Logan, Terry v. Caterpillar, Inc

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-3972
Terry Logan,
Plaintiff-Appellant,
v.
Caterpillar, Inc., Rita Knapp, David Wendling,
Eric Rueschhoff, and Wendy Watta f/k/a Vosberg,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 6391--Charles P. Kocoras, Judge.
Argued October 26, 2000--Decided April 4, 2001
Before Easterbrook, Kanne, and Evans, Circuit Judges.
Kanne, Circuit Judge. Caterpillar employee Terry
Logan attempted to salvage a romantic
relationship with co-worker Wendy Watta, formerly
known as Wendy Vosberg. Instead of
reconciliation, Logan’s attempts to convince
Watta to continue their relationship resulted in
the loss of his job, the issuance of a
restraining order, an indictment for residential
burglary, and his arrest for criminal trespass.
Logan brought suit against Caterpillar, Inc.,
Rita Knapp, a Caterpillar security officer, David
Wendling, a Caterpillar security manager, Eric
Rueschhoff, and Wendy Watta alleging sex
discrimination and various counts of malicious
prosecution. The district court granted summary
judgment for the defendants on all counts. On
appeal, Logan challenges the district court’s
determinations that: (1) he failed to make a
prima facie showing of sex discrimination because
he did not show that a similarly situated female
was treated more favorably; (2) he provided no
evidence that Caterpillar’s articulated reason
for firing him was pretextual; and (3) the
defendants did not initiate criminal proceedings
against Logan such as would support a claim for
malicious prosecution. We affirm.
I. History
This case arises out of the turbulent break up
of two employees of Caterpillar’s Aurora
facility: Wendy Watta and Terry Logan. Watta
asserts that she started to break off her nearly
two year relationship with Logan in early 1997,
but admits that she continued to see him
sporadically throughout April and May. On May 30,
1997, Watta began dating Eric Rueschhoff, a
Caterpillar employee who works at the Peoria
facility. Many of the events surrounding Logan
and Watta’s break-up are disputed, but it is
clear that their personal problems eventually
seeped into the workplace.
On July 9, 1997, Bill Arbogast, the personnel
manager for Caterpillar’s Aurora facility,
received an e-mail from Watta asking if she could
meet with him regarding an employee that would
not stop bothering her. Watta stated that she was
concerned for her physical safety. At noon the
following day, Watta met with Arbogast and
informed him that the employee was bothering her
at home and at work despite her continued
requests to leave her alone. She said that she
was installing an alarm system in her house
because of the employee’s harassment and that she
was staying with friends until the alarm system
was ready. Watta did not, however, reveal the
identity of the offending employee.
Arbogast followed up on his meeting with Watta
by asking Sandra Rossell, a consultant with
Caterpillar’s Employee Assistance Program, if she
knew of any employee who might be bothering
Watta. Rossell correctly suspected that the
alleged harasser was Logan, a manufacturing
project specialist whom she had been counseling
for several weeks regarding his break-up with
Watta. Rossell contacted Logan and explained that
Watta had made a complaint against him without
mentioning his name. Later that day, Logan
approached Arbogast in his office and stated that
he was "very frightened" about a personal matter.
He explained that his relationship with Watta had
recently ended and that he was receiving
counseling to help him get through the break-up.
According to Logan, Arbogast answered by telling
him that he needed to keep his business life
separate from his personal life.
Less than a week later, on July 14, 1997, Rita
Knapp, a security officer at Caterpillar’s Peoria
facility, received a call from Detective James
Pierceall of the Woodford County Sheriff’s
department. Pierceall stated that he had met with
Caterpillar employee Eric Rueschhoff that morning
regarding a series of threatening phone calls
made to Rueschhoff’s house. Rueschhoff explained
that he suspected that the caller was Terry Logan
because of Logan’s prior relationship with Wendy
Watta, now Rueschhoff’s girlfriend. Rueschhoff
also told Pierceall that he believed that Logan
broke into his house because an address book and
a greeting card that were taken from his house
sometime during the weekend of June 20 later
showed up in Watta’s mailbox. These items were
accompanied by an anonymous letter to Watta. The
letter-writer, purporting to be a female
Caterpillar employee, stated that she had
overheard Rueschhoff making disparaging comments
about Watta and wanted to warn her about him.
Pierceall also informed Knapp that Watta had
filed an internal complaint with Caterpillar
against Logan. In response to this information,
Knapp contacted the Aurora facility security
manager, David Wendling, and confirmed that Watta
had lodged a complaint about Logan’s behavior.
Approximately one week later, on July 22, 1997,
Caterpillar security officer Leon Mills received
a phone call from Officer Stacy Friddle of the
Yorkville police department asking how to get in
touch with Watta. Officer Friddle explained that
the Yorkville police were called to Watta’s
residence at 2:00 a.m. because her security alarm
went off. The police determined that a cat
probably set off the alarm, but while speaking
with Watta regarding the incident, the officers
learned that Watta installed the alarm system
because of problems with a co-worker named Terry
Logan. When Watta told the officers that she
would be in Oklahoma for the next few days on a
business trip, they agreed to keep an eye on
Watta’s house. Several hours later, at 4:40 a.m.,
Officer Friddle noticed Logan pull into Watta’s
driveway, open the garage door, and drive into
the garage. She confronted a nervous Logan and
asked him if he had permission to be there. Logan
said that he often checked on Watta’s house while
she was away, yet he acted very strangely when
asked whether Watta would agree that she had
authorized him to be there. Logan claimed that he
was checking the garage for flammables, but did
not reply when asked specifically what he was
looking for. In response to Friddle’s questioning
Logan became frightened and began dry heaving in
the corner of the garage. Eventually, after
determining that Logan did not know about the
security system and did not have a key to the
house, the officers took his picture and allowed
him to leave.
After Officer Friddle recounted the morning’s
events, Mills relayed the information to
Wendling, Knapp, and Logan’s supervisor, Joe
Porter. Knapp contacted Watta in Tulsa and told
her that the police had apprehended Logan in her
garage that morning. During their conversation,
Watta confided in Knapp that she had been having
problems with Logan for some time and stated that
she had instructed him not to contact her in any
way. Knapp responded that she would like to meet
with Watta to discuss the situation, and Watta
agreed. On July 25, 1997, Knapp, Watta,
Rueschhoff, and Detective Pierceall met at the
Peoria Sheriff’s office to discuss Watta’s
problems with Logan.
After hearing Watta’s account of the situation,
Knapp arranged to meet with Logan and Wendling in
Wendling’s office at Caterpillar’s Aurora
facility on August 5. At this meeting, Knapp
identified herself as a Caterpillar security
officer and proceeded to question Logan about his
relationship with Watta. Several times during the
meeting, Logan became very emotional. He
repeatedly told Knapp that he had "done some
really dumb . . . things lately" and that he was
not proud of the things he had done. After the
meeting, Knapp and Wendling both prepared reports
of their conversation with Logan. Both of these
reports reflect that Logan admitted to: (1) using
the company e-mail system for personal use; (2)
breaking into Rueschhoff’s house through an
unlocked side window; (3) making approximately
thirty harassing phone calls to Rueschhoff’s
residence; (4) mailing the card stolen from
Rueschhoff’s house to Watta; and (5) fabricating
a letter to Watta from a female Caterpillar
employee in an attempt to discredit Rueschhoff.
Logan also admitted contacting Watta on July 29
and August 1 in contravention of Arbogast’s
directive to leave Watta alone.
At some point during the meeting with Knapp and
Wendling, Logan informed them that he takes the
prescription drug Ritalin several times a day
because he has Attention Deficit Disorder. Logan
claims that he asked Knapp and Wendling for
permission to take his medication during the
meeting and they refused. Knapp and Wendling deny
this; they claim that Logan informed them at the
end of the meeting that he had not taken his
medicine for several hours and proceeded to
remove a bottle from his pocket and take a pill.
At the conclusion of the interview, Knapp and
Wendling escorted Logan to the Caterpillar
medical office where Logan met with Sandra
Rossell. Following this meeting, Logan agreed to
voluntarily admit himself to the psychiatric unit
at Mercy Hospital.
Logan now states that he can not remember
making any of the above admissions to Knapp and
Wendling. Logan does not deny making the
admissions; rather, he claims that he was
suffering from Ritalin withdrawal and thus was
incompetent to discuss the events surrounding his
break-up with Watta. Logan claims that Knapp and
Wendling were aware that his admissions were
inherently unreliable because they denied his
request to take the Ritalin. He also claims that
his admission to a psychiatric hospital shortly
after his meeting with Knapp and Wendling is
further evidence of the unreliability of his
admissions.
After reviewing Knapp’s report of the Logan
interview, the Yorkville police report, and
Watta’s statement to the police regarding the
trespass to her garage, Porter decided to fire
Logan. On August 13, 1997, Porter informed Logan
that his employment was being terminated because
he: (1) abused the company e-mail system; (2)
failed to obey Arbogast’s directive not to
contact Watta; and (3) harassed Caterpillar
employees Watta and Rueschhoff. Watta and
Rueschhoff were also disciplined for abusing the
company e-mail system; they were each suspended
for five days without pay.
In addition to the termination of his
employment with Caterpillar, the events
surrounding Logan’s break-up with Watta also
resulted in criminal charges against Logan for
criminal trespass, residential burglary, and
witness harassment. The criminal trespass charge
arose out of Logan’s early morning visit to
Watta’s garage on July 22, 1997. Watta signed a
criminal complaint against Logan after being
encouraged to do so by Lieutenant Harold Martin
of the Yorkville Police Department. At the same
time, Watta signed a petition for a restraining
order against Logan. An interim order of
protection was entered on August 11, 1997; it was
expanded to a Plenary Order of Protection on
September 3, 1997. The State’s Attorney dismissed
the criminal trespass charge on September 9, 1998
pursuant to a motion nolle prosequi. At the same
time, Logan voluntarily entered into a new
protective order in exchange for the State’s
Attorney’s promise not to prosecute Logan for any
of the alleged violations of the protective order
up to that point. The expanded protective order
provided that Logan was not to contact Watta or
Rueschhoff personally or by telephone and
prohibited him from entering Yorkville or Peoria
without consent of the court. On October 9, the
Kendall County State’s Attorney filed an
information charging Logan with harassment of a
witness. This charge arose after Watta complained
to the Yorkville Police Department that she
received telephone calls from Logan on October 1
and 2, 1997 in violation of the September 3, 1997
protective order. On November 13, 1997, the
State’s Attorney dismissed the witness harassment
charge without prejudice.
The final charge filed against Logan stemmed
from his alleged burglary of Rueschhoff’s house.
In conjunction with the investigation into the
burglary, the Woodford County State’s Attorney
subpoenaed Knapp’s report of Caterpillar’s
investigation into Logan’s actions. A jury
acquitted Logan of this charge on August 24,
1998.
Following the jury verdict in his favor and the
dismissal of the other charges, Logan filed suit
in federal court against Caterpillar alleging
that he was discriminated against on the basis of
sex in violation of Title VII of the Civil Rights
Act of 1964. 42 U.S.C. sec.sec. 2000e et seq.
Logan also claims that all of the defendants
subjected him to malicious prosecution by filing
charges against him for criminal trespass,
witness harassment, and residential burglary. The
district court granted summary judgment for
Caterpillar on the sex discrimination claim
finding that Logan failed to make out a prima
facie case. The district judge also granted
summary judgment for all defendants on Logan’s
malicious prosecution claims because he found
that Logan did not show that the defendants
initiated criminal proceedings against him.
II. Analysis
A. Logan’s Claim of
Sex Discrimination Under Title VII
Logan claims that Caterpillar unlawfully
discharged him because of his sex in violation of
Title VII. 42 U.S.C. sec. 2000e et seq. Because
Logan has provided no direct evidence of sex
discrimination, he must proceed under the burden-
shifting approach articulated in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.
Ct. 1817, 36 L. Ed. 2d 668 (1973). Under the
McDonnell-Douglas approach, Logan must first
establish that: (1) he is a member of a protected
class; (2) he was meeting his employer’s
legitimate performance expectations; (3) he
suffered an adverse employment action; and (4) he
was treated less favorably than similarly
situated females. See Simpson v. Borg-Warner Co.,
196 F.3d 873, 876 (7th Cir. 1999). If Logan can
successfully show each of these elements, a
rebuttable presumption of discrimination is
created and the burden of production shifts to
the defendants to present evidence of a
legitimate, non-discriminatory reason for Logan’s
dismissal. See id. Evidence of a non-invidious
reason for the termination will then shift the
burden back to Logan to show that the articulated
reason is actually a pretext for discrimination.
See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
511, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993);
Simpson, 196 F.3d at 876.
The district court found that Logan was unable
to establish a prima facie case of sex
discrimination because he could not show that he
was treated less favorably than any similarly
situated female employee. We review the district
court’s grant of summary judgment de novo,
viewing the facts and drawing all reasonable
inferences in the light most favorable to the
nonmoving party. See Anderson v. Liberty Lobby,
477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d
202 (1986). Summary judgment is appropriate only
where "there is no genuine issue as to any
material fact and . . . the moving party is
entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(c); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548,
91 L. Ed. 2d 265 (1986).
We find that the district court correctly
determined that Logan did not establish that he
was treated more harshly than a similarly
situated female employee. Logan contends that
Caterpillar did treat a similarly situated
female--Watta--more favorably. This argument is
clearly without merit. Caterpillar gave three
reasons for Logan’s dismissal: (1) his abuse of
the company e-mail system; (2) his failure to
obey Arbogast’s directive not to contact Watta;
and (3) his harassment of Caterpillar employees
Watta and Rueschhoff. The fact that Watta was
guilty of one of these infractions--abuse of the
e-mail system--does not render her similarly
situated to Logan. Logan urges us not to consider
Caterpillar’s second reason because there is an
issue of fact as to whether Arbogast instructed
him to stay away from Watta or merely to keep his
work life separate from his personal life. We
need not address this argument because it is
clear that Watta and Logan were not similarly
situated with respect to Caterpillar’s third
reason for firing Logan--his harassment of fellow
employees. Logan argues that Watta was also a
harasser; he claims that she harassed him by
falsely reporting the incidents in question. Even
if correct, this would not show that Watta and
Logan were similarly situated for the purposes of
a prima facie case of sex discrimination. If we
were to put aside Watta’s reports to Arbogast and
Knapp, it is still undisputed that Caterpillar
received telephone calls from two different
police officers reporting incidents of
harassment. It received no similar reports with
regard to Watta. Thus, we agree with the district
court that Logan has failed to show that he was
treated less favorably than any similarly
situated female employee.
Even if Logan had established a prima facie
case of sex discrimination, Caterpillar has met
its burden to demonstrate a legitimate non-
discriminatory reason for Logan’s termination.
Caterpillar made the decision to fire Logan only
after it had gathered substantial evidence that
Logan had violated company policy and engaged in
criminal activity. Much of the evidence that
Caterpillar relied on came directly from Logan’s
interview with Knapp and Wendling. Because
Caterpillar has articulated a legitimate non-
discriminatory reason for terminating Logan, the
burden shifts back to Logan to show that
Caterpillar’s purported reason is pretextual.
Jackson v. E.J. Brach Corp., 176 F.3d 971, 983
(7th Cir. 1999). In this context, pretext is
defined as "a lie, specifically a phony reason
for some action." See Russell v. Acme-Evans Co.,
51 F.3d 64, 68 (7th Cir. 1995).
Pretext may be established directly by showing
that the employer "was more likely than not
motivated by a discriminatory reason," or
indirectly by presenting evidence that the
"employer’s explanation is not credible." Jackson
176 F.3d at 984 (citations omitted). If a
plaintiff does not have direct evidence of
pretext, he may show pretext indirectly by
presenting evidence that (1) defendant’s
explanation for the adverse job action had no
basis in fact; (2) the explanation was not the
"real" reason for the adverse job action; or (3)
the reason given was insufficient to warrant the
adverse job action. See Bahl v. Royal Indem. Co.,
115 F.3d 1283, 1291 (7th Cir. 1997) (citations
omitted).
Logan attempts to establish pretext by showing
that Caterpillar security personnel took a "less
than neutral" approach to their investigation of
him in which they accepted evidence against Logan
at face value while ignoring contrary evidence.
He claims that Knapp and Wendling should have
know that his admissions were less than reliable
and that they should have conducted a more
thorough investigation into the actions
surrounding his termination. Logan ignores the
fact that, in determining whether Caterpillar’s
stated reasons for Logan’s dismissal are
pretextual, our task is not to second guess
Caterpillar’s investigative process, but only to
decide whether he was discharged for a
discriminatory reason. See Giannopoulos v. Brach
& Brock Confections Inc., 109 F.3d 406, 410 (7th
Cir. 1997) (citations omitted). "[W]hen an
employer articulates a reason for discharging the
plaintiff not forbidden by law, it is not our
province to decide whether the reason was wise,
fair, or even correct, ultimately, so long as it
truly was the reason for the plaintiff’s
termination." Id. at 411.
Caterpillar gave three reasons for terminating
Logan; he disputes two of them--contacting Watta
contrary to Arbogast’s directive and harassing
Watta and Rueschhoff. In order to show pretext,
however, "[i]t is not enough for the plaintiff to
simply assert that the acts for which [ ]he was
terminated did not occur." Billups v. Methodist
Hosp. of Chi., 922 F.2d 1300, 1304 (7th Cir.
1991). He must provide some evidence that the
employer did not honestly believe the reasons
given for his discharge. See Debs v. Northeastern
Ill. Univ., 153 F.3d 390, 396 (7th Cir. 1998).
Logan has provided no such evidence. To the
contrary, much of the information that
Caterpillar relied on in making its determination
was provided by Logan himself. Logan’s claim that
he falsely confessed to improper behavior does
not support a finding of pretext without
corresponding evidence that Caterpillar knew that
Logan’s admissions were untrue. Prior to Knapp
and Wendling’s interview of Logan, Caterpillar
possessed reports of Logan’s harassment from
Detective Pierceall, Officer Friddle, and Watta
herself. Nearly everything that Logan said in his
interview fit squarely with the information that
Caterpillar already possessed. Even if Logan
falsely admitted to harassing Watta and
Rueschhoff as a result of Ritalin withdrawal, he
has shown no evidence that Caterpillar had reason
to know that Ritalin withdrawal could produce
this effect. Therefore, we agree with the
district court’s finding that Logan has not shown
sufficient evidence of pretext to survive a
summary judgment motion.
B. Logan’s Claim of
Malicious Prosecution Under Illinois Law
Logan brings separate state law claims against
the Caterpillar defendants (Caterpillar, Knapp,
Wendling, and Rueschhoff) and Watta for
subjecting him to malicious prosecution for: (1)
criminal trespass to Watta’s residence; (2)
harassment of a witness arising out of his
alleged violations of a protective order; and (3)
residential burglary of Rueschhoff’s home. Logan
bases his claims against the Caterpillar
defendants on their role in providing information
about his activities to the police. His claims
against Watta arise from his contention that
Watta provided the police with false information
on several occasions and signed a criminal
complaint against him for criminal trespass.
At the outset, we note that malicious
prosecution suits are disfavored by law because
of the potential deterrent effect on the
reporting of crime. See Joiner v. Benton Cmty.
Bank, 411 N.E.2d 229, 231 (Ill. 1980). Thus, in
order to prevail on any of these claims under
Illinois law, a plaintiff must show the
following: (1) the commencement or continuance of
an original criminal or civil judicial proceeding
by the defendant; (2) the termination of the
proceeding in favor of the plaintiff; (3) the
absence of probable cause for such proceeding;
(4) the presence of malice; and (5) damages. See
Swick v. Liautaud, 662 N.E.2d 1238, 1242 (Ill.
1996). All of these elements must be present; the
absence of even one element will preclude
recovery for malicious prosecution. See
Washington v. Summerville, 127 F.3d 552, 557 (7th
Cir. 1997). The district court found that Logan
had not established that any of the defendants
commenced or continued a criminal proceeding
against him, and therefore granted summary
judgment for all the defendants on this basis. We
will address the claims against the Caterpillar
defendants and Watta separately.
1. Malicious Prosecution Claims
Against Caterpillar
We agree with the district court’s finding that
Logan has failed to show that the Caterpillar
defendants commenced or continued criminal
proceedings against him. Our review of the record
makes clear that Logan has not alleged sufficient
facts to attribute legal causation of any of the
charges filed against him to any of the
Caterpillar defendants. In Illinois, criminal
proceedings are commenced by the filing of a
complaint, an indictment, or an information. See
725 Ill. Comp. Stat. Ann. 5/111-1 (West 1996).
Illinois law requires that, in order to commence
or continue a criminal proceeding, the defendant
must have initiated the criminal proceeding or
"his participation in it must have been of so
active and positive a character as to amount to
advice and cooperation." Denton v. Allstate Ins.
Co., 504 N.E.2d 756, 760 (Ill. App. Ct. 1987).
Thus, a private citizen does not commence a
criminal action merely by reporting information
to the police--even if the information later
turns out to be incorrect. See Randall v. Lemke,
726 N.E.2d 183, 185 (Ill. App. Ct. 2000). Legal
causation will be attributed to a private citizen
only if the plaintiff can demonstrate that the
defendant (1) instituted the proceedings against
the plaintiff; (2) knowingly made false
statements to the police; or (3) requested,
directed, or pressured the officer into swearing
out the complaint for the plaintiff’s arrest. See
Geisberger v. Vella, 379 N.E.2d 947, 949 (Ill.
App. Ct. 1978). Normally, a private citizen
institutes a criminal judicial proceeding by
filing a complaint. See Schwartz v. Coulter, No.
91-C7954, 1993 WL 398578 at *8 (N.D. Ill. Oct. 6,
1993). It is undisputed that the Caterpillar
defendants did not file a complaint against
Logan, nor are they alleged to have knowingly
provided false information to the police or
pressured any officer into swearing out a
complaint for his arrest. Instead, Logan attempts
to show that the Caterpillar defendants commenced
criminal proceedings against him by failing to
turn over potentially exculpatory evidence to the
police.
Plaintiff relies on Carbaugh v. Peat, 189
N.E.2d 14 (Ill. App. Ct. 1963), for his argument
that withholding exculpatory evidence is
sufficient to commence or continue a criminal
proceeding for the purposes of a malicious
prosecution claim. His reliance, however, is
misplaced. The Caterpillar defendants, unlike the
defendant in Carbaugh, never filed a criminal
complaint against the plaintiff. In Geisberger,
the court distinguished Carbaugh on this basis
and held that defendants who did not file a
complaint but knew that the police had arrested
the wrong man did not have an affirmative duty to
correct errors made by the police. Geisberger,
379 N.E.2d at 949. Similarly, in Denton, the
court rejected the plaintiff’s contention that
one who provides information to legal authorities
is always under an affirmative obligation to
report subsequent findings that cast doubt on the
original information. 504 N.E.2d at 761. In
Denton, the police called an agent of Allstate
Insurance Company to inquire about a stolen
vehicle claim made by Denton. Id. at 759. The
insurance agent replied that the situation
"sounded like a fraud" and stated that Allstate
would delay payment on the claim. Id. Based
partially on this information, the officer
obtained a warrant for Denton’s arrest. Id.
Subsequently, however, Allstate paid Denton’s
disputed claim in full but did not provide this
information to the police. Id. The court refused
to find that Allstate had initiated a criminal
proceeding against Denton by failing to inform
the police about the settlement of the claim. Id.
at 760. Importantly, the court noted that the
police were already suspicious before they spoke
with the defendant and there was no evidence that
the defendant knew that the information provided
was false. Id. at 761.
Logan claims that the Caterpillar defendants
withheld exculpatory evidence because the
Caterpillar security report that was turned over
to the police omitted critical information, most
notably the fact that his confession was
unreliable due to Ritalin withdrawal. He claims
that the information provided to the police
failed to include: (1) information that would
undermine Watta’s credibility; (2) Caterpillar
gate records that established an alibi for the
Rueschhoff break-in; and (3) an e-mail written by
Watta giving Logan the alarm code to her house.
We need not examine Logan’s claim that this
evidence is potentially exculpatory because Logan
has presented no evidence that the Caterpillar
defendants knowingly withheld this information.
The police and prosecutors had ample opportunity
to ascertain Watta’s credibility for themselves.
Logan does not claim that Caterpillar was in sole
possession of any information casting doubt on
Watta’s credibility. With respect to
Caterpillar’s gate records, even if we set aside
the substantial question of whether they actually
provide Logan with an alibi for the Rueschhoff
break-in, Logan has not set forth any evidence
showing that the individuals conducting the
security investigation knew that the gate records
provided Logan with an alibi. We are not
convinced by Logan’s sweeping allegations that
the Caterpillar defendants conspired to prosecute
Logan by selectively deciding which information
to release to the police. "[C]onclusory
allegations and selfserving affidavits, if not
supported by the record, will not preclude
summary judgment." Haywood v. N. Am. Van Lines,
Inc., 121 F.3d 1066, 1071 (7th Cir. 1997); see
also Slowiak v. Land O’Lakes, Inc., 987 F.2d
1293, 1295 (7th Cir. 1993).
As the nonmoving party, Logan bears the burden
of setting forth "specific facts showing that
there is a genuine issue for trial." Fed. R. Civ.
P. 56(e). He has not met this burden. Neither
"some metaphysical doubt as to the material
facts," Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348,
89 L. Ed. 2d 538 (1986), nor "the mere existence
of some alleged factual dispute between the
parties," Anderson v. Liberty Lobby, 477 U.S.
242, 247, 106 S. Ct. 2505, 91 L. Ed. 2d 202(1986), will preclude a motion for summary
judgment. When asked by the police, Caterpillar
turned over the results of its internal
investigation of Logan. Logan has produced no
evidence suggesting that any of the Caterpillar
defendants doubted the truthfulness of the report
that they submitted to the police. In addition,
it is clear that the police began to investigate
Logan’s behavior even before Caterpillar provided
any information to them. Without showing specific
facts that suggest the Caterpillar defendants
knowingly provided false information to the
police, Logan can not prove that they commenced
or continued a criminal proceeding against him.
Therefore, we agree with the district court’s
finding that Logan failed to meet the initiation
element and need not address the parties’
arguments on the other elements.
2. Malicious Prosecution Claims Against Watta
The district court’s grant of summary judgment
for Watta was based on its finding that Watta did
not com
mence or continue any criminal proceedings
against Logan. Logan contends that Watta did
initiate all three criminal proceedings by making
false statements to the police. We agree with
Logan that he has at least shown an issue of
material fact as to whether Watta commenced the
criminal charges filed against him. First, Watta
signed a complaint against Logan arising from his
early morning visit to her garage. Implicit in
Watta’s allegation that Logan trespassed on her
property is her denial that she authorized Logan
to be there. Logan contends that Watta had indeed
given him permission to be there. Although the
district court acknowledged that Watta signed a
criminal complaint against Watta in connection
with the alleged trespass to her garage, the
court found that Watta had not initiated
proceedings against Logan because the police
placed pressure upon Watta to sign the complaint.
We disagree with the district court’s conclusion.
Although the police may have encouraged Watta to
sign the complaint, we find no evidence in the
record suggesting that Watta signed the complaint
against her will.
We also disagree with the district court’s
conclusion that Watta did not initiate the
witness harassment charge. Logan claims that
Watta falsely told the police that he had called
her in violation of the September 3 protective
order. As noted in Part B.1 above, legal
causation of commencement of a criminal
proceeding will be attributed to a defendant if
she knowingly gave false statements to the
police. See Geisberger, 379 N.E.2d at 949;
Rodgers v. People’s Gas, Light & Coke Co., 733
N.E.2d 835, 840 (Ill. App. Ct. 2000). Because we
can not make a credibility determination on a
motion for summary judgment, see Anderson, 477
U.S. at 255, Logan’s denial is sufficient to
create a genuine issue of material fact on the
initiation element. See Sarsha v. Sears Roebuck
& Co., 3 F.3d 1035, 1041 (7th Cir. 1993)
(citations omitted) (holding that a nonmoving
party’s own affidavit containing only bare
denials will constitute affirmative evidence to
defeat a summary judgment motion). For the same
reason, we also find that Logan has shown a
genuine issue of material fact as to whether
Watta commenced residential burglary charges
against him with respect to the Rueschhoff break-
in. Watta told the police that Logan left a
message on her answering machine on the evening
of July 22, 1997 admitting to breaking in to
Rueschhoff’s house and stealing the address book
and greeting card. Logan denies this; he claims
that the message simply stated that he had really
"screwed up" and needed to talk to her. Thus, we
find that Logan has produced enough evidence to
survive summary judgment on the commencement
element for all three claims against Watta.
In deciding an appeal, however, we may rely on
a ground other than the one relied on by the
district court to affirm a grant of summary
judgment, so long as there is adequate support in
the record for the alternative basis. See Bombard
v. Fort Wayne Newspapers, 92 F.3d 560, 562 (7th
Cir. 1996). As we have already noted, a plaintiff
can not recover for malicious prosecution unless
he shows that the criminal proceeding at issue
was terminated in his favor. We find that Logan
has failed to establish favorable termination for
either the Watta trespass action or the
harassment of a witness charge. In Swick v.
Liautaud, 662 N.E.2d 1238 (Ill. 1996), the
Illinois Supreme Court first examined the
question of whether criminal proceedings
dismissed pursuant to a motion nolle prosequi
constituted a favorable termination in a
malicious prosecution action. Id. at 1242. In
Swick, the court chose to follow the majority
rule which provides that a nolle prosequi
dismissal terminates a proceeding in favor of the
accused "unless the abandonment is for reasons
not indicative of the innocence of the accused."
Id. at 1242-43 (citing Restatement (Second) of Torts
sec.sec. 659, 660, 661 (1977)). The court also
found that the plaintiff bears the burden of
showing that the nolle prosequi was entered for
reasons consistent with his innocence. See id. at
1243. This burden will only be met if the
plaintiff establishes that "[t]he circumstances
surrounding the abandonment of the criminal
proceedings . . . compel an inference that there
existed a lack of reasonable grounds to pursue
the criminal prosecution." Id. (citing Wynne v.
Rosen, 464 N.E.2d 1348, 1350-51 (Mass. 1984)). A
nolle prosequi entered as the result of an
agreement or compromise with the accused is not
considered indicative of a plaintiff’s innocence.
See id. at 1243; Washington v. Summerville, 127
F.3d 552, 558 (7th Cir. 1997).
To determine whether the proceedings against
Logan were terminated in his favor, we must look
past the form or title of the disposition and
examine the circumstances surrounding the entry
of the nolle prosequi. See Cult Awareness Network
v. Church of Scientology Int’l., 685 N.E.2d 1347,
1354 (Ill. 1997). The court’s order dismissing
the residential trespass action states: "Case
dismissed on State’s motion to nolle pros; State
agrees not to prosecute Defendant for alleged
violation of order of protection up to 9/10/98."
At the same time, Logan entered into a more
restrictive order of protection which prohibited
him from entering the cities of Yorkville and
Peoria without permission from the court. Watta
contends that the trespass charge was dismissed
pursuant to a compromise in which the State’s
Attorney agreed not to prosecute Logan for the
trespass and alleged violations of the order of
protection in exchange for Logan voluntarily
entering into a new, more restrictive protective
order. Logan denies this; he argues that he
agreed to the protective order in exchange only
for the State’s Attorney’s agreement not to
prosecute alleged violations of the order. Logan
claims that the State’s Attorney dismissed the
trespass charge because she was concerned that
she did not have enough evidence to convict him.
He provides no evidence for this claim, however,
other than his own conclusory affidavit. "Rule 56
demands something more specific than the bald
assertion of the general truth of a particular
matter, rather it requires affidavits that cite
specific concrete facts establishing the
existence of the truth of the matter asserted."
Hadley v. County of Du Page, 715 F.2d 1238, 1243
(7th Cir. 1983). Logan’s claim that the State’s
Attorney told him that she was dismissing the
charges because she was concerned that she would
not be able to obtain a conviction is hearsay,
and it is thus not enough to preclude summary
judgment on this issue. See Eisenstadt v. Centel
Corp., 113 F.3d 738, 742 (7th Cir. 1997)
("[H]earsay is inadmissible in summary judgment
proceedings to the same extent that it is
inadmissible in a trial."). Therefore, we find
that Logan has not produced sufficient evidence
to show that the trespass charge was terminated
in his favor.
We also find that Logan has not met his burden
to show that the witness harassment charge was
terminated in his favor. Watta argues that the
harassment charge was not actually dismissed but
instead was consolidated with the trespass
charge. She bases her argument on the fact that
the order dismissing the charge without prejudice
states: "Transfer bond from 97-CF-280 [witness
harassment charge] to 97-CM-590 [protective order
and Watta trespass action]." Because we must
construe all the facts in Logan’s favor, we will
not draw this inference from the dismissal order.
This does not, however, relieve Logan of his
burden to produce some evidence regarding the
circumstances surrounding the dismissal of the
charge that suggests that it was dismissed for
reasons consistent with his innocence. The bare
use of a nolle prosequi order does not establish
that the criminal proceedings were terminated in
a manner indicative of the plaintiff’s innocence.
See Swick, 662 N.E.2d at 1243; Washington, 127
F.3d at 558. Logan may not satisfy his burden to
show that the witness harassment charge was
dismissed for reasons consistent with his
innocence simply by proclaiming his innocence.
Therefore, we find that Logan has not met the
requirement of favorable termination with respect
to the witness harassment charge.
Unlike the trespass and witness harassment
claims, Logan has satisfied his burden to show
favorable termination with respect to the
criminal burglary. On August 24, 1998, a jury
acquitted Logan of the residential burglary
charges, and an acquittal is clearly sufficient
to show favorable termination. Thus, we move on
to the third requirement: the absence of probable
cause. Here, we find that Logan has not met his
burden. It is axiomatic that the existence of
probable cause is a complete defense to a
malicious prosecution claim. See Cervantes v.
Jones, 188 F.3d 805, 810-11 (7th Cir. 1999)
(citations omitted). Probable cause is defined as
"’a state of facts . . . that would lead a person
of ordinary care and prudence to believe or to
entertain an honest and sound suspicion that the
accused committed the offense charged.’" Adams v.
Sussman & Hertzberg, Ltd., 684 N.E.2d 935, 944
(Ill. App. Ct. 1997) (quoting Mack v. First Sec.
Bank, 511 N.E.2d 714, 717 (Ill. App. Ct. 1987)).
Logan argues that by disputing Watta’s claim that
he admitted breaking in to Rueschhoff’s house, he
has provided sufficient evidence to establish an
issue of material fact as to whether Watta had
probable cause to initiate the burglary charge.
A disagreement about the relevant facts, however,
does not preclude a finding of probable cause "so
long as the finding survives after adopting the
plaintiff’s version of the disputed facts for
which there is some support in the record."
Cervantes, 188 F.3d at 811. Even if we accept
Logan’s claim that he did not admit to Watta that
he committed the burglary, we find that Logan has
not met his burden to show the absence of
probable cause. Logan does not dispute Watta’s
claim that she received items in the mail that
were taken from Rueschhoff’s house. Nor does he
dispute the fact that a letter that discouraged
Watta from seeing Rueschhoff accompanied these
items. These facts, coupled with Watta’s
knowledge of Logan’s jealousy and the threatening
phone calls to Rueschhoff are enough for a
reasonable person in Watta’s position to suspect
that Logan was guilty of the Rueschhoff break-in.
Therefore, we agree with the district court’s
determination that Logan has not presented
sufficient evidence to show that Watta subjected
Logan to malicious prosecution for any of the
three criminal charges brought against him.
III. Conclusion
We find that Logan has not alleged sufficient
evidence to meet all of the required elements of
his sex discrimination or his malicious
prosecution claims. Therefore, we AFFIRM the
decision of the district court.