Candice McCurdy v. David Fitts ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-1212
CANDICE MCCURDY,
Plaintiff-Appellant,
v.
DAVID FITTS and JEFF GILL,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 13-cv-455-SMY-SCW— Staci M. Yandle, Judge.
____________________
ARGUED NOVEMBER 3, 2015 — DECIDED JUNE 13, 2016
____________________
Before WOOD, Chief Judge, EASTERBROOK, Circuit Judge,
and BRUCE, District Judge. *
EASTERBROOK, Circuit Judge. Candice McCurdy, a patrol
deputy with the Williamson County Sheriff’s Department,
applied for a job as an inspector with the Southern Illinois
Enforcement Group, which investigates drug crimes. She
* Of the Central District of Illinois, sitting by designation.
2 No. 15-1212
was selected, subject to a background check. While that
check was conducted, she remained in her deputy’s post.
Agent Barbee Braddy, who conducted the check, recom-
mended that she not be hired. Braddy discovered that
McCurdy had recently filed for bankruptcy and was in a
long-term relationship with Jon Mohring, who belonged to a
biker gang associated with criminal activity. Braddy thought
that these facts made McCurdy unsuitable for a more re-
sponsible job, particularly given what had happened when
the Group hired Caleb Craft. He, too, had been in financial
difficulty and had some criminal associates, and he was fired
when the Group discovered that he was stealing drugs and
money from the unit. McCurdy wanted to fill the Craft va-
cancy; following the adage “once burned twice shy” the
Group decided to look elsewhere.
In this suit under 42 U.S.C. §1983, McCurdy contends
that the officers who made these decisions engaged in sex
discrimination. She offers two theories: first, that she would
have been promoted immediately had she been a man; sec-
ond, that the Group gave her background and associates
more scrutiny than it does for male applicants. She does not
deny that the Group had legitimate reasons for thinking that
someone else would be more suitable; instead she contends
that the Group would not have discovered these matters had
the applicant been male. The district court, however, granted
summary judgment for the defendants, ruling that McCurdy
was treated the same as a male applicant would have been.
The district court’s conclusion is well founded with re-
spect to the hiring decision, because Agent Braddy testified
in discovery that she investigated McCurdy exactly the same
way as she investigates other applicants, and that she always
No. 15-1212 3
checks financial details and romantic entanglements. Indeed,
Braddy had investigated Craft and recommended that he not
be hired because she discovered that he had financial prob-
lems and associated with people engaged in shady activities.
The Group overrode her recommendation about Craft, suf-
fered the consequences, and was determined not to make
that mistake again. This has nothing to do with sex.
McCurdy points to Craft as a comparator treated more fa-
vorably, but employers are entitled to learn from their errors.
Given Agent Braddy’s uncontested testimony that she inves-
tigated McCurdy exactly as she investigates men who apply
to be inspectors, and McCurdy’s concession that Braddy’s
findings constitute sex-neutral reasons for not hiring her,
summary judgment was proper.
This brings us to McCurdy’s contention that a man would
have taken the inspector’s job pending Braddy’s investiga-
tion. McCurdy contends that she lost the difference between
her deputy’s salary and an inspector’s salary during that in-
terval. Defendants reply that there was no difference—that a
person receives the salary of her existing position until a
promotion or new appointment becomes final. McCurdy re-
plies that this is wrong and that her income would have been
higher in the interim.
The district court did not resolve this dispute, and the
record on appeal does not enable us to say which side is cor-
rect. Nor did the district court address McCurdy’s contention
that keeping her in the deputy’s job pending the background
check was an instance of sex discrimination. McCurdy con-
tends that every man who has been selected for an inspec-
tor’s position with the Group has been transferred to that job
(and given its salary) immediately—though subject to final
4 No. 15-1212
approval after the background check. Defendants concede
that this is so. They contend that McCurdy’s transfer was de-
layed not because she is female but because she was needed
in the Sheriff’s Department until her replacement could be
hired.
The district court needs to determine whether there is a
material dispute of fact about either the defendants’ explana-
tion for delaying McCurdy’s transfer or the salary she would
have received had she been promoted conditionally. If the
salaries would have been identical, or if any reasonable trier
of fact would be bound to conclude that the delay was unre-
lated to sex, then defendants are entitled to prevail, but oth-
erwise this subject requires a trial.
The judgment of the district court is affirmed to the ex-
tent it rejects McCurdy’s hiring theory but vacated to the ex-
tent it rejects her delay theory, and the case is remanded for
further proceedings consistent with this opinion.