Washington v. Lake County, Ill.

Decision Date10 July 1992
Docket NumberNo. 91-1819,91-1819
Citation969 F.2d 250
Parties59 Fair Empl.Prac.Cas. (BNA) 989, 59 Empl. Prac. Dec. P 41,610, 61 USLW 2055 Eddie WASHINGTON, Plaintiff-Appellant, v. LAKE COUNTY, ILLINOIS, Lake County Sheriff's Department, and Lt. Harry Frossard, Individually and as an Agent of Lake County, Illinois and of the Lake County Sheriff's Department, Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Joel S. Siegel, David R. Shannon (argued), Arvey, Hodes, Costello & Burman, Chicago, Ill., for plaintiff-appellant.

Daniel P. Field (argued), Alan M. Kaplan, Brydges, Riseborough, Morris, Franke & Miller, Waukegan, Ill., for defendants-appellees.

Before CUMMINGS, Circuit Judge, WOOD, Jr. and ESCHBACH, Senior Circuit Judges.

CUMMINGS, Circuit Judge.

Plaintiff Eddie Washington, an African-American, was fired in 1987 from his position as a jailer at the Lake County Sheriff's Department ("the Department"), allegedly in violation of Title VII of the Civil Rights Act of 1964 as well as 42 U.S.C. §§ 1981 and 1983. The district court granted defendants' motion for summary judgment, holding that even if Washington was fired on account of his race, he is entitled to no relief because he lied on his employment application when he indicated that he had no criminal convictions. 762 F.Supp. 199. Washington in fact pled guilty to criminal trespass in 1974 and was convicted of third-degree assault in 1981, although he served no time in jail for these crimes. Washington appeals the district court's ruling, arguing that there is a genuine issue of material fact whether the Sheriff's department would have hired him if it had known of these prior convictions or would have fired him if it had discovered them.

I.

Washington began working as a jailer at the Department on September 12, 1986. In his employment application, which he completed in April 1986, he checked the box marked "no" next to the following question:

Have you ever been convicted of an offense other than a minor traffic violation? (Do not include convictions while a minor and/or convictions sealed by Court order.) If so, please state nature of offense(s), date(s), city and state, and disposition. A conviction record is not an automatic bar to employment and the nature, recency, and disposition of an offense will be considered only as it relates to the job for which you are applying.

Washington admits on appeal that his answer to this question was not truthful. In 1974, Washington pled guilty to a criminal trespass charge in East St. Louis and was fined $100. Also, in 1981, Washington was convicted of third-degree assault after a jury trial in St. Louis and received a twenty-eight day sentence, which was suspended in lieu of two years probation. The application signed by Washington contains the following language (although in somewhat smaller print):

I agree that if any misrepresentation has been made by me * * *, any offer of employment may be withdrawn or my employment terminated immediately without any obligation or liability to me other than for payment, at the rate agreed upon, for services actually rendered * * *.

There is no evidence that the Department has ever rejected an applicant or fired a current employee for falsifying his or her application form. Indeed, there is no evidence that the Department has ever discovered that any other applicant or employee besides Washington has lied on his or her application form.

Washington was terminated by the Department on July 13, 1987. At this time, the Department did not know Washington had lied on his job application about his prior convictions. In its letter of termination, the Department stated that Washington had brought "discredit to the Department" because he had been arrested for criminal sexual assault. This charge was soon dropped by the complainant. The letter also noted that Washington's personnel file contained evidence of twelve violations of Department policy, including insubordination and violation of jail security. Washington's complaint alleged that the defendants, in particular Lieutenant Harry Frossard, unfairly singled Washington out because of his race and either falsified or exaggerated the incidents reported in his file. In a May 1, 1989, appraisal, conducted less than two months before he was fired, Washington received all "excellent" and "proficient" ratings, no scores in the "adequate" or "marginal" range, and received additional comments that were uniformly positive. The appraisal did not mention any of Washington's violations of Department rules and regulations.

On March 11, 1989, Officer Linda Blau of the Department, who is white, was involved in a hit-and-run accident while in uniform and was arrested for driving under the influence of alcohol and for leaving the scene of an accident. The Department punished Blau for her misconduct by giving her a three-day suspension.

In his amended complaint filed February 16, 1989, Washington charged Lake County, Illinois, the Department, and Lieutenant Harry Frossard, individually and in his official capacity, with violating Title VII, 42 U.S.C. § 1981 and 42 U.S.C. § 1983 by discriminating against him based on his race and for violating his procedural due process rights under the Constitution. On July 7, 1989, the district judge entered an order dismissing a number of these claims. After the dust settled, the only claims remaining were a Title VII and a Section 1983 claim against Lake County (the former for racial discrimination and the latter for denial of due process), and a Section 1983 claim against Frossard in his individual capacity based upon racial discrimination. On March 12, 1991, the district court granted summary judgment in defendants' favor on the remaining claims, holding that Washington's case failed under the rationale of Summers v. State Farm Mutual Automobile Insurance Co., 864 F.2d 700 (10th Cir.1988). 1

II.

In Summers, an insurance claims representative sued his employer, claiming that he was fired because of his religion and his age. Before being fired, Summers had been placed on probation for falsifying several claims documents, and was warned that he would be fired if he engaged in further falsifications. After later being discharged (for poor attitude, according to his employer), it was discovered that Summers had falsified over 150 documents, including 18 that were falsified after his probation period. 864 F.2d at 702-703. The court concluded:

[W]hile such after-acquired evidence cannot be said to have been a "cause" for Summers' discharge in 1982, it is relevant to Summers' claim of "injury," and does itself preclude the grant of any present relief or remedy to Summers. * * * The present case is akin to a hypothetical wherein a company doctor is fired because of his age, race, religion, and sex and the company, in defending a civil rights action, thereafter discovers that the discharged employee was not a "doctor." In our view, the masquerading doctor would be entitled to no relief, and Summers is in no better position.

Id. at 708.

Although this Court has never squarely adopted the Summers rationale, Washington does not challenge its validity. Two cases in this Court have cited Summers. In Smith v. General Scanning, Inc., 876 F.2d 1315 (7th Cir.1989), the plaintiff Smith had falsified his educational background on his resume, a fact discovered after his discharge. The court stated that "[w]hether [defendant] discriminated against Smith must be decided solely with respect to the reason given for his discharge * * *. His resume fraud is, for this purpose, irrelevant." Id. at 1319. The Court added in dicta, however, that the resume fraud would have been relevant

had we concluded that [defendant] violated the ADEA * * *. In that case, it would hardly make sense to order Smith reinstated to a job which he lied to get and from which he properly could be discharged for that lie. See Summers * * *. The same would be true regarding any backpay accumulation after the fraud was discovered.

Id. at 1319 n. 2. Additionally, this Court similarly thought injunctive relief would be inappropriate under the Summers rationale for a lawyer who engaged in unethical conduct by failing to reveal how he obtained copies of confidential memoranda. Powers v. Chicago Transit Authority, 890 F.2d 1355, 1360 (7th Cir.1989). 2

Washington's primary argument is that summary judgment was improper because there is a question of fact whether he would have been hired, or would have been fired, if the Department had known about his prior convictions. We review the district court's decision to grant summary judgment de novo. Matuszak v. Torrington Co., 927 F.2d 320, 322 (7th Cir.1991). Summary judgment is proper when the evidence reveals "no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.Proc. 56(c). When a summary judgment motion is properly supported, the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." Id. 56(e). "There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Summary judgment generally should be treated with special caution in discrimination cases; however, the summary judgment procedure is not per se improper simply because issues of motive and intent are involved. Holland v. Jefferson Nat'l Life Ins. Co., 883 F.2d 1307, 1312-1313 (7th Cir.1989).

This case presents two factual questions (factual, but of a hypothetical nature) that both parties confusingly intermingle. The first hypothetical question is whether the Department would have hired Washington if it had known about his criminal convictions. The second hypothetical question is whether the Department would have fired...

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