Coleman v. Sheriff

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

SHARUN M. COLEMAN,

Plaintiff, No. 16 C 2682

v. Judge Thomas M. Durkin

SHERIFF OF COOK COUNTY, ET AL.,

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff Sharun M. Coleman (“Coleman”) has sued defendants Sheriff of

Cook County (in his official capacity), Cook County, and Cook County Sheriff’s

Merit Board for denying her equal employment opportunities in violation of Title

VII of the Civil Rights Act and for a writ of mandamus. Currently before the Court

are: (1) Coleman’s motion for partial summary judgment [102]; (2) the Sheriff and

Cook County’s cross-motion for summary judgment [122]; and (3) the Merit Board’s

cross-motion for summary judgment [129]. For the following reasons, the Court

denies Coleman’s motion [102], denies the Sheriff and Cook County’s cross-motion

[122], and defers ruling for 30 days on the Merit Board’s cross-motion [129].

Standard

Summary judgment is appropriate “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317,

322-23 (1986). The Court considers the entire evidentiary record and must view all

evidence and draw all reasonable inferences from that evidence in the light most

favorable to the nonmovant. Ball v. Kotter, 723 F.3d 813, 821 (7th Cir. 2013). To

defeat summary judgment, a nonmovant must produce more than “a mere scintilla

of evidence” and come forward with “specific facts showing that there is a genuine

issue for trial.” Harris N.A. v. Hershey, 711 F.3d 794, 798 (7th Cir. 2013).

Ultimately, summary judgment is warranted only if a reasonable jury could not

return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986).

Background

A. Relationship Between Sheriff And Merit Board In Hiring

Before any job with the Cook County Sheriff’s Office is posted for hire, the

Sheriff’s designated chain of command must give its approval. R. 126 ¶ 9 (Sheriff

and Cook County’s Response to Coleman’s L.R. 56.1 Statement); R. 132 ¶ 9 (Merit

Board’s Response to Coleman’s L.R. 56.1 Statement). Then the Merit Board—a

seven-member board established by Illinois statute (see 55 ILCS 5/3-7002) and

appointed by the Sheriff with the advice and consent of the Cook County Board—

posts notice on the Sheriff’s Office website. R. 126 ¶ 4; R. 132 ¶¶ 4, 10; R. 135 ¶ 4

(Coleman’s Response to Merit Board’s L.R. 56.1 Statement).

Pursuant to an Order from the Sheriff, the Merit Board collects all

applications and conducts investigations and interviews to ensure that applicants

meet the hiring criteria. R. 126 ¶ 11; R. 132 ¶ 11. Applicants first must pass written

exams. R. 135 ¶¶ 12-13. Applicants then must pass a physical ability test. Id. ¶ 14.

If an applicant passes the written and physical tests, the applicant must be

fingerprinted, drug tested, and complete a Personal History Questionnaire. Id. ¶ 15.

The next step is for a Merit Board investigator to conduct an investigation. R.

126 ¶ 12; R. 132 ¶ 12; R. 135 ¶ 4. The investigator reviews the applicant’s

documents, conducts a background search, interviews the applicant, conducts more

background searches to verify the responses, and prepares an Investigative

Summary Report. R. 126 ¶ 13; R. 132 ¶ 13; R. 134 ¶ 2 (Coleman’s Response to

Sheriff and Cook County’s L.R. 56.1 Statement); R. 135 ¶¶ 17-19.

At least five members of the Merit Board review each applicant’s file (usually

about 200 pages long) and individually determine whether to certify or reject the

applicant as qualified for the position. R. 126 ¶¶ 15-16; R. 132 ¶¶ 15-16; R. 135 ¶¶

10, 20-21. If an applicant is not certified by the Merit Board, he or she will not be

considered for employment by the Sheriff. R. 126 ¶ 18; R. 132 ¶ 18. If an applicant

is certified by the Merit Board, his or her file is sent to the Sheriff’s Bureau of

Human Resources, which has its own tests and procedures. R. 126 ¶ 14; R. 132 ¶ 14;

R. 135 ¶ 22.

A certified applicant remains eligible for hire for two years after certification.

R. 135 ¶ 22. Ultimately, the Sheriff’s Office determines which, if any, individuals to

hire from the pool of certified applicants. Id. ¶ 23.

B. Coleman’s Correctional Officer Applications

Coleman is an African-American resident of the Northern District of Illinois.

R. 126 ¶ 1; R. 132 ¶ 1; R. 135 ¶ 3. In 2007, Coleman applied through the Sheriff’s

Office to be a correctional officer at the Cook County Jail. R. 126 ¶ 19; R. 132 ¶ 19;

R. 135 ¶ 24. She was interviewed by the Merit Board, and five Merit Board

members voted to certify her. R. 126 ¶¶ 20-21; R. 132 ¶¶ 20-21; R. 135 ¶ 25. But the

Sheriff never hired her, and Coleman’s application lapsed in 2010. R. 126 ¶ 22; R.

132 ¶ 22; R. 135 ¶ 26.

Coleman applied again for the same position in 2014. R. 135 ¶ 27. But she

failed the physical in August 2014 and again in December 2014. R. 135 ¶ 27; R. 126

¶ 39; R. 132 ¶ 39; R. 134 ¶ 45.

Coleman applied to be a correctional officer once again in 2015. R. 126 ¶ 23;

R. 132 ¶ 23; R. 135 ¶ 28. This time, she passed the physical. R. 126 ¶ 39; R. 132

¶ 39; R. 134 ¶ 45. She also passed the written exams. R. 126 ¶ 39; R. 132 ¶ 39.

Coleman’s Personal History Questionnaire and investigation revealed the following:

 Coleman responded “Yes” to the question, “Have you ever taken

anything from former or current employer or anyone (i.e., office

supplies, food, tools, cash property, etc.)?” (R. 134 ¶ 14);

 Coleman had relationships with men who were incarcerated and had

visited at least one man in jail (R. 134 ¶ 46; R. 135 ¶ 31);

 Coleman had 18 prior employment positions in a variety of fields

(including as a dental assistant, a Federal Express driver, a security

officer, and a U.S. Post Office deliverer), several of which lasted a short

duration (R. 134 ¶ 16; R. 135 ¶ 30);

 Coleman’s driver’s license had been suspended two or more times, she

was arrested for driving on a suspended license, and she had multiple

moving violations, for one of which she failed to appear at trial (R. 134

¶¶ 38-39, 41; R. 135 ¶ 33);

 Coleman was rejected for employment by the Illinois Department of

Corrections in 2014 because of suspended licenses (R. 134 ¶ 17); and

 Coleman had a tax lien filed against her in 2010 that was released in

May 2015 (R. 134 ¶ 37; R. 135 ¶ 32).

Investigator Michael Bosco, a retired police officer, was assigned to interview

Coleman in June 2015. R. 126 ¶ 24; R. 132 ¶ 24; R. 134 ¶¶ 1, 3, 5. During the

interview, Bosco did not make racial comments or demean Coleman. R. 134 ¶ 6.

After the interview, Bosco prepared an Investigative Summary Report. That

report states that Coleman had a child with Melvin Boyd in 2011, that Boyd is a

convicted felon, and that Coleman did not list Boyd as a felon in her application as

required. R. 126 ¶¶ 25-26; R. 132 ¶¶ 25-26. The statement in the Investigative

Summary Report that Boyd is a felon is wrong; Boyd pleaded guilty to a non-felony

offense and was placed on supervision. R. 126 ¶¶ 27-29; R. 132 ¶¶ 27-29. The

parties dispute whether Bosco asked Coleman about Boyd during her interview. R.

126 ¶ 31; R. 134 ¶ 50.

The Investigative Summary Report also incorrectly states that Coleman filed

for Chapter 7 bankruptcy in 2011. R. 126 ¶ 35; R. 132 ¶ 35. In fact, Coleman filed

for bankruptcy in 2004. R. 126 ¶ 36; R. 132 ¶ 36. The fact that Coleman filed for

bankruptcy in 2004 was included in her 2007 application that the Merit Board

certified. R. 134 AF ¶ 3 (Coleman’s Additional Facts in Support of L.R. 56.1

Statement with respect to Sheriff and Cook County).1

On July 31, 2015, five members of the Merit Board reviewed Coleman’s

application and voted not to certify Coleman for employment. R. 126 ¶ 40; R. 132

¶ 40; R. 135 ¶ 35. The Merit Board notified Coleman of its decision in an email that

did not contain its reasoning. R. 126 ¶ 42; R. 132 ¶ 42. None of the Board members

recalls Coleman’s file or why they rejected her. R. 126 ¶ 43; R. 132 ¶ 43. After

Coleman was not certified, the Merit Board continued to review and certify

applicants for the position of correctional officer. R. 126 ¶ 44; R. 132 ¶ 40.

C. Other Correctional Officer Applications

Bosco has significant experience interviewing correctional officer applicants;

he interviewed 73 applicants between 2014 and 2016. R. 134 ¶ 4. Bosco’s usual

practice is to discuss with an applicant any part of the application that he thinks is

inaccurate or incomplete. R. 126 ¶ 46; R. 132 ¶ 46.

Coleman identifies three comparator Caucasian applicants with respect to

whom she claims Bosco followed his usual practice of giving them a chance to

explain and correct information about connections to criminality. First, Coleman

points to Daniel Golden, a Caucasian man who Bosco interviewed in March 2015. R.

1 Because the Sheriff and Cook County did not file a response to Coleman’s

Statement of Additional Facts, those facts are deemed admitted. See, e.g., Austin v.

City of Chicago, 2018 WL 1508484, at *1 (N.D. Ill. Mar. 27, 2018) (“If a party

inadequately responds to an opponent’s Rule 56.1 statement, the court may deem

the opponent’s factual allegations admitted.”).

126 ¶¶ 47-48; R. 132 ¶¶ 47-48. Bosco noted in Investigative Summary Report for

Golden that a number of police reports listed a Daniel Golden as the victim or

reporter of a crime at Golden’s former home address. R. 126 ¶ 49; R. 132 ¶ 49. Bosco

asked Golden to comment on this finding, and he replied that his father had the

same name as him and the reports were his father’s, not his. R. 126 ¶ 50; R. 132 ¶

50. Golden had only three jobs from 2006 to 2014, he was never issued a traffic

citation, and he never filed for bankruptcy. R. 134 ¶ 47. The Sheriff ultimately hired

Golden as a correctional officer. R. 126 ¶ 51; R. 132 ¶ 51.

Second, Coleman points to Henry Renken, who is also Caucasian, and who

Bosco interviewed in October 2015. R. 126 ¶¶ 52-53; R. 132 ¶¶ 52-53. Renken’s

father was incarcerated for bank robbery and use of a firearm. R. 126 ¶ 54; R. 132

¶ 54. Renken’s Investigative Summary Report states that Renken was asked about

his reference to his father being a convicted felon, and Renken “testified that he had

no idea of his father[’]s intention to rob a bank” or to use Renken’s “bicycle as a get

away vehicle.” R. 126 ¶ 55; R. 132 ¶ 55. Renken had only two jobs since graduating

from high school, no record of bankruptcy, and no traffic citations. R. 134 ¶ 48. The

Sheriff hired Renken as a correctional officer. R. 126 ¶ 56; R. 132 ¶ 56.

Third, Coleman points to Nicolas Christopher, who is Caucasian, and who

Bosco interviewed in December 2014. R. 126 ¶¶ 57-58; R. 132 ¶¶ 57-58. Christopher

was arrested in 2011 and pleaded guilty to disorderly conduct. R. 126 ¶ 59; R. 132

¶ 59. Christopher’s Investigative Summary Report explains that he was in a car

with his girlfriend’s family when her brothers began yelling obscenities;

Christopher denied yelling at anyone, but he said he took his attorney’s advice to

plead guilty and expunge the arrest later. R. 126 ¶ 60; R. 132 ¶ 60. Christopher had

three jobs since graduating from high school, no record of bankruptcy, and his only

vehicle violation was for disregarding a stop sign. R. 134 ¶ 49. The Sheriff hired

Christopher as a correctional officer. R. 126 ¶ 61; R. 132 ¶ 61.

Coleman also points to a number of correctional officer applicants certified by

the Merit Board in 2014 and 2015 with certain issues akin to Coleman’s in their

Investigative Summary Reports. Jessica Lofton, who the Merit Board certified in

June 2015, filed for bankruptcy in 2010, was arrested for speeding, had been subject

to supervision for speeding, and owed several thousand dollars in parking fines. R.

134 AF ¶¶ 4-6. Luis Vasquez, who the Merit Board certified in June 2015, filed for

bankruptcy in 2015. Id. ¶¶ 7-8. Jorge Lizalde, who the Merit Board certified in

December 2014, had several open, negative accounts with an outstanding balance of

approximately $19,000, had twice been convicted for speeding, had his license

suspended, and had been convicted for driving on a suspended license. Id. ¶¶ 9-11.

Sergio Cale, who the Merit Board certified in May 2015, was twice convicted of

speeding, given supervision for disregarding a stop sign, and had his license

suspended. Id. ¶¶ 12-13. And LaRoyce Tankson, who the Merit Board certified in

February 2010, visited a friend at Cook County Jail. Id. ¶¶ 14-15.

D. This Case

Coleman filed her original complaint against Sheriff and Cook County in

February 2016. R. 1. In September 2016, Coleman filed an amended complaint

adding the Merit Board as a defendant. R. 18. The amended complaint alleges the

Sheriff denied Coleman equal employment opportunities in violation of Title VII

due to racial animus on the part of the Merit Board, and seeks to hold Cook County

liable for indemnification. Id. ¶¶ 5, 17-18. In the alternative, Coleman seeks a state

law “writ of mandamus compelling the Merit Board to certify her for employment as

a correctional officer” and for other equitable relief. Id. ¶ 19.

In November 2016, the Merit Board moved to dismiss Coleman’s state law

mandamus claim. R. 28. In February 2017, Judge Darrah granted the Merit Board’s

motion, finding that because Coleman did not assert a federal claim against the

Merit Board, there was “no basis for federal subject matter jurisdiction over

[Coleman’s] state law claim for mandamus.” R. 55 at 4.

The case was transferred to this Court in March 2017. R. 74. In September

2017, this Court granted Coleman’s motion to reconsider Judge Darrah’s opinion

dismissing Coleman’s mandamus claim for lack of subject matter jurisdiction. R. 94.

The Court held that Coleman’s Title VII claim and state law mandamus claim form

part of the same case or controversy because the underlying factual allegations are

identical, meaning this Court has supplemental jurisdiction over the mandamus

claim under 28 U.S.C. § 1367. Id. The opinion noted: “Coleman’s mandamus claim

seeks a writ of mandamus compelling the Merit Board to certify her for employment

as a correctional officer, but this Court finds that Coleman’s mandamus claim is

proper only insofar as she seeks a more thorough and factually correct investigation

by the Merit Board.” Id. at 7 n.2.

The case proceeded through discovery. It was during discovery that Coleman

first learned that Bosco’s Investigative Summary Report contained erroneous

information about Boyd. R. 126 ¶ 32; R. 132 ¶ 32. When asked in his deposition to

explain how he made a mistake regarding Boyd being a felon (and thus about

Coleman’s failure to disclose her relationship with a felon), Bosco answered: “I’m

guessing that at the time I did the report that the offense that he arrested for was a

felony, and I failed to note that he had been given supervision for that offense,”

making it a non-felony. R. 134 ¶ 7.

In response to an interrogatory asking the Sheriff to state every legitimate

nondiscriminatory reason for not hiring Coleman, the Sheriff stated:

By virtue of Chapter 55 of the Illinois Compiled Statutes, the Cook

County Sheriff’s Merit Board, a separate entity from the Sheriff’s

Office, is created to, inter alia, establish standards and qualifications

for appointment as a corrections officer. Appointment of county

corrections officers “shall be made from those applicants who have

been certified by the Board as being qualified for appointment.” See 55

ILCS 5/3-7800. Corrections officers must first be certified by the Merit

Board before they can be hired by the Sheriff’s Office. The Plaintiff was

not certified by the Merit Board as being qualified for the appointment

in connection with her 2014 employment application.

R. 126 ¶ 32; R. 132 ¶ 32.

In November 2017, Coleman moved for partial summary judgment. R. 102.

After Coleman filed her motion, the Merit Board agreed to reconsider an application

from Coleman without the incorrect information about Boyd and with the correct

date of her bankruptcy. R. 135 ¶¶ 36-37; R. 142 ¶¶ 1-2 (Merit Board’s Responses to

Coleman’s L.R. 56.1 Statement of Additional Facts). This Court stayed the case for

90 days to give the Merit Board that opportunity. R. 135 ¶ 38.

In April 2018, the Court lifted the stay. At a hearing on April 2, 2018, the

Court explained:

the cause of Coleman not being hired right now [is Coleman] not filling

out [a new Personal History Questionnaire]. If she doesn’t want to,

that’s fine. I can’t force her to. And if they don’t want to hire her

because she hasn’t, I doubt I would overturn a decision by the Merit

Board to not rehire—nor not to hire a prison guard who won’t provide

them with information about what I assume are a variety of contacts

and matters of history that they need to investigate before they put

somebody in a sensitive position like that.

Id. ¶ 40. Coleman’s counsel responded that Coleman “would consider” “a small

amount of updating” to the Personal History Questionnaire, but Coleman

interpreted defendants to be “telling her to reapply for the job, which is not the

relief she’s seeking.” R. 142 ¶ 3; R. 131-14 at 8. The parties then briefed Coleman’s

motion for partial summary judgment and defendants’ cross-motions for summary

judgment.

Analysis

I. Title VII Claim Against Sheriff And Cook County

The Sheriff and Cook County move for summary judgment as to Coleman’s

Title VII claim, and Coleman cross-moves for summary judgment as to liability on

that claim. The Sheriff and Cook County first dispute whether the Sheriff can be

held liable for the Merit Board’s actions. Both sides further argue that the

undisputed evidence entitles them to summary judgment as to Title VII liability.

The Court addresses each argument in turn.

A. Sheriff’s Liability For Merit Board Actions

The Sheriff argues that he cannot be liable for any decisions concerning

Coleman when it was the Merit Board’s decision not to certify her in 2015. The

Sheriff emphasizes that he never even reviewed Coleman’s 2015 application.

Coleman counters that the Merit Board is an agent of the Sheriff for purposes of

Title VII liability. The Court agrees with Coleman.

The Sheriff does not meaningfully dispute that if the Merit Board is its agent,

it can be liable for discrimination on the part of the Merit Board. Indeed, Title VII

incorporates agency principles. Meritor Sav. Bank FSB v. Vinson, 477 U.S. 57, 71-

72 (1986). Thus, under “Title VII . . . an employer cannot simply delegate portions of

its hiring or promotion procedure to a third party and escape liability if the third

party develops discrimination problems.” Moskowitz v. City of Chicago, 1993 WL

478938, at *4 (N.D. Ill. Nov. 16, 1993) (collecting cases).

But the Sheriff contests that the Merit Board is its agent, emphasizing that

the Merit Board is a separate body created by statute. See 55 ILCS 5/3-7008. The

Court does not find this fact dispositive. The Illinois Appellate Court has expressly

described the Merit Board as “an agency of a unit of local government, specifically of

the Cook County Sheriff.” Roman v. Cook Cty. Sheriff’s Merit Bd., 17 N.E.3d 130,

155 (Ill. App. Ct. 2014). And as Judge Lee explained in Bless v. Cook Cty. Sheriff’s

Office, 2016 WL 958554, at *5 (N.D. Ill. Mar. 8, 2016):

Although the [Merit] Board was created by statute and not by the

Sheriff’s Office, the Sheriff appoints its members (subject to approval

by the “county board”). See 55 Ill. Comp. Stat. 5/3-7002. Moreover, the

Board’s only apparent purpose is to create employment policies and

make employment decisions for the Sheriff’s Office, see id., et seq., and

some of this authority is shared with the Sheriff, see id. §§ 5/3-7008-09

(Sheriff decides who is hired and promoted from among candidates

previously approved by the Board), § 5/3-7011 (Sheriff can suspend

employees for up to 30 days without Board approval); § 5/3-7012

(Sheriff brings charges for termination to the Board).

The undisputed facts in this case further support that the Sheriff’s designated chain

of command must approve any job posting, and that the Merit Board collects

applications and conducts investigations pursuant to an order from the Sheriff. R.

126 ¶¶ 9, 11; R. 132 ¶¶ 9, 11.

Addressing a similar relationship between the City of Montgomery and a

City-County Personnel Board, the Eleventh Circuit held that the Board was the

agent of the City for Title VII purposes where state law gave the Board the power to

exercise duties “traditionally reserved to the employer,” including establishing a

pay plan, formulating minimum standards for jobs, and evaluating employees.

Williams v. City of Montgomery, 742 F.2d 586, 589 (11th Cir. 1984). Similarly here,

Illinois state law and the Sheriff’s order delegate to the Merit Board duties

traditionally reserved to the employer, including posting openings, collecting

applications, and evaluating applicants. R. 126 ¶¶ 4, 10-11. The Court therefore

holds that the Sheriff has an agency relationship with the Merit Board and may be

sued under Title VII for any discriminatory acts of the Merit Board.2 Cook County

also may be liable as an indemnitor of the Sheriff.3

2 The Court agrees with Coleman that a contrary holding could have the effect

of insulating from liability even blatantly discriminatory actions by the Merit

Board. The Seventh Circuit has indicated that a Title VII claim against the Merit

Board would be “frivolous” because the Merit Board does not act as an employer.

Averhart v. Sheriff of Cook County, 752 F.3d 1104, 1106 (7th Cir. 2014). And in prior

lawsuits, “the Merit Board has denied that it is a suable separate legal entity.” See

B. Merits

Coleman claims she is entitled to partial summary judgment as to the Sheriff

and Cook County’s liability on her Title VII claim under the McDonnell Douglas

burden-shifting framework. The Sheriff and Cook County cross-move for summary

judgment on Coleman’s Title VII claim.

Although the Seventh Circuit has recently “do[ne] away with the need for

separate tests and ‘mosaics’” to categorize evidence in discrimination cases, it has

explained that “the well-known and oft-used McDonnell Douglas framework for

evaluating discrimination remains an efficient way to organize, present, and assess

evidence in discrimination cases.” Johnson v. Advocate Health & Hosps. Corp., 892

F.3d 887, 894 (7th Cir. 2018). Courts therefore conduct the McDonnell Douglas

analysis if the parties present their arguments “in those terms,” as Coleman does.

David v. Bd. of Trs. of Cmty. Coll. Dist. No. 508, 846 F.3d 216, 224 (7th Cir. 2017).

After applying the McDonnell Douglas framework, the Court then assesses the

evidence “cumulatively . . . to determine whether it permits a reasonable factfinder”

to determine that the challenged conduct “was attributable to . . . race.” Id.

Bless, 2016 WL 958554, at *5 (citing Tate v. Cook Cnty. Sheriff’s Merit Bd, 2007 WL

2962785, at *1-2 (N.D. Ill. Oct. 4, 2007); Shannon v. Cook Cnty. Sheriff’s Merit Bd.,

1998 WL 171782, at *4 (N.D. Ill. Apr. 10, 1998); Mayes v. Elrod, 470 F. Supp. 1188,

1192 (N.D. Ill. 1979)).

3 Cook County does not dispute that it is liable as an indemnitor for any

judgment against the Sheriff. E.g., Carver v. Sheriff of LaSalle County, 324 F.3d

947, 947-48 (7th Cir. 2003). As such, the Sheriff and Cook County’s liability rises

and falls together.

1. McDonnell Douglas Framework

Under the McDonnell Douglas framework, a plaintiff may prove a prima facie

case of racial discrimination in a failure-to-hire case by showing that:

(1) he is a member of a protected class; (2) he applied and was qualified

for a job for which the employer was seeking applicants; (3) despite his

qualifications, he was rejected (in other words, he suffered an adverse

employment action); and (4) the position remained open and the

employer continued to seek applicants from persons of similar

qualifications.

Simpson v. Beaver Dam Cmty. Hosps., Inc., 780 F.3d 784, 790 (7th Cir. 2015). If the

plaintiff succeeds in making this showing, “the burden shifts to the employer to

articulate a legitimate nondiscriminatory reason for the employment action.” Id. “If

the employer offers such a reason, the burden reverts to the plaintiff who must

show that the stated reason is a pretext, which raises a reasonable inference of

unlawful discrimination.” Id. In applying this framework, “all evidence belongs in a

single pile and must be evaluated as a whole.” Ortiz v. Werner Enterprises, Inc., 834

F.3d 760, 766 (7th Cir. 2016).

a. Prima Facie Case

There is no dispute that Coleman has satisfied the first, third, and fourth

elements of her prima facie case. Coleman is African-American, she was not

certified by the Merit Board in July 2015 (thus suffering an adverse employment

action), and after she was not certified, the Merit Board continued to consider other

applicants from persons of similar qualifications.

But the Court finds issues of material fact as to the second element—whether

Coleman was qualified to be certified. Beyond the need to pass written and physical

exams, there is no evidence in the summary judgment record as to objective,

definitive qualifying criteria for the correctional officer position. It is true, as

Coleman emphasizes, that she passed the written and physical exams in 2015, and

she was previously certified in 2007. But the composition of the Board was different

in 2007. More importantly, many potentially problematic facts revealed in

Coleman’s investigation occurred after 2007, including a number of short-duration

jobs, the Illinois Department of Corrections’ failure to re-hire Coleman in 2014 due

to the suspension of her driver’s license, and the tax lien filed against Coleman in

2010. Although Coleman has presented evidence that other applicants were

certified who had certain of the same facts in their histories, the record does not

support a finding as a matter of law one way or another—either that Coleman was

qualified to be certified or that she was not qualified to be certified. Thus, the same

question of fact that prevents granting summary judgment to Coleman on this point

also prevents granting the Sheriff and Cook County’s motion for summary judgment

on this point.

b. Legitimate Non-Discriminatory Reason

Although there is certainly record evidence of potential non-discriminatory

explanations for the Merit Board’s failure to certify Coleman, the Court finds this

issue to be a matter of dispute for the jury as well. To meet their burden, the Sheriff

and Cook County must “point to reasonably specific facts that explain how [the

Merit Board] formed its opinion.” Oliver v. Joint Logistics Managers, Inc., 893 F.3d

408, 413 (7th Cir. 2018). None of the Merit Board members who declined to certify

Coleman in 2015 remembers why they made their decision. Nor do the Sheriff and

Cook County put forth evidence of hiring guidelines or any written standard

supporting their decision. The first (and seemingly most likely) explanation for the

Merit Board’s failure to certify Coleman is the Investigative Summary Report’s

inaccurate information about Coleman’s failure to report her relationship with a

convicted felon. This explanation, although non-discriminatory in and of itself, may

be found to be entangled with discrimination for the reasons explained in the next

section. The Sheriff and Cook County also offers other potential explanations,

including Coleman’s admission to taking office supplies from a current or former

employer, Coleman’s large number of jobs, Coleman’s tax lien, Coleman’s driving

record, and Coleman’s visits with two men detained at Cook County Jail. But the

state of the record does not lead the Court to conclude as a matter of law that the

Sheriff and Cook County have discharged their burden. That will be for the jury to

determine.

Coleman says the Court should not consider any of the Sheriff and Cook

County’s reasons because the Sheriff and Cook County did not identify them in

response to Coleman’s interrogatory asking for every legitimate reason for not

certifying Coleman. In response to that interrogatory, the Sheriff and Cook County

relied on their legal argument that the Sheriff did not hire Coleman because she

was not certified by the Merit Board, a separate legal entity. R. 126 ¶ 45.

The Court declines to eliminate these other explanations from its

consideration simply because the Sheriff relied on a legal argument in its

interrogatory response. This is not a situation like in Musser v. Gentiva Health

Servs., 356 F.3d 751 (7th Cir. 2004), on which Coleman relies, where a party failed

to disclose an expert witness as required by Fed. R. Civ. P. 26(a)(2)(A), and the

Seventh Circuit upheld the exclusion of that witness as a discovery situation. See id.

at 758.

The Court also disagrees with Coleman that the Sheriff and Cook County

have failed to “introduce any admissible evidence” (Duncan v. Fleetwood Motor

Homes of Indiana, Inc., 518 F.3d 486, 493 (7th Cir. 2008)) to support their proffered

reasons. The Sheriff and Cook County’s reasons are supported by admissible record

evidence in the forms of Coleman’s Personal History Questionnaire, Bosco’s

Investigative Summary Report for Coleman, and deposition testimony in this case.

The Court agrees with Coleman, however, that the record does not contain a single,

clear explanation for the Merit Board’s decision, which supports the Court’s

conclusion that a trial is warranted.

c. Pretext

The Court further finds that Coleman’s comparator evidence creates

questions of material fact as to pretext. See, e.g., Coleman v. Donahoe, 667 F.3d 835,

853 (7th Cir. 2012) (“a discrimination plaintiff may employ . . . comparator evidence

to discharge her burden at the pretext stage”). Coleman has identified three

Caucasian comparators—Golden, Renken, and Christopher—whose investigations,

like Coleman’s, identified a connection to criminality. Like Coleman, they were all

interviewed by Bosco. But unlike Coleman, all three of these comparators were

given a chance to explain and clarify the circumstances of the identified incidents,

and those explanations were included in their Investigative Summary Reports.

Taking the facts in the light most favorable to Coleman, Coleman was given no such

opportunity by Bosco. Such an opportunity could have allowed Coleman to explain

that Boyd was not in fact a felon, which in turn would have prevented the mistaken

information in her Investigative Summary Report that she had concealed her

relationship with a felon. In this way, Bosco deviated from his usual practice of

giving applicants a chance to explain and correct information about connections to

criminality. This is evidence of potential discrimination on the part of Bosco that

warrants a trial.

The Sheriff and Cook County respond that Golden, Renken, and Christopher

are not similarly situated enough to serve as comparators. To qualify as similarly

situated, the proffered comparator must be “directly comparable” to the plaintiff “in

all material respects.” Alexander v. Casino Queen, Inc., 739 F.3d 972, 981 (7th Cir.

2014). There must be “enough common factors . . . to allow for a meaningful

comparison in order to divine whether intentional discrimination was at

play.” Coleman, 667 F.3d at 847. But “[w]hether a comparator is similarly situated

is usually a question for the fact-finder, and summary judgment is appropriate only

when no reasonable fact-finder could find that plaintiffs have met their burden on

the issue.” Id. at 846-47; accord Srail v. Village of Lisle, 588 F.3d 940, 945 (7th Cir.

2009); LaBella Winnetka, Inc. v. Vill. of Winnetka, 628 F.3d 937, 942 (7th Cir. 2010).

The Sheriff and Cook County point out that Golden, Renken, and Christopher

did not have as many prior jobs as Coleman, the same financial history, or the same

driving history. The problem, however, is that there is not a clear record as to

whether any of these factors contributed to Bosco’s treatment of Coleman or of the

comparators, or ultimately made a difference in Coleman not being certified or

Golden, Renken, and Christopher being certified. None of the Merit Board members

recalls why Coleman was not certified. And the clearest and most likely explanation

is the mistaken information in the Investigative Summary Report that Coleman

had concealed her relationship with a felon. Again, the three comparators were

given an opportunity by Bosco to explain similar ties to criminality, and in the case

of Golden, to correct an inaccuracy (i.e., that his father with the same name was the

subject of police reports and not him). Taking the facts in the light most favorable to

Coleman, Coleman was not given that opportunity. See, e.g., Coleman, 667 F.3d at

853 (comparator evidence showing that rule was not enforced “evenhandedly”

against plaintiff and comparators helped create a genuine issue of material fact as

to pretext). Whether these comparators are similarly situated to Coleman is “a

question for the fact-finder.” Coleman, 667 F.3d at 847.

2. Cumulative Assessment

Stepping back and considering all the evidence “cumulatively” (David, 846

F.3d at 224) leads the Court to the same conclusion. In addition to the comparator

evidence discussed above with respect to Golden, Renken, and Christopher,

Coleman introduces evidence that a number of applicants who were certified had

significant driving issues and financial issues, or had contact with jail detainees.

Although Coleman does not identify these applicants’ race so as to make them direct

comparators, this evidence bears on the overall legitimacy of certain of the Sheriff

and Cook County’s explanations for their failure to certify Coleman. The evidence

taken in the light most favorable to Coleman could lead “a reasonable factfinder to

conclude” that Coleman’s race caused the difference in treatment by Bosco that in

turn lead to her not being certified by the Merit Board. Ortiz, 834 F.3d at 765; see

also David, 846 F.3d at 224.

Other evidence offered by the Sheriff and Cook County includes the fact that

as of July 2016, the Cook County Department of Corrections employed 1,557

African-Americans and 1,348 Caucasians. R. 134 ¶ 12. But this statistical evidence

is too general to bear on the Court’s assessment. As the Seventh Circuit has

explained, a “focus on the racial composition of the workforce . . . is misplaced”;

what matters is specific information about the racial makeup and qualifications of

the hiring pool. Hague v. Thompson Distribution Co., 436 F.3d 816, 829 (7th Cir.

2006); accord Kier v. Commercial Union Ins. Co., 808 F.2d 1254, 1258 (7th Cir.

1987). Nor is the lack of evidence that Bosco made any racially charged comments

or had overt racial animus dispositive, as the Sheriff and Cook County suggest (R.

123 at 4), where Coleman has set forth other evidence creating genuine issues of

material fact warranting a trial.

II. Mandamus Claim Against Merit Board

Coleman and the Merit Board cross-move for summary judgment on

Coleman’s state law claim requesting a writ of mandamus “ordering the Merit

Board to certify [Coleman] for employment as a correctional officer.” R. 104 at 13;

see also R. 18 ¶ 19 (amended complaint seeking a “writ of mandamus compelling the

Merit Board to certify [Coleman] for employment as a correctional officer”). Under

Illinois law, “[m]andamus is an extraordinary remedy,” and “[a] writ of mandamus

will be awarded only if the petitioner establishes a clear right to the relief

requested, a clear duty of the public official to act, and clear authority in the public

official to comply with the writ.” People ex rel. Alvarez v. Howard, 72 N.E.3d 346,

350 (Ill. 2016).

Coleman argues that the Merit Board violated “a clear duty” (id.): its own

rule to conduct a “thorough investigation” (R. 126 ¶ 14; R. 132 ¶ 14) of job

applicants. Coleman cites Nolan v. Hillard, 722 N.E.2d 736 (Ill. App. Ct. 1999), for

the principle that the Merit Board “is under a legal duty to follow its own rules.” Id.

at 748. And Coleman emphasizes that her Investigative Summary Report contained

two significant errors: the inaccurate fact that she had failed to report her

relationship with a convicted felon, and an incorrect and much more recent year of

her bankruptcy filing.

The Merit Board does not meaningfully dispute that Bosco’s Investigative

Summary Report for Coleman contained two mistakes, or that these mistakes

constituted a violation of the Merit Board’s rules. The Merit Board “agree[s] to

provide . . . Plaintiff a new investigation” (R. 143 at 4) in which “the portions of the

investigation related to plaintiff withholding information regarding her relationship

with a convicted felon” are excluded, and “the date of [Coleman’s] bankruptcy [is]

corrected” (R. 130 at 7).

But the Merit Board contests whether there is “a clear right to [Coleman’s]

relief requested” (Alvarez, 72 N.E.3d at 350): compelling the Merit Board to certify

Coleman as a correctional officer. The Court agrees with the Merit Board that this

is not relief it can provide. As this Court has already found, “Coleman’s mandamus

claim is proper only insofar as she seeks a more thorough and factually correct

investigation by the Merit Board.” R. 94 at 7 n.2. Coleman asks the Court to

reconsider this ruling, but she cites no authority in support. R. 104 at 13 n.2. And

her position is contrary to established law. As the Illinois Appellate Court explained

in Mabwa v. Mendoza, 19 N.E.3d 1252, 1257 (Ill. App. Ct. 2014),

“[m]andamus cannot be used to direct a public official or body to reach a particular

decision or to exercise its discretion in a particular manner, even if the judgment or

discretion has been erroneously exercised.” Id. at 1257; accord McFatridge v.

Madigan, 989 N.E.2d 165, 170 (Ill. 2013) (“A writ of mandamus is appropriate when

used to compel compliance with mandatory legal standards but not when the act in

question involves the exercise of a public officer’s discretion.”).

Coleman says she is simply asking the Court to “direct the Merit Board to

follow its own rules.” R. 136 at 11. But ordering the Merit Board to follow its own

rules means ordering the Merit Board to conduct a thorough and factually complete

investigation pursuant to the detailed and discretionary process set forth above.

This Court does not have authority to order the Merit Board “to reach a particular

decision or to exercise its discretion in a particular manner” by certifying Coleman.

See Mabwa, 19 N.E.3d at 1257. Nor can the Court order the Merit Board to

circumvent its usual consideration process by allowing Coleman to bypass the step

of providing a new, updated Personal History Questionnaire. See R. 136 at 14

(explaining that Coleman refuses to fill out a new Personal History Questionnaire);

R. 130 at 12 (explaining that the Merit Board will “not require the additional

interview or physical and mental evaluations,” but it does require that Coleman

“provide a new, updated [Personal History Questionnaire]”). Significant time has

passed since Coleman’s 2015 application, and the Merit Board is entitled to up-to-

date facts when re-considering Coleman’s application.

The Court therefore denies Coleman’s motion for summary judgment on her

mandamus claim. The Court defers ruling on the Merit Board’s cross-motion for

summary judgment on that claim. The Court gives Coleman 30 days to consider

whether she will reframe her mandamus claim (either through an amended

complaint or a stipulation by the parties) to seek the only relief the Court is able to

provide (which the Merit Board agrees to provide): a thorough and factually correct

investigation of her application with a new, updated Personal History

Questionnaire. Otherwise, the Court will grant the Merit Board’s motion for

summary judgment based on a finding that Coleman has not “establishe[d] a clear

right to the relief requested.” See Alvarez, 72 N.D.2d at 350.4

Conclusion

For the foregoing reasons, the Court denies Coleman’s motion for partial

summary judgment [102], denies Cook County and the Sheriff's cross-motion for

summary judgment on Coleman’s Title VII claim [122], and defers ruling for 30

days on the Merit Board’s cross-motion for summary judgment on Coleman’s

mandamus claim [129]. A status conference is scheduled for September 10, 2018 for

Coleman to report on how she wishes to proceed on her mandamus claim.

ENTERED:

Honorable Thomas M. Durkin

United States District Judge

Dated: August 7, 2018

4 Because the Court agrees with the Merit Board that the Court lacks legal

authority to order the Merit Board to certify Coleman, it need not address the Merit

Board’s alternative argument that the record reflects multiple reasons why the

Merit Board could have validly declined to certify Coleman aside from the identified

errors, making summary judgment in Coleman’s favor ordering the Merit Board to

certify her improper. The Court notes for the record, however, that it agrees with

the Merit Board that whether Coleman is qualified to be certified separate and

apart from the errors is a disputed issue inappropriate for summary judgment.

25