James v. Sheahan

• Citation: 137 F.3d 1003
• Decision Date: 04 March 1998
• Docket Number: No. 97-1785,97-1785
• Parties: 76 Fair Empl.Prac.Cas. (BNA) 523, 72 Empl. Prac. Dec. P 45,238 Darlene JAMES, Plaintiff-Appellant, v. Michael SHEAHAN, in his capacity as Cook County Sheriff, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1003

137 F.3d 1003

76 Fair Empl.Prac.Cas. (BNA) 523,

72 Empl. Prac. Dec. P 45,238

Darlene JAMES, Plaintiff-Appellant, v. Michael SHEAHAN, in his capacity as Cook County Sheriff,

Defendant-Appellee.

No. 97-1785.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 12, 1997.

Decided March 4, 1998.

Susan P. Malone (argued), Chicago, IL, for Plaintiff-Appellant.

Richard A. Devine, Office of the State's Attorney of Cook County, Chicago, IL, John J. Murphy, Dianne McCullough (argued), Office of the State's Attorney of Cook County, Labor & Employment Division, Chicago, IL, for Defendant-Appellee.

Before ESCHBACH, COFFEY, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

Darlene James appeals the district court's grant of summary judgment on her claim that she was denied promotion to Cook County Sheriff's police officer on the basis of her sex and age, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq., respectively. Although James was ostensibly qualified for the position, Cook County Sheriff Michael Sheahan (the "Sheriff") claims that James was not recommended for appointment to the position due to suspicion that her 1986 Merit Board test score was fraudulent. The district court concluded that James failed to demonstrate that the Sheriff's stated reason for not recommending her was a pretext for sex or age discrimination. We affirm.

I. BACKGROUND

In 1986 James took the written exam required for hire as a corrections officer with the Cook County Sheriff's Office ("Sheriff's Office"). On January 4, 1988, the Sheriff's Office hired James for the position. As an employee of the Sheriff's Office, James could qualify for employment as a deputy sheriff or a Sheriff's police officer by fulfilling certain requirements. In June 1992, at the age of forty, James took and passed the written exam required for appointment as a Sheriff's police officer. Consequently, she was placed on the August 1992 certification list of applicants eligible to be hired.

James was thereafter interviewed by the Sheriff's Police Department, as are most applicants. In March 1993, the police department published a list of the applicants it had interviewed and their ratings, which were "highly acceptable," "acceptable," or "not acceptable." James was listed among the applicants rated as "highly acceptable."

The next hurdle was the Peace Officer Wellness Evaluation Report (the "POWER test"), a physical fitness test mandated by the State of Illinois as a prerequisite to enrollment in any Illinois certified police academy. As the number of police officer positions was limited, Martin Walsh, the Director of Operations, and Marynell O'Connell, the Personnel Director, would select the applicants they deemed most qualified to take the POWER test. In September 1993, James was selected to take the POWER test. James passed the test; however, she was not promoted by the Sheriff's Police Department. James was again called to take the POWER test in December 1993. As before, James passed the test but was not promoted.

Walsh and O'Connell ultimately were responsible for recommending employees for appointment to the Sheriff's police force. They claim they never recommended James due to suspicion that her Merit Board test score had been falsified. (Although the record does not make clear which test score was altered--the 1986 test score or the 1992 test score--during oral argument James's counsel stated that the 1986 test score was the one at issue.) This suspicion began when Walsh received an anonymous telephone call sometime between September 14 and September 27, 1993. The anonymous caller was a man who recommended that Walsh look into James's background.

Walsh told O'Connell about the anonymous call, and she reviewed James's Merit Board file prior to the beginning of the October 1993 Sheriff's police academy class. O'Connell discovered that James's 1986 Merit Board test score had been erased and rewritten on the answer sheet. O'Connell could not verify whether the score had actually been changed because the file contained the answer sheet but not the answer key, and the Merit Board did not have the answer key.

O'Connell did not report the suspicious test score purportedly because she could not verify its falsity. However, O'Connell also did not recommend James for appointment as a Sheriff's police officer. Notwithstanding this decision, James's name has not been removed from the list of eligible candidates.

To place O'Connell's decision in context, we note that since April 1992, the United States Attorney's Office for the Northern District of Illinois and the Federal Bureau of Investigation ("FBI"), Chicago Office, have been investigating the corrupt practices of the Cook County Sheriff's Office and the Cook County Sheriff's Merit Board. The investigation targeted employees hired during Sheriff O'Grady's administration between 1987 and 1991, the period during which James was hired. The files of employees hired during this time period are being reviewed for false high school diplomas or high school equivalency ("GED") certificates, and any evidence of altered test scores on Merit Board exams of corrections officers or deputy sheriffs. The FBI has named 351 employees who are believed to have altered test scores. James was not one of those named. However, James admits that "certain persons who were suspects or accused in the GED, [d]iploma, test results or other investigations were considered ineligible for hire as Sheriff's police officers."

James filed a charge of discrimination with the Equal Employment Opportunity Commission, alleging sex and age discrimination. As evidence of this discrimination, James cites the gender and relative youth of the August 1992 certified candidates who were selected to take the POWER test and/or hired as Sheriff's police officers, who were allegedly less qualified than she.

The district court granted summary judgment to the Sheriff on both of James's claims. The court held that James had established a prima facie case of age and sex discrimination under the test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), based on the Sheriff's admission that "[a]ll of the employees who took and passed the Power Test were similarly situated relative to the basic requirements for appointment," and the conclusion that "[w]hen a defendant's rationale for rejection is not plaintiff's deficiency to meet a basic qualification, the [case] is initially analyzed under the second step of the McDonnell framework." The latter proposition, however, ignores the Sheriff's arguments that James did not suffer any materially adverse employment action, and that everyone (other than James) on the August 1992 certification list who passed the POWER test and was a woman or over the age of 40 had been appointed to the position of Sheriff's police officer. Nevertheless, the district court held that James failed to produce sufficient evidence to show that the Sheriff's stated reason for not promoting James was a pretext for sex or age discrimination. This appeal followed.

II. DISCUSSION

A. Standard of Review

We review the district court's grant of summary judgment de novo. Essex v. United Parcel Serv., Inc., 111 F.3d 1304, 1308 (7th Cir.1997). Applying the same standards as the district court, all facts and inferences are viewed in the light most favorable to the non-moving party. Oates v. Discovery Zone, 116 F.3d 1161, 1165 (7th Cir.1997). Summary judgment is appropriate when the record shows "that there is 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.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). " 'This standard is applied with added rigor in employment discrimination cases, where intent and credibility are crucial issues.' " Sample v. Aldi Inc., 61 F.3d 544, 547 (7th Cir.1995) (citation omitted). However, " '[s]elf-serving assertions without factual support in the record will not defeat a motion for summary judgment.' " Jones v. Merchants Nat'l Bank & Trust Co., 42 F.3d 1054, 1058 (7th Cir.1994) (citation omitted).

B. Pretext

James raises one issue on appeal. ¹ She contends that there is evidence from which a rational finder of fact could determine that the Sheriff's stated reason for denying James the promotion--the altered test score--was either untrue or insufficient to justify the decision.

Having stated a reason for not recommending James for appointment as a Sheriff's police officer, the Sheriff has carried his "burden of producing 'evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action.' " Sample, 61 F.3d at 547 (quoting St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509, 113 S.Ct. 2742 2748, 125 L.Ed.2d 407 (1993)). To prevail, James must come forward with sufficient evidence that " 'the legitimate reasons...