Thomas Hobgood v. Illinois Gaming Board

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-1926

T HOMAS H OBGOOD,

Plaintiff-Appellant,

v.

ILLINOIS G AMING B OARD , et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 08-C-5516—Rebecca R. Pallmeyer, Judge.

A RGUED JANUARY 29, 2013—D ECIDED JULY 16, 2013

Before B AUER, W ILLIAMS, and H AMILTON, Circuit Judges.

H AMILTON, Circuit Judge. Plaintiff Thomas Hobgood

contends that his employer, the Illinois Gaming Board,

and several of its employees retaliated against him

in violation of Title VII of the Civil Rights Act of 1964,

see 42 U.S.C. § 2000e-3(a), and the First Amendment.

Hobgood was the subject of repeated and intensive in-

vestigations that resulted in disciplinary proceedings

and termination, though another state agency ultimately

2 No. 11-1926

ordered that he be reinstated. Hobgood contends he

was the target of this treatment because he helped a

fellow Board employee and friend, John Gnutek, with his

suits against the Gaming Board under Title VII and

the Racketeer Influenced and Corrupt Organizations

Act, see 18 U.S.C. § 1964(c). The district court granted

summary judgment for the defendants. The court con-

cluded that Hobgood did not furnish evidence that his

protected activity — helping Gnutek prepare for litiga-

tion — caused any material adverse action, including

his eventual firing. The court reasoned that the Gaming

Board fired Hobgood not because he had assisted

Gnutek, but because the “nature” of that assistance con-

sisted of providing confidential information.

We reverse and remand. The record here presents

genuine issues of fact concerning the Gaming Board’s

and its employees’ motives for investigating, disciplining,

and terminating Hobgood. This case presents a good

example of a plaintiff’s use of the “convincing mosaic”

approach to showing that an employer acted for

unlawful reasons. When the plaintiff’s evidence is

viewed as a whole, a jury could reasonably infer that

the Gaming Board investigated and fired him because

he assisted Gnutek with his lawsuits against the Board.

The question of the defendants’ motives will need to be

decided by a jury, not by a judge on summary judgment.

I. Facts for Purposes of Summary Judgment

We recount the facts in the light reasonably most favor-

able to Hobgood. See Hanners v. Trent, 674 F.3d 683, 691

No. 11-1926 3

(7th Cir. 2012). Beginning in 2002, Hobgood worked as a

senior special agent for the investigations division of the

Illinois Gaming Board, which was part of the Illinois

Department of Revenue at all times relevant here.

Hobgood’s job involved investigating the backgrounds

of those applying for gambling licenses. As part of his

job, he had access to confidential information. After he

had worked at the Gaming Board for a couple of years,

Hobgood applied to become an enforcement opera-

tions supervisor. Many others, including Gnutek (who

worked then for the enforcement division of the

Board), also sought the position. From this pool of appli-

cants the Board selected Mark Stevens, a master sergeant

with the Illinois State Police, in 2005. Some employees

felt that Stevens’s selection reflected the Gaming

Board’s favoritism toward the State Police. Gnutek

thought the selection process was unlawful. He sued

the Gaming Board the following year, alleging that

it denied him the position of enforcement operations

supervisor in retaliation for an earlier gender bias suit.

Hobgood helped Gnutek organize and research his

lawsuit against the Gaming Board. To help with the

retaliation claim, Hobgood gave Gnutek two documents

significant to this case. First, he gave Gnutek a “memoran-

dum for record” that Hobgood had prepared after

he talked to Luis Tigera, deputy administrator of

the enforcement division. The memo reflected their con-

versation about the process for hiring the enforcement

operations supervisor. Second, the interim administrator

of the Gaming Board, Jeanette Tamayo, asked Hobgood

to deliver a sealed envelope to Gnutek. He did so, but

4 No. 11-1926

we must assume for purposes of summary judgment

that Hobgood was not aware of the envelope’s contents.

The envelope held an “officer action request” approving

Stevens’s promotion to enforcement operations super-

visor. The form contained Stevens’s social security

number.1

As Gnutek’s lawsuit proceeded, he added a RICO

claim alleging widespread corruption in the Gaming

Board’s hiring decisions. The claim detailed the

activities of William Cellini, a prominent businessman,

and Larry Trent, the former director of the Illinois State

Police. Hobgood assisted Gnutek with the research

and drafting of these allegations, as well.

While preparing for depositions in Gnutek’s suit,

Tigera and Mark Ostrowski reviewed Gnutek’s initial

disclosures. (Ostrowski was then the administrator of

the Gaming Board, its top executive.) The disclosures

included both the memorandum that Hobgood

prepared describing his conversation with Tigera and

Stevens’s officer action request. Realizing that Hobgood

was assisting Gnutek in his anti-retaliation and anti-

corruption claims against the Gaming Board, Ostrowski

and Tigera wanted to investigate Hobgood. Because

the Tigera memo was formatted like a transcript of a

recording, they believed that Hobgood might have re-

1

Some of the people involved in this lawsuit were also

involved in Tamayo v. Blagojevich, 526 F.3d 1074 (7th Cir. 2008),

in which Ms. Tamayo alleged that she was the victim of

sex discrimination and a First Amendment violation.

No. 11-1926 5

corded Tigera without his consent. They asked the

Illinois State Police to investigate whether Hobgood

had broken any laws.2 Ostrowski also asked Luke

Hartigan, then the chief investigator for the Department

of Revenue’s internal affairs division, to investigate

Hobgood for the same reason.

The State Police told Hartigan to suspend any internal

administrative investigation until the conclusion of

their criminal investigation. After they finished, the

State Police informed the Gaming Board of the results:

“The investigation did not uncover any evidence to

substantiate the allegations against Hobgood.” The

State’s Attorney’s Office also concluded that no

evidence supported the illegal-recording charge and

told the Gaming Board that it would not prosecute

Hobgood.

With the State Police investigation concluded, Hartigan

began his internal investigation. At the outset, the

2

The parties do not specify the law they believed Hobgood

violated, but they likely had in mind the Illinois eaves-

dropping statute, 720 ILCS 5/14-2(a)(1), which requires

consent of all participants for recording a conversation,

subject to a number of exceptions. In American Civil Liberties

Union of Ill. v. Alvarez, 679 F.3d 583, 608 (7th Cir. 2012), this

court ordered the entry of a preliminary injunction

prohibiting enforcement of the law against those “who openly

audio record the audible communications of law-enforcement

officers . . . when . . . engaged in their official duties in public

places. . . .” That exception is not relevant here.

6 No. 11-1926

Gaming Board’s general counsel, Mike Fries, told

Hartigan that the Board “wants discharge to be

considered as the first option.” The chief of staff of the

Department of Revenue observed later that supervisors

should not suggest firing an employee before an in-

ternal investigation has even started. This recommenda-

tion communicated through general counsel Fries was

not the only deviation from policy. Internal investiga-

tion procedures also required Hartigan to complete a

“case initiation form.” That form would have served

to establish the scope of Hartigan’s investigation at its

outset. Without completing the requisite form, the only

limit on the scope of Hartigan’s investigation was the

Gaming Board’s instruction that he should uncover

misconduct that would justify terminating Hobgood.

Hartigan’s investigation far exceeded an inquiry into

whether Hobgood had illegally recorded his conversa-

tion with Tigera. Hartigan seemed to focus his inquiry

more broadly on Hobgood’s assistance with Gnutek’s

lawsuit. Hartigan studied Gnutek’s complaints against

the Gaming Board and the federal indictments of

persons named in his complaints. He requested

Hobgood’s telephone records to determine how

frequently he contacted Gnutek. To facilitate the ongoing

investigation, the Gaming Board had put Hobgood on

administrative leave. With Hobgood out of the way, a

supervisor searched his office and supplied several docu-

ments to Hartigan. The documents included two

gaming license applications, a background investigation

file on former State Police Director Trent, and notebooks

No. 11-1926 7

containing personal information on businessman Cellini

and his relatives. Although these documents had nothing

to do with the ostensible purpose of the investigation —

the allegations that Hobgood had illegally recorded

Tigera — Hartigan included this evidence in his investi-

gation.

Eventually Hartigan interviewed Gnutek, Hobgood,

and Tigera about Hobgood’s memorandum about his

meeting with Tigera. Gnutek stated that Hobgood had

provided it to him. He added that Hobgood also gave

him the Stevens officer action request. Tigera told

Hartigan that he believed the memorandum was a verba-

tim record of his conversation with Hobgood. Hobgood

denied both recording Tigera and transmitting the

Stevens form to Gnutek. But Hartigan dismissed

Hobgood’s denial, responding, “Let’s get past the point

of whether you did it or not. We know you did it.”

Hartigan prepared a report of his investigation. It

retold the conflicting accounts of the Tigera memo but

then went far beyond the suspicions that Hobgood

had illegally recorded Tigera. Consistent with the un-

bounded investigation he had done, the bulk of Hartigan’s

memo focused on Hobgood’s assistance to Gnutek. The

memo referenced and attached the Stevens form. (Recall,

though, that we must assume for purposes of summary

judgment that Tamayo provided the Stevens form

to Hobgood in a sealed envelope and he had not

known what it contained.) To highlight other aspects of

Hobgood’s assistance to Gnutek, the report also dis-

cussed the documents retrieved from Hobgood’s office

8 No. 11-1926

and suggested that he used them to help Gnutek draft

his complaints.3

Relying on Hartigan’s broad investigation and what

can fairly be called, for purposes of summary judgment,

its predetermined outcome — rather than the far

narrower State Police investigation that resulted in no

charges — the Department of Revenue decided to charge

Hobgood with misconduct. The state’s Labor Relations

Department drafted the initial charges. The initial draft

alleged that Hobgood had improperly kept in his office

copies of the federal indictments and his notes about the

Cellini family. But two members of the Department

of Revenue disputed the validity and adequacy of

the proposed charges. Brian Hamer, the director of the

Department of Revenue, recommended lesser charges.

He warned that the federal indictments were public

information and that referring to them in the charges

against Hobgood “seems to weaken the case and suggests

that management has an ulterior motive.” Hamer also

noted (quite sensibly, we must assume) that Hobgood

could not have committed a breach of confidentiality as

the charges alleged, simply by leaving handwritten

notes about Cellini in his own locked office.

3

Hartigan’s report did not state whether those documents

contained non-public information. In this suit, Hobgood

insists that any information from his office used in Gnutek’s

complaints was based on public information. We are not

aware of evidence showing the contrary beyond reasonable

dispute.

No. 11-1926 9

By contrast, Gaming Board administrator Ostrowski

advocated an even more expansive set of charges, in-

cluding a charge for illegally recording Tigera, despite

the State Police finding that no evidence supported

the charge. Though Labor Relations normally did the

drafting of such charges, in Hobgood’s case Ostrowski

drafted his own charging document. Like Hartigan’s

report, his proposed draft of charges focused on

Hobgood’s aid to Gnutek’s suits. Ostrowski’s draft

alleged that the information in Gnutek’s complaint came

from the file found in Hobgood’s office — and thus

was facially incorrect. (The information about former

State Police Director Trent was publicly available.)

Following these exchanges, Labor Relations concluded

that no evidence supported the additional charges that

Ostrowski advocated, including the illegal-recording

charge. Labor Relations recommended three charges for

the Gaming Board to pursue against Hobgood: (1) conduct

unbecoming an employee for possessing certain docu-

ments found in his office — the Trent file and the two

gaming-license applications; (2) failure to care for

official documents by giving the Stevens officer action

request to Gnutek; and (3) unauthorized use of

confidential information by taking notes of personal

information of Cellini and his family.

Appearing before the Gaming Board, Hobgood

defended himself against the charges. Regarding the

first charge concerning the documents found in his office,

he admitted that he had reviewed the Trent file but

insisted that he never brought it to his office. He argued

10 No. 11-1926

that one of the gaming-license applications in his office

was related to one of his assignments; another Gaming

Board employee had left the other application in his

office, and Hobgood kept it because he believed a

related assignment would be forthcoming. Concerning

the second charge, Hobgood denied outright that he

had given the Stevens form to Gnutek. Finally, on the

third charge, he furnished a series of emails showing

that a supervisor had asked him to look into Cellini,

which he said explained the notes in his office about

Cellini. Based on these emails, the Labor Relations Depart-

ment advised the Gaming Board to remove the third

charge against Hobgood. The Gaming Board, however,

disregarded this instruction and refused to amend the

charges against Hobgood in spite of his evidence and

the Labor Relations recommendation. Ultimately, the

Gaming Board decided to discharge Hobgood.

Hobgood appealed his discharge to the Illinois Civil

Service Commission. At a hearing before an administra-

tive law judge, Hobgood repeated his earlier defenses

and added that Tamayo had asked him to deliver to

Gnutek a sealed envelope that unbeknownst to him

contained the Stevens form. After the hearing, the ALJ

concluded that the Gaming Board had proven only one

part of the first charge — that Hobgood improperly

possessed Trent’s file — and that Hobgood had ade-

quately explained all the other documents. But because

the Gaming Board had failed to produce the Trent file

for the hearing, the ALJ was prevented from analyzing

how much confidential information the file actually

contained. Accordingly, the ALJ decided that discharge

No. 11-1926 11

was inappropriate and imposed only a sixty-day suspen-

sion. The Commission upheld the ALJ’s findings and

Hobgood was reinstated.

Hobgood then filed this suit. He asserted that the

Gaming Board investigated and prosecuted him to

retaliate against him for helping Gnutek in his Title VII

and RICO lawsuits. After discovery, the defendants

moved for summary judgment on Hobgood’s claims, and

the district court granted their motion. See Gnutek v.

Illinois Gaming Bd., 2011 WL 1231158 (N.D. Ill. March 30,

2011) (with both Gnutek and Hobgood as plaintiffs).

The court concluded that Hobgood did not furnish evi-

dence that his protected activity — helping Gnutek

prepare for litigation — caused any material adverse

action, including his eventual firing. The court reasoned

that the Gaming Board fired Hobgood not because he

had assisted Gnutek but because the “nature” of that

assistance consisted of providing confidential informa-

tion. As we view the case, a reasonable jury could agree

with the district court’s assessment of the defendants’

motives, but a reasonable jury could also be convinced

by the mosaic of evidence that the Gaming Board

fired Hobgood because he had engaged in protected

activity. Accordingly, we reverse and remand for trial.

II. Analysis

On appeal Hobgood pursues retaliation claims under

both Title VII and the First Amendment. There are two

recognized “methods” by which Hobgood could have

chosen to oppose the Gaming Board’s motion for sum-

mary judgment.

12 No. 11-1926

The first of these, known commonly as the indirect

method or the McDonnell Douglas test, has three steps.

The first step is that the plaintiff must come forward

with evidence of a prima facie case, which has four ele-

ments as adapted for this case: (1) plaintiff engaged in

activity protected by law; (2) he met his employer’s

legitimate expectations, i.e., he was performing his job

satisfactorily; (3) he suffered a materially adverse

action; and (4) he was treated less favorably than a simi-

larly situated employee who did not engage in the

activity protected by law. See Vaughn v. Vilsack, 715

F.3d 1001, 1006 (7th Cir. 2013), quoting Harper v. C.R.

England, Inc., 687 F.3d 297, 309 (7th Cir. 2012); see

generally McDonnell Douglas Corp. v. Green, 411 U.S.

792, 802 (1973). If the employee has evidence on each

of these four elements of the prima facie case, the

burden shifts to the employer at the second step of

the indirect method to articulate (but not necessarily

prove) a legally permissible reason for the adverse em-

ployment action. If the employer does so, the analysis

moves to the third step, in which the employee tries

to show that the employer’s stated reason is false, and

falsity permits a reasonable inference that the real

reason was unlawful. See Vaughn, 715 F.3d at 1006.

If any one of the elements of the plaintiff’s prima facie

case is lacking, the plaintiff loses. For that reason, it is

natural that in the majority of “indirect method” cases

the parties and courts proceed one painstaking step at a

time, offering evidence and argument for and against

each prong as separate elements to be satisfied or

rebutted one at a time. See, e.g., Coleman v. Donahoe, 667

No. 11-1926 13

F.3d 835, 863 (7th Cir. 2012) (Wood, J., concurring) (“If we

move on to the indirect method, we engage in an

allemande worthy of the 16th century, carefully

executing the first four steps of the dance for

the prima facie case, shifting over to the partner for the

‘articulation’ interlude, and then concluding with

the examination of evidence of pretext.”).

Hobgood lacked evidence that a “similarly situated”

individual received more favorable treatment than he

did. Without such evidence, he could not satisfy the

fourth element of a prima facie case under the indirect

method. But Hobgood could and did invoke what is

known as the “direct method” to establish his retalia-

tion claims. Using this method, a plaintiff must offer

evidence: (1) that he engaged in protected activity, (2) that

he was subjected to an adverse employment action, and

(3) that there was a causal link between the protected

activity and the employment action. See Brown v.

Advocate South Suburban Hosp., 700 F.3d 1101, 1106 (7th Cir.

2012) (Title VII retaliation); Kidwell v. Eisenhauer, 679

F.3d 957, 964 (7th Cir. 2012) (First Amendment retalia-

tion), quoting Massey v. Johnson, 457 F.3d 711, 716 (7th

Cir. 2006). The first two elements require only brief com-

ment, while the third, the “causation” prong, provides

the true substance for this appeal.

The first element for direct proof of both of Hobgood’s

retaliation claims requires protected activity. The parties

agree that Hobgood engaged in activity protected by

Title VII by helping Gnutek organize and file his Title VII

retaliation suit. See Speedy v. Rexnord Corp., 243 F.3d 397,

14 No. 11-1926

404 (7th Cir. 2001), citing McDonnell v. Cisneros, 84 F.3d

256, 262 (7th Cir. 1996). As for the activity protected

under the First Amendment, the treatment of this issue

by the district court and in the parties’ appellate

briefs has been terse. The district court recognized that

assisting another employee pursue litigation aimed at

proving corruption by senior public officials could be

protected conduct. See Salas v. Wisconsin Dep’t of

Corrs., 493 F.3d 913, 925 (7th Cir. 2007) (employee’s par-

ticipation in co-worker’s lawsuit alleging widespread

discrimination within the workplace was speech address-

ing a matter of public concern), quoting Zorzi v. County

of Putnam, 30 F.3d 885, 896 (7th Cir. 1994); Schad v.

Jones, 415 F.3d 671, 675 (7th Cir. 2005) (“our cases

have consistently held that speech alleging government

corruption and malfeasance is of public concern in

its substance”), quoting Spiegla v. Hull, 371 F.3d 928, 937

(7th Cir. 2004).

The district court found that Hobgood’s help for

Gnutek was not protected, though, because the named

defendants did not know about it at the time the help

was provided. The relevant time for knowledge, though,

is when the alleged retaliation took place, not the time

the protected activity occurred. Hobgood’s evidence

tends to show that the Gaming Board prompted first

the State Police and then Hartigan to investigate

Hobgood only when Tigera and Ostrowski reviewed

Gnutek’s initial disclosures in his lawsuit and realized

that Hobgood had helped him. Hartigan’s report on his

investigation, which was provided to all defendants,

contained several references to Hobgood’s help for

No. 11-1926 15

Gnutek and easily supports the inference that Hobgood’s

help for Gnutek’s lawsuit was a significant motivating

factor, and could well have been a but-for cause, in the

investigation and ultimate discipline of Hobgood. See

generally Greene v. Doruff, 660 F.3d 975, 977-80 (7th Cir.

2011) (adopting but-for causation with burden-shifting

mechanism as standard for First Amendment retalia-

tion cases). We find in the record ample evidence that

Hobgood’s help for Gnutek was both protected by

the First Amendment (at least absent proof beyond rea-

sonable dispute that he provided confidential informa-

tion or otherwise acted improperly) and known to

the individual defendants. The district court erred on

this point.

The second element of the retaliation claims requires

an actionable deprivation. Hobgood’s November sus-

pension and his later firing readily qualify as “adverse

employment actions” for purposes of Title VII. See Ellis

v. CCA of Tennessee, LLC, 650 F.3d 640, 650 (7th Cir.

2011) (suspension); Tomanovich v. City of Indianapolis,

457 F.3d 656, 664 (7th Cir. 2006) (discharge). The First

Amendment requires a deprivation “likely” to deter

free speech, a standard considered more lenient than

the Title VII counterpart of adverse action. Thayer v.

Chiczewski, 705 F.3d 237, 251 (7th Cir. 2012); Kidwell,

679 F.3d at 694. Thus, Hobgood’s suspension and firing

also satisfy the second prong of the First Amendment

claim. We turn to the third element of a direct method

case and the main event in this appeal — causation.

To survive summary judgment, Hobgood needed

evidence from which a reasonable jury could find that

16 No. 11-1926

the Gaming Board decided to suspend and fire him

because of his assistance to Gnutek. See University of

Texas Southwestern Medical Center v. Nassar, 570 U.S. ___,

___, 132 S. Ct. ___, ___ (June 24, 2013) (Title VII retalia-

tion claims require proof that the desire to retaliate

was the but-for cause of the challenged employment

action); Greene, 660 F.3d at 978-79. Direct evidence of

causation — too easily confused with the direct method

under which such evidence would be presented — would

require something akin to an admission from the

Gaming Board that it took action against Hobgood

because of his protected activity. See Raymond v.

Ameritech Corp., 442 F.3d 600, 610 (7th Cir. 2006). Such

admissions of illegal discrimination and retaliation are

rare, so it is not surprising that Hobgood has not pre-

sented a “smoking gun” confession by the Gaming

Board or any other defendant.

There is another evidentiary route to satisfy the direct

method, however, and that is the route Hobgood pur-

sues. Hobgood may satisfy the direct method using what

this circuit has termed a “ ‘convincing mosaic’ of circum-

stantial evidence,” Rhodes v. Illinois Dep’t of Transp., 359

F.3d 498, 504 (7th Cir. 2004), quoting Troupe v. May Dep’t

Stores Co., 20 F.3d 734, 737 (7th Cir. 1994), by relying on

evidence of “suspicious timing, ambiguous statements

oral or written, . . . and other bits and pieces from which

an inference of [retaliatory] intent might be drawn.”

Coleman, 667 F.3d at 860 (internal quotation marks and

citations omitted) (alterations in original). In other words,

Hobgood must present admissible evidence that, when

taken as a whole and viewed in a light favorable to

No. 11-1926 17

Hobgood’s case, could convince a reasonable jury that

he was the victim of unlawful retaliation.

A convincing mosaic must include evidence from

which an inference of retaliatory intent could be

drawn, and our cases often recite the following shorthand

for circumstantial evidence, noting that a plaintiff’s case

could include: “(1) suspicious timing; (2) ambiguous

statements or behavior towards other employees in the

protected group; (3) evidence, statistical or otherwise,

that similarly situated employees outside of the pro-

tected group systematically receive better treatment;

and (4) evidence that the employer offered a pretextual

reason for an adverse employment action.” See Teruggi

v. CIT Group / Capital Finance, Inc., 709 F.3d 654, 659-60

(7th Cir. 2013), quoting Dickerson v. Bd. of Trs. of Cmty.

Coll. Dist. No. 522, 657 F.3d 595, 601 (7th Cir. 2011); Diaz

v. Kraft Foods Global, Inc., 653 F.3d 582, 586-87 (7th

Cir. 2011).

But these categories of evidence are not exclusive,

nor are they a set of prongs of a circumstantial evidence

“test.” When considering whether a plaintiff has met

his burden through a presentation of circumstantial

evidence that amounts to a “convincing mosaic,”

parties and judges too often lose sight of the purpose of

these rhetorical tools. The ultimate question the parties

and the court always must answer is whether it is more

likely than not that the plaintiff was subjected to the

adverse employment action because of his protected

status or activity. To answer that question, the individual

“bits and pieces” presented by the plaintiff must be

18 No. 11-1926

put into context and considered as a whole. All

reasonable inferences, of course, must be drawn in favor

of the non-moving party. Only then can it be seen

whether the plaintiff’s evidence amounts to a “con-

vincing mosaic” sufficient to withstand a motion for

summary judgment or judgment as a matter of law.

Sometimes cases are presented in which a plaintiff does

not have a convincing mosaic, but only one “bit” or

“piece.” These cases are legion. We have often said that

suspicious timing, for example, rarely is sufficient in

isolation to support a case of illegal discrimination or

retaliation. See Harper, 687 F.3d at 308; Argyropoulos v.

City of Alton, 539 F.3d 724, 734 (7th Cir. 2008);

Tomanovich, 457 F.3d at 665. Similarly, ambiguous or

isolated comments that stand alone are insufficient. See

Fleishman v. Continental Cas. Co., 698 F.3d 598, 604-05

(7th Cir. 2012) (absent age-related context, ambiguous

comment that manager was “out to get” plaintiff could

not overcome summary judgment on plaintiff’s age

discrimination claim); Dass v. Chicago Bd. of Ed., 675

F.3d 1060, 1072 (7th Cir. 2012) (ambiguous comment

unrelated to adverse action was insufficient, without

more, to defeat summary judgment); Petts v. Rockledge

Furniture LLC, 534 F.3d. 715, 721-22 (7th Cir. 2008) (stray

remark not made by decision-maker and unrelated

to employment decision could not raise inference of

discrimination). These cases recognize that a rea-

sonable jury could not infer that a plaintiff was a victim

of illegal discrimination or retaliation based on one

isolated “bit” or “piece.” But “together with other facts,”

evidence that would be insufficient standing alone

No. 11-1926 19

can be sufficient to defeat summary judgment if a rea-

sonable jury ultimately could conclude that the plaintiff

was the victim of illegal discrimination or retaliation.

Harper, 687 F.3d at 308, quoting Magyar v. Saint Joseph

Reg’l Med. Ctr., 544 F.3d 766, 772 (7th Cir. 2008). That’s

why it’s critical to consider the plaintiff’s evidence as

a whole.

When viewed as a comprehensive whole, Hobgood’s

evidence easily supports a reasonable inference that

he was the victim of a retaliatory witch hunt. He first

presents evidence of statements that, although arguably

ambiguous, nonetheless could allow a reasonable jury

to infer retaliation if placed in their relevant context and

given the benefit of favorable inferences. Consider

general counsel Fries’s admonition to Hartigan, before

his investigation had even begun, that the Gaming Board

“wants discharge to be considered as the first option.”

Perhaps it is true, as defendants argue, that Fries’s state-

ment standing alone does not create an inference about

why the Gaming Board wanted Hobgood fired, though

this extraordinary departure from policy and custom

could, if believed by the jury, support adverse inferences

about the defendants’ motives.4

4

The district court found that Fries’s instruction to Hartigan

could not be attributed to Ostrowski. Gnutek, 2011 WL 1231158,

at *10, n. 21. Ostrowski was the administrator of the Gaming

Board, and Fries was the Gaming Board’s chief counsel. It is

possible, of course, that Fries was acting on his own, but we

(continued...)

20 No. 11-1926

Fries’s statement does not stand alone. When placed

in context and viewed in a light most favorable

to Hobgood, the statement reasonably suggests that

the Gaming Board had a retaliatory motive. Hartigan

initiated his investigations only after the Board learned

that Hobgood had been assisting Gnutek in his litiga-

tion and after Hobgood had already been cleared of

wrongdoing by the State Police and the State’s Attorney’s

office. Yet the evidence allows a reasonable inference

that the defendants had pre-judged the question and

had decided to terminate Hobgood anyway, even if it

meant deviating from so basic and sound a standard

policy as refraining from pre-judging outcomes in disci-

plinary investigations. A jury could infer from this de-

parture from policy that the Gaming Board’s predeter-

mined outcome was retaliatory: “Significant, unexplained

or systematic deviations from established policies or

practices can no doubt be relative and probative circum-

stantial evidence of [unlawful] intent.” Hanners, 674 F.3d

at 694; see also Rudin v. Lincoln Land Cmty. Coll.,

420 F.3d 712, 723 (7th Cir. 2005). Perhaps a jury might

find, in spite of this evidence, that the Gaming Board

had non-retaliatory reasons for wanting to fire Hobgood

without knowing for certain what, if anything, he had

4

(...continued)

believe it is also reasonable to infer that the counsel was

acting on behalf of his client, Ostrowski, who had been per-

sonally involved in demanding the investigations in the

first place.

No. 11-1926 21

done. But on summary judgment, we must view this

evidence in Hobgood’s favor.

In addition, when Hartigan interviewed Hobgood

during the investigation, Hartigan said, “Let’s get past

the point of whether you did it or not. We know you

did it.” This statement could demonstrate to a jury

that Hartigan was not “investigating” anything but

was attempting to bolster the Gaming Board’s predeter-

mined outcome regardless of what Hobgood had to

say. When a supervisor has encouraged an employee

who has engaged in protected activity to “confess” or

risk termination, a jury can infer retaliatory intent.

See Kasten v. Saint-Gobain Performance Plastics Corp., 703

F.3d 966, 974 (7th Cir. 2012) (reversing summary judg-

ment for employer and concluding that jury could

infer retaliation in part from supervisor’s ambiguous

statement to employee before his suspension meeting

to “just lay down and tell them what they want to

hear, [they] can probably save your job” ).

Hobgood also presents evidence that the Gaming

Board’s stated reasons for its investigation and his ter-

mination were pretexts for unlawful retaliation. See

Everett v. Cook County, 655 F.3d 723, 729 (7th Cir. 2011)

(pretext can be evidence of discrimination under

direct method); Millbrook v. IBP, Inc., 280 F.3d 1169, 1175

(7th Cir. 2002) (“Pretext means a lie, specifically a

phony reason for some action.”) (internal quotation

marks omitted). The Gaming Board asserts that Hobgood

was investigated because Ostrowski and Hartigan

sincerely believed that he had illegally recorded his

22 No. 11-1926

conversation with Tigera, and he was terminated

because Ostrowski, Krozel, and Hamer sincerely

believed that he had misused confidential information

in violation of department policies. We do not second

guess an employer’s business decision, but neither do

we “abandon good reason and common sense in

assessing an employer’s actions.” Gordon v. United

Airlines, Inc., 246 F.3d 878, 889 (7th Cir. 2001). Where an

employer’s reason for a termination is without factual

basis or is completely unreasonable, that is evidence

that an employer might be lying about its true motiva-

tion. See id. at 899-91 (employer’s justification for ter-

mination was unworthy of credence where record

revealed inconsistent definition and application of em-

ployee’s supposed infraction); see also Hitchcock v. Angel

Corps, Inc., ___ F.3d. ___, ___ 2013 WL 2507243, at *4

(7th Cir. June 11, 2013) (reversing summary judgment; a

reasonable jury could find pretext where explanation

provided on employer’s official termination form was

“so ludicrous that [employer] is not to be believed”),

citing Loudermilk v. Best Pallet Co., LLC, 636 F.3d 312, 315

(7th Cir. 2011) (reversing summary judgment: “The

Civil Rights Act of 1964 does not require employers to

have ‘just cause’ for sacking a worker, but an employer

who advances a fishy reason takes the risk that disbelief

of the reason will support an inference that it is a

pretext for discrimination.”) (citation omitted); Stalter v.

Wal-Mart Stores, Inc., 195 F.3d 285, 290 (7th Cir. 1999)

(reversing summary judgment; employee’s termination

for taking a few taco chips from a co-worker’s open

snack bag in the break room, where the co-worker

No. 11-1926 23

did not object to the taking, defied “any common under-

standing of the term” theft and would not be credited).

Here, a reasonable jury would have ample evidence

from which to infer that the defendants did not

sincerely believe that the investigation against Hobgood

and his eventual termination were warranted by his

unprotected activity. The initiation and scope of

Hartigan’s investigation were both suspicious and

support an inference that the investigation was not

prompted by the defendants’ belief that Hobgood had

illegally recorded Tigera, but was instead prompted by

the defendants’ desire to construct a case for

Hobgood’s termination after they discovered that he

had been helping Gnutek with his lawsuit. Departmental

policy required that a case initiation form be completed

at the outset of an investigation to limit its parameters.

Hartigan failed to follow this policy. He investigated a

wide range of possible misdeeds having nothing to do

with any supposed unlawful recording of Tigera but

having much to do with Gnutek’s lawsuits. Hartigan

obtained copies of Gnutek’s complaints, the federal

indictments of persons featured in them, and even

Hobgood’s telephone logs. Why do so if his investiga-

tion was not prompted by Hobgood’s aid to Gnutek?

Hartigan also examined documents taken from

Hobgood’s office after he was put on administrative

leave: license applications, his notebooks about Cellini,

and a background file on Trent. A reasonable jury

could conclude that Hartigan bypassed the constraints

of a case initiation form because the Gaming Board’s

24 No. 11-1926

attorney had instructed him that Hobgood’s termination

was the goal. In other words, the Gaming Board was

less interested in whether Hobgood had recorded Tigera

illegally and was far more interested in seeing that

Hobgood was punished for assisting Gnutek. In sum, a

jury could infer that the Gaming Board and other defen-

dants wanted to retaliate against Hobgood for his pro-

tected activity.

In addition, the breadth of the unsubstantiated

charges, both those drafted by Ostrowski as well as those

ultimately adopted by the Gaming Board, supports the

inference of retaliatory intent. Ostrowski advocated

charging Hobgood with recording Tigera even after the

outside investigation by the State Police and Hartigan’s

internal investigations had found no evidence to

support the charge. And Ostrowski wanted the

Gaming Board to pursue charges that Hobgood

shared confidential information on Cellini and Trent

with Gnutek, even though he could not identify any

confidential information in Gnutek’s filings that derived

from Hobgood’s notes on Cellini or from Trent’s file.

Similarly, the Gaming Board initially planned to

charge that Hobgood acted wrongfully by possessing

copies of federal indictments, even though Department

of Revenue Director Hamer explained that the indict-

ments were public information and that reference

to them “seems to weaken the case and suggests that

management has an ulterior motive.” Hamer also had

to point out that Hobgood could not have committed a

breach of confidentiality, as the charges alleged, simply

No. 11-1926 25

by leaving handwritten notes about Cellini in his locked

office.

Although the final set of charges was narrower, it

still included the charge that Hobgood improperly com-

piled notes on Cellini. The Gaming Board continued

to pursue this charge even after Hobgood showed the

Gaming Board emails from his boss’s supervisor

directing him to investigate Cellini’s background.5 Ulti-

mately, the Illinois Civil Service Commission found that

the Gaming Board could substantiate only the single

offense that Hobgood possessed Trent’s file without

authorization. And for that charge, the discipline was

limited to a suspension because the Gaming Board pro-

duced no evidence to substantiate its contention that

the Trent file contained confidential information.

The defendants attempt to undercut each of Hobgood’s

pieces of evidence individually and argue, as the district

court concluded, that the undisputed facts show that

the Gaming Board was genuinely concerned only that

Hobgood’s assistance to Gnutek was possibly illegal.

But the defendants ignore the cumulative effect of

5

Defendants criticize Hobgood for failing to ask his boss’s

boss whether the request for information on Cellini was

official or not. We see no basis for concluding as a matter of

law that the request was improper, let alone so improper that

a subordinate like Hobgood should have been disciplined

for complying with it. The record does not indicate that the

Gaming Board ever pursued with the boss’s boss the pos-

sibility that the request was unofficial.

26 No. 11-1926

Hobgood’s “bits and pieces” of evidence. Taken together,

his evidence creates a genuine dispute about the sincerity

of the Gaming Board’s belief — in other words, whether

the Gaming Board’s stated reasons for taking action

against Hobgood were pretexts. No single piece of evi-

dence might amount to a smoking gun (though Fries’s

message to Hartigan that the Gaming Board wanted

termination to be the “first option” even before Hartigan

started his investigation comes close), but the con-

vincing mosaic approach allows a plaintiff to establish

retaliation “by assembling a number of pieces of

evidence none meaningful in itself, consistent with

the proposition of statistical theory that a number of

observations each of which supports a proposition only

weakly can, when taken as a whole, provide strong sup-

port if all point in the same direction. . . .” Sylvester v.

SOS Children’s Villages Ill., Inc., 453 F.3d 900, 903 (7th Cir.

2006). Here, Hobgood has offered quite a lot of

evidence pointing toward illegal retaliation.

When properly construed in Hobgood’s favor, the

evidence could support a jury finding that the

defendants fixated on firing him, ignored evidence of

his innocence, and circumvented investigatory safe-

guards to pursue a set of baseless charges because he

had helped Gnutek sue the Gaming Board. With

the evidence of the defendants’ true motivation gen-

uinely disputed, summary judgment was inappropri-

ate. See Burnett v. LFW Inc., 472 F.3d 471, 482 (7th Cir.

2006) (reversing grant of summary judgment in retalia-

tion suit where the sincerity of employer’s asserted

reason for termination, insubordination, was genuinely

No. 11-1926 27

disputed); Hunt-Golliday v. Metro. Water Reclamation Dist.

of Greater Chi., 104 F.3d 1004, 1014-15 (7th Cir. 1997)

(reversing grant of summary judgment because plain-

tiff showed a “pattern of criticism and animosity” by

supervisors following her protected activities, creating

genuine fact dispute about retaliation). In retaliation

cases with evidence of the sort in this record, we

must “resist the temptation to act as jurors when con-

sidering summary judgment motions,” Coleman, 667

F.3d at 862, and leave any questions involving the “weigh-

ing of conflicting indications of motive and intent” for

trial, Kasten, 703 F.3d at 974 (internal quotation marks

and citation omitted). Accordingly, we reverse the

district court’s decision and remand for trial.

On a final note, the individual defendants also argue

that they are entitled to qualified immunity on the

First Amendment claim brought under 42 U.S.C. § 1983.

Qualified immunity “protects government officials

from liability for civil damages insofar as their conduct

does not violate clearly established statutory or constitu-

tional rights of which a reasonable person would have

known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009)

(internal quotation marks omitted). In determining quali-

fied immunity at the summary judgment stage, the

court asks two questions: (1) whether the facts, taken

in the light most favorable to the plaintiff, make out a

violation of a constitutional right, and (2) whether

that constitutional right was clearly established at the

time of the alleged violation. Id. at 232.

In this case, the answer to both of these questions is

yes. First, as we have described, the facts make out a

28 No. 11-1926

violation of Hobgood’s right to be free from retaliation

for exercising his First Amendment rights. Second, it

was clearly established at the time of the Gaming

Board’s actions that the First Amendment prohibited

investigating and then suspending and terminating a

public employee because he had helped another

employee pursue a lawsuit aimed at uncovering and

proving public corruption. Salas, 493 F.3d at 925; Spiegla

v. Hull, 371 F.3d 928, 936 (7th Cir. 2004); Zorzi, 30 F.3d

at 896 (public employee was constitutionally protected

against retaliation for filing lawsuit involving a matter

of public concern). The defendants argue that they are

immune because Hobgood did not have a clearly estab-

lished right to deliver confidential information to

Gnutek, but their argument is irrelevant to the issue

of qualified immunity. When the issue is framed

properly, it is clear that the defendants are not entitled

to qualified immunity on Hobgood’s First Amendment

retaliation claim.

III. Conclusion

It remains to be seen whether Hobgood can prove

his case at trial. The defendants paint a very different

picture of the relevant facts and of Hobgood’s character.

But the evidence Hobgood presented in opposing sum-

mary judgment is sufficient to present genuine issues of

material fact on both his Title VII and First Amendment

retaliation claims that must be resolved by a jury, not

by the court on summary judgment. The judgment of the

No. 11-1926 29

district court is R EVERSED and the case is R EMANDED

for trial.

7-16-13