Employment Law Daily District court disregarded ample evidence of race discrimination against county’s first black officer
Thursday, August 10, 2017

District court disregarded ample evidence of race discrimination against county’s first black officer

By Lisa Milam-Perez, J.D.

Reversing summary judgment in favor of a sheriff’s office on a race discrimination claim brought by the county’s first black police officer, who was fired after just nine months on the job, a seemingly incredulous Seventh Circuit panel concluded the officer presented a “strong case” of discrimination and the county’s “ever-growing list of rationales” for discharging him all “fall apart” in the face of his “unusually detailed” evidence of disparate treatment. “The most striking features of this lawsuit are the sheer number of rationales the defense has offered for firing plaintiff and the quality and volume of evidence plaintiff has collected to undermine the accuracy and even the honesty of those rationales,” the appeals court wrote. The district court erred in rejecting much of this evidence and discounting the officer’s own testimony as self-serving, and improperly applied the circuit’s “common actor” inference, the appeals court added (McKinney v. Office of the Sheriff of Whitley County, August 8, 2017, Hamilton, D.).

The county’s Jackie Robinson? The employee was hired as the county’s first black officer, a point the sheriff made note of during the job interview. After he started work, one officer used the “n-word” in his presence and another officer, ordering coffee, said he wanted it “black like my partner.” Others refused to train him and sometimes would not speak to him. The sheriff told the officer that it would “help him out” if he watched the movie “42,” about Jackie Robinson breaking major league baseball’s color barrier. The officer was discharged during his one-year probationary period. The sheriff gave three rationales for his termination; the county board of commissioners followed up with a discharge letter listing two more reasons. After the employee filed a race discrimination claim, the employer asserted three more reasons still. None held water, in the Seventh Circuit’s view. It was troubled by the shifting reasons given, and how flimsy they appeared on closer inspection.

Evidence erroneously rejected. The district court held the employee did not specify “any direct evidence of discrimination” and failed to establish a prima facie case under McDonnell Douglas because he did not show he met the county’s legitimate expectations. But the court based its finding almost exclusively on the sheriff’s version of events as set forth in his affidavit; it rejected the employee’s own testimony as “self-serving, speculative, and conclusory.” The court improperly disregarded the employee’s other evidence of discrimination as well, which was “substantial,” the appeals court observed. “Patch after patch, the defense arguments for summary judgment still will not hold water,” it wrote.

Filings satisfied local rule. In opposing the summary judgment motion, the employee submitted a 25-page legal memorandum; a Statement of Genuine Disputes, with more than 30 pages of detailed factual assertions with numerous citations to supporting evidence; and an evidentiary appendix to the legal memorandum, containing 125 pages of the evidence cited in the Statement of Genuine Disputes. The lower court said he presented no evidence of discrimination because he “‘points in general to his Statement of Genuine Issues of Fact’” but does “‘not specify which facts would constitute such direct evidence.’” The court seemed to suggest his filings were not in compliance with the local rule, but it did not explain precisely how they missed the mark. This was an abuse of discretion.

The court said it shouldn’t have to “‘sift through the record’” to find the evidence in support of the claim. Indeed, the Seventh Circuit acknowledged, “a party opposing summary judgment does not meet this obligation by simply dropping a stack of paper into the court file (literally or electronically) and asserting that someone who reads the stack will find a genuine issue of material fact.” But that wasn’t the case here. There was no valid basis for the court’s refusal to consider the evidence, and the court didn’t identify one. The employee’s filings presented what the district court said was missing: a detailed and organized guide to his evidence. Indeed, while asserting that he failed to “specify which facts” support his claim, the district court cited one of the many pages in which the employee did just that. In fact, he opened his brief with an explanation of how his filings comply with local rules. Nor was it clear what the court did in the face of the perceived filing deficiencies. It didn’t appear to strike any part of the filings, and it expressly considered some of the employee’s testimonial evidence, yet it didn’t address his other evidence “which, to be frank, demolishes the employer’s shifting list of rationales.”

Shifting reasons, all dicey. The appeals court then considered and rejected each reason given by the employer for discharging the employee. For example, the sheriff claimed the employee submitted false work hours while attending the state law enforcement academy. But the office has no written policy governing how to record work hours while at the academy, and the employee presented emails showing that he asked the sheriff’s administrative assistant and the chief deputy sheriff how he should record his hours. Both confirmed he should record 10 hours per day, which he did, and the sheriff later confirmed that he was correctly documenting his hours, telling the employee “just keep doing what you’re doing.” Finally, the employee presented timesheets showing how other officers calculated their time while at the academy: in precisely the same manner. Another reason given: he used his county-provided gas card at the wrong facility, but he submitted evidence that he was given express approval to do so.

The sheriff also claimed the employee violated standard operating procedures that require the filing of monthly reports. But there was no formal procedure governing monthly reports, and the sheriff appeared to acknowledge as much in an interrogatory response. The supposed infraction involved one missing report, and that was for the month spent training at the academy. At any rate, the reports list only an officer’s law enforcement activities (traffic stops, arrests, etc.) in a given month, and the employee had no such activities during his time at the academy, so there was nothing to report. The employee wasn’t told to submit a report for his academy time until four days before his firing, at which point he submitted it within an hour. “Firing someone for violating a standard operating procedure that does not actually exist, or about which he was not told, could easily be found to be a pretext,” the appeals court observed.

In similar fashion, the appeals court discounted all of the reasons given for discharge—all of which were minor infractions, all of which proved baseless, and some of which would permit an inference that the rationale was not only wrong but “dishonest,” or wholly disproportionate to the handling of similar violations by white officers. For one: He was ostensibly fired for incurring damage to his vehicle, “a slight ding to the side view mirror of his squad car.” Another new officer who was white had an accident that tore off the front bumper of his squad car. He was not reprimanded; rather, his fellow officers joked about it, and gave him the wrecked bumper as a gag gift at a Christmas party. After he filed suit, the employer added a few more reasons, including that he “was late transporting a juvenile to a court proceeding.” The employee offered detailed testimony (backed up with prisoner transport records) that he had been told the two juveniles were at the same location, but they were not; consequently, the transport was one minute late. The fact that this and other rationales were offered only later, and not at the time of discharge, left the appeals court skeptical that they actually motivated the termination. “The supposed reasons for firing him were not only wrong but so baseless as to support an inference of pretext, meaning dishonesty,” the appeals court found.

“Self-serving” evidence. The Seventh Circuit also specifically emphasized the lower court erred in discounting the employee’s testimony as self-serving, explaining that for at least 15 years, it has stressed that “self-serving affidavits” can be a legitimate means of presenting facts on summary judgment and that it was a misconception that such affidavits can never thwart summary judgment motions.

Same actor inference. The court below cited the “strong presumption” that if the sheriff wanted to discriminate against the employee, he would have discriminatorily refused to hire him in the first place. The appeals court corrected this mistaken application of the common actor inference, noting it has sought to impose limits on the principle “to ensure it does not outgrow its usefulness.” The inference can be useful, to be sure, but it is “not a conclusive presumption,” and it could be “unsound to infer the absence of discrimination simply because the same person both hired and fired the plaintiff-employee.” Here, the appeals court offered several examples to demonstrate its point, including this final, apt one: “The same supervisor could hire a county’s first black police officer, hoping there would be no racial friction in the workplace. But after it became clear that other officers would not fully accept their new black colleague, that same supervisor could fire the black officer because of his race based on a mistaken notion of the ‘greater good’ of the department.” Then it reversed summary judgment and remanded.

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