Thomas Hobgood v. Illinois Gaming Board , 731 F.3d 635 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1926
T HOMAS H OBGOOD,
Plaintiff-Appellant,
v.
ILLINOIS G AMING B OARD , et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08-C-5516—Rebecca R. Pallmeyer, Judge.
A RGUED JANUARY 29, 2013—D ECIDED JULY 16, 2013
Before B AUER, W ILLIAMS, and H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. Plaintiff Thomas Hobgood
contends that his employer, the Illinois Gaming Board,
and several of its employees retaliated against him
in violation of Title VII of the Civil Rights Act of 1964,
see 42 U.S.C. § 2000e-3(a), and the First Amendment.
Hobgood was the subject of repeated and intensive in-
vestigations that resulted in disciplinary proceedings
and termination, though another state agency ultimately
2 No. 11-1926
ordered that he be reinstated. Hobgood contends he
was the target of this treatment because he helped a
fellow Board employee and friend, John Gnutek, with his
suits against the Gaming Board under Title VII and
the Racketeer Influenced and Corrupt Organizations
Act, see 18 U.S.C. § 1964(c). The district court granted
summary judgment for the defendants. The court con-
cluded that Hobgood did not furnish evidence that his
protected activity — helping Gnutek prepare for litiga-
tion — caused any material adverse action, including
his eventual firing. The court reasoned that the Gaming
Board fired Hobgood not because he had assisted
Gnutek, but because the “nature” of that assistance con-
sisted of providing confidential information.
We reverse and remand. The record here presents
genuine issues of fact concerning the Gaming Board’s
and its employees’ motives for investigating, disciplining,
and terminating Hobgood. This case presents a good
example of a plaintiff’s use of the “convincing mosaic”
approach to showing that an employer acted for
unlawful reasons. When the plaintiff’s evidence is
viewed as a whole, a jury could reasonably infer that
the Gaming Board investigated and fired him because
he assisted Gnutek with his lawsuits against the Board.
The question of the defendants’ motives will need to be
decided by a jury, not by a judge on summary judgment.
I. Facts for Purposes of Summary Judgment
We recount the facts in the light reasonably most favor-
able to Hobgood. See Hanners v. Trent, 674 F.3d 683, 691
No. 11-1926 3
(7th Cir. 2012). Beginning in 2002, Hobgood worked as a
senior special agent for the investigations division of the
Illinois Gaming Board, which was part of the Illinois
Department of Revenue at all times relevant here.
Hobgood’s job involved investigating the backgrounds
of those applying for gambling licenses. As part of his
job, he had access to confidential information. After he
had worked at the Gaming Board for a couple of years,
Hobgood applied to become an enforcement opera-
tions supervisor. Many others, including Gnutek (who
worked then for the enforcement division of the
Board), also sought the position. From this pool of appli-
cants the Board selected Mark Stevens, a master sergeant
with the Illinois State Police, in 2005. Some employees
felt that Stevens’s selection reflected the Gaming
Board’s favoritism toward the State Police. Gnutek
thought the selection process was unlawful. He sued
the Gaming Board the following year, alleging that
it denied him the position of enforcement operations
supervisor in retaliation for an earlier gender bias suit.
Hobgood helped Gnutek organize and research his
lawsuit against the Gaming Board. To help with the
retaliation claim, Hobgood gave Gnutek two documents
significant to this case. First, he gave Gnutek a “memoran-
dum for record” that Hobgood had prepared after
he talked to Luis Tigera, deputy administrator of
the enforcement division. The memo reflected their con-
versation about the process for hiring the enforcement
operations supervisor. Second, the interim administrator
of the Gaming Board, Jeanette Tamayo, asked Hobgood
to deliver a sealed envelope to Gnutek. He did so, but
4 No. 11-1926
we must assume for purposes of summary judgment
that Hobgood was not aware of the envelope’s contents.
The envelope held an “officer action request” approving
Stevens’s promotion to enforcement operations super-
visor. The form contained Stevens’s social security
number.1
As Gnutek’s lawsuit proceeded, he added a RICO
claim alleging widespread corruption in the Gaming
Board’s hiring decisions. The claim detailed the
activities of William Cellini, a prominent businessman,
and Larry Trent, the former director of the Illinois State
Police. Hobgood assisted Gnutek with the research
and drafting of these allegations, as well.
While preparing for depositions in Gnutek’s suit,
Tigera and Mark Ostrowski reviewed Gnutek’s initial
disclosures. (Ostrowski was then the administrator of
the Gaming Board, its top executive.) The disclosures
included both the memorandum that Hobgood
prepared describing his conversation with Tigera and
Stevens’s officer action request. Realizing that Hobgood
was assisting Gnutek in his anti-retaliation and anti-
corruption claims against the Gaming Board, Ostrowski
and Tigera wanted to investigate Hobgood. Because
the Tigera memo was formatted like a transcript of a
recording, they believed that Hobgood might have re-
1
Some of the people involved in this lawsuit were also
involved in Tamayo v. Blagojevich, 526 F.3d 1074 (7th Cir. 2008),
in which Ms. Tamayo alleged that she was the victim of
sex discrimination and a First Amendment violation.
No. 11-1926 5
corded Tigera without his consent. They asked the
Illinois State Police to investigate whether Hobgood
had broken any laws.2 Ostrowski also asked Luke
Hartigan, then the chief investigator for the Department
of Revenue’s internal affairs division, to investigate
Hobgood for the same reason.
The State Police told Hartigan to suspend any internal
administrative investigation until the conclusion of
their criminal investigation. After they finished, the
State Police informed the Gaming Board of the results:
“The investigation did not uncover any evidence to
substantiate the allegations against Hobgood.” The
State’s Attorney’s Office also concluded that no
evidence supported the illegal-recording charge and
told the Gaming Board that it would not prosecute
Hobgood.
With the State Police investigation concluded, Hartigan
began his internal investigation. At the outset, the
2
The parties do not specify the law they believed Hobgood
violated, but they likely had in mind the Illinois eaves-
dropping statute, 720 ILCS 5/14-2(a)(1), which requires
consent of all participants for recording a conversation,
subject to a number of exceptions. In American Civil Liberties
Union of Ill. v. Alvarez, 679 F.3d 583, 608 (7th Cir. 2012), this
court ordered the entry of a preliminary injunction
prohibiting enforcement of the law against those “who openly
audio record the audible communications of law-enforcement
officers . . . when . . . engaged in their official duties in public
places. . . .” That exception is not relevant here.
6 No. 11-1926
Gaming Board’s general counsel, Mike Fries, told
Hartigan that the Board “wants discharge to be
considered as the first option.” The chief of staff of the
Department of Revenue observed later that supervisors
should not suggest firing an employee before an in-
ternal investigation has even started. This recommenda-
tion communicated through general counsel Fries was
not the only deviation from policy. Internal investiga-
tion procedures also required Hartigan to complete a
“case initiation form.” That form would have served
to establish the scope of Hartigan’s investigation at its
outset. Without completing the requisite form, the only
limit on the scope of Hartigan’s investigation was the
Gaming Board’s instruction that he should uncover
misconduct that would justify terminating Hobgood.
Hartigan’s investigation far exceeded an inquiry into
whether Hobgood had illegally recorded his conversa-
tion with Tigera. Hartigan seemed to focus his inquiry
more broadly on Hobgood’s assistance with Gnutek’s
lawsuit. Hartigan studied Gnutek’s complaints against
the Gaming Board and the federal indictments of
persons named in his complaints. He requested
Hobgood’s telephone records to determine how
frequently he contacted Gnutek. To facilitate the ongoing
investigation, the Gaming Board had put Hobgood on
administrative leave. With Hobgood out of the way, a
supervisor searched his office and supplied several docu-
ments to Hartigan. The documents included two
gaming license applications, a background investigation
file on former State Police Director Trent, and notebooks
No. 11-1926 7
containing personal information on businessman Cellini
and his relatives. Although these documents had nothing
to do with the ostensible purpose of the investigation —
the allegations that Hobgood had illegally recorded
Tigera — Hartigan included this evidence in his investi-
gation.
Eventually Hartigan interviewed Gnutek, Hobgood,
and Tigera about Hobgood’s memorandum about his
meeting with Tigera. Gnutek stated that Hobgood had
provided it to him. He added that Hobgood also gave
him the Stevens officer action request. Tigera told
Hartigan that he believed the memorandum was a verba-
tim record of his conversation with Hobgood. Hobgood
denied both recording Tigera and transmitting the
Stevens form to Gnutek. But Hartigan dismissed
Hobgood’s denial, responding, “Let’s get past the point
of whether you did it or not. We know you did it.”
Hartigan prepared a report of his investigation. It
retold the conflicting accounts of the Tigera memo but
then went far beyond the suspicions that Hobgood
had illegally recorded Tigera. Consistent with the un-
bounded investigation he had done, the bulk of Hartigan’s
memo focused on Hobgood’s assistance to Gnutek. The
memo referenced and attached the Stevens form. (Recall,
though, that we must assume for purposes of summary
judgment that Tamayo provided the Stevens form
to Hobgood in a sealed envelope and he had not
known what it contained.) To highlight other aspects of
Hobgood’s assistance to Gnutek, the report also dis-
cussed the documents retrieved from Hobgood’s office
8 No. 11-1926
and suggested that he used them to help Gnutek draft
his complaints.3
Relying on Hartigan’s broad investigation and what
can fairly be called, for purposes of summary judgment,
its predetermined outcome — rather than the far
narrower State Police investigation that resulted in no
charges — the Department of Revenue decided to charge
Hobgood with misconduct. The state’s Labor Relations
Department drafted the initial charges. The initial draft
alleged that Hobgood had improperly kept in his office
copies of the federal indictments and his notes about the
Cellini family. But two members of the Department
of Revenue disputed the validity and adequacy of
the proposed charges. Brian Hamer, the director of the
Department of Revenue, recommended lesser charges.
He warned that the federal indictments were public
information and that referring to them in the charges
against Hobgood “seems to weaken the case and suggests
that management has an ulterior motive.” Hamer also
noted (quite sensibly, we must assume) that Hobgood
could not have committed a breach of confidentiality as
the charges alleged, simply by leaving handwritten
notes about Cellini in his own locked office.
3
Hartigan’s report did not state whether those documents
contained non-public information. In this suit, Hobgood
insists that any information from his office used in Gnutek’s
complaints was based on public information. We are not
aware of evidence showing the contrary beyond reasonable
dispute.
No. 11-1926 9
By contrast, Gaming Board administrator Ostrowski
advocated an even more expansive set of charges, in-
cluding a charge for illegally recording Tigera, despite
the State Police finding that no evidence supported
the charge. Though Labor Relations normally did the
drafting of such charges, in Hobgood’s case Ostrowski
drafted his own charging document. Like Hartigan’s
report, his proposed draft of charges focused on
Hobgood’s aid to Gnutek’s suits. Ostrowski’s draft
alleged that the information in Gnutek’s complaint came
from the file found in Hobgood’s office — and thus
was facially incorrect. (The information about former
State Police Director Trent was publicly available.)
Following these exchanges, Labor Relations concluded
that no evidence supported the additional charges that
Ostrowski advocated, including the illegal-recording
charge. Labor Relations recommended three charges for
the Gaming Board to pursue against Hobgood: (1) conduct
unbecoming an employee for possessing certain docu-
ments found in his office — the Trent file and the two
gaming-license applications; (2) failure to care for
official documents by giving the Stevens officer action
request to Gnutek; and (3) unauthorized use of
confidential information by taking notes of personal
information of Cellini and his family.
Appearing before the Gaming Board, Hobgood
defended himself against the charges. Regarding the
first charge concerning the documents found in his office,
he admitted that he had reviewed the Trent file but
insisted that he never brought it to his office. He argued
10 No. 11-1926
that one of the gaming-license applications in his office
was related to one of his assignments; another Gaming
Board employee had left the other application in his
office, and Hobgood kept it because he believed a
related assignment would be forthcoming. Concerning
the second charge, Hobgood denied outright that he
had given the Stevens form to Gnutek. Finally, on the
third charge, he furnished a series of emails showing
that a supervisor had asked him to look into Cellini,
which he said explained the notes in his office about
Cellini. Based on these emails, the Labor Relations Depart-
ment advised the Gaming Board to remove the third
charge against Hobgood. The Gaming Board, however,
disregarded this instruction and refused to amend the
charges against Hobgood in spite of his evidence and
the Labor Relations recommendation. Ultimately, the
Gaming Board decided to discharge Hobgood.
Hobgood appealed his discharge to the Illinois Civil
Service Commission. At a hearing before an administra-
tive law judge, Hobgood repeated his earlier defenses
and added that Tamayo had asked him to deliver to
Gnutek a sealed envelope that unbeknownst to him
contained the Stevens form. After the hearing, the ALJ
concluded that the Gaming Board had proven only one
part of the first charge — that Hobgood improperly
possessed Trent’s file — and that Hobgood had ade-
quately explained all the other documents. But because
the Gaming Board had failed to produce the Trent file
for the hearing, the ALJ was prevented from analyzing
how much confidential information the file actually
contained. Accordingly, the ALJ decided that discharge
No. 11-1926 11
was inappropriate and imposed only a sixty-day suspen-
sion. The Commission upheld the ALJ’s findings and
Hobgood was reinstated.
Hobgood then filed this suit. He asserted that the
Gaming Board investigated and prosecuted him to
retaliate against him for helping Gnutek in his Title VII
and RICO lawsuits. After discovery, the defendants
moved for summary judgment on Hobgood’s claims, and
the district court granted their motion. See Gnutek v.
Illinois Gaming Bd., 2011 WL 1231158 (N.D. Ill. March 30,
2011) (with both Gnutek and Hobgood as plaintiffs).
The court concluded that Hobgood did not furnish evi-
dence that his protected activity — helping Gnutek
prepare for litigation — caused any material adverse
action, including his eventual firing. The court reasoned
that the Gaming Board fired Hobgood not because he
had assisted Gnutek but because the “nature” of that
assistance consisted of providing confidential informa-
tion. As we view the case, a reasonable jury could agree
with the district court’s assessment of the defendants’
motives, but a reasonable jury could also be convinced
by the mosaic of evidence that the Gaming Board
fired Hobgood because he had engaged in protected
activity. Accordingly, we reverse and remand for trial.
II. Analysis
On appeal Hobgood pursues retaliation claims under
both Title VII and the First Amendment. There are two
recognized “methods” by which Hobgood could have
chosen to oppose the Gaming Board’s motion for sum-
mary judgment.
12 No. 11-1926
The first of these, known commonly as the indirect
method or the McDonnell Douglas test, has three steps.
The first step is that the plaintiff must come forward
with evidence of a prima facie case, which has four ele-
ments as adapted for this case: (1) plaintiff engaged in
activity protected by law; (2) he met his employer’s
legitimate expectations, i.e., he was performing his job
satisfactorily; (3) he suffered a materially adverse
action; and (4) he was treated less favorably than a simi-
larly situated employee who did not engage in the
activity protected by law. See Vaughn v. Vilsack, 715
F.3d 1001, 1006 (7th Cir. 2013), quoting Harper v. C.R.
England, Inc., 687 F.3d 297, 309 (7th Cir. 2012); see
generally McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802 (1973). If the employee has evidence on each
of these four elements of the prima facie case, the
burden shifts to the employer at the second step of
the indirect method to articulate (but not necessarily
prove) a legally permissible reason for the adverse em-
ployment action. If the employer does so, the analysis
moves to the third step, in which the employee tries
to show that the employer’s stated reason is false, and
falsity permits a reasonable inference that the real
reason was unlawful. See Vaughn, 715 F.3d at 1006.
If any one of the elements of the plaintiff’s prima facie
case is lacking, the plaintiff loses. For that reason, it is
natural that in the majority of “indirect method” cases
the parties and courts proceed one painstaking step at a
time, offering evidence and argument for and against
each prong as separate elements to be satisfied or
rebutted one at a time. See, e.g., Coleman v. Donahoe, 667
No. 11-1926 13
F.3d 835, 863 (7th Cir. 2012) (Wood, J., concurring) (“If we
move on to the indirect method, we engage in an
allemande worthy of the 16th century, carefully
executing the first four steps of the dance for
the prima facie case, shifting over to the partner for the
‘articulation’ interlude, and then concluding with
the examination of evidence of pretext.”).
Hobgood lacked evidence that a “similarly situated”
individual received more favorable treatment than he
did. Without such evidence, he could not satisfy the
fourth element of a prima facie case under the indirect
method. But Hobgood could and did invoke what is
known as the “direct method” to establish his retalia-
tion claims. Using this method, a plaintiff must offer
evidence: (1) that he engaged in protected activity, (2) that
he was subjected to an adverse employment action, and
(3) that there was a causal link between the protected
activity and the employment action. See Brown v.
Advocate South Suburban Hosp., 700 F.3d 1101, 1106 (7th Cir.
2012) (Title VII retaliation); Kidwell v. Eisenhauer, 679
F.3d 957, 964 (7th Cir. 2012) (First Amendment retalia-
tion), quoting Massey v. Johnson, 457 F.3d 711, 716 (7th
Cir. 2006). The first two elements require only brief com-
ment, while the third, the “causation” prong, provides
the true substance for this appeal.
The first element for direct proof of both of Hobgood’s
retaliation claims requires protected activity. The parties
agree that Hobgood engaged in activity protected by
Title VII by helping Gnutek organize and file his Title VII
retaliation suit. See Speedy v. Rexnord Corp., 243 F.3d 397,
14 No. 11-1926
404 (7th Cir. 2001), citing McDonnell v. Cisneros, 84 F.3d
256, 262 (7th Cir. 1996). As for the activity protected
under the First Amendment, the treatment of this issue
by the district court and in the parties’ appellate
briefs has been terse. The district court recognized that
assisting another employee pursue litigation aimed at
proving corruption by senior public officials could be
protected conduct. See Salas v. Wisconsin Dep’t of
Corrs., 493 F.3d 913, 925 (7th Cir. 2007) (employee’s par-
ticipation in co-worker’s lawsuit alleging widespread
discrimination within the workplace was speech address-
ing a matter of public concern), quoting Zorzi v. County
of Putnam, 30 F.3d 885, 896 (7th Cir. 1994); Schad v.
Jones, 415 F.3d 671, 675 (7th Cir. 2005) (“our cases
have consistently held that speech alleging government
corruption and malfeasance is of public concern in
its substance”), quoting Spiegla v. Hull, 371 F.3d 928, 937
(7th Cir. 2004).
The district court found that Hobgood’s help for
Gnutek was not protected, though, because the named
defendants did not know about it at the time the help
was provided. The relevant time for knowledge, though,
is when the alleged retaliation took place, not the time
the protected activity occurred. Hobgood’s evidence
tends to show that the Gaming Board prompted first
the State Police and then Hartigan to investigate
Hobgood only when Tigera and Ostrowski reviewed
Gnutek’s initial disclosures in his lawsuit and realized
that Hobgood had helped him. Hartigan’s report on his
investigation, which was provided to all defendants,
contained several references to Hobgood’s help for
No. 11-1926 15
Gnutek and easily supports the inference that Hobgood’s
help for Gnutek’s lawsuit was a significant motivating
factor, and could well have been a but-for cause, in the
investigation and ultimate discipline of Hobgood. See
generally Greene v. Doruff, 660 F.3d 975, 977-80 (7th Cir.
2011) (adopting but-for causation with burden-shifting
mechanism as standard for First Amendment retalia-
tion cases). We find in the record ample evidence that
Hobgood’s help for Gnutek was both protected by
the First Amendment (at least absent proof beyond rea-
sonable dispute that he provided confidential informa-
tion or otherwise acted improperly) and known to
the individual defendants. The district court erred on
this point.
The second element of the retaliation claims requires
an actionable deprivation. Hobgood’s November sus-
pension and his later firing readily qualify as “adverse
employment actions” for purposes of Title VII. See Ellis
v. CCA of Tennessee, LLC, 650 F.3d 640, 650 (7th Cir.
2011) (suspension); Tomanovich v. City of Indianapolis,
457 F.3d 656, 664 (7th Cir. 2006) (discharge). The First
Amendment requires a deprivation “likely” to deter
free speech, a standard considered more lenient than
the Title VII counterpart of adverse action. Thayer v.
Chiczewski, 705 F.3d 237, 251 (7th Cir. 2012); Kidwell,
679 F.3d at 694. Thus, Hobgood’s suspension and firing
also satisfy the second prong of the First Amendment
claim. We turn to the third element of a direct method
case and the main event in this appeal — causation.
To survive summary judgment, Hobgood needed
evidence from which a reasonable jury could find that
16 No. 11-1926
the Gaming Board decided to suspend and fire him
because of his assistance to Gnutek. See University of
Texas Southwestern Medical Center v. Nassar, 570 U.S. ___,
___, 132 S. Ct. ___, ___ (June 24, 2013) (Title VII retalia-
tion claims require proof that the desire to retaliate
was the but-for cause of the challenged employment
action); Greene, 660 F.3d at 978-79. Direct evidence of
causation — too easily confused with the direct method
under which such evidence would be presented — would
require something akin to an admission from the
Gaming Board that it took action against Hobgood
because of his protected activity. See Raymond v.
Ameritech Corp., 442 F.3d 600, 610 (7th Cir. 2006). Such
admissions of illegal discrimination and retaliation are
rare, so it is not surprising that Hobgood has not pre-
sented a “smoking gun” confession by the Gaming
Board or any other defendant.
There is another evidentiary route to satisfy the direct
method, however, and that is the route Hobgood pur-
sues. Hobgood may satisfy the direct method using what
this circuit has termed a “ ‘convincing mosaic’ of circum-
stantial evidence,” Rhodes v. Illinois Dep’t of Transp., 359
F.3d 498, 504 (7th Cir. 2004), quoting Troupe v. May Dep’t
Stores Co., 20 F.3d 734, 737 (7th Cir. 1994), by relying on
evidence of “suspicious timing, ambiguous statements
oral or written, . . . and other bits and pieces from which
an inference of [retaliatory] intent might be drawn.”
Coleman, 667 F.3d at 860 (internal quotation marks and
citations omitted) (alterations in original). In other words,
Hobgood must present admissible evidence that, when
taken as a whole and viewed in a light favorable to
No. 11-1926 17
Hobgood’s case, could convince a reasonable jury that
he was the victim of unlawful retaliation.
A convincing mosaic must include evidence from
which an inference of retaliatory intent could be
drawn, and our cases often recite the following shorthand
for circumstantial evidence, noting that a plaintiff’s case
could include: “(1) suspicious timing; (2) ambiguous
statements or behavior towards other employees in the
protected group; (3) evidence, statistical or otherwise,
that similarly situated employees outside of the pro-
tected group systematically receive better treatment;
and (4) evidence that the employer offered a pretextual
reason for an adverse employment action.” See Teruggi
v. CIT Group / Capital Finance, Inc., 709 F.3d 654, 659-60
(7th Cir. 2013), quoting Dickerson v. Bd. of Trs. of Cmty.
Coll. Dist. No. 522, 657 F.3d 595, 601 (7th Cir. 2011); Diaz
v. Kraft Foods Global, Inc., 653 F.3d 582, 586-87 (7th
Cir. 2011).
But these categories of evidence are not exclusive,
nor are they a set of prongs of a circumstantial evidence
“test.” When considering whether a plaintiff has met
his burden through a presentation of circumstantial
evidence that amounts to a “convincing mosaic,”
parties and judges too often lose sight of the purpose of
these rhetorical tools. The ultimate question the parties
and the court always must answer is whether it is more
likely than not that the plaintiff was subjected to the
adverse employment action because of his protected
status or activity. To answer that question, the individual
“bits and pieces” presented by the plaintiff must be
18 No. 11-1926
put into context and considered as a whole. All
reasonable inferences, of course, must be drawn in favor
of the non-moving party. Only then can it be seen
whether the plaintiff’s evidence amounts to a “con-
vincing mosaic” sufficient to withstand a motion for
summary judgment or judgment as a matter of law.
Sometimes cases are presented in which a plaintiff does
not have a convincing mosaic, but only one “bit” or
“piece.” These cases are legion. We have often said that
suspicious timing, for example, rarely is sufficient in
isolation to support a case of illegal discrimination or
retaliation. See Harper, 687 F.3d at 308; Argyropoulos v.
City of Alton, 539 F.3d 724, 734 (7th Cir. 2008);
Tomanovich, 457 F.3d at 665. Similarly, ambiguous or
isolated comments that stand alone are insufficient. See
Fleishman v. Continental Cas. Co., 698 F.3d 598, 604-05
(7th Cir. 2012) (absent age-related context, ambiguous
comment that manager was “out to get” plaintiff could
not overcome summary judgment on plaintiff’s age
discrimination claim); Dass v. Chicago Bd. of Ed., 675
F.3d 1060, 1072 (7th Cir. 2012) (ambiguous comment
unrelated to adverse action was insufficient, without
more, to defeat summary judgment); Petts v. Rockledge
Furniture LLC, 534 F.3d. 715, 721-22 (7th Cir. 2008) (stray
remark not made by decision-maker and unrelated
to employment decision could not raise inference of
discrimination). These cases recognize that a rea-
sonable jury could not infer that a plaintiff was a victim
of illegal discrimination or retaliation based on one
isolated “bit” or “piece.” But “together with other facts,”
evidence that would be insufficient standing alone
No. 11-1926 19
can be sufficient to defeat summary judgment if a rea-
sonable jury ultimately could conclude that the plaintiff
was the victim of illegal discrimination or retaliation.
Harper, 687 F.3d at 308, quoting Magyar v. Saint Joseph
Reg’l Med. Ctr., 544 F.3d 766, 772 (7th Cir. 2008). That’s
why it’s critical to consider the plaintiff’s evidence as
a whole.
When viewed as a comprehensive whole, Hobgood’s
evidence easily supports a reasonable inference that
he was the victim of a retaliatory witch hunt. He first
presents evidence of statements that, although arguably
ambiguous, nonetheless could allow a reasonable jury
to infer retaliation if placed in their relevant context and
given the benefit of favorable inferences. Consider
general counsel Fries’s admonition to Hartigan, before
his investigation had even begun, that the Gaming Board
“wants discharge to be considered as the first option.”
Perhaps it is true, as defendants argue, that Fries’s state-
ment standing alone does not create an inference about
why the Gaming Board wanted Hobgood fired, though
this extraordinary departure from policy and custom
could, if believed by the jury, support adverse inferences
about the defendants’ motives.4
4
The district court found that Fries’s instruction to Hartigan
could not be attributed to Ostrowski. Gnutek, 2011 WL 1231158,
at *10, n. 21. Ostrowski was the administrator of the Gaming
Board, and Fries was the Gaming Board’s chief counsel. It is
possible, of course, that Fries was acting on his own, but we
(continued...)
20 No. 11-1926
Fries’s statement does not stand alone. When placed
in context and viewed in a light most favorable
to Hobgood, the statement reasonably suggests that
the Gaming Board had a retaliatory motive. Hartigan
initiated his investigations only after the Board learned
that Hobgood had been assisting Gnutek in his litiga-
tion and after Hobgood had already been cleared of
wrongdoing by the State Police and the State’s Attorney’s
office. Yet the evidence allows a reasonable inference
that the defendants had pre-judged the question and
had decided to terminate Hobgood anyway, even if it
meant deviating from so basic and sound a standard
policy as refraining from pre-judging outcomes in disci-
plinary investigations. A jury could infer from this de-
parture from policy that the Gaming Board’s predeter-
mined outcome was retaliatory: “Significant, unexplained
or systematic deviations from established policies or
practices can no doubt be relative and probative circum-
stantial evidence of [unlawful] intent.” Hanners, 674 F.3d
at 694; see also Rudin v. Lincoln Land Cmty. Coll.,
420 F.3d 712, 723 (7th Cir. 2005). Perhaps a jury might
find, in spite of this evidence, that the Gaming Board
had non-retaliatory reasons for wanting to fire Hobgood
without knowing for certain what, if anything, he had
4
(...continued)
believe it is also reasonable to infer that the counsel was
acting on behalf of his client, Ostrowski, who had been per-
sonally involved in demanding the investigations in the
first place.
No. 11-1926 21
done. But on summary judgment, we must view this
evidence in Hobgood’s favor.
In addition, when Hartigan interviewed Hobgood
during the investigation, Hartigan said, “Let’s get past
the point of whether you did it or not. We know you
did it.” This statement could demonstrate to a jury
that Hartigan was not “investigating” anything but
was attempting to bolster the Gaming Board’s predeter-
mined outcome regardless of what Hobgood had to
say. When a supervisor has encouraged an employee
who has engaged in protected activity to “confess” or
risk termination, a jury can infer retaliatory intent.
See Kasten v. Saint-Gobain Performance Plastics Corp., 703
F.3d 966, 974 (7th Cir. 2012) (reversing summary judg-
ment for employer and concluding that jury could
infer retaliation in part from supervisor’s ambiguous
statement to employee before his suspension meeting
to “just lay down and tell them what they want to
hear, [they] can probably save your job” ).
Hobgood also presents evidence that the Gaming
Board’s stated reasons for its investigation and his ter-
mination were pretexts for unlawful retaliation. See
Everett v. Cook County, 655 F.3d 723, 729 (7th Cir. 2011)
(pretext can be evidence of discrimination under
direct method); Millbrook v. IBP, Inc., 280 F.3d 1169, 1175
(7th Cir. 2002) (“Pretext means a lie, specifically a
phony reason for some action.”) (internal quotation
marks omitted). The Gaming Board asserts that Hobgood
was investigated because Ostrowski and Hartigan
sincerely believed that he had illegally recorded his
22 No. 11-1926
conversation with Tigera, and he was terminated
because Ostrowski, Krozel, and Hamer sincerely
believed that he had misused confidential information
in violation of department policies. We do not second
guess an employer’s business decision, but neither do
we “abandon good reason and common sense in
assessing an employer’s actions.” Gordon v. United
Airlines, Inc., 246 F.3d 878, 889 (7th Cir. 2001). Where an
employer’s reason for a termination is without factual
basis or is completely unreasonable, that is evidence
that an employer might be lying about its true motiva-
tion. See id. at 899-91 (employer’s justification for ter-
mination was unworthy of credence where record
revealed inconsistent definition and application of em-
ployee’s supposed infraction); see also Hitchcock v. Angel
Corps, Inc., ___ F.3d. ___, ___ 2013 WL 2507243, at *4
(7th Cir. June 11, 2013) (reversing summary judgment; a
reasonable jury could find pretext where explanation
provided on employer’s official termination form was
“so ludicrous that [employer] is not to be believed”),
citing Loudermilk v. Best Pallet Co., LLC, 636 F.3d 312, 315
(7th Cir. 2011) (reversing summary judgment: “The
Civil Rights Act of 1964 does not require employers to
have ‘just cause’ for sacking a worker, but an employer
who advances a fishy reason takes the risk that disbelief
of the reason will support an inference that it is a
pretext for discrimination.”) (citation omitted); Stalter v.
Wal-Mart Stores, Inc., 195 F.3d 285, 290 (7th Cir. 1999)
(reversing summary judgment; employee’s termination
for taking a few taco chips from a co-worker’s open
snack bag in the break room, where the co-worker
No. 11-1926 23
did not object to the taking, defied “any common under-
standing of the term” theft and would not be credited).
Here, a reasonable jury would have ample evidence
from which to infer that the defendants did not
sincerely believe that the investigation against Hobgood
and his eventual termination were warranted by his
unprotected activity. The initiation and scope of
Hartigan’s investigation were both suspicious and
support an inference that the investigation was not
prompted by the defendants’ belief that Hobgood had
illegally recorded Tigera, but was instead prompted by
the defendants’ desire to construct a case for
Hobgood’s termination after they discovered that he
had been helping Gnutek with his lawsuit. Departmental
policy required that a case initiation form be completed
at the outset of an investigation to limit its parameters.
Hartigan failed to follow this policy. He investigated a
wide range of possible misdeeds having nothing to do
with any supposed unlawful recording of Tigera but
having much to do with Gnutek’s lawsuits. Hartigan
obtained copies of Gnutek’s complaints, the federal
indictments of persons featured in them, and even
Hobgood’s telephone logs. Why do so if his investiga-
tion was not prompted by Hobgood’s aid to Gnutek?
Hartigan also examined documents taken from
Hobgood’s office after he was put on administrative
leave: license applications, his notebooks about Cellini,
and a background file on Trent. A reasonable jury
could conclude that Hartigan bypassed the constraints
of a case initiation form because the Gaming Board’s
24 No. 11-1926
attorney had instructed him that Hobgood’s termination
was the goal. In other words, the Gaming Board was
less interested in whether Hobgood had recorded Tigera
illegally and was far more interested in seeing that
Hobgood was punished for assisting Gnutek. In sum, a
jury could infer that the Gaming Board and other defen-
dants wanted to retaliate against Hobgood for his pro-
tected activity.
In addition, the breadth of the unsubstantiated
charges, both those drafted by Ostrowski as well as those
ultimately adopted by the Gaming Board, supports the
inference of retaliatory intent. Ostrowski advocated
charging Hobgood with recording Tigera even after the
outside investigation by the State Police and Hartigan’s
internal investigations had found no evidence to
support the charge. And Ostrowski wanted the
Gaming Board to pursue charges that Hobgood
shared confidential information on Cellini and Trent
with Gnutek, even though he could not identify any
confidential information in Gnutek’s filings that derived
from Hobgood’s notes on Cellini or from Trent’s file.
Similarly, the Gaming Board initially planned to
charge that Hobgood acted wrongfully by possessing
copies of federal indictments, even though Department
of Revenue Director Hamer explained that the indict-
ments were public information and that reference
to them “seems to weaken the case and suggests that
management has an ulterior motive.” Hamer also had
to point out that Hobgood could not have committed a
breach of confidentiality, as the charges alleged, simply
No. 11-1926 25
by leaving handwritten notes about Cellini in his locked
office.
Although the final set of charges was narrower, it
still included the charge that Hobgood improperly com-
piled notes on Cellini. The Gaming Board continued
to pursue this charge even after Hobgood showed the
Gaming Board emails from his boss’s supervisor
directing him to investigate Cellini’s background.5 Ulti-
mately, the Illinois Civil Service Commission found that
the Gaming Board could substantiate only the single
offense that Hobgood possessed Trent’s file without
authorization. And for that charge, the discipline was
limited to a suspension because the Gaming Board pro-
duced no evidence to substantiate its contention that
the Trent file contained confidential information.
The defendants attempt to undercut each of Hobgood’s
pieces of evidence individually and argue, as the district
court concluded, that the undisputed facts show that
the Gaming Board was genuinely concerned only that
Hobgood’s assistance to Gnutek was possibly illegal.
But the defendants ignore the cumulative effect of
5
Defendants criticize Hobgood for failing to ask his boss’s
boss whether the request for information on Cellini was
official or not. We see no basis for concluding as a matter of
law that the request was improper, let alone so improper that
a subordinate like Hobgood should have been disciplined
for complying with it. The record does not indicate that the
Gaming Board ever pursued with the boss’s boss the pos-
sibility that the request was unofficial.
26 No. 11-1926
Hobgood’s “bits and pieces” of evidence. Taken together,
his evidence creates a genuine dispute about the sincerity
of the Gaming Board’s belief — in other words, whether
the Gaming Board’s stated reasons for taking action
against Hobgood were pretexts. No single piece of evi-
dence might amount to a smoking gun (though Fries’s
message to Hartigan that the Gaming Board wanted
termination to be the “first option” even before Hartigan
started his investigation comes close), but the con-
vincing mosaic approach allows a plaintiff to establish
retaliation “by assembling a number of pieces of
evidence none meaningful in itself, consistent with
the proposition of statistical theory that a number of
observations each of which supports a proposition only
weakly can, when taken as a whole, provide strong sup-
port if all point in the same direction. . . .” Sylvester v.
SOS Children’s Villages Ill., Inc., 453 F.3d 900, 903 (7th Cir.
2006). Here, Hobgood has offered quite a lot of
evidence pointing toward illegal retaliation.
When properly construed in Hobgood’s favor, the
evidence could support a jury finding that the
defendants fixated on firing him, ignored evidence of
his innocence, and circumvented investigatory safe-
guards to pursue a set of baseless charges because he
had helped Gnutek sue the Gaming Board. With
the evidence of the defendants’ true motivation gen-
uinely disputed, summary judgment was inappropri-
ate. See Burnett v. LFW Inc., 472 F.3d 471, 482 (7th Cir.
2006) (reversing grant of summary judgment in retalia-
tion suit where the sincerity of employer’s asserted
reason for termination, insubordination, was genuinely
No. 11-1926 27
disputed); Hunt-Golliday v. Metro. Water Reclamation Dist.
of Greater Chi., 104 F.3d 1004, 1014-15 (7th Cir. 1997)
(reversing grant of summary judgment because plain-
tiff showed a “pattern of criticism and animosity” by
supervisors following her protected activities, creating
genuine fact dispute about retaliation). In retaliation
cases with evidence of the sort in this record, we
must “resist the temptation to act as jurors when con-
sidering summary judgment motions,” Coleman, 667
F.3d at 862, and leave any questions involving the “weigh-
ing of conflicting indications of motive and intent” for
trial, Kasten, 703 F.3d at 974 (internal quotation marks
and citation omitted). Accordingly, we reverse the
district court’s decision and remand for trial.
On a final note, the individual defendants also argue
that they are entitled to qualified immunity on the
First Amendment claim brought under 42 U.S.C. § 1983.
Qualified immunity “protects government officials
from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitu-
tional rights of which a reasonable person would have
known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009)
(internal quotation marks omitted). In determining quali-
fied immunity at the summary judgment stage, the
court asks two questions: (1) whether the facts, taken
in the light most favorable to the plaintiff, make out a
violation of a constitutional right, and (2) whether
that constitutional right was clearly established at the
time of the alleged violation. Id. at 232.
In this case, the answer to both of these questions is
yes. First, as we have described, the facts make out a
28 No. 11-1926
violation of Hobgood’s right to be free from retaliation
for exercising his First Amendment rights. Second, it
was clearly established at the time of the Gaming
Board’s actions that the First Amendment prohibited
investigating and then suspending and terminating a
public employee because he had helped another
employee pursue a lawsuit aimed at uncovering and
proving public corruption. Salas, 493 F.3d at 925; Spiegla
v. Hull, 371 F.3d 928, 936 (7th Cir. 2004); Zorzi, 30 F.3d
at 896 (public employee was constitutionally protected
against retaliation for filing lawsuit involving a matter
of public concern). The defendants argue that they are
immune because Hobgood did not have a clearly estab-
lished right to deliver confidential information to
Gnutek, but their argument is irrelevant to the issue
of qualified immunity. When the issue is framed
properly, it is clear that the defendants are not entitled
to qualified immunity on Hobgood’s First Amendment
retaliation claim.
III. Conclusion
It remains to be seen whether Hobgood can prove
his case at trial. The defendants paint a very different
picture of the relevant facts and of Hobgood’s character.
But the evidence Hobgood presented in opposing sum-
mary judgment is sufficient to present genuine issues of
material fact on both his Title VII and First Amendment
retaliation claims that must be resolved by a jury, not
by the court on summary judgment. The judgment of the
No. 11-1926 29
district court is R EVERSED and the case is R EMANDED
for trial.
7-16-13