Healy, Dennis v. City of Chicago , 450 F.3d 732 ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3155
DENNIS HEALY,
Plaintiff-Ap p ellant,
v.
CITY OF CHICAGO, a municipal
corporation, RICHARD A. RICE,
individually and as Commissioner
of the City of Chicago Department
of Water, JUDITH C. RICE,
individually and as Commissioner
of the City of Chicago Department
of Water, et al.,
Defend ants-Ap p ellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 6030—William J. Hibbler, Jud ge.
____________
ARGUED OCTOBER 27, 2005—DECIDED JUNE 16, 2006
____________
Before RIPPLE, KANNE and WOOD, Circuit Jud ges.
RIPPLE, Circuit Jud ge. Dennis Healy, a licensed stationary
engineer employed by the City of Chicago Department of
Water (“DOW”), filed this action under 42 U.S.C. § 1983against the City of Chicago (“City”) and current and former
2 No. 04-3155
City employees Francis Blake, John Bolden, Edward Laird,
Russell Miller, Judith Rice and Richard Rice in their official
and individual capacities. He claimed that he was denied,
1
in violation of his First Amendment rights, various promo-
tions in retaliation for his repeated complaints of corruption
and of other illegal activities at Mayfair Water Pumping
Station (“Mayfair”). On July 19, 2004, the district court
granted summary judgment in favor of the City, Mr. Blake,
Mr. Rice and Ms. Rice. Mr. Healy now appeals. He contends
that the district court erred in finding that there was no
causal link between his reports of illegal activity and the
subsequent denial of promotions. For the reasons set forth
in the following opinion, we affirm the judgment of the
district court.
I
BACKGROUND
A. Facts
1. Reports of Corruption and Theft
Mr. Healy has been employed by the City of Chicago
Department of Water (“DOW”) for over twenty-five years.
From 1981 to 1985, he was employed as a stationary fire-
1
Count II of Mr. Healy’s complaint alleged that he was denied
promotions because he was not an active supporter of the
Democratic Party, in violation of his free speech and equal
protection rights guaranteed by the Fourteenth Amendment.
Count III alleged that this politically motivated discrimination
also violated the Shak m an consent decree. Se e Shak m an v.
Dem o cratic Org. o f Co o k Co unty, 569 F. Supp. 177 (N.D. Ill.
1983). The district court granted summary judgment in favor of
the defendants on both counts. See R.92 at 16-23. Mr. Healy has
not challenged this judgment on appeal.
No. 04-3155 3
man. In 1985, he was promoted to a Group C Operating
Engineer; in 1991, he again received a promotion and
became a Group A Operating Engineer. He still holds that
position as of the date of this opinion. With the exception of
2
a temporary transfer in 1993, Mr. Healy has been assigned
to Mayfair, one of the DOW’s steam pumping stations, for
the duration of his employment at the DOW.
In 1992, Mr. Healy began complaining to his superiors
about allegedly illegal activities occurring at Mayfair. He
believed that his co-workers—including the then-Chief
Operating Engineer (“COE”) of the pumping station—were
3
engaged in theft and sabotage of public property, drinking
on the job and fraudulent business practices. He brought
these allegations to the attention of a number of offices and
individuals. For example, in January 1992, he met with a
representative of the City Office of Intergovernmental
Affairs. In September 1992, and again in December 1992, he
spoke with Mr. Laird, who at that time was the Engineer of
Water Pumping. In late 1992 or early 1993, he met with Mr.
Bolden, then the DOW Commissioner. During 1992 and
1993, he met numerous times with representatives from the
Inspector General’s (“IG”) Office. Mr. Healy also discussed
his concerns with Mayor Richard M. Daley, once in Febru-
ary 1994 and again in October 1998. In 1994, Mr. Healy
contacted Mr. Blake, then the acting COE of Mayfair; he
maintained communication with Mr. Blake about these
issues after Mr. Blake left Mayfair to assume the position of
Assistant Water Commissioner in late 1994.
2
Mr. Healy protested this transfer through City grievance
procedures. Pursuant to a settlement agreement with the City, he
was returned to Mayfair in February 1994.
3
For example, Mr. Healy believed that his co-workers and
supervisors had stolen from Mayfair cooling coils, bricks and
scrap steel, among other items.
4 No. 04-3155
After October 2, 1998, the beginning of the time period
4
relevant to this appeal, Mr. Healy discussed his concerns
about illegal activity at Mayfair with only a few individuals.
The first was Judith Rice, the Commissioner of Water from
1996 to November 1999. Mr. Healy submits that he and Ms.
Rice held a meeting in late January or early February of
1999, during which they spoke about corruption at Mayfair
and his concerns about not having been promoted:
I met with Judith Rice at her office at the Jardine Plant
in late January or early February 1999 for about 20
minutes. Ms. Rice had all my personnel documents on
her desk for the meeting and only Ms. Rice and I were
present for the meeting. At this meeting, I asked Ms.
Rice why I had been continuously passed over for
promotion with my qualifications and seniority. I told
Ms. Rice that I had many meetings with different people
about my complaints of theft and sabotage at Mayfair
and that my name was [expletive] because I was blamed
for different things. I demanded that Ms. Rice take care
of this and that if she needed any information, I would
provide it to her. At this meeting, Judith Rice told me
that she knew all about me and my work record and
that there was no reason why I was not promoted to the
position of Assistant Chief Operating Engineer. Ms. Rice
told me that I would receive the next promotion to that
position.
4
The district court held that all claims accruing before October
2, 1998, were time-barred—a finding that Mr. Healy does not
challenge before this court. See R.18 (striking as untimely all
damages claims stemming from acts occurring before October 2,
1998); see also id . at 3-7 (finding that the plaintiff could not
proceed under the “continuing violation doctrine”).
No. 04-3155 5
R.78, Ex.1 at 12 (Healy Aff.); see also id ., Ex.2 at 311-14
(Healy Dep.). Ms. Rice denies Mr. Healy’s account of their
conversation. She contends that she did not
meet[ ] with Mr. Healy in 1999 as alleged in his com-
plaint. I do recall seeing him once, in passing, as I was
leaving my office at the Jardine Filtration Plant while I
was Commissioner of the Water Department. I do not
recall the date on which this chance encounter occurred.
I did not discuss with him any of the allegations con-
tained in his complaint at that time. In addition, I recall
having a telephone conversation with Mr. Healy,
possibly in 1999, after he had made repeated efforts to
contact me by phone. During this phone call, Mr. Healy
alleged that he was being treated unfairly and that he
had been passed over for promotions, and indicated
that the [COE] at the Mayfair Pumping Station where he
was employed disliked him. I did not discuss the issues
Mr. Healy raised, but instead referred him to Francis
Blake . . . . I have no knowledge of . . . the alleged
complaints of criminal misconduct at the Mayfair
Pumping Station.
R.75, Ex.R at 2-3 (Judith Rice Aff.); see also R.78, Ex.4 at 30
(Judith Rice Dep.) (explaining that, during their encounter
in the hallway, Mr. Healy complained that “he wasn’t being
treated fairly; he had been passed over; the guys didn’t like
him; things like that”).
In 1999, Mr. Healy again contacted the IG’s Office. On
October 13, he submitted a complaint, alleging that “em-
ployees who work for [Mayfair] stole copper and equipment
[from] the Department of Water in 1993 and 1994.” Case
Initiation Report, R.75, Ex.N. The IG’s Office conducted
interviews of relevant individuals, but from the record it
does not appear that any remedial action was taken.
6 No. 04-3155
In addition, as we noted earlier, Mr. Healy maintained
contact with Mr. Blake after he left Mayfair in 1994 to
assume the position of Assistant, and then Deputy, Water
Commissioner. The two met face-to-face in January 2000.
According to Mr. Healy, they discussed his concerns of
corruption at Mayfair, as well as his related allegations of
retaliation. Mr. Blake allegedly responded to Mr. Healy’s
concerns about being passed over for promotions as follows:
[W]e talked that morning, probably 50 minutes to an
hour. And I—and I asked him what part [City Hall]
didn’t understand, and he told me that I spoke too
clearly, and he said they didn’t like the way it was done.
And that he said it comes from the top down, it doesn’t
come from the bottom up. . . . And he said there’s a
political system, that’s the way it works. . . . [A]nd he
also said the Fifth Floor [of City Hall]. That’s how things
work. It’s a political system. It works from the top
down.
R.78, Ex.2 at 534 (Healy Dep.). Although Mr. Blake admits
knowing of Mr. Healy’s reports of corruption and concerns
regarding promotional opportunities, he denies having
made these statements to Mr. Healy. See, e.g., id ., Ex.3 at
157-58 (Blake Dep.).
2. Promotional Opportunities
Mr. Healy claims that, during this same time period and
in retaliation for his reports of public corruption, he was
denied five promotions to Assistant Chief Operating
5
Engineer (“ACOE”) and Chief Operating Engineer
5
ACOE is the position immediately above the Group A Engi-
(continued...)
No. 04-3155 7
6
(“COE”). We begin by discussing the DOW’s promotion
and interview procedures; we then turn to discuss Mr.
Healy’s specific claims.
The DOW employs a multi-stage procedure for interview-
ing and promoting employees. At the beginning of each
year, the Deputy Commissioner of the DOW prepares a
hiring plan, which lists program vacancies and is distrib-
uted to current employees. The City Department of Person-
nel (“DOP”) is responsible for determining whether a
current employee meets the “minimum qualifications for a
position, and if so, the DOP places that person on the
eligibility list for that position.” R.75, Ex.P at 1 (Falcon Aff.).
The Deputy Commissioner then selects a three-person
interview committee, which is responsible for conducting
interviews of persons eligible for the position. Interviewers
independently fill out a rating sheet for each candidate,
assigning him or her a numerical score. These sheets then
are given to the Deputy Commissioner who summarizes
and tabulates the scores, compiles a list or spreadsheet of
the numerical rankings, and recommends to the DOP, based
upon those rankings, candidates for promotion. The DOP
conveys this information to the DOW Commissioner, who
5
(...continued)
neers, the title currently held by Mr. Healy. There are usually
four ACOEs assigned to each pumping station.
6
Mr. Healy also claims he suffered a number of adverse
employment actions prior to 1998 in retaliation for his willingness
to speak openly about corruption at Mayfair. For example, he was
transferred to the midnight shift; received unwarranted repri-
mands; was denied numerous pre-1998 promotions; and was
suspended for a brief period. These claims, however, fall outside
the relevant statutory limitations period and will not be consid-
ered by this court as a basis for liability.
8 No. 04-3155
ultimately is responsible for selecting the candidate(s) most
7
appropriate for promotion.
The first promotion decision relevant to this appeal
occurred in August 1998. Mr. Healy submitted an applica-
tion for four open ACOE positions. He was deemed mini-
mally qualified for the positions and was placed on the bid
list. He was one of 21 applicants interviewed for the four
positions by a three-person interview panel. The three
persons sitting on the interview panel had been selected by
the Deputy Commissioner, Mr. Blake, and were employed
by the DOW as ACOEs. Based exclusively on his average
interview score, Mr. Healy was ranked 12th by the panel.
The panel recommended for promotion the four candidates
with the best interview scores. Commissioner Judith Rice
approved this recommendation on August 26, 1998.
Mr. Healy again applied for open ACOE positions in
November 1998. He was one of 30 candidates interviewed
for six positions by an interview panel selected by Mr.
Blake, which consisted of three COEs. Based on his average
interview score, Mr. Healy was ranked 14th by the panel.
The six top-scoring applicants were offered promotions,
receiving both Mr. Blake and Ms. Rice’s approval.
Mr. Healy’s third interview, in late November 1998, was
for the position of COE. He was one of 17 people inter-
viewed for two available positions. The panel consisted of
two current COEs and the Engineer of Electrical Pumping.
Mr. Healy was ranked 14th based on his interview score; he
did not receive a promotion. Mr. Blake, after receiving the
recommendations of the interview panel, concurred with
the panel’s findings and passed on its recommendations to
7
See also R.78, Ex.3 at 153-56 (Blake Dep.) (describing the
DOW’s promotion process).
No. 04-3155 9
the Commissioner. The promotion of the two individuals
with the highest interview scores subsequently was ap-
proved by Ms. Rice.
Mr. Healy next interviewed for a promotion to ACOE in
May 2000. The interviews were conducted by a panel
consisting of a Deputy Commissioner and two COEs. Mr.
Healy was one of 19 candidates, was ranked 16th by the
interview panel and did not receive the promotion. There
were two positions available; the two candidates with the
highest interview scores were promoted.
The last interview was conducted in July 2000 for one
open ACOE position. The interview panel consisted of a
COE, an ACOE and a Deputy Commissioner. Mr. Healy was
ranked seventh out of eight applicants and did not receive
the promotion. The candidate with the highest interview
score was recommended for a promotion by the interview
panel and by Mr. Blake. Mr. Rice approved this recommen-
dation on July 31, 2000.
Although neither Mr. Blake nor Ms. Rice were present at
any of these interviews, they both were involved in the
promotion process. As Deputy Commissioner, Mr. Blake
participated in the selection of the interview panels and in
the tabulation and preparation of the scores and recommen-
dations for the DOP and the Commissioner. Ms. Rice, the
Commissioner from June 1996 to late October 1999, ap-
proved the choice of candidates for three of the five promo-
tions in question, accepting the recommendations of the
interview panel for all three job openings. Mr. Rice became
the DOW Commissioner in November 1999 and was
accountable for promotion decisions thereafter.
10 No. 04-3155
B. District Court Proceedings
In October 2000, Mr. Healy filed the present action against
the City and against Mr. Blake, Mr. Bolden, Mr. Laird, Mr.
Miller, Ms. Rice and Mr. Rice in their individual and official
capacities. See 42 U.S.C. § 1983. In pertinent part, he con-
tended that he was denied five promotions in retaliation for
his reports of illegal activity at Mayfair in violation of his
First Amendment right to free speech. He also claimed that,
because of his protected speech about corruption at Mayfair,
he was barred from attending safety meetings at the DOW.
The district court dismissed as time-barred all claims that
stemmed from allegedly discriminatory conduct occurring
before October 2, 1998—the beginning of the applicable two-
year limitations period. The statute of limitations therefore
barred all claims against Mr. Miller and Mr. Laird. See R.18
at 8 (finding that Mr. Healy failed to allege that Mr. Miller
and Mr. Laird had “committed any discriminatory acts since
8
October 2, 1998”). The district court subsequently also
dismissed Mr. Healy’s claims against Mr. Bolden as time-
barred. See R.22. The district court’s findings on these
matters have not been challenged on appeal.
On December 2, 2003, the remaining defendants filed a
motion for summary judgment. The district court granted
this motion on July 19, 2004. As an initial matter, the court
noted that the test for a First Amendment claim of retalia-
tion is three-fold: (1) whether the plaintiff’s speech was
constitutionally protected; (2) whether the defendant’s
8
In this same order, the district court also dismissed Mr. Healy’s
damages claims against the defendants in their official capacities.
See R.18 at 16-17 (although denying the defendants’ motion to
dismiss Mr. Healy’s request for injunctive relief against the
defendants in their official capacities).
No. 04-3155 11
employment action was motivated by the constitutionally
protected speech; and (3) whether the defendant would
have taken the same action in the absence of the plaintiff’s
speech. Although concluding that Mr. Healy’s reports of
illegal activity at Mayfair touched on a matter of public
concern, and that Mr. Healy’s “interest in commenting upon
matters of public concern outweighed the interests of
Defendants, his employer,” R.92 at 9-10, the district court
found no genuine issue of material fact on the question of
causation. In the district court’s view, there was no evidence
that Mr. Rice “knew of Healy’s protected speech or of the
alleged retaliation.” Id . at 11. The district court also wrote
that, although Mr. Healy previously had spoken with Ms.
Rice about his failure to be promoted, there was no evidence
that they had ever spoken specifically about corruption or
theft at Mayfair, or that she otherwise knew of Mr. Healy’s
reports of illegal activities at Mayfair. Lastly, although Mr.
Blake “knew of Healy’s complaints of corruption and his
complaints of retaliation,” id . at 12, he had no substantive
influence over the relevant promotion decisions:
The evidence establishes that the DOW Commissioners
did not consult with Blake before making their promo-
tion decisions, and they always chose those with the
highest interview scores, which was never Healy. There
is also nothing in the record to show that Blake did
anything to affect either the decision of the panel or the
interview scores.
Id . at 13 (internal citations omitted). The district court
dismissed as irrelevant and unsubstantiated Mr. Healy’s
account of his January 2000 meeting with Mr. Blake, in
which Mr. Blake allegedly told Mr. Healy that the reason he
had not received a promotion was because of “politic[s].”
Id . at 13-14.
12 No. 04-3155
Lastly, the district court found that, even in the absence of
Mr. Healy’s exercise of his First Amendment rights, the
defendants likely would have denied him all five promo-
tions. Promotion decisions at the DOW are based primarily,
if not exclusively, upon interview scores, and Mr. Healy
simply did not score well on the interview portion of the
promotion process.
In the absence of evidence that Mr. Rice, Ms. Rice or Mr.
Blake had violated Mr. Healy’s rights, the court concluded
that the City of Chicago could not be held vicariously liable
for the adverse employment actions at issue.
II
ANALYSIS
We review the district court’s grant of summary judgment
de novo. So rnb erger v. City o f Kno xville, 434 F.3d 1006,
1012 (7th Cir. 2006). In doing so, we construe all facts and
reasonable inferences in the light most favorable to Mr.
Healy, the non-moving party. Id . Summary judgment is
proper if “the pleadings, depositions, answers to interroga-
tories, and admissions on file, together with the affidavits,
if any, show 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 Celo tex Co rp .
v. Catrett, 477 U.S. 317, 322-23 (1986).
A party claiming retaliation based upon the First Amend-
ment must create a genuine issue of material fact that: (1)
“[his] speech was constitutionally protected”; and (2) the
defendants’ “actions were motivated by [his] constitution-
ally protected speech.” Sm ith v. Dunn, 368 F.3d 705, 708 (7th
Cir. 2004); see also Vuk ad ino vich v. Bd . o f Sch. Trs. o f N.
New to n Sch. Co rp ., 278 F.3d 693, 699 (7th Cir. 2002). If Mr.
Healy fulfills these two requirements, the burden shifts to
No. 04-3155 13
the defendants to establish by a preponderance of the
evidence that Mr. Healy would not have been promoted “in
the absence of his exercise of his rights under the First
Amendment.” Vuk ad ino vich, 278 F.3d at 699. If the defen-
dants carry this burden, Mr. Healy then “bears the burden
of persuasion to show that [the defendants’] proffered
reasons were pretextual and that discrimination was the real
reason for the [employment action].” Sm ith, 368 F.3d at 708.
The only issue raised before this court is whether Mr.
Healy has presented evidence substantiating the causal link
between his protected reports of corruption in his work-
place and the subsequent adverse employment actions taken
by Ms. Rice and Mr. Blake individually and the City as a
14 No. 04-3155
9, 10
municipal entity.
A. Judith Rice
Mr. Healy first contends that the district court erred in
finding that there was no evidence that Ms. Rice knew of his
reports of illegal activity at Mayfair. The district court
concluded that, although Ms. Rice may have met with Mr.
Healy in January or February of 1999 and discussed at that
9
Mr. Healy does not challenge the district court’s finding that
the ban on attending safety meetings was not discriminatory. See
Appellant’s Br. at 11 (mentioning safety meetings only once,
when discussing the facts of the case). The district court held that
Mr. Healy’s claim that, in retaliation for his reports of corruption
to his supervisors, he was told not to attend safety meetings was
not supported by the evidence. See R.92 at 15 (noting in particular
that Mr. Healy admitted in his deposition that he in fact did
attend safety meetings in both 1998 and 1999).
Nor does he challenge the district court’s conclusion that Mr.
Rice, Ms. Rice’s successor as the Commissioner of Water, cannot
be held liable for retaliation because he was not aware of Mr.
Healy’s reports of corruption. See id . at 11 (holding that Mr.
Healy does not allege that he ever spoke directly with Mr. Rice
about his claims of corruption at Mayfair, and noting that there
is no other evidence that Mr. Rice knew of Mr. Healy’s concerns).
The district court’s summary judgment order as it relates to Mr.
Rice’s liability is not discussed by Mr. Healy in his brief before
this court.
10
Neither party addresses the issue of whether Mr. Healy’s
statements about corruption are protected by the First Amend-
ment. We therefore have no occasion to address this issue,
including whether Mr. Healy’s statements in any way were
required by his official duties. See Garcetti v. Ceballo s, 126 S.Ct.
1951, 2006 WL 1458026 (2006).
No. 04-3155 15
time his complaints of being denied various promotions,
“Healy does not claim, and [Ms.] Rice does not recall, that
Healy complained of corruption at Mayfair.” R.92 at 11. By
contrast, Mr. Healy claims in his brief that “he informed
[Ms.] Rice of alleged theft at Mayfair during [the 1999]
meeting, although the District Court erroneously concluded
that Healy had not claimed he reported corruption at
Mayfair to [Ms.] Rice.” Appellant’s Br. at 18.
In his deposition, Mr. Healy testified that he told Ms. Rice
about events of employee misconduct at Mayfair before
1993. See R.78, Ex.2 at 311-12 (“[T]hings weren’t being done.
I was guaranteed that she was aware of the problem with
Miller, and I just wanted to make sure. It just seemed like
nothing was getting done. . . . I explained to her that I had
different meetings, different people, and that I was told that,
you know, my name is [expletive] and that I was blamed for
different things.”). But he admits that he did not “complain
to [Ms.] Rice about anything that had happened since June
of 1993.” Id . at 312. In his affidavit, he states: “I told Ms.
Rice that I had many meetings with different people about
my complaints of theft and sabotage at Mayfair and that my
name was [expletive] because I was blamed for different
things.” Id ., Ex.1 at 12. The affidavit contains nothing more
specific with respect to the time frame of these complaints,
specific individuals contacted or events discussed with Ms.
Rice.
Even if Mr. Healy and Ms. Rice did meet and did discuss
corruption at Mayfair or Mr. Healy’s fears of retaliation for
his reports of wrongdoing, as Mr. Healy now claims, Mr.
Healy cannot demonstrate that this conversation had an
effect on subsequent promotion decisions. After the meet-
ing, which Mr. Healy claims occurred in either late January
or early February of 1999, he was denied only two promo-
tions: one in May 2000; the other in July 2000. Ms. Rice,
16 No. 04-3155
however, resigned from her position as DOW Commis-
sioner in late October 1999. Thus, between January 1999 and
her resignation ten months later, she neither made nor
ratified a single employment decision affecting Mr. Healy,
including the denial of promotions in 2000. Mr. Healy
responds that he “interviewed for a promotion in September
or October of [1999].” Appellant’s Br. at 19; see also R.78,
Ex.2 at 315 (Healy Dep.). There is simply no evidence to
support this contention. According to the record, hiring for
both of the 2000 promotions did not commence until
months after Ms. Rice’s resignation. For the May 2000
ACOE promotion, Mr. Healy submitted his application and
was deemed minimally qualified for the position in mid-
April 2000. Interviews were conducted on May 12, May 16
and May 17 in the year 2000. The interview panel’s recom-
mendations were approved by Mr. Rice on June 7, 2000.
Hiring for the July 2000 promotion also began in April
2000. A bid list of minimally qualified candidates was
prepared on April 18, 2000. Interviews were conducted on
June 19, 2000. Mr. Rice offered the top-ranking candidate a
promotion on July 31, 2000. In sum, there is no evidence that
hiring for either position began before Ms. Rice’s resigna-
tion, or that she, post-resignation, influenced her successor’s
choice of candidates for promotion.
Mr. Healy submits, however, that Ms. Rice was aware of
his reports of corruption before their January or February
1999 meeting and influenced the promotion decisions
prior to that date. According to Mr. Healy,
[Ms.] Rice admitted to having knowledge of theft and
corruption by other Water Department employees . . . .
There is no evidence in the record to show that anyone
else besides Healy made reports of theft and corruption.
Therefore, the District Court should have drawn the
reasonable inference that [Ms.] Rice knew Healy had
made the complaints of corruption.
No. 04-3155 17
Appellant’s Br. at 19. Mr. Healy’s bare allegations are
insufficient to survive summary judgment. His argument is
entirely speculative. Indeed, even if Ms. Rice generally was
aware of problems at Mayfair, there is no proof that she
knew specifically that Mr. Healy, as opposed to another
individual, had complained to his supervisors of corruption
at Mayfair. Cf. Luck ie v. Am eritech Co rp ., 389 F.3d 708, 715
(7th Cir. 2004) (“It is not sufficient that [the defendant]
co uld or even sho uld have known about [the plaintiff’s]
complaints; she must have had actual knowledge of the
complaints for her decisions to be retaliatory.” (emphasis in
original)); Miller v. Am erican Fam ily Mut. Ins. Co ., 203 F.3d
997, 1008 (7th Cir. 2000) (“[A]n employer cannot retaliate
when it is unaware of any complaints.”). Nor can an
inference of knowledge or retaliation be drawn from the
circumstances. Although Ms. Rice admits to general knowl-
edge of theft and corruption at Mayfair, neither party
identifies the date on which she acquired such knowledge;
Mr. Healy does not even suggest, much less offer evidence
to support the claim, that Ms. Rice knew of these issues
prior to November 1998—the date of the last promotion
decision before Ms. Rice resigned as Water Commissioner.
Moreover, even if the record contained direct evidence
establishing that Ms. Rice knew of Mr. Healy’s complaints
of corruption and theft prior to November 1998, that
evidence, standing alone, would not justify the denial of
summary judgment. We have held under similar circum-
stances that, “as a matter of law, mere knowledge of the
plaintiff’s protected activity prior to an adverse employ-
ment action does not establish a retaliatory motive.”
11
Sanchez v. Hend erso n, 188 F.3d 740, 747 (7th Cir. 1999).
11
Sanchez and other cases have recognized that, although “mere
(continued...)
18 No. 04-3155
Here, there is no evidence that Ms. Rice played a role in the
formation of the interview panels. Nor is there any evi-
dence, and Mr. Healy does not contend, that these panels
acted as Ms. Rice’s “cat’s paw,” Byrd v. Illino is Dep åt. o f
Pub . Health, 423 F.3d 696, 708 (7th Cir. 2005), in their
ranking of Mr. Healy far down the list of candidates. Mr.
Healy simply has not substantiated factually his claim that
his failure to be promoted is traceable to a “retaliatory
motive” on the part of Ms. Rice. Sanchez, 188 F.3d at 747.
This failure to supply evidence in response to the motion for
summary judgment is dispositive.
B. Francis Blake
Mr. Healy next challenges the district court’s finding that,
although Mr. Blake was aware of Mr. Healy’s reports of
corruption and theft at Mayfair, there was no evidence that
Mr. Blake affected the Commissioner’s promotion decisions.
Mr. Healy invites our attention to two pieces of evidence,
which he believes indicate that Mr. Blake harbored retalia-
tory animus towards him, and, as a result, intentionally
influenced the promotion process: First, in response to Mr.
Healy’s inquiries about why he had not been promoted, Mr.
Blake allegedly stated that promotion decisions come from
the “top down” or from the “Fifth Floor” of City Hall. R.78,
Ex.2 at 534 (Healy Dep.). Second, Mr. Blake allegedly told
(...continued)
knowledge” may not satisfy the plaintiff’s burden, “suspicious
timing can raise an inference of discrimination sufficient to satisfy
the causation element of the prima facie case.é Sanchez v.
Hend erso n, 188 F.3d 740, 747 (7th Cir. 1999). Here, however, the
timing of events is not “suspicious”: Even if Ms. Rice did speak
with Mr. Healy in January or February 1999, the next adverse
employment action did not occur until more than a year later.
No. 04-3155 19
Mr. Healy that the reason he had not been promoted was
because “there’s a political system, that’s the way it works.é
Id .
These submissions are weak reeds indeed on which to
support a retaliation claim. The first comment, which
blames promotion decisions on bureaucratic processes or a
group of unnamed persons at City Hall, tends to absolve
Mr. Blake of any personal responsibility for promotion
decisions, rather than demonstrate any active role on his
part in those decisions. The second might be relevant to Mr.
Healy’s claim that he was not promoted because of his
political affiliations, but it does not support the particular
retaliation claim that he presents in this court. Notably, Mr.
Healy has not pursued his Shak m an or equal protection
claims on appeal.
Even if these comments could be construed to demon-
strate that Mr. Blake harbored retaliatory animus toward the
plaintiff, there is no triable issue of fact on the question of
whether Mr. Blake was responsible for the adverse employ-
ment action suffered by Mr. Healy. Mr. Healy consistently
was ranked low by the interview panels, and the record
compels the conclusion that he was denied promotions
because of poor interview skills rather than because of his
12
reports of theft and corruption at Mayfair. For example, for
12
Mr. Healy responds that his extensive experience at the DOW
demonstrates that he was qualified for a promotion to ACOE.
However, he admits that experience is only one factor that the
Commissioner takes into account when selecting candidates for
promotion. Moreover, this court “do[es] not sit as a
superpersonnel department where disappointed applicants or
employees can have the merits of an employer’s decision
replayed to determine best business practices.” Blise v.
(continued...)
20 No. 04-3155
the August 1998 promotion, Mr. Healy was ranked 12th out
of 21 applicants based on his average interview score; only
the four top-scoring candidates were offered promotions.
For the November 1998 ACOE promotion, Mr. Healy was
ranked 14th out of 30 applicants; only the top six candi-
dates, based on their interview scores, were promoted. For
the November COE 1998 promotion, Mr. Healy was ranked
14th out of 17 applicants; the applicants with the top two
interview scores were promoted. Similarly, in July 2000, Mr.
Healy was ranked 16th out of 19 applicants; the City
promoted the two applicants who achieved the highest
interview scores. In July 2000, he was ranked seventh out of
eight applicants; only the top-scoring candidate was
promoted.
Moreover, even if Mr. Healy is correct that Mr. Blake had
an opportunity to affect the Commissioner’s promotion
decisions, the record demonstrates that Mr. Blake did not
capitalize upon this opportunity. For each of the promotion
decisions in which he had any part, Mr. Blake’s recommen-
dations to the DOP mirrored precisely the recommendations
of the interview panel. As demonstrated by his letters to the
Commissioner, he simply summarized the results of the
interviews and ranked the candidates, premised in signifi-
cant part on the scores assigned by the interview panel. See,
e.g., Blake Memo., R.75, Ex.Q, Tab 3 at 7 (“I concur with the
findings of the [interview] panel and recommend that the
12
(...continued)
Antaram ian, 409 F.3d 861, 868 (7th Cir. 2005) (internal quotation
marks omitted); Ho lm es v. Po tter, 384 F.3d 356, 361-62 (7th Cir.
2004). Even if the individuals selecting candidates for promotion
sho uld have promoted Mr. Healy because of his superior
experience, there is no evidence that the reason they did not do
so is because of his protected speech—rather than because his
interview scores did not pass muster.
No. 04-3155 21
six positions be offered to [the six candidates selected by
that panel].”). Ultimately, in the case of all five promotions,
for a total of sixteen open positions, the candidates recom-
mended by Mr. Blake and promoted by the Commissioner
were the candidates with the highest interview scores. The
record evidence at the very most raises a “metaphysical
doubt” about Mr. Blake’s possible discriminatory animus.
Matsushita Elec. Ind us. Co . v. Zenith Rad io Co rp ., 475 U.S.
574, 586 (1986) (holding that the non-moving party “must
do more than simply show that there is some metaphysical
doubt as to the material facts” to survive summary judg-
ment). It simply would not support a jury verdict in Mr.
Healy’s favor on his retaliatory discharge claim.
Mr. Healy criticizes the district court’s reliance on inter-
view results; he contends that the scores assigned by the
panels were themselves discriminatory. He submits that Mr.
Blake “ratified decisions made by those who held a discrim-
inatory animus towards Healy,” primarily members of the
interview panels. Appellant’s Br. at 22. Mr. Healy, however,
presents us with no factual basis for his allegation that the
interviewers harbored “a discriminatory animus” toward
him. Id . Indeed, he identifies no evidence that any of the
members of post-1998 interview panels even k new o f Mr.
Healy’s reports of corruption, much less that they were
13
motivated by those reports in scoring the candidates.
13
Mr. Healy deposed only three of the many members of the
interview panels: two from pre-1998 interview panels and one
who participated on an interview panel for a post-1998 promo-
tion. The first, Tom Special, a COE at Mayfair, sat on a pre-1998
panel that interviewed Mr. Healy for a promotion. He described
this interview in his deposition as “interesting,” explaining that
“Mr. Healy at some point near the end of the interview launched
into a discussion of things going on at, I believe, Mayfair at the
(continued...)
22 No. 04-3155
(...continued)
time. . . . [W]e were all looking at each other like, what’s this got
to do with the interview?” R.78, Ex.5 at 59-60.
At most, Special’s testimony demonstrates that, unprovoked,
Mr. Healy inappropriately raised his concerns about corruption
and theft at Mayfair during an interview. It does not establish
that Special or other members of the interview panels chose to
not promote Mr. Healy because of his First Amendment activities.
Id . at 80 (specifying that the interview was strange because Mr.
Healy expressed concerns that were unrelated to questions asked
by the panel); see also id . at 62 (explaining that Mr. Healy had
difficulty answering standard interview questions, including one
“pertaining to electric plants operation”). Moreover, even if
Special’s testimony does prove that his motives were improper,
there is no evidence that Special influenced post-1998 promotion
decisions.
Second, Mr. Healy deposed Rob Cannatello. See id ., Ex.10. Like
Special, Cannatello did not sit on any of the five interview panels
relevant to this appeal and there is no evidence that he influenced
the post-1998 promotion decisions at issue in this appeal.
Moreover, the portions of the deposition testimony attached to
the plaintiff’s response to the motion for summary judgment do
not indicate that Cannatello harbored retaliatory animus towards
Mr. Healy or that he even knew of Mr. Healy’s reports of
corruption at Mayfair.
Mr. Healy also deposed Dominick Cantore, Jr., a member of the
interview panel for the November 1998 promotion, as well as for
the December 1998 promotion. See id ., Ex.19. Cantore, however,
was not asked in his deposition whether he was aware of Mr.
Healy’s reports of corruption and theft at Mayfair. Nor did he
give any indication that his or his colleagues’ decisions were
influenced in any way by Mr. Healy’s activities. Id .
Mr. Healy points to no other evidence in the record that
demonstrates a discriminatory motive or knowledge of his
(continued...)
No. 04-3155 23
Mr. Healy also submits that the interview scores were
“subjective,” that the questions asked of candidates were
inconsistent and that the questions asked of him specifically
14
were irrelevant and too personal. Appellant’s Br. at 24-25.
It does appear that the DOW prepared a standard list of
questions that the interviewers were to ask of all candidates
15
for each position opening. See also R.78, Ex.5 at 65 (Special
(...continued)
complaints on the part of interviewers.
14
For example, in his deposition, Mr. Healy recounted one of his
interviews as follows:
The only thing is I would—you know, I talked to some
people that interviewed and they’d have—they’d have
like different questions, but, you know, some people
would be asked six to eight things, some people—I
mean, some interviews, it was like three or four ques-
tions.
...
Now—the one question was, Did you put down who
to call in case of emergency? You know, like what does
that have to do with—it had nothing to do with steam
experience, you know?
R.78, Ex.2 at 386-87; se e also id . at 383-84 (recounting that one
interviewer asked him what he would do if “someone came to
work drunk”); id . at 386-89 (describing other allegedly abnormal
questions asked of him at various interviews, including questions
about the weather).
15
For example, for the August 1998 ACOE promotion, the
interview panel was given a list of nine questions to ask of
candidates, with sample answers. See R.75, Ex.Q, Tab 1 at 12. For
the November 1998 COE promotion, the panel was given a list of
seven questions to ask of candidates, which ranged from, “[T]ell
(continued...)
24 No. 04-3155
Dep.) (testifying that the “same questions” were asked of
“each candidate”). Mr. Healy alleges that he was asked only
five of the nine “standard” questions in his August 1998
ACOE interview; only four of the seven questions in his
November 1998 COE interview; only four of the ten ques-
tions in his November 1998 ACOE interview; and only five
of the twelve questions in his July 2000 ACOE interview. See
id ., Ex.1 at 3-5 (Healy Aff.).
However, there is no evidence that other, similarly
situated candidates were consistently asked these omitted
stock questions. Nor is there evidence implicating Mr. Blake
in any wrongdoing. The City provided each interviewer a
list of questions to ask each candidate. That Mr. Healy may
not have been asked all or some of these questions by the
members of the interview panel, in the absence of any
indication that Mr. Blake requested or mandated that the
interviewers depart from the standard list of questions, is
the fault of the interviewers, not of Mr. Blake. Moreover, as
(...continued)
us about your background as an operating engineer,” to, “[W]hy
do you believe that you are qualified[?]” Id ., Ex.2 at 6. The same
is true of the November 1998 ACOE promotion; there was a list
of ten questions provided to the interview panel. Id ., Ex.3 at 9
(including questions about the candidate’s background, as well
as technical knowledge about “speed pump[s],” “centrifugal
pump[s]” and “flooding condenser[s]”). For the July 2000
interview, twelve questions were provided to the interview
panel. Id ., Ex.5 at 7.
The record is unclear as to whether the interview panel was
given a list of interview questions for the May 2000 interviews.
Three separate documents were produced by the DOW, each
containing a number of questions purportedly asked of inter-
viewees. Id ., Ex.4 at 7-9.
No. 04-3155 25
already discussed, there is no evidence that the interviewers
were aware of Mr. Healy’s reports of theft and corruption at
Mayfair—much less that they were m o tivated in the asking
of questions and the scoring of candidates by his First
16
Amendment activities.
C. Municipal Liability
Because Mr. Healy has failed to demonstrate that persons
with policymaking authority over promotion decisions
retaliated against him on the basis of his reports of corrup-
tion and theft at Mayfair, we need not address Mr. Healy’s
municipal liability arguments. In the absence of evidence of
wrongdoing carried out by City employees, the City may
not be held vicariously liable. See Rasche v. Vill. o f Beecher,
336 F.3d 588, 597 (7th Cir. 2003) (explaining that, for a
municipal corporation to be held liable under § 1983, there
must be an “express policy,” a “widespread practice” of
retaliation or “constitutional injury . . . caused by a person
with final policymaking authority”).
16
The defendants cite Blise v. Antaram ian, 409 F.3d 861, 868 (7th
Cir. 2005), for the proposition that the subjective evaluation of
candidates is “entirely appropriate,” given that personal qualities
factor heavily in many employment decisions. Blise, however, is
inapposite. Although, as we explained in Blise, there is no
requirement that all job applicants be asked the same questions,
when the employer sets forth a standard list of questions to be
asked of candidates, a departure from that standard is suspicious.
We need not reach whether, in this case, the questions asked of
Mr. Healy create a triable issue of fact concerning whether the
interviewers acted in a discriminatory manner. Absent evidence
supporting the allegation that the interviewers knew of Mr.
Healy’s complaints, and absent evidence that Mr. Blake knew of
and encouraged the panel’s departure from stock questions, Mr.
Healy has failed to sustain his burden of production.
26 No. 04-3155
Conclusion
The district court properly found that the plaintiff did not
present sufficient evidence that his reports of wrongdoing
in his workplace were a motivating factor in the defendants’
adverse employment decisions. We affirm the district
court’s grant of summary judgment in favor of the defen-
dants.
AFFIRMED
A true Copy:
Teste:
_______________________________
Clerk o f the United States Co urt o f
Ap p eals fo r the Seventh Circuit
USCA-02-C-0072—6-16-06