Elwell, Scott v. Dobucki, Kenneth P.

In the

United States Court of Appeals

For the Seventh Circuit

No. 98-1920

SCOTT ELWELL,

Plaintiff-Appellant,

v.

KENNETH P. DOBUCKI,

Defendant-Appellee.

Appeal from the United States District Court

for the Central District of Illinois, Springfield Division.

No. 93-3068--Richard Mills, Judge.

Argued February 8, 2000--Decided August 10, 2000

Before Cudahy, Manion, and Diane P. Wood, Circuit

Judges.

Diane P. Wood, Circuit Judge. In late 1991,

Kenneth Dobucki, the warden at Graham

Correctional Center (a medium security prison run

by the state of Illinois), was assigned the task

of hiring three new lieutenants for Graham.

Eighteen employees applied for those three

vacancies, 15 of whom worked at Graham and three

of whom were employed at other facilities

operated by the Illinois Department of

Corrections (DOC). This case was brought by one

of the disappointed applicants, Scott Elwell, who

believed that either prohibited political

favoritism or race discrimination explained why

he had been unsuccessful. The district court

granted Warden Dobucki’s motion for summary

judgment on grounds of qualified immunity for the

equal protection claim and on the merits for the

political affiliation claim. Elwell appealed only

from the adverse judgment on the equal protection

claim based on qualified immunity. We affirm.

Our account of the facts would normally take

them in the light most favorable to Elwell, as

the nonmoving party, but here again we have a

case in which the nonmovant chose not to contest

the moving party’s statement of undisputed facts,

filed here under Local Rule 7.1(D)(1) of the

Central District of Illinois. We therefore accept

those facts as uncontested, as did the district

court.

Warden Dobucki went about filling the three

1991 vacancies, as he was required to do under

pertinent Illinois DOC rules, by posting a notice

state-wide. Of the 24 applicants who initially

came forward, Dobucki found that 18 were eligible

for the lieutenant position. These 18 were

interviewed in January 1992 by a three-person

team from Graham (not including Dobucki himself).

Based on those interviews and other information

in the file, Assistant Warden Michael Baker

prepared a memorandum for Dobucki ranking the

candidates. He submitted the memorandum to Warden

Dobucki at the end of January. The top five were

(1) Charlotte Crockran, a black woman who held

another job at Graham; (2) Theodore Macon, an

African-American man who worked at another

correctional center; (3) Ron Krueger, a white man

who worked at another correctional center; (4)

James Cohan, a white man who held another job at

Graham; and (5) Elwell, who is white and who held

another job at Graham. In June of 1992, Dobucki

selected Crockran, Macon, and Cohan for the

positions.

Elwell was upset by being passed over for the

promotion and filed a 42 U.S.C. sec. 1983

complaint. His initial complaint alleged that

Dobucki denied him the promotion because of his

political affiliations, in violation of the First

Amendment. In 1994 he amended the complaint to

add the charge that he was passed over because he

was white, in violation of the Equal Protection

Clause. This latter claim rested on Elwell’s

belief that Dobucki had a policy of hiring in-

house (i.e. applicants presently working at

Graham). Had Dobucki followed that policy, he

would have still chosen Crockran and Cohan, but

Elwell would have replaced Macon as the third

choice. According to Elwell, Dobucki veered from

his normal hiring policy, passing over Elwell and

hiring Macon, because he wanted more African-

American lieutenants. Evidence in the record

showed that as of February 1992 (before the

hiring decision in June 1992), only four of the

25 lieutenants working at Graham were African-

American. The record further showed that as of

the same time, there were 1,269 inmates at

Graham, 46% of whom were African-American. The

security staff included one major, six captains,

the 25 lieutenants, 22 sergeants, and 259

correctional officers; 16 of those individuals,

or 3.6%, were African-American.

The district court granted Dobucki’s motion for

summary judgment on the First Amendment count in

October 1994. Years later, in March of 1998, it

agreed that he had qualified immunity on the

equal protection count and it therefore granted

his motion for summary judgment on that theory as

well. We review the grant of summary judgment de

novo, examining the record (including its lack of

uncontested facts) in the light most favorable to

Elwell to see if he has shown any genuine issue

of material fact. See Bahl v. Royal Indem. Co.,

115 F.3d 1283, 1289-90 (7th Cir. 1997); Fed. R.

Civ. P. 56(c).

Qualified immunity is a doctrine which allows

government officials the freedom to perform their

discretionary functions without fear of potential

liability for civil damages. See Harlow v.

Fitzgerald, 457 U.S. 800, 816-18 (1982).

Officials lose their immunity only when their

conduct violates clearly established statutory or

constitutional rights. See id. at 817. In our

review of Dobucki’s qualified immunity defense,

the question is not whether Dobucki actually

overstepped the boundaries of the law in his

hiring decision. We must consider only whether

Elwell has shown that the legal standards for the

application of equal protection to the

circumstances he alleges were clearly established

in June of 1992 when Dobucki made the hiring

decision. See Erwin v. Daley, 92 F.3d 521, 525

(7th Cir. 1996); see also Anderson v. Creighton,

483 U.S. 635 (1987) (emphasizing the need to look

at the particular situation facing the

defendant). Dobucki is protected by qualified

immunity unless, based on such clear legal

standards, a reasonable person would have known

that the hiring decision would violate the

Constitution. See Erwin, 92 F.3d at 525.

We begin with a look at the legal landscape in

June of 1992. This is ground we largely covered

in our decision in Erwin v. Daley, supra, which

dealt with the similar question whether public

officials of the City of Chicago were entitled to

qualified immunity with respect to the City’s

program to increase minority representation among

the ranks of officers in the Chicago Police

Department. The reference year in Erwin was 1990,

rather than 1992 as here, but the difference in

the underlying caselaw is immaterial. In both

instances, the most recent authoritative decision

from the Supreme Court was City of Richmond v.

Croson, 488 U.S. 469 (1989), which dealt with

Richmond’s program that required 30% of

government subcontracts to go to minority-owned

businesses. We concluded in Erwin that Croson did

not clearly foreclose the use of numerical

promotional goals for the promotion of minority

police officers. 92 F.3d at 526. For example,

only a year after Croson, in Metro Broadcasting

v. FCC, the Court upheld an FCC licencing program

which favored minority businesses against an

Equal Protection Clause challenge, applying

intermediate scrutiny to the program. 497 U.S.

547, 564-65 (1990).

This was the backdrop against which Warden

Dobucki acted in 1992. He was not required to

have a crystal ball that would have revealed the

Supreme Court’s 1995 holding in Adarand

Constructors, Inc. v. Pena, 515 U.S. 200 (1995),

that all racial classifications, "benign" or

otherwise, were subject to the strict scrutiny

standard. Id. at 226. Furthermore, had he known

that, he would also have known about the Court’s

cautionary statement in Adarand dispelling the

then-commonly held notion that "strict scrutiny

is strict in theory, but fatal in fact." Id. at

202. This court’s 1996 decision in Wittmer v.

Peters, 87 F.3d 916 (7th Cir. 1996), which upheld

a policy of considering race when promoting

lieutenants in a minimum security boot camp for

nonviolent male offenders, demonstrates plainly

that the Warden could reasonably have thought in

1992 that he was entitled to do precisely the

same thing at his prison. We are certainly not

prepared to say that the state of law in 1992 was

clearly established in the opposite direction,

when we ourselves continue to uphold some hiring

decisions that take race into account. (While it

is of no immediate legal relevance to this case,

it is interesting to note that Wittmer was well

known to the parties in this case; it was pending

before the same district judge, and the

plaintiffs challenging the policy that was

eventually upheld were represented by the same

lawyer who represents Elwell.)

A snapshot of the law in 1992, then, shows that

there was no clearly established prohibition

against taking race into account in a hiring

decision within a prison or police department

context. We are assuming for purposes of this

decision that this is what Warden Dobucki did; we

note as well that he denies the existence of a

rigid policy requiring him to hire in-house

candidates over external applicants and indeed

denies that this case is properly characterized

as an "affirmative action" situation at all. If

there were no policy favoring internal candidates

(and the Illinois DOC requirement of a state-wide

posting tends to support that position), then

Elwell would not have received the job in any

event. If Warden Dobucki had followed the strict

rank order on the list, he would have hired

Crockran (African-American), Macon (African-

American), and Krueger (white). What the Warden

actually did was to skip over Krueger for the

number four applicant, Cohan--also white, but

from Graham unlike Krueger. Only a rigid policy

of preferring Graham applicants would have

brought the Warden far enough down the list to

reach Elwell, who had the number five spot. Thus,

this is the odd "affirmative action" challenge in

which the state official is accused of hiring

people who were ranked as better qualified than

the plaintiff, instead of dipping further down

into the list for some reason and thus passing

over a more highly ranked minority candidate.

But we cannot resolve the disputed fact

question about the alleged preference for Graham

applicants. Even if there were such a policy, we

cannot find that Dobucki’s action would clearly

have been found to violate the Constitution.

Elwell admits that Dobucki may have had

operational reasons for using race as one factor

in hiring lieutenants: Graham was a medium

security prison with many African-American

inmates. Discipline was critically important for

the security and safety of the prison. Dobucki

allegedly deviated from his policy of internal

hiring when he chose Macon (an African-American

from Centralia) for the second spot instead of

skipping down to Cohan (from Graham), and then to

Elwell for the third spot. Nothing in 1992 would

or should have led Warden Dobucki to the

conclusion that such an action would be a clear

violation of Elwell’s equal protection rights. He

is therefore entitled to qualified immunity, and

the judgment of the district court is Affirmed.