Gilty v. Village of Oak Park

• Decision Date: 07 December 1990
• Docket Number: No. 89-2764,89-2764
• Citation: 919 F.2d 1247
• Parties: 54 Fair Empl.Prac.Cas. 901, 55 Empl. Prac. Dec. P 40,458 Selester GILTY, Plaintiff-Appellant, v. VILLAGE OF OAK PARK, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1247

919 F.2d 1247

54 Fair Empl.Prac.Cas. 901,

55 Empl. Prac. Dec. P 40,458

Selester GILTY, Plaintiff-Appellant, v. VILLAGE OF OAK PARK, Defendant-Appellee.

No. 89-2764.

United States Court of Appeals Seventh Circuit.

Argued Sept. 6, 1990.

Decided Dec. 7, 1990.

Armand L. Andry, Oak Park, for plaintiff-appellant.

Richard A. Martens, Chicago, for defendant-appellee.

Before WOOD, Jr., CUDAHY, and RIPPLE, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

In 1985, Selester Gilty misrepresented his academic credentials in order to gain a promotion. Now, some years and several misrepresentations later, he alleges racial discrimination in his employer's failure to promote him and later decision to discharge him. But Gilty's claims collapse of their own weight, and we affirm the district court's grant of summary judgment in favor of his employer.

I.

Every three years the police department of the Village of Oak Park ("Village") constructs an "eligibility list" of those officers seeking promotion to the rank of sergeant. That list ranks names on the basis of a three-part examination: a written test (50%); a performance evaluation (30%); and an oral interview (20%). ¹ For the next three years, the candidate at the top of the eligibility list will be promoted to the rank of sergeant as a vacancy arises.

Some time prior to 1985, Selester Gilty, a black officer, decided that he wanted to be a sergeant, and underwent the promotional examination necessary to be placed on the April 6, 1985, eligibility list. During his oral interview in March 1985, he represented to the Board of Fire and Police Commissioners of the Village of Oak Park ("Commission") that he held a bachelor's degree in psychology and that he was working on a master's degree in public administration. Those representations, as his employer later discovered, were false.

When the April 6, 1985, eligibility list was posted, Gilty ranked thirty-third on a list of fifty-one candidates. This rank was particularly difficult for him to understand in that he had received one of the eleven highest scores on the written test. His score on the performance evaluation, however, was quite low (22.977/30). Indeed, it was the lowest score for any officer in his division. Furthermore, four other black officers who had sought promotion had received among the lowest performance evaluation scores in their respective divisions. And on top of it all, Gilty was aware of no black person who was or ever had been a police sergeant or lieutenant in the Oak Park Police Department. ²

On August 14, 1987, Gilty filed a complaint to redress what he considered to be racial discrimination, as manifested by the subjective performance evaluation completed by his white supervisors. Count I alleged a pattern and practice of disparate treatment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-2(a). Count II was entitled "Title VII--Disparate Impact" and simply alleged, "The promotion process utilized by the defendant had a disproportionate and discriminatory impact on all Black candidates for sergeant including the plaintiff...." Gilty did not seek to represent a class.

Thereafter, on August 31, 1987, William Kohnke was appointed as the Village's new chief of police. Four to five months after arriving, Kohnke initiated the Integrated Criminal Apprehension Program ("ICAP") in his department. The purpose of ICAP was to improve the police force by integrating its elements. As part of ICAP, Kohnke asked all sworn officers to complete a form entitled "Profile of Training and Interest in Future Training" and also examined each officer's personnel file.

During this period, Kohnke began to suspect that at least one officer--Tom Stec, a white officer--had falsified his academic credentials. As a result of these suspicions, Kohnke compared the ICAP forms with information that officers had provided in the 1985 promotional examinations. If he found a discrepancy, or if he found no documentation in the officer's personnel file, Kohnke sent a letter requesting that the officer verify the academic experience or training. In all, Kohnke sent nineteen letters requesting verification.

One of Kohnke's letters was addressed to Gilty. On his ICAP form, Gilty had again stated that he held a bachelor's degree. But in response to Kohnke's letter, Gilty did not produce verification of his academic credentials. Of the original nineteen, only he and Stec were either unwilling or unable to back up their claims.

Kohnke undertook a formal interrogation of first Stec, and then Gilty, in March 1988. When they were unable to either verify their credentials or produce a credible explanation for their representations, both were charged with falsifying their academic credentials. Stec resigned. Gilty, on the other hand, amended his complaint to add a charge of retaliation under 42 U.S.C. Sec. 2000e-3.

The district court, on the Village's motion for summary judgment, found Gilty's defense "incredible." Gilty v. Village of Oak Park, No. 87 C 7178, 1989 WL 84398 (N.D.Ill. July 19, 1989). The evidence clearly showed that in 1985 he did not have a bachelor's degree in psychology and was not pursuing a master's degree in public administration. He had attended the University of Illinois at Chicago Circle, but admitted that when he withdrew in 1976 he was on academic probation and that his grade point average was somewhere in the range of 1.6 to 1.8 on a five-point scale (with a 2.0 average required for graduation). Moreover, the record indicates that Gilty was on probation every quarter following his first, was dropped twice for poor academic performance, had not declared a major in psychology, and withdrew while at least thirty-eight hours short of any degree.

As to his claim of pursuing a master's degree, Gilty had taken courses as a student at large in a nondegree program at Governor's State University. He was suspended, however, in December 1983 for his failure to maintain a 3.0 grade point average. At the time of his statements in 1985, he was not enrolled in a master's program anywhere.

When interrogated by Kohnke in March 1988, Gilty claimed that he had a bachelor's degree from Lewis University and that a document evidencing the degree would be provided upon request. No such document existed at the time, though, and Gilty knew it, because he had not passed that school's writing proficiency examination. In letters dated April 8, 1987; June 29, 1987; July 15, 1987; October 20, 1987; and December 22, 1987, the school advised him that he could not get a degree unless and until he passed a writing proficiency examination. During his interview with Kohnke, he nevertheless stated that he had passed the writing proficiency examination, although he knew at the time that he had taken and failed the examination on February 19, 1987; July 2, 1987; October 8, 1987; and March 21, 1988, only four days before. ³

On July 18, 1988, the district court granted the Village's motion for summary judgment, largely on the basis of Gilty's own conduct. That decision is now before us on this appeal. ⁴ Relying on the same rationale as the district court, we affirm.

II.

As always, we review de novo a district court's decision to grant a motion for summary judgment and apply the same standard as that employed by the district court. Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1188 (7th Cir.1990). When a party seeks relief under Title VII, that standard involves a tripartite order and allocation of the burden of persuasion. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-56, 101 S.Ct. 1089, 1093-95, 67 L.Ed.2d 207 (1981) (disparate treatment); Albemarle Paper Co. v. Moody, 422 U.S. 405, 425-26, 95 S.Ct. 2362, 2375-76, 45 L.Ed.2d 280 (1975) (disparate impact); Holland v. Jefferson Nat'l Life Ins. Co., 883 F.2d 1307, 1313 (7th Cir.1989) (retaliation). Thus, Gilty, at a minimum, must be able to establish a prima facie case in order to withstand summary judgment. Morgan v. Harris Trust & Sav. Bank, 867 F.2d 1023, 1027-28 (7th Cir.1989); see also United Assoc. of Black Landscapers v. City of Milwaukee, 916 F.2d 1261, 1264, 1267-68 (7th Cir.1990). Gilty must also be able to rebut any nondiscriminatory explanation that the Village may offer. See Kier v. Commercial Union Ins. Cos., 808 F.2d 1254, 1259 (7th Cir.), cert. denied, 481 U.S. 1029, 107 S.Ct. 1955, 95 L.Ed.2d 528 (1987); see also Fitzpatrick v. Catholic Bishop, 916 F.2d 1254, 1256 (7th Cir.1990) ("The days are gone, if they ever existed, when the nonmoving party could sit back and simply poke holes in the moving party's summary judgment motion.").

A. Disparate Treatment

To establish a prima facie case as to his disparate treatment (i.e., intentional discrimination) claim, Gilty may take one of two routes. He may either offer direct evidence of intentional discrimination or he may offer evidence of a combination of circumstances from which we may infer discriminatory intent. Randle v. LaSalle Telecomms., Inc., 876 F.2d 563, 569 (7th Cir.1989). The latter route, detailed in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), generally involves four elements:

1. The plaintiff belongs to a class protected by Title VII;

2. The plaintiff applied and was qualified for a job for which the employer was seeking applicants;

3. The plaintiff, despite being qualified, was rejected; and

4. After the employer rejected the plaintiff, the position remained open and the employer continued to seek applicants from persons of comparable qualifications.

See id. at 802, 93 S.Ct. at 1824; Lowe v. City of Monrovia, 775 F.2d 998, 1005 (9th Cir.1985).

The district court opinion took the position that Gilty had chosen the McDonnell Douglas route, and analyzed his claim under the four-factor test listed above. The result was summary judgment in favor of the Village on the grounds that Gilty was not "q...