731 F.3d 635 (7th Cir. 2013), 11-1926, Hobgood v. Illinois Gaming Bd.

Docket Nº:11-1926.
Citation:731 F.3d 635
Opinion Judge:HAMILTON, Circuit Judge.
Party Name:Thomas HOBGOOD, Plaintiff-Appellant, v. ILLINOIS GAMING BOARD, et al., Defendants-Appellees.
Attorney:John A. Baker (argued), Attorney, Baker, Baker & Krajewski, Springfield, IL, for Plaintiff-Appellant. Mary Ellen Welsh (argued), Attorney, Office of the Attorney General, Chicago, IL, for Defendants-Appellees.
Judge Panel:Before BAUER, WILLIAMS, and HAMILTON, Circuit Judges.
Case Date:July 16, 2013
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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731 F.3d 635 (7th Cir. 2013)

Thomas HOBGOOD, Plaintiff-Appellant,

v.

ILLINOIS GAMING BOARD, et al., Defendants-Appellees.

No. 11-1926.

United States Court of Appeals, Seventh Circuit.

July 16, 2013

Argued Jan. 29, 2013.

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[Copyrighted Material Omitted]

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John A. Baker (argued), Attorney, Baker, Baker & Krajewski, Springfield, IL, for Plaintiff-Appellant.

Mary Ellen Welsh (argued), Attorney, Office of the Attorney General, Chicago, IL, for Defendants-Appellees.

Before BAUER, WILLIAMS, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

Plaintiff Thomas Hobgood contends that his employer, the Illinois Gaming Board, and several of its employees retaliated against him in violation of Title VII of the Civil Rights Act of 1964, see 42 U.S.C. § 2000e-3(a), and the First Amendment. Hobgood was the subject of repeated and intensive investigations that resulted in disciplinary proceedings and termination, though another state agency ultimately ordered that he be reinstated. Hobgood contends he was the target of this treatment because he helped a fellow Board employee and friend, John Gnutek, with his suits against the Gaming Board under Title VII and the Racketeer Influenced and Corrupt Organizations Act, see 18 U.S.C. § 1964(c). The district court granted summary judgment for the defendants. The court concluded that Hobgood did not furnish evidence that his protected activity— helping Gnutek prepare for litigation— caused any material adverse action, including his eventual firing. The court reasoned that the Gaming Board fired Hobgood not because he had assisted Gnutek, but because the " nature" of that assistance consisted of providing confidential information.

We reverse and remand. The record here presents genuine issues of fact concerning the Gaming Board's and its employees' motives for investigating, disciplining, and terminating Hobgood. This case presents a good example of a plaintiff's use of the " convincing mosaic" approach to showing that an employer acted for unlawful reasons. When the plaintiff's evidence is viewed as a whole, a jury could reasonably infer that the Gaming Board investigated and fired him because he assisted Gnutek with his lawsuits against the Board. The question of the defendants' motives will need to be decided by a jury, not by a judge on summary judgment.

I. Facts for Purposes of Summary Judgment

We recount the facts in the light reasonably most favorable to Hobgood. See Hanners v. Trent, 674 F.3d 683, 691 (7th Cir.2012). Beginning in 2002, Hobgood worked as a senior special agent for the investigations division of the Illinois Gaming Board, which was part of the Illinois Department of Revenue at all times relevant here. Hobgood's job involved investigating the backgrounds of those applying for gambling licenses. As part of his job, he had access to confidential information. After he had worked at the Gaming Board for a couple of years, Hobgood applied to become an enforcement operations supervisor. Many others, including Gnutek (who worked then for the enforcement division of the Board), also sought the position. From this pool of applicants the

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Board selected Mark Stevens, a master sergeant with the Illinois State Police, in 2005. Some employees felt that Stevens's selection reflected the Gaming Board's favoritism toward the State Police. Gnutek thought the selection process was unlawful. He sued the Gaming Board the following year, alleging that it denied him the position of enforcement operations supervisor in retaliation for an earlier gender bias suit.

Hobgood helped Gnutek organize and research his lawsuit against the Gaming Board. To help with the retaliation claim, Hobgood gave Gnutek two documents significant to this case. First, he gave Gnutek a " memorandum for record" that Hobgood had prepared after he talked to Luis Tigera, deputy administrator of the enforcement division. The memo reflected their conversation about the process for hiring the enforcement operations supervisor. Second, the interim administrator of the Gaming Board, Jeanette Tamayo, asked Hobgood to deliver a sealed envelope to Gnutek. He did so, but we must assume for purposes of summary judgment that Hobgood was not aware of the envelope's contents. The envelope held an " officer action request" approving Stevens's promotion to enforcement operations supervisor. The form contained Stevens's social security number.1

As Gnutek's lawsuit proceeded, he added a RICO claim alleging widespread corruption in the Gaming Board's hiring decisions. The claim detailed the activities of William Cellini, a prominent businessman, and Larry Trent, the former director of the Illinois State Police. Hobgood assisted Gnutek with the research and drafting of these allegations, as well.

While preparing for depositions in Gnutek's suit, Tigera and Mark Ostrowski reviewed Gnutek's initial disclosures. (Ostrowski was then the administrator of the Gaming Board, its top executive.) The disclosures included both the memorandum that Hobgood prepared describing his conversation with Tigera and Stevens's officer action request. Realizing that Hobgood was assisting Gnutek in his anti-retaliation and anti-corruption claims against the Gaming Board, Ostrowski and Tigera wanted to investigate Hobgood. Because the Tigera memo was formatted like a transcript of a recording, they believed that Hobgood might have recorded Tigera without his consent. They asked the Illinois State Police to investigate whether Hobgood had broken any laws.2 Ostrowski also asked Luke Hartigan, then the chief investigator for the Department of Revenue's internal affairs division, to investigate Hobgood for the same reason.

The State Police told Hartigan to suspend any internal administrative investigation until the conclusion of their criminal investigation. After they finished, the State Police informed the Gaming Board of the results: " The investigation did not uncover any evidence to substantiate the allegations

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against Hobgood." The State's Attorney's Office also concluded that no evidence supported the illegal-recording charge and told the Gaming Board that it would not prosecute Hobgood.

With the State Police investigation concluded, Hartigan began his internal investigation. At the outset, the Gaming Board's general counsel, Mike Fries, told Hartigan that the Board " wants discharge to be considered as the first option." The chief of staff of the Department of Revenue observed later that supervisors should not suggest firing an employee before an internal investigation has even started. This recommendation communicated through general counsel Fries was not the only deviation from policy. Internal investigation procedures also required Hartigan to complete a " case initiation form." That form would have served to establish the scope of Hartigan's investigation at its outset. Without completing the requisite form, the only limit on the scope of Hartigan's investigation was the Gaming Board's instruction that he should uncover misconduct that would justify terminating Hobgood.

Hartigan's investigation far exceeded an inquiry into whether Hobgood had illegally recorded his conversation with Tigera. Hartigan seemed to focus his inquiry more broadly on Hobgood's assistance with Gnutek's lawsuit. Hartigan studied Gnutek's complaints against the Gaming Board and the federal indictments of persons named in his complaints. He requested Hobgood's telephone records to determine how frequently he contacted Gnutek. To facilitate the ongoing investigation, the Gaming Board had put Hobgood on administrative leave. With Hobgood out of the way, a supervisor searched his office and supplied several documents to Hartigan. The documents included two gaming license applications, a background investigation file on former State Police Director Trent, and notebooks containing personal information on businessman Cellini and his relatives. Although these documents had nothing to do with the ostensible purpose of the investigation— the allegations that Hobgood had illegally recorded Tigera— Hartigan included this evidence in his investigation.

Eventually Hartigan interviewed Gnutek, Hobgood, and Tigera about Hobgood's memorandum about his meeting with Tigera. Gnutek stated that Hobgood had provided it to him. He added that Hobgood also gave him the Stevens officer action request. Tigera told Hartigan that he believed the memorandum was a verbatim record of his conversation with Hobgood. Hobgood denied both recording Tigera and transmitting the Stevens form to Gnutek. But Hartigan dismissed Hobgood's denial, responding, " Let's get past the point of whether you did it or not. We know you did it."

Hartigan prepared a report of his investigation. It retold the conflicting accounts of the Tigera memo but then went far beyond the suspicions that Hobgood had illegally recorded Tigera. Consistent with the unbounded investigation he had done, the bulk of Hartigan's memo focused on Hobgood's assistance to Gnutek. The memo referenced and attached the Stevens form. (Recall, though, that we must assume for purposes of summary judgment that Tamayo provided the Stevens form to Hobgood in a sealed envelope and he had not known what it contained.) To highlight other aspects of Hobgood's assistance to Gnutek, the report also discussed the documents retrieved from Hobgood's office and suggested that he used them to help Gnutek draft his complaints. 3

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Relying on Hartigan's broad investigation and what can fairly be called, for purposes of summary judgment, its predetermined outcome— rather than the far narrower State Police investigation that resulted in no charges— the Department of Revenue decided to charge Hobgood with...

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