wife, for
2
(...continued)
scope of employment and operations of the Depart-
ment which may be asked of them in the course of an
internal investigation.
B. Obstruction in any manner, or an attempt to ob-
struct an authorized internal investigation is a
serious disciplinary offense justifying dismissal.
C. Failure to truthfully answer questions or provide
requested material will be cause for dismissal from
employment. Such information gained is compelled
and may not be used in any criminal prosecution
of the member answering.
8 No. 04-3410
administrative violations. Yet, although Stelivan may have
been suspended for fewer days than Ballance, we find that
a jury could reasonably conclude that the police department
treated Stelivan more favorably than Ballance with respect
to the obligation and police department policy for officers to
tell the truth during internal investigation interviews. As
a result, we find that Ballance has established his prima
facie case.
Faced with Ballance’s prima facie case, the police depart-
ment, through Chief Harris, presented three legitimate, non
discriminatory reasons for its decision to fire Ballance.
First, Chief Harris found that Ballance beat his wife.
Second, Chief Harris determined that Ballance, through his
behavior at the internal affairs interview, obstructed an
internal affairs investigation and thus violated Police
Department Rule 27. Third, Chief Harris terminated
Ballance because of his prior record of disciplinary actions.
We agree with the district court’s analysis that Bal-
lance has been unable to prove that these reasons
were pretext for discrimination. Although Ballance ar-
gues that Chief Harris ultimately concluded that Ballance
did not beat his wife, and then changed his conclusion
simply to have some legitimate reason to fire Ballance, the
record simply does not support this view. Chief Harris
testified that he believed Ballance hit his wife, broke her
ribs, and bloodied her, as supported by the following:
Christine Ramsey’s sworn statement in her Order of
Protection petition reciting the abuse she allegedly suffered
during the July 27, 2000 event; Ramsey’s internal affairs
interview in which she clearly stated that Ballance beat her
and caused bodily injury; the physical evidence of her
injuries; and Heather Ballance’s (Plaintiff’s daughter)
testimony that corroborated Ramsey’s testimony. Heather
Ballance testified that on the night Ballance allegedly beat
his wife, she saw Ramsey on the ground outside of their
garage, severely beaten and upset, as Ballance sped away.
No. 04-3410 9
In addition, Commander James Burton, the senior police
officer who investigated this incident, stated in his report to
Chief Harris, “In my mind, there is no doubt David Ballance
struck Chris Ballance after placing her in a ‘bear hug’
causing these injuries.” Also, Deputy Chief George Murphy
reviewed Ballance’s internal affairs investigative file, and
recommended Ballance’s termination. Ballance denied that
he caused these injuries, but could not explain how his wife
was so severely hurt. Based on this overwhelming evidence,
it is hard for Ballance to argue that Chief Harris initially
believed him.
Ballance speculates that Chief Harris believed his version
of the facts because he did not charge him with violation of
Police Department Rule 4, which is a Conformance to Law
Charge.3 According to Ballance, if Chief Harris truly
believed that he had beaten his wife, he would have charged
him with this police violation since he broke the law.
However, Ballance fails to cite to any evidence in the record
to support this assertion. Such self-supporting assertions,
without factual support in the record, cannot be used to
defeat a motion for summary judgment. See Rand v. CF
Indus., Inc., 42 F.3d 1139, 1146-47 (7th Cir. 1994). More-
over, the overwhelming evidence of Ramsey’s injuries and
Ballance’s own explanation of the incident all lead us to the
conclusion that Chief Harris’s beliefs are not pretextual.
Ballance also argues that he did not obstruct the internal
investigation of his alleged battery. Again, based on the
record, we find that the district court did not err in conclud-
ing that Chief Harris honestly believed that Ballance
3
Police Department Rule 4 states, in part, that “All members
[of the police department] will obey the Constitution and laws
of the United States and of the State of Illinois, ordinances of
the City of Springfield, and law of any state and local jurisdic-
tion in which they are present.”
10 No. 04-3410
interfered with the internal affairs investigation. In
Commander Burton’s report to Chief Harris, he stated:
During the Internal Investigation interview David
Ballance on 9/15/2000, David Ballance is not coop-
erative with the investigator and has to be ordered
to answer the questions. It must of [sic] become so
tense, that Union President Don Kliment asked to
a [sic] recess to calm Ballance down. Ballance
would not answer the questions, but would ask a
question each time . . . I strongly believe that David
Ballance lied during this interview. I suggest that
Ballance be subjected to a polygraph examination
and again asked the questions concerning the
injuries to Chris Ballance.
The transcript from Ballance’s internal affairs interview
also could lead one to believe that Ballance indeed was
being obstructive, through the fact that he was argumenta-
tive, confrontational, and refused to answer questions.4
4
One portion of the internal affairs interview is as follows:
Internal Affairs: You know the victim, Chris,
indicates that you struck her
three times with your fist, did
you strike her?
Ballance: I already answered that.
Internal Affairs: I’m asking you again.
Ballance: I answered that question.
Internal Affairs: I’m giving you a direct order,
answer the question.
Ballance: What was the question again?
Another portion of the interview is as follows:
(continued...)
No. 04-3410 11
Ballance uses the fact that he answered all of the questions
during the internal affairs investigation to indicate that he
fully cooperated during his internal affairs interview.
However, the record does not reflect that the beliefs held by
Chief Harris and Commander Burton, that Ballance
obstructed the internal affairs investigation, were not
honestly held by the command staff of the police depart-
ment. See Bell v. E.P.A., 232 F.3d 546, 550 (7th Cir. 2000)
(“Plaintiffs cannot prevail at trial if the fact-finder finds
that the [employer] honestly believed in the nondiscrimina-
tory reasons it offered, even if the reasons are foolish or
trivial or even baseless.” (quoting Hartley v. Wis. Bell, Inc.,
124 F.3d 887, 890 (7th Cir. 1997)).
4
(...continued)
Internal Affairs: Do you have any reason or do
you know why she would have
[her injuries] notarized and
put in open court?
Ballance: Did she do it?
Internal Affairs: Signed and notarized?
Ballance: Did she do it?
Internal Affairs: I’m asking the questions here,
Dave. I’m not answering your
questions. I’m answering . . .
I’m asking you the ques-
tion . . .
Ballance: Well you’re not answering
mine!
Internal Affairs: Dave, I’m only going to tell
you one . . .
Don Kliment
(Union Representative): . . . I need a time out here . .
.
12 No. 04-3410
Finally, Ballance argues that his disciplinary record
is comparable to Officer Stelivan’s, and thus indicative
of the police department’s supposed pretext for discrim-
ination. The record does not support this conclusion.
Aside from the incident with his wife, in July 1994 Ballance
served a ten-day disciplinary suspension for an alleged off-
duty physical confrontation with a store owner of a local
business in Springfield. In July 1995, he lost one day of
vacation due to his involvement in an automobile accident
that the police department found to be avoidable. In 1996,
the police department charged Ballance with several rules
violations: one involved a verbal confrontation and threat-
ened physical violence against his neighbor; a second
involved an alleged failure to report to work on four differ-
ent days; and a third involved insubordination in which he
allegedly responded to an emergency call when he was told
by his commander not to do so. Ballance received three five-
day suspensions for these violations, but was allowed to
serve them concurrently. In 1997, Ballance served another
five-day suspension for allegedly challenging a 65-year old
man to a fistfight during a basketball game. Finally, in
1998, Ballance was fired for allegedly throwing a rock at a
passing car while he was off-duty. This termination went to
arbitration, and the arbitrator ordered that Ballance
be reinstated because the evidence did not sufficiently
establish that he threw the rock. Stelivan, on the other
hand, served a three-day suspension for an avoidable
vehicle accident, a one-day suspension for another avoidable
vehicle accident, and a seven-day suspension for conducting
personal business on duty. It would not be appropriate for
us to express a view as to whether the sanction imposed
against Ballance might be perceived by some individuals as
more severe than the infraction justified. Our only job is to
assess whether the justifications given by the police depart-
ment for Ballance’s termination are honest. See Stewart v.
Henderson, 207 F.3d 374, 378 (7th Cir. 2000). We do not sit
as a super-personnel department with authority to review
No. 04-3410 13
an employer’s business decision as to whether someone
should be fired or disciplined because of a work-rule
violation. Id. Based on the record as a whole, as well as
Ballance’s lengthy and egregious disciplinary record, we do
not find any reason to believe that the police department’s
reason for terminating him, based solely or partly on his
disciplinary record, is a lie.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
order granting summary judgment in favor of the defen-
dant, the City of Springfield Police Department.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-19-05