Hall v. Babb

• Decision Date: 24 November 2004
• Docket Number: No. 03-3631.,03-3631.
• Citation: 389 F.3d 758
• Parties: Thomas HALL, Plaintiff-Appellant, v. Steve BABB, Brian Piersma, and Barbara Westell, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

389 F.3d 758

Thomas HALL, Plaintiff-Appellant, v. Steve BABB, Brian Piersma, and Barbara Westell, Defendants-Appellees.

No. 03-3631.

United States Court of Appeals, Seventh Circuit.

Argued August 3, 2004.

Decided November 24, 2004.

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Patricia C. Benassi, argued, Benassi & Benassi, Peoria, IL, for Plaintiff-Appellant.

David Jimenez-Ekman, argued, Jenner & Block, Chicago, IL, for Defendant-Appellee.

Before POSNER, ROVNER, and DIANE P. WOOD, Circuit Judges.

WOOD, Circuit Judge.

Plaintiff Thomas Hall has brought this suit on the basic premise (with which few would disagree in the abstract) that political patronage is not yet dead in Illinois. Hall was passed over for a new job within the Illinois Department of Transportation (IDOT) in 1999. He believed that his lack of success could be traced to the fact that the other applicant, while a fellow member of the Republican Party, was somehow a more zealous Republican than Hall. Hall sued the three state officials who had interviewed him and made the decision to hire the other applicant under 42 U.S.C. § 1983 for violation of his First Amendment rights. The district court granted summary judgment for the defendants. While we find the allegations in Hall's complaint to be troublesome, we conclude that Hall did not present enough evidence to bolster those allegations at the summary judgment stage. For that narrow reason, we affirm the judgment of the district court.

I

We summarize the pertinent facts based on the statements that the parties submitted in conjunction with the defendants' motion for summary judgment. Where disputes exist, we present the story in the light most favorable to Hall. In June 1999, the position of Business Services Manager became available in IDOT's Carbondale office. Hall and David Barger, both IDOT employees at the time, were the only two applicants for the position. Barger was a "highway maintainer," which entailed flagging traffic, patching potholes, mowing grass, and plowing snow. Hall had worked previously as a highway maintainer but, at the time of the job opening, he held another position in the Business Services office.

Hall and Barger both had been involved in the Republican Party in Illinois. Hall ran for a county board seat in 1992 as a Republican, served as treasurer of the Jackson County Republican Committee until his resignation in 1995, and served as a precinct committee person until 1998, when he chose not to run again. Hall also volunteered in 1997 for a phone bank on behalf of George Ryan's gubernatorial campaign (at the request of defendant Babb) and donated at Republican fundraisers. Barger also had been active in the Republican Party, putting up signs and attending fundraisers for Ryan's gubernatorial campaign in 1998. He might also have volunteered for Jim Edgar's earlier campaign for governor. Barger was also the son-in-law of Sammye Fark, who Hall contends was very influential in Republican politics in Illinois at the time. Fark worked in the Secretary of State's office during George Ryan's term and was the manager of the state fair during Ryan's gubernatorial term.

Defendants Steve Babb, Brian Piersma, and Barbara Westell, all managers of one sort or another within IDOT, were selected to interview Hall and Barger for the job opening. Someone in IDOT's central office in Springfield, where Piersma worked, selected Piersma for the panel. A person in the same office instructed Babb to select two additional interviewers from IDOT's Carbondale office. Babb selected himself and Westell, who reported to Babb. Babb received two recommendations from Republican politicians on behalf of Hall, but he did not convey these to the other two panel members. As far as the record shows, no one on the panel received any recommendations on behalf of Barger.

Hall highlights several incidents that occurred before the interview that suggest to him that Barger had been "preselected" to get the job. First, Hall contends that Babb allowed Barger to "train" in the Business Services office for up to two weeks before the interview. The defendants counter that Barger was allowed merely to visit the office for one day. They point out that Babb testified at his deposition that this was "standard practice" for IDOT applicants. Second, Hall highlights evidence that Barger told fellow highway maintainers before the interview that "he thought he had the job." Another IDOT employee, according to Hall, overheard panel member Westell tell others before the interview that Hall "wouldn't be getting the position." The defendants admit that Westell made this comment, but they claim that it referred to Hall's past job performance. Finally, Hall claims that while Barger was "training" for the position in the Business Services office, he told Hall that he had an advantage in getting the job because his mother-in-law was Sammye Fark.

During the interview the three defendants asked both Hall and Barger an identical set of questions from a pre-existing interview questionnaire, which focused on the applicants' experience and qualifications. The defendants did not ask either Hall or Barger any questions about political support, affiliation, or activities. The panel members individually scored the applicants' answers without consulting each other, and all three of them assigned a higher total score to Barger. Based on the score results, and after receiving approval from the supervisor in charge of the Carbondale office, Barger was offered and accepted the job.

The district court granted summary judgment for the defendants for two independent reasons. First, the district court concluded that Hall had not presented any admissible evidence that the defendants knew of either applicant's political affiliations or activities. Second, the district court concluded that even if the defendants did have this knowledge, Hall presented no admissible evidence that the defendants considered the applicants' political backgrounds in reaching the hiring decision.

II

On appeal, Hall argues that the district court erred in failing to recognize that he presented evidence sufficient to create an issue of material fact on the question whether political motivation was a substantial factor in the decision to hire Barger over him. Hall contends that, although he and Barger were both affiliated with the Republican Party, his evidence (if believed by a trier of fact) shows that the defendants selected Barger because he was more active and connected in the party, particularly after Hall chose to not run for party office again in 1998.

It is well established that hiring, firing, or transferring government employees based on political motivation violates the First Amendment, with certain exceptions for policymaking positions and for employees having a confidential relationship with a superior. See Rutan v. Republican Party of Ill., 497 U.S. 62, 65, 71 n. 5, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990); Elrod v. Burns, 427 U.S. 347, 367, 375, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). To make out a prima facie case for this type of employment discrimination, a plaintiff must show two things: first, that the plaintiff's conduct was constitutionally protected, and second, that the protected conduct was a substantial or motivating factor in the employment decision. Simmons v. Chi. Bd. of Educ., 289 F.3d 488, 495 (7th Cir.2002); Nelms v. Modisett, 153 F.3d 815, 818 (7th Cir.1998); see also Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). It is not enough to show only that the plaintiff was of a different political persuasion than the decisionmakers or the successful applicant. See Nelms, 153 F.3d at 818. If a plaintiff can make the prima facie showing, the burden shifts to the defendant to demonstrate a legitimate, nonpolitical reason for the employment decision. Simmons, 289 F.3d at 495; Nelms, 153 F.3d at 818.

In this case, the parties agree on several propositions: that the job at issue did not fall under the policymaking exception to Rutan, that the defendants are proper parties under § 1983, that none of the defendants is entitled to qualified immunity, and that Hall's chosen level of political activity was protected conduct. Moreover, as we note below, we conclude as a matter of law that the protection afforded by the Rutan principle applies to distinctions based on relative degrees of support for a single party, just as it reaches favoritism based on simple party membership. The only issue on appeal is thus whether the two applicants' relative level of political activity in the Republican Party was a substantial or motivating factor in the defendants' decision to hire Barger rather than Hall.

In analyzing this issue, the threshold question is whether the defendants even knew about the political activities of Hall and Barger. See Nelms, 153 F.3d at 819; Garrett v. Barnes, 961 F.2d 629, 632 (7th Cir.1992). Hall argues that it was not essential for him to make this showing because, as Barger allegedly had been "preselected" for the job based on his level of involvement in the Republican Party, the defendants' knowledge of Hall's own political activities is irrelevant. This argument, however, ignores the fact that, for Hall's theory about Barger's preselection to be true, the defendants still must have wanted to favor Barger because of his political involvement. Hall has assumed that no one could have been a better Republican than Barger, but there is no reason to believe that this is true. If Hall had been better, then (according to his theory of the case), he is the one who would have been rewarded with the job.

In the past, we have sometimes assumed that a person's holding of an arguably prominent party office could support a finding of common knowledge among decisionmakers, and sometimes we have not. Compare Cusson-Cobb v. O'Lessker, 953 F.2d 1079, 1081 (7th Cir.1992) (no assumption), with Nelms, 153 F.3d at...