Opinion
Case No. 00-cv-4293-JPG
January 7, 2002
MEMORANDUM AND ORDER
This matter comes before the Court on the motion for partial summary judgment (Doc. 35) filed by defendants Scott Obourn ("Obourn") and Rosemary Rouse ("Rouse") (collectively, the "defendants"). The defendants ask the Court to grant summary judgment on Count I, plaintiff Frank Wilkie's ("Wilkie") § 1983 claim for violation of his First Amendment rights. He claims that the defendants failed to hire him because of his political activities, or lack thereof, in violation of the First Amendment. The Court also considers the defendants' motion asking the Court to deem their statement of facts admitted and to strike Wilkie's statement of facts (Doc. 41), motion for leave to supplement that motion (Doc. 50) and motion for leave to supplement the motion for partial summary judgment (Doc. 52).
I. Motions Regarding Statements of Fact
The defendants ask the Court to deem as admitted the statement of facts included in their brief in support of their motion for summary judgment (Doc. 41). They argue that this is justified because Wilkie's counsel failed to explain why she did not agree that certain facts that the defendants proposed are undisputed and failed to seek their agreement on the facts contained in Wilkie's filing entitled "Plaintiff's Statement of Facts Viewed In The Light Most Favorable To Plaintiff," which the defendants note is not a filing authorized by Local Rule 7.1. The defendants have asked to supplement their motion with an order from the District Court for the Central District of Illinois striking a similar document from another case (Doc. 50). The Court will grant the motion to supplement (Doc. 50) and will consider the Central District order. The Court also considers Wilkie's response (Doc. 48) to the motion.
The Court agrees that Wilkie's statement of facts is not authorized by Local Rule 7.1 and contains substantial material that is irrelevant to his response to the defendants' motion for partial summary judgment. Nevertheless, the Court finds it helpful for the purpose of locating in the proffered evidence the "circumstantial evidence" cited in the response. For this reason, the Court will not strike Wilkie's statement of facts but will use it for the limited purpose of locating evidence to which Wilkie's response refers. The Court will disregard items in Wilkie's statement of facts to which his response does not refer.
As for deeming the defendants' statement of facts admitted, the Court notes that the facts to which Wilkie refused to agree (¶¶ 6 9-13) concern the inferences Wilkie argues are reasonable in light of circumstantial evidence. Although Wilkie may ultimately be wrong about whether those inferences are reasonable or warranted, the Court cannot say that the refusal to agree to statements contrary to those inferences justifies deeming those statements admitted.
Accordingly, the Court will deny the motion to deem the defendants' statement of facts admitted and will evaluate the statements in issue based on the admissible evidence in the record. For the foregoing reasons, the Court hereby GRANTS the motion to supplement (Doc. 50) and DENIES the motion asking the Court to deem the defendants' statement of facts admitted and to strike Wilkie's statement of facts (Doc. 41).
II. Motion for Summary Judgment
Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels Int'l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000). The reviewing court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Spath, 211 F.3d at 396. This standard is applied with special scrutiny in cases, such as employment discrimination cases, that often turn on issues of intent and credibility. Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687, 692 (7th Cir. 2000). Where the moving party fails to meet its strict burden of proof, a court cannot enter summary judgment for the moving party even if the opposing party fails to present relevant evidence in response to the motion. Cooper v. Lane, 969 F.2d 368, 371 (7th Cir. 1992).
In responding to a summary judgment motion, the nonmoving party may not simply rest upon the allegations contained in the pleadings but must present specific facts to show that a genuine issue of material fact exists. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 322-26; Johnson v. City of Fort Wayne, 91 F.3d 922, 931 (7th Cir. 1996). A genuine issue of material fact is not demonstrated by the mere existence of "some alleged factual dispute between the parties," Anderson, 477 U.S. at 247, or by "some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Michas, 209 F.3d at 692. Rather, a genuine issue of material fact exists only if "a fair-minded jury could return a verdict for the [nonmoving party] on the evidence presented." Anderson, 477 U.S. at 252; accord Michas, 209 F.3d at 692.
Granting summary judgment in cases that turn on proof of motive, intent or credibility, such as employment discrimination cases, presents problems because rarely is there direct evidence of an intent to discriminate. Hasham v. California State Bd. of Equalization, 200 F.3d 1035, 1045 (7th Cir. 2000). Therefore, the non-moving party may prove his case "by circumstantial evidence, which consists of proof of facts and circumstances from which the jury may infer other connected facts, reasonably following from the proven facts and circumstances." Jackson v. Bunge Corp., 40 F.3d 239, 242 (7th Cir. 1994) (quoting Horton v. Miller Chemical Co., 776 F.2d 1351, 1355 (7th Cir. 1985)); Hasham, 200 F.3d at 1045. Summary judgment is appropriate, however, where the plaintiff has presented no facts that would give rise to the inference that an employer's motive was improper. Roger v. Yellow Freight Sys., 21 F.3d 146, 148 (7th Cir. 1994); Morgan v. Harris Trust Sav. Bank of Chicago, 867 F.2d 1023, 1026 (7th Cir. 1989).
A. Facts
The joint statement of undisputed facts and the admissible evidence viewed in the light most favorable to Wilkie establishes the following facts.
1. The Political Activities
Wilkie's political activities are not extensive. In 1994, he ran for office as a Republican and was elected to the Williamson County Board of Commissioners. In 1998, he ran for reelection but was defeated. Although he was involved in local elections as a Republican in the 1990s, he did not actively campaign in Republican Governor George Ryan's state-wide campaigns for secretary of state or for governor.
Michael Belford ("Belford"), on the other hand, worked on several state-wide Republican campaigns. He worked on former Republican Governor Jim Edgar's campaigns for secretary of state and governor by putting up campaign signs and selling tickets to and attending fundraising events. For Governor Ryan, Belford put up signs and attended fundraisers. He also served as precinct committeeman for the Republican Party at various times since the mid 1980s.
Kenneth Ellis ("Ellis") also put in substantial time volunteering for a variety of national, state and local Republican campaigns, including Wilkie's campaigns. Like Belford, Ellis worked for Governor Ryan's campaign. He put up campaign signs, drove a truck bearing a campaign sign, visited voters, attended and worked at fundraisers. Ellis also served as a precinct committeeman for the Republican Party from the late 1980s to the time of his deposition.
2. The Job
In March 1999, two stationary firemen positions became available at the Vienna Correctional Center, a prison within the Illinois Department of Corrections. The job posting indicated that the job required two years experience in the operation of high pressure stationary boilers.
Wilkie believed he was qualified for the stationary firemen positions because he had worked with a high pressure stationary boiler from the mid 1960s to the mid 1970s, beginning when he was in high school. Belford and Ellis had less experience with high-pressure stationary boilers. Belford had installed and maintained one for a family member and had serviced at least one other, and Ellis had repaired and operated one as part of his duties in a previous job. The parties have not pointed to any evidence as to the number of years Belford or Ellis had worked with high pressure stationary boilers.
Wilkie applied for the job, and he and fourteen other applicants, including Belford and Ellis, were selected for interviews. Wilkie believes that the hiring decisions were made before the interviews even began. He offers his own testimony that someone unconnected with the employment decision-making process but actively involved locally in the Republican Party told him before the interviews that Belford and Ellis would get the jobs. He also offers testimony that another person who worked at Vienna Correctional Center said before the interviews that Belford and Ellis would get the jobs.
The defendants ask the Court to exclude this testimony from consideration because it is hearsay. It is not hearsay, however, because it is not offered for the truth of the statements that Belford and Ellis were to get the jobs but instead to show the timing of the employment decision. See Fischl v. Armitage, 128 F.3d 50, 58 (2d Cir. 1997); see, e.g., United States v. Verrusio, 803 F.2d 885, 893 (7th Cir. 1986).
The Court has excluded from consideration other evidence offered by Wilkie to show that the successful applicants were preselected. In his response, Wilkie refers to handwritten notes in the margin of a document that he claims are pre-interview rankings and support the contention that the hiring decisions were made before the interviews. He has not identified where that document is contained in his exhibits and has not properly authenticated it. Therefore, it is inadmissible and cannot be considered by the Court in deciding this motion. Fed.R.Civ.P. 56(e); Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir. 1995) (material used to resist summary judgment must be of "evidentiary quality"); compare Smith v. City of Chicago, 242 F.3d 737, 741 (7th Cir. 2001) (court may consider properly authenticated evidence in deciding summary judgment motion).
In late April 1999, defendants Rouse and Obourn, the assistant wardens of programs and operations, respectively, at that time, conducted the interviews by asking each applicant a set of predetermined job-related questions provided by the personnel department and making notes regarding the applicants' answers. The defendants did not have any "correct" answers provided with the questions. Obourn had not consulted with anyone before the interviews about the type of experience that would be desirable or about filling the positions, and Rouse does not recall how she prepared for the interviews. After all of the interviews and without consulting each other, Rouse and Obourn reviewed their respective notes, assigned numerical values to each applicant's answers and tallied them to come up with a score for each applicant. No one mentioned politics or political affiliations, beliefs or activities during the interview process. The defendants have submitted affidavit testimony that they did not consider these factors when scoring the applicants' answers and based their scoring solely on the applicants' performances and answers in the interviews.
The defendants recommended Belford and Ellis, the applicants with the two highest scores, for the jobs. Wilkie did not score in the top two and was therefore not recommended for either available position. The defendants have submitted affidavit testimony that at no time during the selection process did they know or consider the politics or political affiliations, beliefs, activities or support of Wilkie or the two applicants who received the jobs.
Wilkie filed this lawsuit against the defendants claiming that they improperly considered Belford's, Ellis's and his own political activities in deciding who would fill the stationary firemen positions. He claims that Belford and Ellis received the positions because of their political activities, including their membership in the Republican Party and their work for and contributions to Governor Ryan's campaign for governor. Wilkie claims that he was not chosen because he did not participate in such activities. The defendants contend that they did not know of the applicants' political affiliations or activities and that therefore those factors could not have played a role in the hiring decisions.
B. Applicable Law
As a preliminary matter, the defendants have asked for leave to supplement their motion for partial summary judgment with an order from the District Court for the Central District of Illinois granting a similar motion in another case (Doc. 52). The Court will grant the motion (Doc. 52) and will consider the Central District order.
Neither party disputes that it is a violation of the First Amendment to make public employment hiring decisions on the basis of political patronage unless such patronage is an appropriate requirement for the position involved. Rutan v. Republican Party of Ill., 497 U.S. 62, 64-65 (1990); Elrod v. Burns, 427 U.S. 347, 362-63 (1976). All agree that membership and activity in a political party are constitutionally protected activities and that they are not appropriate requirements for the position of stationary fireman, a relatively low-level public position. Thus, the question at issue is whether the defendants made the stationary firemen hiring decisions on the basis of Belford's, Ellis's or Wilkie's political association or activities.
In order to establish a prima facie case of impermissible political patronage hiring, a plaintiff must show that his political association or activities were a "substantial" or "motivating" factor in the hiring decision. Mt. Healthy City Sch. Dist. Bd. of Ed. v. Doyle, 429 U.S. 274, 287 (1977); Nelms v. Modisett, 153 F.3d 815, 818 (7th Cir. 1998). Essential to such a showing is evidence that the defendants knew of the plaintiff's political association or activities; a defendant cannot base a decision on information he does not know. Nelms, 153 F.3d at 819; Garrett v. Barnes, 961 F.2d 629, 633 (7th Cir. 1992); Cusson-Cobb v. O'Lessker, 953 F.2d 1079, 1081 (7th Cir. 1992). The plaintiff's burden is heavy. An applicant who is not hired for legitimate reasons cannot carry that burden by merely showing that he is of a different political mind from the defendants or a successful applicant. See Nelms, 153 F.3d at 818 (citing Nekolny v. Painter, 653 F.2d 1164, 1168 (7th Cir. 1981)). Similarly, a plaintiff who is of the same political mind as the defendants cannot prevail merely by showing that he was less active politically than he believes the defendants would have liked him to be or than a successful applicant was.
If a plaintiff can show that his political association or activities, or lack thereof, were a "substantial" or "motivating" factor in the hiring decision, the burden then shifts to the defendants to show that they would have reached the same decision even in the absence of the plaintiff's protected political activity. Mt. Healthy, 429 U.S. at 287. In other words, the defendants must show that they had a legitimate, non-political reason for not hiring the plaintiff. Nelms, 153 F.3d at 818.
The parties' burdens in political patronage cases are different than those in other employment discrimination cases such as those under Title VII of the Civil Rights Act of 1964. Id. at 818 n. 4; Garrett, 961 F.2d at 633 ("Facts suggesting that a qualified person of one type was fired, and a person of another type was hired make out a prima facie case of race or sex discrimination, but they do not suffice to show discrimination based on political association.") In political patronage cases, the defendant must show as a part of his prima facie case a causal connection between his political association or activities and the hiring decision; simply proving that he was qualified, or more qualified than others, for the job without some nexus with his political activities is not enough. See Garrett, 961 F.2d at 633. Even strong evidence of bias in an interview process or preselection of applicants is insufficient in the absence of evidence that the bias or preselection was politically motivated rather than motivated by other sorts of favoritism. Tarpley v. Jeffers, 96 F.3d 921, 929 (7th Cir. 1996).
C. Analysis
The defendants are entitled to summary judgment because Wilkie has not met his burden of establishing a prima facie case. He is deficient for two reasons: (1) he has presented no admissible evidence that the defendants knew of his, Belford's or Ellis's political affiliations or activities and (2) he has presented no admissible evidence that the defendants considered those political affiliations or activities in making their hiring decisions.
1. Knowledge of Political Associations or Activities
There is no evidence whatsoever in the record that the defendants knew of Wilkie's, Belford's or Ellis's political associations or activities, an essential fact that must be established before it can be shown that such political associations or activities played a role in hiring decisions made by the defendants. See Cusson-Cobb v. O'Lessker, 953 F.2d 1079, 1081 (7th Cir. 1992). The defendants have sworn in their affidavits that they did not know the applicants' political associations or activities. It is true that such statements are self-serving and are not sufficient to establish the defendants' knowledge, or lack thereof, if there is contrary evidence in the record from which a jury could draw the opposite conclusion. See Garrett v. Barnes, 961 F.2d 629, 632 (7th Cir. 1992) (plaintiff's public endorsement of defendant's rival could establish defendant's knowledge of that support); Tarpley v. Jeffers, 96 F.3d 921, 929 (7th Cir. 1996) (announced policy of filling temporary positions on basis of political patronage could establish defendant's knowledge that temporary employee applying for permanent position was politically favored); see also Nelms v. Modisett, 153 F.3d 815, 819 (7th Cir. 1998) (plaintiff's running for public office as Republican could establish defendant's knowledge of plaintiff's political affiliation).
However, in this case, there is not a shred of evidence contrary to the defendants' sworn statements. Wilkie has not pointed to any possible source for the defendants' knowledge of the political association or activities that he alleges were improperly considered. It is true that there is evidence that the defendants' knew that Wilkie was at some point affiliated with the Republican Party — he held public office as a Republican Commissioner of Williamson County. Thus, a reasonable jury could infer that the defendants knew Wilkie was a Republican at some time. However, Wilkie does not allege that his status as a Republican was what the defendants improperly considered as a basis for their decisions. Instead, he alleges (in somewhat vague terms) that his estrangement from the Republican Party after his 1998 defeat and his lack of political activity within the Republican Party, in contrast to Belford's and Ellis's numerous activities in support of the Republican Party, were what the defendants improperly considered in their decisions. However, there is no evidence in the record showing that the defendants knew the status of Wilkie's relationship with the Republican Party or knew what activities he, Belford or Ellis performed in support of or against the party. Thus, it is impossible that the defendants could have considered these factors in deciding who would fill the stationary firemen positions.
2. Causal Connection With Employment Decisions
Wilkie has also failed to point to any evidence in the record that, even if his, Belford's or Ellis's political associations or activities had been known, those factors motivated in any way the defendants' hiring decisions, another essential element of his prima facie case. See Tarpley v. Jeffers, 96 F.3d 921, 929 (7th Cir. 1996); Garrett v. Barnes, 961 F.2d 629, 633 (7th Cir. 1992). Wilkie points to several pieces of circumstantial evidence on which he claims a reasonable jury could rely to find that the defendants' decisions were politically motivated. It is true that Wilkie does not need direct evidence that political associations or activities were "substantial" or "motivating" factors in the defendants' decisions; he can prove his case by circumstantial evidence and the reasonable inferences that a jury could draw from it. Wren v. Jones, 635 F.2d 1277, 1285 (7th Cir. 1980). However, the circumstantial evidence must do more than simply "raise some eyebrows"; it must be sufficient to raise a jury question about the role of the political factors. See Tarpley, 96 F.3d at 930. His evidence fails to raise anything more than eyebrows.
The first piece of circumstantial evidence Wilkie cites is Belford's and Ellis's political activity in support of the Republican Party in comparison with his own. This is simply not enough for a reasonable jury to conclude that the hiring decisions were made on the basis of politics. As noted earlier, a plaintiff cannot carry his burden of establishing his prima facie case merely by showing that the applicants who were hired were more politically active than he was. See Nelms, 153 F.3d at 818.
The second piece of circumstantial evidence Wilkie cites is the applicants' relative experience levels with high pressure stationary boilers. He had at least two years experience with such boilers, and he claims that Belford and Ellis did not. First, Wilkie's claim is not supported by the record. While it is true that Belford and Ellis may have had less experience than Wilkie did operating high pressure stationary boilers, nothing in the record indicates that they did not possess two years of such experience, the minimum requirement for the job. The evidence reflects that Belford maintained one for his brother and had repaired at least one other and that Ellis had repaired and operated one in a prior job. There is no evidence that either Belford or Ellis performed those tasks for less than two years, and no reasonable jury could draw that conclusion based on the evidence in the record. Second, even if Wilkie were the only one qualified for the job, he has not connected the decision to hire other unqualified applicants to politics. It could just as easily have been favoritism because, for example, Belford and Ellis had been good state employees in the past, were more pleasant in the interview process or had other desirable job-related qualifications. The failure to follow hiring criteria is not evidence of improper political considerations.
The third piece of circumstantial evidence Wilkie cites is the defendants' lack of preparation for and explanation of the interviews. He argues that since the defendants did not develop the questions themselves, did not consult with any source knowledgeable about high pressure stationary boilers prior to the interviews and could not articulate in detail the criteria by which they scored the applicants' answers, the interview process was a sham. The Court finds that no reasonable jury could find based on these facts that the interview process was a sham. There is nothing deceitful or dishonest about using interview questions developed by someone else. And, while it is true that it might have been helpful to learn more about high pressure stationary boilers before the interviews, the failure to do so does not support the inference that the process was a sham. At the most, it shows that the interviewers were not as prepared as they could have been. Finally, after reviewing the interview questions, the Court finds that the failure to have a list of "correct" answers or to articulate in detail why a particular answer was better than another is not evidence that the process was a sham. The questions asked were generally open-ended questions without precise, "correct" answers. For example, one question was, "Describe how you typically arrive at a decision." Such a question does not have a "right" answer, and a good or bad answer may not be evident until it is delivered and explained by an applicant. Even in combination, these facts relating to the interviews do not support the inference that the interviews were a sham.
The fourth piece of circumstantial evidence Wilkie cites is the pre-interview statements by non-decision makers that Belford and Ellis would get the jobs. However, there is no evidence to connect the people who made those statements to the decision process. Without such a connection, the statements can only be considered speculative, and speculation will not serve as a basis for the necessary causal connection. That the speculation proves to be correct does not make it any less speculative at the time it was made. Even if those individuals could be connected to the decision making process and could show that Belford and Ellis were preselected for the jobs, there is no evidence that the preselection in any way related to the politics of the applicants. As noted above, any favoritism could be the result of non-political factors as well. Even if viewed together, the four pieces of circumstantial evidence show at the most that the interview process was not as objective or as informed as it could have been. They do not, however, create any basis for a reasonable jury to find that Belford and Ellis were hired over Wilkie on the basis of political associations or activities. Wilkie has not set forth sufficient evidence to establish a prima facie case. Because it is clear that Wilkie cannot establish a prima facie case, the Court need not address the question of whether the defendants can meet their burden of showing that Wilkie would not have been hired even absent his, Belford's and Ellis's political activities.
For the foregoing reasons, the Court hereby GRANTS the defendants' motion for leave to supplement their motion for partial summary judgment (Doc. 52), GRANTS the defendants' motion for partial summary judgment on Count I (Doc. 35), and DIRECTS the Clerk of Court to enter judgment accordingly at the close of the case. Defendants Obourn and Rouse are terminated from this action.
III. Conclusion
The Court hereby:
• GRANTS the motion to supplement (Doc. 50);
• DENIES the motion asking the Court to deem the defendants' statement of facts admitted and to strike Wilkie's statement of facts (Doc. 41);
• GRANTS the defendants' motion for leave to supplement their motion for partial summary judgment (Doc. 52);
• GRANTS the defendants' motion for partial summary judgment on Count I (Doc. 35) (Defendants Obourn and Rouse are terminated from this action); and
• DIRECTS the Clerk of Court to enter judgment accordingly at the close of the case.
IT IS SO ORDERED.