Friedel v. City of Madison

Decision Date13 October 1987
Docket NumberNo. 86-3067,86-3067
Citation832 F.2d 965
Parties44 Fair Empl.Prac.Cas. 1875, 44 Empl. Prac. Dec. P 37,491 Michael FRIEDEL, James McCarthy, and Brian J. Ott, Plaintiffs-Appellants, v. CITY OF MADISON, Morlynn Frankey, and Colonial Penn Insurance Company, Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Barrett J. Corneille, Bell, Metzner & Gierhart, S.C., Madison, Wis., for plaintiffs-appellants.

Barbara J. Swan, Brynelson Herrick Bucaida Dorschell & Armstrong, Madison, Wis., for defendants-appellees.

Before BAUER, Chief Judge, COFFEY, Circuit Judge, and ESCHBACH, Senior Circuit Judge.

ESCHBACH, Senior Circuit Judge.

Three white male police training cadets at the training academy for the City of Madison were dismissed for cheating on exams. They brought an action in district court under 42 U.S.C. Secs. 1981, 1983, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq., alleging that the City of Madison and Inspector Morlynn Frankey (the head of the Division of which the police academy was a part) had intentionally discriminated against them on the basis of race and sex. 1 The plaintiffs also alleged that Colonial Penn Insurance Company ("Colonial") had issued liability insurance for the City of Madison and its employees, and that by reason of this policy Colonial was liable to plaintiffs for any damages. The district judge granted summary judgment in favor of the city and the other defendants, and the plaintiffs now appeal. The plaintiffs' showings in this action were in crucial respects not based on the personal knowledge of the affiant, failed to show affirmatively the affiant's competence to testify, and failed to set forth facts that would be admissible in court. In addition, the defendants in this case have offered legitimate, nondiscriminatory reasons for the discharge of plaintiffs, and have sufficiently supported those reasons with specific facts shown by affidavits made on personal knowledge regarding evidence that would be admissible in court. Plaintiffs have not been able to show that there is any genuine factual dispute regarding defendants' reasons for dismissing the recruits. We will affirm the district court. 2


The three plaintiffs in this case, Michael Friedel, James McCarthy, and Brian J. Ott, are all white males who were hired in October of 1984 as "probationary" police officers in training at the City of Madison's police recruit academy. The academy is part of a division of the Police Department headed by Inspector Morlynn Frankey. The plaintiffs alleged in their amended complaint that the City of Madison Police Department "received evidence that many or all of the cadets in the Academy during 1984 and 1985 were exchanging answers during Academy examinations" and that the Department then conducted an investigation into this alleged activity. Amended Complaint at 2. The amended complaint further alleges that the three plaintiffs, all white males, were discharged and the Department "informed these three individuals that they were discharged because of cheating on Academy examinations." Id. at 3. No other cadets were discharged even though, according to plaintiffs' allegations, "the defendants obtained evidence that most or all of the cadets had exchanged answers during examinations, and that the exchanging of answers had been commonplace in previous academy classes." Id. The plaintiffs alleged that Inspector Frankey and the Department "have established and enforced a policy of discrimination against white male police officers and white male cadets in the Academy, and the termination of the above-named plaintiffs was effected in furtherance of that policy and with either the tacit or explicit approval of the City of Madison and the defendant Morlynn Frankey." Id. at 4. The plaintiffs also alleged that Inspector Frankey "induced the City of Madison to terminate the plaintiffs' employment as City of Madison police officers by falsely claiming that only the plaintiffs had cheated on Academy examinations or by causing others to falsely accuse the plaintiffs of such cheating and by providing unfair and untruthful evaluations of the plaintiffs' performance or causing others to provide such unfair or untruthful evaluations." Id. at 5.

Plaintiffs also asserted that the Department, and in particular, Inspector Frankey, had in the past engaged in allegedly discriminatory practices in the "supervision and promotion of white male police officers and in the training, testing, and evaluation of such cadets at the academy." Id. at 3-4.

After nine months of discovery defendants filed a motion for summary judgment with accompanying affidavits on May 9, 1986. Plaintiffs' duty in responding to the motion was to identify any disputed and material factual issues, and to support their argument by specific citation to any support they believed existed in the record. Plaintiffs failed in many instances to provide the necessary citations, especially those citations (if any existed) that might have allowed the judge to conclude that plaintiffs' support was based on personal knowledge and on evidence that would be admissible in court. In addition, the plaintiffs in their response characterized their factual assertions as proposed findings of fact rather than directly arguing the existence of disputed and material factual issues.

Discovery then continued for five months beyond the close of the briefing period on summary judgment. The record discloses no motion on the part of plaintiffs seeking a continuance of the summary judgment motion in order to allow plaintiffs to attempt to gain any further facts, or file any further affidavits or materials, essential to its opposition to the motion. See Fed.R.Civ.P. 56(f); Taylor v. Gallagher, 737 F.2d 134, 137 (1st Cir.1984); Over the Road Drivers, Inc. v. Transport Insurance Co., 637 F.2d 816, 821 (1st Cir.1980); see also Pan-Islamic Trade Corp. v. Exxon Corp., 632 F.2d 539, 549 (5th Cir.1980), cert. denied, 454 U.S. 927, 102 S.Ct. 427, 70 L.Ed.2d 236 (1981). The plaintiffs' decision not to ask for a continuance evinces their willingness to stand on the submissions they had already made. Taylor v. Gallagher, 737 F.2d at 137; Over the Road Drivers, 637 F.2d at 821.

On November 17, 1986, the district court granted the defendants' motion for summary judgment and dismissed the plaintiffs' action with prejudice. The district court implicitly determined that the defendants had provided sufficient support for its motion to allow summary judgment in the absence of a response that set forth specific facts showing a genuine issue for trial. Fed.R.Civ.P. 56(e). The district court determined that much of the plaintiffs' alleged support in opposition to summary judgment failed to meet the evidentiary requirements of Rule 56(e). It further determined that, even accepting the faulty evidentiary support, the plaintiffs had failed to set forth any specific facts raising a genuine issue for trial. In particular, the district court determined that while it was "undisputed that there was some cheating by recruits other than plaintiffs" it was also nevertheless undisputed that "the cheating by these other recruits was not as extensive as that engaged in by plaintiffs and that the other recruits were disciplined for their actions." Mem. Op. at 18. The plaintiffs now appeal the entry of summary judgment for the defendants. 3


The history of this case in the district court provides an object lesson in how not to respond to a motion for summary judgment. The district court provided as an attachment to its pretrial conference order a copy of the court's required procedures for the handling of summary judgment motions. Out of an abundance of caution we would have hoped unnecessary, the judge noted explicitly in her order that "[c]ounsel are to observe the court's procedures for the filing of summary judgment motions, a copy of which is attached." Pretrial Conference Order at 3 (Nov. 7, 1985). The instructions specifically required pinpoint citations to the record in support of every factual proposition, and reminded the parties that the materials cited must satisfy the evidentiary dictates of Rule 56(e). They also required, in accordance with Rule 56(e), that the party opposing summary judgment respond by setting "forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). They further made explicit the nonmovant's responsibility to point to any disputed facts and support its assertions. Plaintiffs' counsel recited their obligation to establish genuine issues of disputed fact in their response but instead suggested their own proposed findings of fact and conclusions of law.

This, of course, is not a substantive problem in respect to the proposed findings of fact in plaintiffs' response. The plaintiffs clearly meant at least that there was support for their proposed facts, and may have believed that support to be uncontested. Thus we have reviewed the proposed findings as if they were assertions of genuine issues of material fact, as did the district judge. We have also considered the assertions of disputed fact raised by the plaintiffs' briefs on appeal. We have not, however, attempted to raise and consider alleged disputed fact issues not identified by the plaintiffs. It is not the court's duty on appeal to wade through the record and make arguments for either party, American Can Co. v. Mansukhani 814 F.2d 421, 425 (7th Cir.1987); Sanchez v. Miller, 792 F.2d 694, 703 (7th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 933, 93 L.Ed.2d 984 (1987), and plaintiffs were repeatedly and expressly notified of their obligations.

In addition to this misunderstanding of their role the plaintiffs were fatally remiss in citing to the district court the portions of the record that they claimed supported their assertions. There was at least potential support for some of plaintiffs'...

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