Gusewelle, Delmar v. City of Wood River

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2100
DELMAR GUSEWELLE,
Plaintiff-Appellant,
v.
CITY OF WOOD RIVER and THOMAS CHRISTIE,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 02 C 94—William D. Stiehl, Judge.
____________
ARGUED FEBRUARY 23, 2004—DECIDED JULY 8, 2004
____________
Before BAUER, EASTERBROOK, and KANNE, Circuit Judges.
BAUER, Circuit Judge. Delmar Gusewelle filed this action
claiming: (1) that his employment was terminated in
violation of the Age Discrimination and Employment Act
(ADEA), and (2) that his property interest in his job created
a right to a due process hearing which was not afforded
prior to his termination. The district court granted Defen-
dants’ motion for summary judgment on both counts. Our
review is de novo. We construe all facts and reasonable
inferences in the light most favorable to the non-moving
party.
2 No. 03-2100
I. Background
Gusewelle was hired by the City of Wood River, Illinois,
in 1981 as a golf course equipment mechanic. When hired,
Gusewelle was living in the neighboring town of
Edwardsville. The City of Wood River, however, maintains
a residency requirement and Plaintiff was given one year to
comply with the regulation. He initially tried to sell his
Edwardsville home but was unwilling to do so on the offers
he had received.
About one year after being hired, Gusewelle began stay-
ing at his aunt’s house in Wood River two nights a week.
Although he claims that this arrangement was “no secret,”
he did not specifically tell any city employee about his dual
residency. When his aunt’s house was sold, he “moved” to
the family farm in Wood River. He had a 1/3 interest in the
farm. He stayed there two nights a week also. Although his
wife remained in Edwardsville, Plaintiff paid his state and
federal income taxes, voted, and registered his car and
driver’s license using the Wood River address. This ar-
rangement continued for a little under twenty years until
he was terminated for violating the residency regulation.
Prior to his termination, Plaintiff was considered to be an
“excellent” and “outstanding” employee.
In his deposition, Gusewelle said that he had heard that
Wood River Parks and Recreation Director Jeff Stassi said,
“work him [Gusewelle] hard, keep him on his feet and don’t
let him sit down so he’ll retire.” This statement was made
four years prior to Gusewelle’s termination. Although Stassi
denied making this statement, our standard of review
requires that we accept Plaintiff’s version. With that in
mind, we continue the narrative.
In 1999 Stassi told the City Council that Gusewelle was
proposing to retire at age 65—which would mean that he
would retire that very year. Actually, Plaintiff had indi-
cated that he would retire when he could no longer perform
No. 03-2100 3
his job. Also in 1999, Thomas Christie left his job in another
town and was hired as Wood River’s City Manager. The
City Manager works for the City Council and is responsible
for hiring and firing all employees not covered by the fire-
and-police commission.
In January 2001, Stassi came to Christie with a “rumor”
that Gusewelle was not abiding by the residency require-
ment. Stassi explained in his affidavit that, while he had no
desire to “get rid of” Gusewelle, he felt that Christie was
enforcing the City regulations equally and fairly. Christie
sent a note to the Wood River Chief of Police to investigate
the allegations. After conducting some surveillance of
Gusewelle’s home (presumably the Gusewelle family farm)
and talking with Gusewelle’s mail carrier, the chief of police
sent Christie a note confirming the rumor of Plaintiff’s dual
residence. Christie sent Gusewelle a show-cause letter that
raised the violation of the residency requirement. After
Gusewelle received the show cause letter an administrative
hearing was held.
At the hearing, Plaintiff admitted that he stayed in Wood
River only two days a week and that he only paid 1/3 of the
property taxes on the Wood River farm. Christie’s report to
the City Council on the administrative hearing also noted
that Gusewelle had signed an acknowledgment form stating
that he was aware of the Personnel Rules. Personnel Rule
12.3 details the residency requirement. Members of the City
Council expressed some reservations about firing Gusewelle
when “former City Managers and Parks and Recreation
Directors [knew] of [Gusewelle’s dual residency] for years.”
Nevertheless, the City Council authorized Christie to send
a letter terminating Gusewelle’s employment.
After being terminated, Gusewelle reapplied for the job
promising to comply with whatever “the new or revised
definition of residency” required. His offer was rejected.
When Christie was asked why the City chose not to rehire
4 No. 03-2100
Gusewelle, he said, “[b]ecause the violation had already
occurred.” When asked why the City did not give Gusewelle
another opportunity to move into Wood River, Christie
responded, “[b]ecause he had been terminated for violation
of . . . the code. How would I have any feeling that that code
would not be violated again?” Wood River eventually
replaced Gusewelle with an employee about twenty-five
years younger than Plaintiff.
The district court granted summary judgment in favor
of the Defendants. In it’s March 24, 2004 Memorandum
& Order, the lower court judge found that Gusewelle had
failed to show a genuine issue of material fact “on the
question of whether defendants’ proffered reason for
plaintiff’s termination is pretextual.” The court then ruled
against Plaintiff’s due process claims by finding: (1)
Gusewelle was an at-will employee and therefore, had no
protectable property interest in his job, (2) there was no
evidence that the City changed its definition of “residency”
without prior notice, (3) Gusewelle was afforded procedural
due process in the form of a formal administrative hearing
prior to termination, (4) the residency regulation was not
unconstitutionally vague, and (5) the regulation was not
arbitrary or unreasonable municipal action. The instant
appeal followed.
II. Discussion
A. Discrimination Claim
A plaintiff with a potential age discrimination claim can
avoid summary judgment in one of two ways. The direct
method states facts that show that the employer’s decision
to take adverse employment action against the plaintiff was
motivated by an impermissible factor such as age, race, or
national origin. Such facts can be in the form of direct or
circumstantial evidence. “Direct evidence essentially
requires an admission by the decision-maker that his
actions were based upon the prohibited animus.” Rogers v.
No. 03-2100 5
City of Chicago, 320 F.3d 748, 753 (7th Cir. 2003). Circum-
stantial evidence must be sufficient to create a “convincing
mosaic” that “allows a jury to infer intentional discrimina-
tion by the decision-maker.” Id.The indirect method, on the other hand, requires the
plaintiff to first make a prima facie showing of discrimi-
nation. Steinhauer v. Degolier, 359 F.3d 481, 484 (7th Cir.
2004). To do this, a plaintiff must show: (1) he is a member
of a protected class; (2) he was qualified for the position; (3)
he suffered an adverse employment action; and (4) a
similarly situated employee not of the protected class was
treated more favorably. Steinhauer, 359 F.3d at 484; Cerutti
v. BASF Corp., 349 F.3d 1055, 1061 (7th Cir. 2003). Once a
plaintiff has made a prima facie showing of discrimination,
the burden shifts to the defendant-employer to articulate a
legitimate, non-discriminatory reason for the adverse
employment action. Steinhauer, 359 F.3d at 484. If the
employer can do so, the burden shifts back to the plaintiff
to present sufficient evidence to show that the employer’s
proffered reasons are merely a pretext for discrimination.
Id.
1. Direct Method
The district court found that Gusewelle had introduced no
evidence of discrimination sufficient to defeat summary
judgment based upon the direct method. The parties make
no argument otherwise and we find no error in this ruling.
2. Indirect Method
Gusewelle was sixty-seven years old when he was fired,
and age is a protected class. It is undisputed that he was
qualified for the job; he was considered to be an “outstand-
ing” or “excellent” employee. There is certainly no dispute
that Gusewelle suffered an adverse employment action— he
was fired. Finally, plaintiff was replaced by a man twenty
6 No. 03-2100
five years his junior. Although there may be some question
as to whether Gusewelle satisfied the “similarly situated”
element, we will assume that these facts allowed Gusewelle
to clear the first hurdle to prevent summary judgment and
that they established a prima facie case of discrimination.
With this showing, the burden then shifted to Defendants
to articulate a non-discriminatory reason for the termina-
tion.
Wood River claims that Gusewelle was fired for violating
the residency requirements of his employer. This asser-
tion was well-supported. Therefore, following the indirect
method’s outline, the burden shifted back to the plaintiff to
introduce evidence to show that the employer’s articulated
reason was merely a pretext for discrimination. “To show
that an employer’s proffered reason is pretextual, a plaintiff
must do more than demonstrate that the employer made a
mistake . . . . Instead, the plaintiff must demonstrate the
employer’s reason is unworthy of belief.” Koski v. Standex
Int’l Corp., 307 F.3d 672, 677 (7th Cir. 2002). To this, the
plaintiff may show: “(1) the proffered reasons are factually
baseless, (2) the proffered reasons were not the actual
motivation for the discharge, or (3) the proffered reasons
were insufficient to motivate the discharge.” Id.B. Pretext and Related Issues
1. Knowledge of Plaintiff’s Residency
Gusewelle supports his pretextual argument by asserting
that his dual residency was no secret and that “everybody
knew about it.” This argument really is that the City, by
its knowledge, ratified the arrangement. However, there is
no evidence that any specific individual knew about the
Plaintiff’s living arrangements. The one comment which
would seem to support Gusewelle’s position comes from the
minutes of a closed City Council meeting. The minutes re-
port that Wood River’s mayor expressed some concern that
former City Managers and Parks and Recreation Directors
No. 03-2100 7
knew of Gusewelle’s living arrangements and did nothing
about it. No one at the meeting contradicted what the
mayor had said. While Gusewelle calls these facts a smok-
ing gun, we are not so persuaded. There is no evidence that
any of the current City Managers or City Council members
had prior knowledge of Gusewelle’s residency arrange-
ments. In fact, there is no evidence in the record that shows
that any specific individual, much less a decision-maker,
knew of Gusewelle’s living arrangements until Stassi told
Christie of the “rumor” that Gusewelle did not live in the
city of Wood River. Therefore, without demonstrable
knowledge of the arrangement the argument fails to show
ratification. See Dempsey-Tegeler & Co. v. Irwin, 415 F.2d
1348, 1351 (7th Cir. 1969) (stating that knowledge of
material facts is sufficient to ratify).
2. Stassi’s Comments
Gusewelle argues that the statement attributed to Stassi
also supports his discrimination claim. Stassi said to keep
the Plaintiff on his feet so that he would retire. Gusewelle
learned of Stassi’s statement secondhand. But Stassi was
not a decision-maker, so whether he made the statement or
not is irrelevant. Koski, 307 F.3d at 677; Cerutti, 349 F.3d
at 1066. There is no dispute that Christie and the City
Council were the parties responsible for terminating the
Plaintiff. Indeed, Christie stated that he was responsible for
hiring and firing all employees not covered by the police-
and-fire commission. The same analysis applies to Stassi’s
false comment that Gusewelle planned to retire at age
sixty-five.
3. Christie’s Credibility and Police Investigation
Gusewelle claims that Christie’s credibility has been “fa-
tally undermined by his testimony regarding the ‘inves-
tigation’ into the residency question.” When asked why
8 No. 03-2100
he requested the police to investigate, as opposed to just
questioning Gusewelle about his living arrangements,
Christie responded that he “did not want to make—cause
Mr. Gusewelle embarrassment.” Gusewelle claims that this
explanation is “so preposterous and unbelievable that it
calls into question the integrity of all of Mr. Christie’s
testimony.” We disagree. By itself, the reason may seem
somewhat thin, however that was not all that Christie said.
He added, “[i]f indeed this was simply a scurrilous rumor
that had no basis, there was no need of upsetting Mr.
Gusewelle by asking him that question.” Furthermore,
earlier in the deposition Christie testified, “in order to be
completely unbiased and fair, I thought that an investiga-
tion was warranted by a third party.”
Gusewelle also attacks Christie’s stated reason for initi-
ating a police investigation, as opposed to simply asking
Gusewelle about his residency, by noting that the investiga-
tion was “intrusive.” Such an argument assumes that this
court concerns itself with the propriety of business deci-
sions. “We do not sit as a superpersonnel department that
reexamines an entity’s business decision and reviews the
propriety of the decision. Our only concern is whether the
legitimate reason provided by the employer is in fact the
true one.” Stewart v. Henderson, 207 F.3d 374, 378 (7th Cir.
2000) (citation removed). And as we have already found,
Christie’s reasons for having the police investigate the
matter seem quite reasonable and believable. The stated
reasons do not support a finding of pretext.
4. Grace Period
Gusewelle finds pretext for discrimination in the City’s
refusal to allow him a grace period to comply with the res-
idency requirement. The problem with this argument is
that Wood River Personnel Rule 12.3 says that one who
No. 03-2100 9
violates the regulation “shall be terminated.” Abiding by the
terms of the ordinance is not evidence of pretext. (Although,
he was given a one-year grace period at the time he was
hired. He failed to take advantage of it.)
5. Rehiring
As to why the City did not consider rehiring Gusewelle
after he promised to comply with the residency require-
ments, Christie testified, “[w]e didn’t think that was proper.
. . . Because he had been terminated for violation of the—of
the code. How would I have any feeling that that code would
not be violated again?” This is a legitimate, non-discrimina-
tory reason even assuming that Gusewelle had a right to be
rehired.
6. Qualifications
Gusewelle’s arguments based on his excellent qualifica-
tions to perform his job are interesting but not significant.
The City does not dispute that Gusewelle was an outstand-
ing employee and they did not fire him because of poor per-
formance. The City fired him for failing to comply with the
residency requirements and his qualifications have no
bearing on the issue of residency.
7. City’s Reasonable Belief that Plaintiff Violated Resi-
dency Requirement
Plaintiff’s brief argues that he was not in violation of the
residency requirement. The question, of course, is whether
the decision-maker honestly believed he was in violation of
the requirement. Abioye v. Sundstrand Corp., 164 F.3d 364,
368-69 (7th Cir. 1998). Nevertheless, the evidence of this
case and the law cited in the parties’ briefs indicates that
Gusewelle was in violation of the residency requirement.
10 No. 03-2100
According to City of Wood River Personnel Rules 12.3,
“[a]ll employees must reside within the City limits within
twelve (12) months after employment. If a City employee
chooses to move outside of the city limits, that employee
shall be terminated.” The Personnel Rules also define “res-
ident” as “[a] person whose primary residence lies within
the corporate limits of the City of Wood River.” Even though
it is not found in the text of Rule 12.3, it appears that the
City read the definition of “resident” into the meaning of
“reside” as found in Rule 12.3. Such a reading is reasonable
when viewed in light of the commonly accepted definition of
“reside.” Merriam Webster’s Collegiate Dictionary, Tenth
Edition, defines reside as “to dwell permanently or continu-
ously: occupy a place as one’s legal domicile.” Therefore, the
City’s belief that their Rules required Gusewelle to main-
tain his primary residence in Wood River is sound.
Gusewelle attempts to support his claim that his primary
residence was in Wood River, not in Edwardsville, by citing
to Illinois case law. He quotes Figiano v. Police Board: “[a]
person’s ‘residence’ is the place where a person lives and
has his true, permanent home, to which, whenever he is
absent, he has an intention of returning.” 456 N.E.2d 27, 29
(Ill. 1983). Gusewelle points out that he paid taxes, regis-
tered his car and driver’s license, and voted using his Wood
River address. This, he says, is enough to show his intent to
‘reside’ in Wood River. We disagree, but more to the point,
the City disagreed. Gusewelle lived in Wood River a mere
two nights a week, and, as the City states, “[f]ive nights a
week is greater than two.” What tips the balance in favor of
Gusewelle being a resident of Edwardsville, as opposed to
Wood River, is the fact that his wife continuously resided in
Edwardsville. There is nothing in the record which would
indicate that the Gusewelles’ marriage was deteriorating.
We find it extremely hard to believe that Plaintiff, when
away on vacation, intends to return to Wood River as
opposed to the marital home in Edwardsville. Based on all
No. 03-2100 11
of this evidence and a reasonable reading of the Rules,
there is nothing to indicate that the City did not, in fact,
believe that Gusewelle was in violation of the residency
rule.
8. Plaintiff’s Honesty
One final issue on the question of pretext should be ad-
dressed. Although neither party addresses the question
of Gusewelle’s honesty as a separate issue, it finds its
way into many of the arguments—Gusewelle says he was
honest throughout his career and the City says he lied
throughout his career. Both positions have some merit. The
facts show that Gusewelle never affirmatively lied. How-
ever, his statements about residency were misleading.
He reported that he had moved to Wood River and gave
an address. What he did not say was that he had moved
to Wood River for a mere two nights a week. There is a
strong suggestion that the reason Gusewelle never ex-
plained in full his residency was that he thought he was
getting away with something. Regardless of whether he ac-
tually was dishonest, the City was entitled to believe that
his credibility was limited.
Taken individually or in the aggregate, the arguments
that Gusewelle makes do not support a finding of pretext.
He has not shown that the City’s proffered reasons for the
termination were factually baseless, insufficient to motivate
the discharge, or not the actual motivation for the dis-
charge.
C. Property Interest in Employment and Due Process
The district court’s March 24, 2004 Memorandum &
Order lays out a detailed and thoughtful analysis on the
issue of whether Gusewelle had a protectable property
interest in his job—he did not. The analysis noted that
there was no employment contract—neither an express
contract nor implied contract rights created through the
12 No. 03-2100
Personnel Rules Handbook. Plaintiff does not spend any
time in his brief specifically refuting the judge’s findings,
merely arguing that the lower court overlooked Christie’s
testimony that all Wood River employees are given due
process prior to termination. We find no error in the district
court’s holding. However, in an abundance of caution, we
will consider the issue addressed to this court.
As stated above, the district court found Gusewelle to
be an at-will employee. Plaintiff disputes this in this court
by citing to Christie’s deposition testimony where, so
Gusewelle says, Christie said that all employees are entitled
to due process. Gusewelle’s undeveloped argument asserts
that because employees are “entitled” to due process they
must have a property interest in their employment. This is
a mischaracterization of the record.
Contrary to Gusewelle’s assertion, Christie never said
that all employees were “entitled” to due process prior to
termination—those were the words of Gusewelle’s attorney.
What Christie said was that the City attorneys “on other
issues have always recommended to me, as well as to the
council, that due process should be handled and afforded to
everybody.” (Emphasis added.) There is no use of words like
“required” or “must.” Due process was afforded to Gusewelle
in an effort to be fair and cautious—not due to some
entitlement to that process.
The other problem with Plaintiff’s argument is the fact
that he did receive an administrative hearing prior to being
terminated. Even assuming a property interest in his job,
he received some process. He cites no law and makes no
argument that he was entitled to more process than he
received. Without argument otherwise, we decline to hold
that the district court’s finding was error.
No. 03-2100 13
D. Residency Requirement’s Rational Relationship to a
Legitimate Governmental Interest.
Gusewelle’s final argument is that there is no rational
relationship between the residency requirement and a legi-
timate governmental interest. Although undeveloped, the
argument is based on the fact that no City Council member
or City Manager could articulate a reason for having a
residency requirement for a golf course mechanic. Put that
way, it is hard to justify. But, “the burden is upon the chal-
lenging party to negative ‘any reasonably conceivable state
of facts that could provide a rational basis for the classifica-
tion.’ ” Bd. of Trustees of the Univ. of Alabama v. Garrett,
531 U.S. 356, 367 (2001) (emphasis added) (quoting Heller
v. Doe, 509 U.S. 312, 320 (1993)). There are numerous
conceivable reasons for retaining a residency requirement
for government employees. One, discussed by Wood River’s
mayor, is that resident employees are available for work
emergencies on short notice. Granted, there are probably
not too many middle-of-the-night emergencies where a golf
course mechanic would be needed, but it is not outside the
realm of possibility. Furthermore, this court and others
have repeatedly found that residency requirements are ra-
tionally related to a legitimate governmental interest. E.g.,
McCarthy v. Philadelphia Civil Serv. Comm’n, 424 U.S. 645(1976); Andre v. Bd. of Trustees, 561 F.2d 48, 50 (7th Cir.
1977); Wardwell v. Board of Education, 529 F.2d 625, 628
(6th Cir. 1976); Fedanzo v. City of Chicago, 775 N.E.2d 26(Ill. App. 2002).
III. Conclusion
While we sympathize with Mr. Gusewelle’s loss of his job,
we do not find that his termination or the residency require-
ment that caused his termination create any legally
cognizable claim for relief.
AFFIRMED
14 No. 03-2100
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-8-04