Hall, Thomas v. Babb, Steve

In the

United States Court of Appeals

For the Seventh Circuit

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No. 03-3631

THOMAS HALL,

Plaintiff-Appellant,

v.

STEVE BABB, BRIAN PIERSMA,

and BARBARA WESTELL,

Defendants-Appellees.

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Appeal from the United States District Court

for the Southern District of Illinois.

No. 01-4172-JLF—James L. Foreman, Judge.

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ARGUED AUGUST 3, 2004—DECIDED NOVEMBER 24, 2004

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Before POSNER, ROVNER, and WOOD, Circuit Judges.

WOOD, Circuit Judge. Plaintiff Thomas Hall has brought

this suit on the basic premise (with which few would

disagree in the abstract) that political patronage is not yet

dead in Illinois. Hall was passed over for a new job within

the Illinois Department of Transportation (IDOT) in 1999.

He believed that his lack of success could be traced to the

fact that the other applicant, while a fellow member of the

Republican Party, was somehow a more zealous Republican

than Hall. Hall sued the three state officials who had in-

terviewed him and made the decision to hire the other ap-

2 No. 03-3631

plicant under 42 U.S.C. § 1983 for violation of his First

Amendment rights. The district court granted summary

judgment for the defendants. While we find the allegations

in Hall’s complaint to be troublesome, we conclude that Hall

did not present enough evidence to bolster those allegations

at the summary judgment stage. For that narrow reason,

we affirm the judgment of the district court.

I

We summarize the pertinent facts based on the state-

ments that the parties submitted in conjunction with the

defendants’ motion for summary judgment. Where disputes

exist, we present the story in the light most favorable to

Hall. In June 1999, the position of Business Services

Manager became available in IDOT’s Carbondale office. Hall

and David Barger, both IDOT employees at the time, were

the only two applicants for the position. Barger was a “high-

way maintainer,” which entailed flagging traffic, patching

potholes, mowing grass, and plowing snow. Hall had worked

previously as a highway maintainer but, at the time of the

job opening, he held another position in the Business

Services office.

Hall and Barger both had been involved in the Republican

Party in Illinois. Hall ran for a county board seat in 1992 as

a Republican, served as treasurer of the Jackson County

Republican Committee until his resignation in 1995, and

served as a precinct committeeperson until 1998, when he

chose not to run again. Hall also volunteered in 1997 for a

phone bank on behalf of George Ryan’s gubernatorial cam-

paign (at the request of defendant Babb) and donated at

Republican fundraisers. Barger also had been active in the

Republican Party, putting up signs and attending fundrais-

ers for Ryan’s gubernatorial campaign in 1998. He might

also have volunteered for Jim Edgar’s earlier campaign for

governor. Barger was also the son-in-law of Sammye Fark,

No. 03-3631 3

who Hall contends was very influential in Republican poli-

tics in Illinois at the time. Fark worked in the Secretary of

State’s office during George Ryan’s term and was the man-

ager of the state fair during Ryan’s gubernatorial term.

Defendants Steve Babb, Brian Piersma, and Barbara

Westell, all managers of one sort or another within IDOT,

were selected to interview Hall and Barger for the job open-

ing. Someone in IDOT’s central office in Springfield, where

Piersma worked, selected Piersma for the panel. A person

in the same office instructed Babb to select two additional

interviewers from IDOT’s Carbondale office. Babb selected

himself and Westell, who reported to Babb. Babb received

two recommendations from Republican politicians on behalf

of Hall, but he did not convey these to the other two panel

members. As far as the record shows, no one on the panel

received any recommendations on behalf of Barger.

Hall highlights several incidents that occurred before the

interview that suggest to him that Barger had been “pre-

selected” to get the job. First, Hall contends that Babb al-

lowed Barger to “train” in the Business Services office for

up to two weeks before the interview. The defendants

counter that Barger was allowed merely to visit the office

for one day. They point out that Babb testified at his

deposition that this was “standard practice” for IDOT

applicants. Second, Hall highlights evidence that Barger

told fellow highway maintainers before the interview that

“he thought he had the job.” Another IDOT employee,

according to Hall, overheard panel member Westell tell

others before the interview that Hall “wouldn’t be getting

the position.” The defendants admit that Westell made this

comment, but they claim that it referred to Hall’s past job

performance. Finally, Hall claims that while Barger was

“training” for the position in the Business Services office, he

told Hall that he had an advantage in getting the job

because his mother-in-law was Sammye Fark.

4 No. 03-3631

During the interview the three defendants asked both

Hall and Barger an identical set of questions from a pre-ex-

isting interview questionnaire, which focused on the appli-

cants’ experience and qualifications. The defendants did not

ask either Hall or Barger any questions about political

support, affiliation, or activities. The panel members indi-

vidually scored the applicants’ answers without consulting

each other, and all three of them assigned a higher total

score to Barger. Based on the score results, and after re-

ceiving approval from the supervisor in charge of the

Carbondale office, Barger was offered and accepted the job.

The district court granted summary judgment for the

defendants for two independent reasons. First, the district

court concluded that Hall had not presented any admissible

evidence that the defendants knew of either applicant’s

political affiliations or activities. Second, the district court

concluded that even if the defendants did have this knowl-

edge, Hall presented no admissible evidence that the

defendants considered the applicants’ political backgrounds

in reaching the hiring decision.

II

On appeal, Hall argues that the district court erred in

failing to recognize that he presented evidence sufficient to

create an issue of material fact on the question whether

political motivation was a substantial factor in the decision

to hire Barger over him. Hall contends that, although he

and Barger were both affiliated with the Republican Party,

his evidence (if believed by a trier of fact) shows that the

defendants selected Barger because he was more active and

connected in the party, particularly after Hall chose to not

run for party office again in 1998.

It is well established that hiring, firing, or transferring

government employees based on political motivation violates

the First Amendment, with certain exceptions for policy-

No. 03-3631 5

making positions and for employees having a confidential

relationship with a superior. See Rutan v. Republican Party

of Ill., 497 U.S. 62, 65, 71 n.5 (1990); Elrod v. Burns, 427

U.S. 347, 367, 375 (1976). To make out a prima facie case

for this type of employment discrimination, a plaintiff must

show two things: first, that the plaintiff’s conduct was con-

stitutionally protected, and second, that the protected conduct

was a substantial or motivating factor in the employment

decision. Simmons v. Chi. Bd. of Educ., 289 F.3d 488, 495

(7th Cir. 2002); Nelms v. Modisett, 153 F.3d 815, 818 (7th

Cir. 1998); see also Mt. Healthy City Sch. Dist. Bd. of Educ.

v. Doyle, 429 U.S. 274, 287 (1977). It is not enough to show

only that the plaintiff was of a different political persuasion

than the decisionmakers or the successful applicant. See

Nelms, 153 F.3d at 818. If a plaintiff can make the prima

facie showing, the burden shifts to the defendant to demon-

strate a legitimate, nonpolitical reason for the employment

decision. Simmons, 289 F.3d at 495; Nelms, 153 F.3d at 818.

In this case, the parties agree on several propositions:

that the job at issue did not fall under the policymaking

exception to Rutan, that the defendants are proper parties

under § 1983, that none of the defendants is entitled to

qualified immunity, and that Hall’s chosen level of political

activity was protected conduct. Moreover, as we note below,

we conclude as a matter of law that the protection afforded

by the Rutan principle applies to distinctions based on

relative degrees of support for a single party, just as it

reaches favoritism based on simple party membership. The

only issue on appeal is thus whether the two applicants’

relative level of political activity in the Republican Party

was a substantial or motivating factor in the defendants’

decision to hire Barger rather than Hall.

In analyzing this issue, the threshold question is whether

the defendants even knew about the political activities of

Hall and Barger. See Nelms, 153 F.3d at 819; Garrett v.

Barnes, 961 F.2d 629, 632 (7th Cir. 1992). Hall argues that

6 No. 03-3631

it was not essential for him to make this showing because,

as Barger allegedly had been “preselected” for the job based

on his level of involvement in the Republican Party, the

defendants’ knowledge of Hall’s own political activities is

irrelevant. This argument, however, ignores the fact that,

for Hall’s theory about Barger’s preselection to be true, the

defendants still must have wanted to favor Barger because

of his political involvement. Hall has assumed that no one

could have been a better Republican than Barger, but there

is no reason to believe that this is true. If Hall had been

better, then (according to his theory of the case), he is the

one who would have been rewarded with the job.

In the past, we have sometimes assumed that a person’s

holding of an arguably prominent party office could support

a finding of common knowledge among decisionmakers, and

sometimes we have not. Compare Cusson-Cobb v. O’Lessker,

953 F.2d 1079, 1081 (7th Cir. 1992) (no assumption), with

Nelms, 153 F.3d at 819 (holding of prominent positions creates

issue of material fact on question of defendants’ knowledge),

and Garrett, 961 F.2d at 632 (same). This is a factual question,

however, and on summary judgment review, we are willing

to assume (as Hall urges) that the facts support the in-

ference that the defendants knew about his political activ-

ities. But the record is still missing any concrete evidence

that they knew (or thought) that Barger’s involvement in

the party was more prominent. At the most, the defendants

may have conceded through omission that defendant Babb

knew something about both applicants’ political back-

grounds. But Westell and Piersma presented affidavits

denying that either of them knew anything about Hall’s or

Barger’s political involvement. Even if these affidavits

create an issue of fact with respect to their knowledge of

Hall’s activities, there is nothing in the record to contradict

the denials relating to Barger. Hall has given us only

speculation in response (for example, that Babb appointed

Westell and so Westell must have been told what he knew)

to contradict the defendants’ attestations. See Simmons,

No. 03-3631 7

289 F.3d at 492; Cusson-Cobb, 953 F.2d at 1081. Unless a

majority of the interviewing board knew something about

the relative strength of both applicants’ political involve-

ment (keeping in mind that it is undisputed that the panel

members did not confer with each other before scoring the

applicants), political motivation could not have been a

substantial factor in the group hiring decision. See Felton v.

Bd. of Comm’rs, 5 F.3d 198, 202 (7th Cir. 1993) (focusing on

knowledge of majority of decisionmaking body). Hall’s

failure to offer evidence that would have shown that at least

two of the three hiring committee members knew about the

political background of the two applicants, or that the

hiring decision was manipulated by one member who

possessed such knowledge, dooms his case.

This conclusion is not undermined by the other evidence

in the record to which Hall draws our attention. For in-

stance, Hall emphasizes Barger’s apparently higher level of

involvement and connection in the Republican Party.

Although Hall’s waning commitment to the party and Barger’s

connections to the allegedly influential Sammye Fark could

explain why a hypothetical set of politically-motivated deci-

sionmakers might select Barger over Hall, these facts do

not reveal anything about whether the defendants in this

case actually considered these facts in making their hiring

decision. See Garrett, 961 F.2d at 633. Hall also cites what

he deems to have been his superior qualifications for the

open job (presumably because, unlike Barger, Hall already

held a position in the Business Services office). Although

superior qualifications of the unsuccessful applicant can be

evidence of discrimination, see Felton, 5 F.3d at 202, they

are not enough in themselves to support an inference that

the defendants made their hiring decision based on political

motivation rather than any other factor, permissible or

forbidden, see Nelms, 153 F.3d at 818 n.4; Garrett, 961 F.2d

at 633.

Hall also tries to buttress his point that Barger was “pre-

selected” for the job based on political consideration. He

8 No. 03-3631

relies on Barger’s being given the opportunity to learn about

the position before the interview. But defendant Babb tes-

tified at his deposition that this was standard practice with-

in IDOT, and Hall did not rebut this assertion except to

note that Babb could not recall the names of applicants who

had used this procedure in the past. Hall also cites Barger’s

comments to fellow workers before the interview that he

thought he had the job and his comment to Hall that he had

a leg up because of his relation to Sammye Fark. Even if

these comments are not hearsay, perhaps because they

reveal Barger’s state of mind, they also fall short of being

evidence of political motivation in the employment decision,

because they were not made by anyone who had control

over that decision. See Nelms, 153 F.3d at 819. Defendant

Westell’s statement that Hall would not be getting the job

is similarly unilluminating. Particularly in light of Westell’s

explanation in her affidavit that she was referring to Hall’s

past job performance, there is nothing in the comment that

smacks of political motivation.

Hall also complains about alleged procedural irregularities

in the selection process, including what he paints as sub-

jective scoring of the applicants, the defendants’ not check-

ing into the applicants’ employment histories, and Barger’s

not filling out an application until after the interview.

Although these may suggest deficiencies in the selection

process, they do not suggest that the defendants made the

hiring decision on the basis of politics.

Finally, Hall wants to rely on generic evidence that sug-

gests that the Republican Party in Illinois, and defendant

Babb in particular, had a history of filling government jobs

on the basis of political patronage. Hall identifies instances

in which he contends that Babb was involved in filling po-

sitions with political cronies. Although a showing of a past

pattern of political patronage may sometimes support a

finding of political motivation, see Felton, 5 F.3d at 202-04,

Babb’s alleged past practices do not implicate the two other

No. 03-3631 9

defendants, who constituted a majority of the decisionmak-

ing body in this case. Hall also cites the testimony of Janine

Oxencis (who ran the Secretary of State’s patronage office

during George Ryan’s term and served as a volunteer co-

ordinator during his gubernatorial campaign) during the

highly-publicized trial of Scott Fawell about political cor-

ruption in the Secretary of State’s office and her repeated

assertion of her Fifth Amendment rights during her depo-

sition in Hall’s case. Although the parties hotly contest

whether negative inferences may be drawn from Oxencis’s

refusal to talk, her potential testimony is irrelevant to this

case because none of her testimony during the Fawell trial

dealt with practices within IDOT. Furthermore, although

Oxencis became head of personnel at IDOT six months

before the filling of the job at issue in this case, Hall pre-

sented no independent evidence that she had any personal

involvement in the filling of this particular job. Finally, Hall

points to emails authored by Babb expressing his distaste

for disloyal members of the Republican Party. But these

emails, written several years after the hiring decision at

issue in this case, do not provide evidence of political moti-

vation in this particular hiring decision because they were

made in a context unrelated to that decision. See Nelms,

153 F.3d at 819 (explaining that statements unrelated to

decisional process at issue do not help satisfy plaintiff’s

burden); McClure v. Cywinski, 686 F.2d 541, 545-46 (7th

Cir. 1982).

Although Hall’s evidence comes up short in all the ways we

have discussed, there is one point made by the defendants

that requires comment. They assert that they should prevail

as a matter of law because Hall and Barger were affiliated

with the same political party. As we indicated earlier, this

goes too far. It fails to recognize that state workers in the

Rutan-protected group are entitled to be treated apoliti-

cally. We see nothing to distinguish patronage based on a

relatively higher level of involvement within the same po-

10 No. 03-3631

litical party from patronage based more simply on member-

ship alone in a particular party. See Tomczak v. City of

Chi., 765 F.2d 633, 640 (7th Cir. 1985); Curinga v. City of

Clairton, 357 F.3d 305, 311 (3d Cir. 2004). Either one

coerces public employees to engage in political activity

regardless of their wishes.

III

Although the circumstantial evidence on which Hall

wants to rely may raise some eyebrows about the hiring

practices used in his case, it is insufficient to create an is-

sue of material fact as to whether political motivation was

a substantial or motivating factor in the defendants’ deci-

sion to hire Barger rather than Hall. Nothing he presented

was enough to overcome the uncontradicted evidence pre-

sented by the defendants that a majority of the decision-

making body (that is, Piersma and Westell) did not even

know about the political backgrounds of Barger and Hall.

We therefore AFFIRM the judgment of the district court.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—11-24-04