Harden v. Marion Cnty. Sheriff's Dep't

• Decision Date: 25 August 2015
• Docket Number: No. 14–1713.,14–1713.
• Citation: 799 F.3d 857
• Parties: Eric V. HARDEN, Plaintiff–Appellant, v. MARION COUNTY SHERIFF'S DEPARTMENT, Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

799 F.3d 857

Eric V. HARDEN, Plaintiff–Appellant

v.MARION COUNTY SHERIFF'S DEPARTMENT, Defendant–Appellee.

No. 14–1713.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 20, 2015.

Decided Aug. 25, 2015.

Jeffrey S. McQuary, Brown, Tompkins, Lory & Mastrian, Indianapolis, IN, for Plaintiff–Appellant.

Amanda J. Dinges, Office of the Corporation Counsel, Anthony W. Overholt, Frost Brown Todd LLC, Indianapolis, IN, for Defendant–Appellee.

Before RIPPLE and ROVNER, Circuit Judges, and KENNELLY, District Judge.^*

Opinion

KENNELLY, District Judge.

In 2012, Eric Harden sued the Marion County Sheriff's Department for retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e * Of the United States District Court for the Northern District of Illinois, sitting by designation. 3(a). He alleged that the Sheriff's Department terminated him in retaliation for testifying on behalf of African–American police officers in a race discrimination investigation. The district granted summary judgment for the Sheriff's Department. Harden now appeals that decision. We affirm.

I.

Because we are reviewing the district court's grant of summary judgment against Harden, we recount the facts in the light most favorable to him, “resolving all evidentiary conflicts in [his] favor and according [him] the benefit of all reasonable inferences that may be drawn from the record.” Coleman v. Donahoe, 667 F.3d 835, 842 (7th Cir.2012).

Harden was employed by the Marion County Sheriff's Department from November 1, 2008 until his termination on December 23, 2010. He was hired to work as a building deputy and, in that capacity, provided security to the City–County building in Indianapolis. At least two of Harden's supervisors felt that he was an excellent employee. One of his supervisors, Sgt. Ernest Worthington Todd, III, described Harden's “skills, training, and judgment” as “superior to nearly all the other building deputies,” and his “demeanor and professional bearing” as “top notch.” App. at 54. Another supervisor, Lt. Nathaniel Neal, said that he was “completely satisfied with Harden's job performance” and that Harden “was one of my top employees.” App. at 49.

In 2010, the Sheriff's Department's Equal Employment Opportunity officer, Sgt. Nancy Blair, initiated an investigation into the alleged discriminatory treatment of African–American deputies. Her investigation focused on two officers in particular: Lt. Tammy Nelson and Cpl. James Russo. Harden, who is Caucasian and thus was not subjected to the alleged discrimination, agreed to be interviewed for the investigation. During his interview, Harden testified that Lt. Nelson and Cpl. Russo treated African–American deputies differently from Caucasian deputies. He alleged that he had “heard comments” that “just [don't] seem right,” and that “certain officers are not respected at all.” Supp.App. at 1; see also App. at 21. He also alleged that Lt. Nelson and Cpl. Russo gave African–American deputies less-desirable assignments than Caucasian deputies. As a result of this investigation, both Lt. Nelson and Cpl. Russo were demoted.

Shortly after giving this interview, Harden began to notice changes in his work schedule. Harden's patrol time was reduced—a change that, he alleges, was recognized as undesirable in the Sheriff's Department. Harden was also taken off a prestigious assignment with the mayor. When Harden approached Cpl. Russo about the changes, Cpl. Russo replied, “It's not me and Tammy [Nelson] fucking with you, it's [Deputy Chief Shirley] Challis and [Lt. Bryce] Wolfe [sic] fucking with you.” App. at 18. He also warned Harden, “[I]n the future you ought to be more careful with who you talk to.” App. at 18.

In addition to the work-schedule changes, Harden contends, Lt. Nelson, Cpl. Russo, Lt. Wolf, and Deputy Chief Challis pressured Harden's supervisors to cite Harden for disciplinary infractions. According to Lt. Neal, Lt. Nelson instructed him to “write [Harden] up for anything I could find on him.” App. at 50. Similarly, Lt. Neal also says that Cpl. Russo asked him “why [he] didn't write Harden up more often.” App. at 50. (Lt. Neal told him, “it was because [Harden] never did anything wrong.” App. at 50.) According to Lt. Neal, Lt. Wolf insisted that a complaint about Harden's conduct on the shooting range “go up the chain of command” even though the shooting range instructor “did not wish to complain on Harden.” App. at 50–51. Lt. Neal also “did not agree with the decision to proceed with [the] complaint and, as his supervisor, did not believe that Harden should have been disciplined” for his conduct on the shooting range. App. at 51. In addition, Deputy Chief Challis allegedly instructed another of Harden's supervisors, Sgt. Minton, to find “any reason” he could to discipline Harden. App. at 20.

Harden eventually concluded that he was suffering retaliation and contacted the EEOC. After some initial investigation into his complaint, the EEOC retained an outside investigator, Michelle Cooper, to whom Harden gave a statement in September 2010. Harden testified that after he gave this statement, the harassment ceased.

About three months later, Harden arrested a man by the name of Victor Rybolt for neglect of a child. Upon his release from custody, Rybolt realized that $100 was missing from his wallet and reported the missing property to the Sheriff's Department. One witness to this exchange says that Rybolt initially accused Lt. Maurice Frazier of the theft, though Rybolt himself later denied making this accusation. The following day, the Sheriff's Department launched a criminal investigation regarding the theft. When interviewed by an investigator, Rybolt stated that he had seen Harden take an unsealed property bag into a back room, where Harden would have been alone. Harden was ultimately cleared by the criminal investigation. The Sheriff's Department then initiated an Internal Affairs investigation. Internal affairs investigators concluded that Harden had, in fact, perpetrated the theft of Rybolt's money. Shortly thereafter, the Sheriff's Department terminated Harden.

Harden filed this suit in May 2012. The district court granted summary judgment in favor of the Sheriff's Department about two years later. This appeal followed.

II.

On appeal, Harden argues that he has presented sufficient evidence of unlawful retaliation to survive summary judgment. He also contends that one of the district court's evidentiary rulings was in error. We review the district court's grant of summary judgment de novo, construing all facts and reasonable inferences in the light most favorable to Harden. See, e.g., Ripberger v. Corizon, Inc., 773 F.3d 871, 876 (7th Cir.2014). We review the district court's evidentiary ruling for abuse of discretion. See, e.g., Harney v. City of Chicago, 702 F.3d 916, 921 (7th Cir.2012).

A. Evidentiary issues

We begin with the evidentiary issues raised by the Sheriff's Department. The Sheriff's Department argues that Harden's response to the summary judgment motion relied on inadmissible hearsay. See Gunville v. Walker, 583 F.3d 979, 985 (7th Cir.2009) (“A party may not rely upon inadmissible hearsay to oppose a motion for summary judgment.”). In particular, the Department cited Rybolt's alleged accusation of Lt. Frazier and statements made by various Sheriff's Department personnel to Lt. Neal. The district court ruled that one of these statements—Rybolt's accusation of Lt. Frazier—was indeed inadmissible hearsay (it did not address the others).

This ruling was erroneous. As Harden notes, the statement is offered to prove that the Sheriff's Department was aware of (and ignored) another suspect, not to prove that Lt. Frazier was the thief. Evidence that is “used only to show notice” is not hearsay. Marseilles Hydro Power, LLC v. Marseilles Land & Water Co., 518 F.3d 459, 468 (7th Cir.2008) ; see also FED. R. EVID. 801(c) advisory committee's note (“If the significance of an offered statement lies solely in the fact that it was made, no issue is raised as to the truth of anything asserted, and the statement is not hearsay.”). The ruling was not reversible error, however, because the district court concluded—as we do—that the Sheriff's Department is entitled to summary judgment even if the statement is considered.

We need not address the other statements cited by the Sheriff's Department, namely statements that Lt. Neal says various supervisory personnel made to him. Even if these statements, which we summarized earlier in this decision, are considered, they do not warrant reversal of the district court's decision.

B. Retaliation claim

Title VII prohibits employers from retaliating against employees for testifying, assisting, or otherwise participating in a race discrimination investigation. 42 U.S.C. § 2000e–3(a). “[R]etaliation may be established by either the direct or indirect methods of proof.” Coleman, 667 F.3d at 859. Harden proceeds under both methods.

To prove retaliation under the direct method, Harden must show that:

(1) he engaged in protected activity, (2) he suffered a materially adverse employment action, and (3) there was a causal link between his protected activity and the adverse action. Id. To prove retaliation under the indirect method, Harden must show that: (1) he engaged in protected activity, (2) he suffered a materially adverse employment action, (3) he was meeting his employer's legitimate expectations, and (4) he was treated less favorably than similarly-situated employees who did not engage in protected activity. Argyropoulos v. City of Alton, 539 F.3d 724, 733 (7th Cir.2008). Once the plaintiff establishes a prima facie case under the indirect method, “a presumption of [retaliation] is triggered” and the burden shifts “to the employer to articulate some legitimate, [nonretaliatory] reason for its action.” Coleman, 667 F.3d at 845 (internal quotation marks omitted). “When the employer does so, the burden shifts back to the plaintiff, who must...