Garofalo v. Vill. of Hazel Crest

• Decision Date: 12 June 2014
• Docket Number: Nos. 12–1668,12–1681.,s. 12–1668
• Citation: 754 F.3d 428
• Parties: Michael J. GAROFALO and Mark S. Peers, Plaintiffs–Appellants, v. VILLAGE OF HAZEL CREST, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

754 F.3d 428

Michael J. GAROFALO and Mark S. Peers, Plaintiffs–Appellants,

v.VILLAGE OF HAZEL CREST, et al., Defendants–Appellees.

Nos. 12–1668, 12–1681.

United States Court of Appeals,Seventh Circuit.

Argued Nov. 4, 2013.

Decided June 12, 2014.

Patricia Kiper Rummer, Law Offices of Patricia Rummer, Lisle, IL, Nicola S. Tancredi, Tancredi & Associates, Oakbrook Terrace, IL, for Plaintiffs–Appellants.

Thomas Weiler, Langhenry, Gillen, Lundquist & Johnson, LLC, Chicago, IL, for Defendants–Appellees.

Before EASTERBROOK, KANNE, and TINDER, Circuit Judges.

TINDER, Circuit Judge.

Plaintiff–Appellants Michael Garofalo and Mark Peers appeal from the district court's grant of summary judgment in favor of Defendant–Appellees, the Village of Hazel Crest and its individual officers, in their race discrimination case. Garofalo and Peers, both white, were sergeants on the Hazel Crest police force. They were among four front-runners considered for a deputy police chief position, which ultimately went to a black officer who was not one of the four initially-discussed candidates. Plaintiff–Appellants assert that the Village and its officers discriminated against them by promoting a black officer they contend is unqualified for the position. They sued the Village under, inter alia, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. §§ 1981, 1983, as well as under Illinois state law.

We affirm the district court's finding that Plaintiff–Appellants failed to present sufficient evidence to withstand Defendant–Appellees' motion for summary judgment. Summary judgment was proper on Garofalo's and Peers's claims of racial discrimination because they did not present sufficient evidence to permit a reasonable jury to find that they were the object of unlawful discrimination.

I. STANDARD OF REVIEW

We conduct de novo review of the district court's decision involving the cross-motions for summary judgment. Laskin v. Siegel, 728 F.3d 731, 734 (7th Cir.2013). “As with any summary judgment motion, we review cross-motions for summary judgment construing all facts, and drawing all reasonable inferences from those facts, in favor of the nonmoving party.” Id. (citation and internal quotation marks omitted). Summary judgment is proper when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Accordingly, we review the record in the light most favorable to Garofalo and Peers. Our summary of facts thus reflects the facts set forth in a light most favorable to them. “We do not vouch for their truth in any other sense.” Good v. Univ. of Chi. Med. Ctr., 673 F.3d 670, 673 (7th Cir.2012).

On the procedural issue of whether the district court correctly found that Defendant–Appellees timely raised their mixed-motives affirmative defense, we review for abuse of discretion. Williams v. Lampe, 399 F.3d 867, 871 (7th Cir.2005).

II. FACTUAL BACKGROUNDA. Demographics of the Village of Hazel Crest

It is undisputed that Hazel Crest was, at the time of the disputed promotion, predominantly black. As measured by the 2000 Census, the Village of Hazel Crest was over 75% black and approximately 20% white, and as measured by the 2010 Census, it was 85.2% black and 10.2% white. Despite these demographics, Hazel Crest had no black police officers in the supervisory ranks well into 2005, when the village elected Robert Donaldson, the Village's second black mayor. Donaldson had campaigned on the promise to increase racial diversity in the Hazel Crest work force, including the police department.

B. Structure of Hazel Crest Police Department

Hazel Crest's police hierarchy is very compact: at the time of the events in question, the department comprised one chief, two deputy chiefs, five sergeants, and patrol officers. The two deputy chiefs each had different responsibilities. One deputy chief was Commander of the Patrol Division (also known as Deputy Chief–Detectives) and the other was Commander of the Support Services Division (Deputy Chief–Support Services). The chief was appointed by the village manager (at least nominally—more on the role of the mayor later), and the deputy chiefs were selected by the chief.

Chief Peter Fee and one of his deputy chiefs, Richard Lenz, resigned after the election of Donaldson to the mayorship. After these resignations, deputy chief Gary Jones was named acting police chief on April 22, 2005. Robert Palmer, the village manager, asked Jones not to make any appointments to the deputy chief position until the ‘acting’ designation was removed from his title and he received a full appointment.

C. Hazel Crest's Deputy Chief Promotion Policy

The Illinois Municipal Code, 65 ILCS 5/10–2.1–4, and a Hazel Crest village ordinance provide that the two deputy chiefs must be current members of the Hazel Crest police force, who have each served at least five years in the village. The chief is allowed a large amount of discretion in choosing from the candidates who meet these criteria; there is no application or test to qualify for the promotion.

Peter Fee, Gary Jones's predecessor as chief, adopted a description for the deputy chief position in 2001, which was not part of the ordinance. The description was as follows:

DESIRED MINIMUM QUALIFICATIONS

Education and Experience

(A) High school diploma or equivalent; and

(B) Completion of the State Basic Training Academy or equivalent academy; and

(C) Minimum of five (5) years work as a police officer for the Hazel Crest Police Department; and

(D) Minimum of two (2) years work experience as a police sergeant or higher; and

(E) Although not required, desirable to possess at least a bachelor's degree in law enforcement or related

curriculum from an accredited college or university.

...

SPECIAL REQUIREMENTS

(A) Must possess a valid State of Illinois Driver's License.

(B) Basic Law Enforcement Training (or Police Officer Standards and Training) certification or equivalent.

(C) No felony convictions.

(D) Successful completion of police supervision course of instruction from an accredited Illinois police academy. In addition, it is desirable that the individual have completed a mid-level police management course, such as the F.B.I. National Academy or the Northwestern University School of Staff and Command.

(E) Working knowledge of modern police and business information management systems.

The description also provided that,

The Deputy Police Chief is an exempt rank appointed by the Chief of Police.... The job description does not constitute an employment agreement between the employer and employee and is subject to change by the employer as the needs of the employer and requirements of the job change.

D. Gary Jones's Conversations with Colleagues while Acting Chief, then Chief

Upon his initial promotion to acting chief, Jones spoke to a number of his colleagues about the officers he would like to promote should he receive a full appointment as chief. He had conversations with many people about filling the deputy chief vacancies, including his predecessor, Fee, as well as the officers he was considering for the spots. From the first, Jones was set on appointing Sergeant Gary Gentzle, his longtime friend and partner, to the position of Deputy Chief–Detectives. Patrick Murray, Michael Garofalo, Mark Peers, and David Nelson were all sergeants, and all were considered for the other promotion—the position of Deputy Chief–Support Services.

Not all stood an equal chance of getting the promotion. Indeed, in many of the conversations, including conversations with Peers and Garofalo, Jones spoke of his plans to give Murray the promotion. In a conversation with Murray himself, Jones stated that he was planning to name Murray the Deputy Chief–Support Services. But in at least one conversation with the previous chief, Fee, Jones discussed why Murray would not be suitable for the job, including the fact that Fee found Murray untrustworthy, Murray's past disciplinary history, as well as allegations against Murray that he had inappropriately propositioned a subordinate officer's wife. It does not appear that Malcolm White was discussed during any of these initial conversations as a candidate for promotion. Nor does it appear that Garofalo or Peers was ever discussed as a frontrunner or a lock for the promotion.

It was nominally the Village Manager, Robert Palmer, who appointed Jones the interim chief after Fee's resignation, then gave him the full appointment, but Mayor Robert Donaldson played an outsize role in charting the course of Jones's promotions. While Jones was serving as acting chief, Palmer made clear to Jones that the mayor expected an increase in racial diversity in the Hazel Crest workforce, including the police department. Palmer explained to Jones that the mayor expected the police force's makeup to more closely reflect the racial makeup of the community. It is unclear if Malcolm White's name was specificallymentioned by Palmer or Donaldson, but Donaldson did thank a “Malcolm White” for support in his acceptance speech. Donaldson's campaign materials also included a photograph showing Donaldson and White, with a caption identifying both by name.

Once these expectations were articulated to Jones, he openly lamented about the expected appointment of White. Jones told Gentzle that “the Mayor would like someone black to be the second deputy chief.” In a conversation with Richard Lenz, his former colleague, Jones stated that Donaldson had told Jones he had to promote White to deputy chief. And Jones told Murray that despite their earlier conversation, Jones had to name a black deputy chief in order to remain chief because Donaldson was demanding black representation at all levels of the department. Jones then asked Murray if he would accept the position of Administrative Sergeant, a newly-created position.

On July 12, 2005, Jones appointed White deputy chief.

E. Jones's Conduct

...