Rich Stockwell v. City of Harvey

In the

United States Court of Appeals

For the Seventh Circuit

No. 09-2355

R ICH STOCKWELL, et al.,

Plaintiffs-Appellants,

v.

C ITY OF H ARVEY,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 1:07-cv-05868—Robert W. Gettleman, Judge.

A RGUED O CTOBER 28, 2009—D ECIDED M ARCH 12, 2010

Before R IPPLE, W ILLIAMS and T INDER, Circuit Judges.

R IPPLE, Circuit Judge. The plaintiffs, Rich Stockwell,

Gary Stockwell, Ron DeYoung and Steve Ciecierski

brought this action against the City of Harvey, Illinois

(the “City”). They allege that the City failed to promote

them within its fire department (the “Department”) on

account of their race. The district court granted summary

judgment for the City, and the plaintiffs appealed. For

the reasons set forth in this opinion, we affirm the judg-

ment of the district court.

2 No. 09-2355

I

BACKGROUND

Because this is an appeal from a grant of summary

judgment, we take the facts in the light most favorable to

the plaintiffs. See Muro v. Target Corp., 580 F.3d 485, 487

(7th Cir. 2009).

In November 2005, Jason Bell was appointed as the

City’s fire chief by its mayor, Eric Kellogg. Prior to this

appointment, Deputy Fire Chief Bruce Randall, who was

white, had asked that he be allowed to return to his

position as a captain. In light of Randall’s departure,

the City determined that Chief Bell would need

assistance in administering the Department and,

therefore, decided to hire not only a new Deputy Chief,

but three Assistant Chiefs as well.

A sign-up sheet was posted so that firefighters could

express their interest in the positions. The sign-up sheet

informed applicants that “[a]ny member of the

classified service with a minimum of ten years active

service with the Harvey Fire Department may apply.”

R.29, Attach. 13. Each of the plaintiffs indicated his

interest in the Assistant Chief position, and, with the

exception of Mr. DeYoung, each also indicated that he

was interested in the position of Deputy Chief. In

total, nine individuals signed up to be interviewed for

Assistant Chief, and eight for Deputy Chief. Of the ap-

plicants, three were African-American (Willie Buie,

William Tyler and Phil Patterson); the remainder were

white.

No. 09-2355 3

Before interviewing the applicants, Chief Bell offered

the position of Deputy Chief to Captain Steve Gorman;

Captain Gorman is white. Although Captain Gorman

had not applied, Chief Bell believed that he “was the

best guy for the job.” R.37 at 150-51. Captain Gorman,

however, conveyed to Chief Bell that he was not inter-

ested because he wanted to ride on the engine.

Prior to conducting any interviews, Chief Bell, along

with Public Safety Fire Administrator (“PSFA”) William C.

Bell, Jr.,1 created a written overview of the positions,

which set forth both desirable and unacceptable

qualities (“Overview Document”). This document made

clear that the Department was looking for competence,

loyalty, dedication and confidence. Unacceptable traits

included selfishness, complaining, dishonesty and under-

mining authority.

On January 12, 2006, Chief Bell, PSFA Bell and Civil

Service Commission Chair Herman Head interviewed

the candidates. Each candidate was evaluated on a 1-5

scale in the categories of “Initial impression, decorum,

and appearance”; “Interest, dedication and commitment”;

“Character and Honesty”; “Personality and Teamwork

Ethic”; “Overall poise and general ability to Communi-

cate” and “Education and Certifications.” See, e.g., R.29,

Attach. 22. Although all three interviewers stated that

each interviewer filled out his own evaluation, only

Chief Bell’s evaluation forms appear in the record. More-

1

PSFA Bell is Chief Bell’s father. The PSFA was involved in

running all of the City’s departments.

4 No. 09-2355

over, the list of total scores provided by the City corre-

sponds to Chief Bell’s scores for the plaintiffs. In light

of this record, and in light of the undisputed fact that

Chief Bell made the final decision about whom to

promote, we shall focus on Chief Bell’s evaluations and

on his bases for those evaluations.

After completing the interviews, Chief Bell made his

promotion decisions. He stated that the interview scores

were useful, but not determinative, in making those

decisions: “After the interviews[,] [i]t wasn’t an

immediate promotion. It wasn’t, ‘okay, these are the

numbers, take these guys with the highest number and

they are promoted.’ That was not the case.” R.37 at 153.

Chief Bell formulated a list of individuals based on “the

totality of” the characteristics set forth on the Overview

Document; he was looking for individuals he believed

“really wanted the job and who [were] ready to give

their all to their job.” Id. at 155. Although his selections

were approved by PSFA Bell and the comptroller, Chief

Bell testified that “the decision of who I wanted is who

I submitted and subsequently got.” Id. at 157.

The four highest scores belonged to Buie, Tyler, Richard

Climpson and Patterson. Buie, Tyler and Patterson ulti-

mately received promotions. Chief Bell discussed the

promotion with Climpson; however, Climpson deter-

mined that it was in his own best interest, as well as that

of the City, not to pursue the promotion at that time.

The next highest score belonged to Rich Stockwell.

Chief Bell did not offer a position to Mr. Stockwell. Ac-

cording to Chief Bell, Mr. Stockwell had indicated to

No. 09-2355 5

Chief Bell that he would be retiring soon, and Chief Bell

did not want to fill the positions with individuals who

were using the promotion as a stepping stone to retire-

ment. However, Chief Bell did offer a position to William

Canavan, who had the next highest score, but he

declined to accept it. Chief Bell then offered the final

open position to Jeff Cook. Cook, who is white, neither

applied for the position nor participated in the formal

interview process. Nevertheless, Chief Bell spoke infor-

mally to Cook about the positions on several occasions.

Chief Bell perceived Cook to be “very knowledgeable” and

an employee who “put the department first,” and, there-

fore, believed that Cook “would be a good asset to the

management staff.” Id. at 152.

II

DISTRICT COURT PROCEEDINGS

Mr. DeYoung, Mr. Ciecierski and the Stockwells

brought this Title VII action in the district court, alleging

that the City had failed to promote them on account of

their race. The City moved for summary judgment, and

that motion was granted.

The district court held that the plaintiffs had failed to

establish a prima facie case of race discrimination under

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The

district court explained that for a white plaintiff to estab-

lish the first prong of the prima facie case—that he

belongs to a protected class—he “must establish ‘back-

ground []circumstances sufficient to demonstrate that the

6 No. 09-2355

particular employer has reason or inclination to discrimi-

nate invidiously against whites or evidence that there is

something fishy about the facts at hand.’ ” R.48 at 4-5

(quoting Hague v. Thompson Distrib. Co., 436 F.3d 816,

822 (7th Cir. 2006)). The plaintiffs had argued that the

City’s “ ‘minority only’ hiring practices . . . that followed

the election of Eric Kellogg in 2003” were sufficient to meet

this prong; specifically, they noted that, since 2003, the

City had hired only one white person to fill 32 positions

in its police department. The court held, however, that

“this [wa]s not necessarily compelling evidence to sup-

port an inference that defendant discriminated against

the majority because it regards the police department,

not the fire department.” Id. at 5.

The district court also determined that the plaintiffs had

not established the fourth prong—that a similarly or

lesser qualified non-white candidate was treated more

favorably. The district court explained:

With regard to the fourth element, defendant

contends that when filling the deputy chief and

assistant chief positions, Chief Bell asked four

white men in the Harvey Fire Department to fill

these positions, one of which accepted an assistant

chief position. Promotion of one member of the

disputed class does not necessarily defeat the

prima facie case. The prima facie case is a flexible

standard that is not intended to be applied rigidly.

The exact content of the fourth prong may vary

from case to case to take differing circumstances

into account.

No. 09-2355 7

Although the promotion of one white firefighter

may not automatically defeat the suggestion that

the defendant treated non-whites more favorably,

the instant case provides compelling evidence

that this was not a case of reverse discrimination

against the majority class. Here, prior to making

its final decision on promotion, defendant had

offered the position to four different white males.

Plaintiffs have offered no evidence that could

demonstrate that these were illegitimate offers,

offers that defendant knew would not be accepted,

or improper motivation. The uncontested facts,

therefore, establish that defendant did not use

discriminatory bias when filling the positions.

R.48 at 5-6 (internal citations omitted).

The plaintiffs now appeal.

III

DISCUSSION

Title VII prohibits discrimination “against any individual

with respect to his compensation, terms, conditions, or

privileges of employment” on account of race. 42 U.S.C.

§ 2000e-2(a)(1). An employer’s refusal to promote an

employee on account of race is a violation of Title VII. See

Grayson v. City of Chicago, 317 F.3d 745, 747-48 (7th Cir.

2003). Here, the plaintiffs have attempted to establish

their failure-to-promote claim using the McDonnell

Douglas indirect method of proof.

8 No. 09-2355

The analysis of Title VII claims brought under McDonnell

Douglas proceeds in three stages. First, the plaintiff must

establish a prima facie case. Ordinarily, the four elements

of the prima facie case in a failure-to-promote context are

that the plaintiff (1) was a member of a protected class;

(2) that he was qualified for the position; (3) that he

was rejected for the position; and (4) that the position

was given to a person outside the protected class who

was similarly or less qualified than he. Jackson v. City of

Chicago, 552 F.3d 619, 622 (7th Cir. 2009). In a reverse

discrimination case such as this one, we have replaced

the first element with a requirement that the plaintiff

show “background circumstances” suggesting that the

employer discriminates against the majority. Farr v. St.

Francis Hosp. & Health Ctrs., 570 F.3d 829, 833 (7th Cir.

2009).

After the plaintiff has made out a prima facie case, the

burden shifts to the defendant to produce a legitimate,

nondiscriminatory reason for the employment action. This

is a light burden. Pilditch v. Bd. of Educ. of City of Chicago,

3 F.3d 1113, 1117 (7th Cir. 1993) (citing Texas Dep’t of

Cmty. Affairs v. Burdine, 450 U.S. 248, 254-56 (1981)). Once

the employer has articulated a legitimate, nondiscrimina-

tory reason for its decision, the presumption of discrimina-

tion falls away. Cianci v. Pettibone Corp., 152 F.3d 723, 726

(7th Cir. 1998). The plaintiff then has the burden of pro-

ducing sufficient evidence to show that reason to be

pretextual. See McDonnell Douglas, 411 U.S. at 802, 804.

The plaintiffs ask us to reconsider the “background cir-

cumstances” requirement. There is no necessity for us to

No. 09-2355 9

confront that issue today. Indeed, we need not address

any of the plaintiffs’ arguments with respect to whether

they have established a prima facie case because, even

if we assume that the plaintiffs have met this burden, we

still must hold that they have failed to produce

sufficient evidence of pretext.2

In order “to show pretext, a plaintiff must show that

(1) the employer’s non-discriminatory reason was dis-

honest and (2) the employer’s true reason was based on

a discriminatory intent.” Fischer v. Avanade, Inc., 519

F.3d 393, 403 (7th Cir. 2008) (internal quotation marks,

citations and brackets omitted). See also Hobbs v. City of

Chicago, 573 F.3d 454, 462 (7th Cir. 2009). If the plaintiff

uses indirect evidence to meet his burden, he must show

that the employer’s reason is not credible or factually

baseless. Fischer, 519 F.3d at 403. The plaintiff also

2

Although the district court did not address the pretext issue,

finding instead that the plaintiffs failed to establish a prima

facie case, it is well-settled that we may affirm on any ground

supported by the record, so long as it has been adequately

presented below. E.E.O.C. v. Lee’s Log Cabin, Inc., 546 F.3d 438,

442 (7th Cir. 2008). The presentment requirement exists

because, if the issue is not raised below, the nonmovant has

no obligation to present evidence on the point. See Sublett v.

John Wiley & Sons, Inc., 463 F.3d 731, 736 (7th Cir. 2006). In this

case, the City contended in its motion for summary judgment

that it had set forth legitimate nondiscriminatory reasons for

its decision, and it asserted that the “plaintiffs have no

evidence that proves that Harvey’s legitimate reasons are

pretextual.” R.28 at 10.

10 No. 09-2355

must provide evidence that supports the inference that

the real reason was discriminatory. Id. Although indi-

rect proof of pretext is permissible, we must remem-

ber that, even if the business decision was unreasonable,

pretext does not exist if the decisionmaker honestly

believed the nondiscriminatory reason. Little v. Illinois

Dep’t of Revenue, 369 F.3d 1007, 1012 (7th Cir. 2004). This

is because courts are not “superpersonnel depart-

ment[s]” charged with determining best business prac-

tices. Blise v. Antaramian, 409 F.3d 861, 867 (7th Cir.

2005) (quotation marks and citations omitted). Subjective

evaluations of each candidate are entirely consistent

with Title VII. Id. at 868.

A.

The plaintiffs submit that they have provided suf-

ficient evidence of pretext because Chief Bell offered

positions to individuals who never had signed up to be

interviewed. We cannot accept this argument. Chief Bell

testified that the plaintiffs had traits or were in situations

that, according to the Overview Document, made them

unacceptable. The fact that Chief Bell went outside the

interview process in an attempt to find individuals

who did not present these negative attributes and were

a better fit for the position does not show pretext. Al-

though the plaintiffs were not completely unqualified (for

example, they had a long history of service to the Depart-

ment), the fact the employer seeks out other individuals

who are better qualified does not show pretext. Here,

No. 09-2355 11

according to Chief Bell, the plaintiffs presented specific,

but significant, negative attributes that made them less-

than-ideal candidates for specific positions at issue.

It is important to note that Chief Bell does not maintain

that the nondiscriminatory basis for their rejection

was simply the interview scores. Chief Bell specifically

testified that he did not simply identify the highest

scorers and offer them positions. Chief Bell also testified

at length about his impressions of the plaintiffs.

B.

We now address the pretext arguments particular to

each plaintiff.

1. Mr. DeYoung

Chief Bell identified in his deposition the reason for

rejecting Mr. DeYoung. He stated that he had worked

“on shift” with Mr. DeYoung for many years and that

Mr. DeYoung “would always be sort of negative.” R.37

at 137. This observation caused Chief Bell to believe

that Mr. DeYoung “possibly” might undermine manage-

ment. Id. Chief Bell also stated that he believed that all

the plaintiffs, except Rich Stockwell, would resist change.

Both “[t]hose who constantly undermine authority” and

“[t]hose who . . . resist change” appeared under “Qualities

and Characteristics that are not Acceptable” in the Over-

view Document. R.29, Attach. 12 at 3. Far from contra-

dicting Chief Bell, Mr. DeYoung admitted in his deposi-

12 No. 09-2355

tion that someone, whom he was unable to identify, had

spoken to him about his perceived negative attitude.3

3

Moreover, Mr. DeYoung admitted in his own deposition

that he wore his duty uniform to the interview instead of his

dress uniform. Although Chief Bell did not remark on this, his

score sheet gives Mr. DeYoung a “2” in the category of “Initial

impression, decorum and appearance.” R.29, Attach. 17. This

is enough to support an inference that Mr. DeYoung’s choice

of wardrobe played a role in Chief Bell’s decision.

The City also relies on Mr. DeYoung’s alleged abuse of sick

time and lack of familiarity with the Mayor’s vision for the City.

However, we believe that, when all reasonable inferences

are drawn in favor of the nonmovant, the trier of fact could

find that Chief Bell learned of Mr. DeYoung’s abuse of sick

time after filling the positions.

The only evidence that Chief Bell relied on Mr. DeYoung’s

lack of knowledge of the Mayor’s vision is a letter that Mr.

DeYoung claims is inadmissible hearsay. The City claims that

the letter is a business record. This is a problematic contention

because, although PSFA Bell authenticates the letter, there is

no evidence that lays the business record foundation. While it

is quite possible that the foundation could be laid, it is not

obvious. Although the City directs our attention to Eisenstadt

v. Centel Corp., 113 F.3d 738 (7th Cir. 1997), that case does not

help its cause. In that case, we suggested that certain unattested

hearsay documents, other than depositions and affidavits,

might be admissible at the summary judgment stage in certain

circumstances. Id. at 742. As an example, we noted “a letter

inadmissible only because the signature on it had not been

verified and there was no doubt that it could and would be.” Id.

(continued...)

No. 09-2355 13

Mr. DeYoung claims that Chief Bell’s testimony is “far

less than an unambiguous statement that ‘I did not

select DeYoung because I believed that if selected to be

assistant Chief, he would undermine management.’ ”

Appellant’s Br. 16. While such an explicit statement of

a reason is generally helpful to employers, it is not a

necessary ingredient in the assertion of a non-pretextual

reason for a personnel decision. The defendant only has

to produce admissible evidence that would permit a

rational jury to conclude that the employment decision

had not been motivated by discriminatory animus.

Anaeme v. Diagnostek, Inc., 164 F.3d 1275, 1279 (10th Cir.

1999) (citing Burdine, 450 U.S. at 254-55). Here, the City

put forth evidence that Chief Bell—the individual who

made the hiring decision—had, at the relevant time, a

personal belief that Mr. DeYoung might undermine

3

(...continued)

To admit the letter here, however, might require a “broader

dispensation to disregard the rules of evidence.” See id. Despite

the strength of this contention, the plaintiffs did not raise a

hearsay objection in any of their eight motions to strike. They

did, however, mention the hearsay issue in their memorandum

in opposition to summary judgment. In any event, however, the

City has provided an ample nondiscriminatory explanation

without relying on the letter. If we did consider the letter and set

aside all waiver issues, we would simply note that the letter

alone would supply a non-pretextual, nondiscriminatory

explanation. Mr. DeYoung admitted in his deposition that he

did not articulate the Mayor’s slogan. R.29, Attach. 4 at 5

(“I didn’t understand the question . . . . I didn’t know they were

looking for a slogan.”).

14 No. 09-2355

management and resist change. There is also evidence

that these qualities were, at the time, considered unac-

ceptable traits for members of the Chief’s administrative

team. This evidence is sufficient to allow a fact-finder to

conclude that these nondiscriminatory factors drove

the employment decision.

Mr. DeYoung, therefore, has not produced evidence

of pretext. Although he stated in his deposition that he

“never said no” to “special things, block parties, stuff like

that,” gave 110 percent, and saved a little boy’s life, R.29,

Attach. 4 at 5, he admitted that others thought him to be

negative and that he did not wear his dress uniform to

the interview. The perception of the decisionmaker is

controlling. Adreani v. First Colonial Bankshares Corp., 154

F.3d 389, 398 (7th Cir. 1998) (ADEA case).

2. Mr. Ciecierski

Chief Bell believed that Mr. Ciecierski possibly would

not support him because Mr. Ciecierski had stated in his

interview that he wanted to be Chief. Mr. Ciecierski was

also among those who Chief Bell believed would resist

change. As in the case of Mr. DeYoung, Chief Bell’s

personal knowledge of these considerations, at the

relevant time, satisfies the City’s burden.

Chief Bell also testified that he believed Mr. Ciecierski

to be dishonest and untrustworthy. These are, according

to the Overview Document, unacceptable qualities. In

filling out score sheets, Chief Bell gave Mr. Ciecierski a “1”

for “Character and Honesty.” R.29, Attach. 16. Chief Bell

No. 09-2355 15

testified that, during Mr. Ciecierski’s interview, he

stated that Chief Bell never commanded a fire. Chief

Bell considered that allegation “a blatant lie.” R.37 at 146.

Mr. Ciecierski makes much of Chief Bell’s comment that

Chief Bell formed his opinion of Mr. Ciecierski’s dishon-

esty “more so after” the selection process. Id. at 148.

Chief Bell’s testimony about the interview, however,

combined with the score sheet, provides a sufficient

basis for a fact-finder to conclude that concern about

dishonesty was a factor in Chief Bell’s decision.4

4

Mr. Ciecierski testified that Patterson “spent a lot of time over

on the other side of the building, violating the chain of com-

mand.” R.29, Attach. 8 at 7. He testified that Willie Buie had, at

one point, stood and talked to PSFA Bell rather than fight a

fire. He also stated, in reference to the unacceptable characteris-

tics, that “[t]here is no one on that list that has not been

accused of something on this list.” Id. at 8. Although strong

evidence of negative qualities might, in some cases, be suf-

ficient to constitute indirect proof that the decisionmaker

knew of the qualities, the self-serving statements of these

plaintiffs are not sufficient. See Petts v. Rockledge Furniture LLC,

534 F.3d 715, 726 (7th Cir. 2008) (holding that plaintiff’s own

reliance on relative qualifications is insufficient to show

pretext); Millbrook v. IBP, Inc., 280 F.3d 1169, 1181 (7th Cir. 2002)

(“[A]n employee’s perception of his own performance . . . cannot

tell a reasonable factfinder something about what the employer

believed about the employee’s abilities.” (ellipsis in original;

quotation marks and citation omitted)); Ost v. W. Suburban

Travelers Limousine, Inc., 88 F.3d 435, 441 (7th Cir. 1996) (holding

that plaintiff’s opinion that she was more qualified than

either individual who was hired did not establish pretext). The

(continued...)

16 No. 09-2355

Mr. Ciecierski has not provided any basis for a jury to

conclude that Chief Bell did not honestly hold his be-

liefs. Indeed, he testified that he had been critical of

both PSFA Bell and Chief Bell. There was therefore suf-

ficient evidence of a legitimate, nondiscriminatory

reason for Mr. Ciecierski’s nonselection.

3. Gary Stockwell

Chief Bell testified that Gary Stockwell had written or

spray painted on a safety house 5 to show his dissatisfac-

tion with the project. Chief Bell consequently believed

that Mr. Stockwell possibly would not be supportive of

the fire department. He also testified that Mr. Stockwell

did “a lot of complaining.” R.37 at 136. Once again, the

decisionmaker’s knowledge of negative qualities (or

even the mere possibility of negative qualities) at the

relevant time provides an adequate basis for the fact-finder

to conclude that these potential negative qualities

drove the employment decision.6 Indeed, the fact that

4

(...continued)

plaintiffs produce no disciplinary records, no testimony of

superiors and no other corroborating testimony. None of the

plaintiffs linked their knowledge of these negative attributes

to Chief Bell.

5

The safety house was a demonstration model used by the

Department in educational problems.

6

Mr. Stockwell and the other plaintiffs appear to argue that

Chief Bell became aware of these negative qualities after filling

(continued...)

No. 09-2355 17

6

(...continued)

the positions. He relies on the following exchange from Chief

Bell’s deposition:

Q: So at the time you were involved in filling the vacant

position of deputy chief and assistant chief, were you

aware of any disloyalty on the part of any of the plain-

tiffs?

A: No, not on any part of the plaintiffs, no.

Q: At the time you were involved in filling the vacant

positions, were you aware of any disloyalty on the part

of the plaintiffs—on any part of any of the plaintiffs to

the fire department of the City of Harvey?

A: No, not to the fire department, no.

Q: At the time you were involved with filling the

four—strike that. At the time you were involved in

filling the vacant positions of deputy chief and assistant

chief, were you aware of any problems that any of the

plaintiffs had in working with you?

A: Prior, no.

Reply Br. 7-8 (citing R.37 at 131-32). Even taking this testimony

in the light most favorable to the plaintiffs, it cannot bear the

weight that the plaintiffs place on it. The context is critical. Chief

Bell had just identified instances of disloyalty on the part of

Mr. DeYoung and the Stockwells (abusing sick time and

falsifying Gary Stockwell’s residence). These statements can

be read to refer to those instances, but cannot be read to

sweep beyond that. Later in the deposition, Chief Bell was

specifically asked, “At the time you were involved in filling the

vacant firefighter position, did you believe that any of the

(continued...)

18 No. 09-2355

Chief Bell gave Mr. Stockwell a “1” on his score sheet for

“Personality and Teamwork Ethic” provides additional

support for this basis.7

6

(...continued)

plaintiffs had not been supportive of the fire department?”

R.37 at 135. He also was asked, “Did you ever believe that any

of the plaintiffs would always complain or look to com-

plain about things?” Id. at 136. That testimony expressed

Chief Bell’s concerns about Gary Stockwell on which we

primarily rely.

7

We do not rely on Mr. Stockwell’s alleged falsification of his

residence as a legitimate, nondiscriminatory reason for Chief

Bell’s failure to promote him because a reasonable fact-finder

could conclude that Chief Bell did not become aware of this

until after the selection process.

We also need not rely on Mr. Stockwell’s rejection letter,

which stated that he lacked the confidence to be an effective

Chief. Our comments about Mr. DeYoung’s rejection letter

apply here, with one caveat: The plaintiffs did not specifically

challenge Mr. Stockwell’s letter at all. As in the case of

Mr. DeYoung, we note that the City has provided an ample

nondiscriminatory basis for its decision without the letter. The

letter would suffice by itself to support summary judgment

for the City. Gary Stockwell’s own deposition testimony

reveals that he remarked in his interview that he believed that

at least three or four other candidates were more qualified

than he. This is a slightly different formulation than used in

the letter (which said “three or four candidates who you felt

could do the job better,” R.29, Attach. 19) but does not under-

mine the conclusion that Chief Bell believed that Mr. Stockwell

lacked confidence.

No. 09-2355 19

Mr. Stockwell puts forth no evidence that Chief Bell did

not believe these justifications. He admitted that he wrote

“Elmo’s house” on the safety house. R.29, Attach. 7 at 6.

The only example he provided of his support for the

fire department was from the 1980s and early 1990s. He

had no run-ins with the administration.8

4. Rich Stockwell

Mr. Stockwell claims that there is a genuine issue of

material fact with respect to the City’s proffered reason

for failing to promote him. Chief Bell testified that, even

before posting the sign-up sheet, Mr. Stockwell told

him that he soon would be leaving the Department and

that, consequently, the Chief concluded that Rich

Stockwell would not be dedicated and committed to the

Department over the “long haul.” See R.29, Attach. 12 at 3.

Later in his deposition, Chief Bell discussed another

conversation with Mr. Stockwell, which occurred after

interviews, but before the promotion decisions were

made. Chief Bell testified that, when he told Mr. Stockwell

that he “was high on everybody’s list,” Mr. Stockwell

implied that he was retiring. R.37 at 159.

Mr. Stockwell maintains, however, that Chief Bell’s

statements cannot be squared with statements that

8

Mr. Stockwell filed grievances on behalf of the union, but

because Chief Bell never said anything about that activity,

we have no reason to believe that he held it against Mr. Stock-

well.

20 No. 09-2355

Mr. Stockwell made in his own deposition. Mr. Stockwell

testified that he never suggested “before December, 2005”

or “before [he] applied” that he planned to retire. R.37

at 224-25. He did testify about a conversation with

Chief Bell that occurred after decisions were made.

Mr. Stockwell asked how he did, and Chief Bell’s

response was, “you did well.” Id. at 256-57. Mr. Stockwell

testified that he retired “mostly because of not being

able to obtain this position.” Id. at 225. Mr. Stockwell

believes that this conflicting testimony raises a genuine

issue of material fact with respect to whether he had

communicated his intention to retire prior to the

interviews and, therefore, whether Chief Bell could have

gotten the impression that he was not dedicated to the

Department for the “long haul.” See R.29, Attach. 12 at 3.

On close examination, however, we do not perceive

there to be a true conflict between the testimony of Chief

Bell and that of Rich Stockwell that creates a genuine

issue of material fact concerning Chief Bell’s motivation

in passing over Mr. Stockwell. In his deposition, Chief Bell

testified as follows:

Q. At the time you were involved in filling the

vacant—strike that. At the time you were involved

in filling the deputy chief and assistant chief

positions, did you believe that any of the plaintiffs

were just trying to pension off at a higher rank in

salary?

A. I didn’t believe that, but the one instance, yes,

I was led to believe that.

No. 09-2355 21

Q. And which person did that involve?

A. Rich Stockwell. I talked to him one time dis-

tinctly I remember. And he was just saying that he

couldn’t really do this anymore and he was—he

was going to be getting out pretty soon.

Q. Was that in connection with the deputy chief or

assistant chief position?

A. No, this was prior. This was prior to—I think

prior to even the sign-up sheet. It was just conver-

sations we had, because I worked on his shift. This

was, I don’t know exactly, but he was leaving. He

just didn’t know when, but it was real soon. That’s

the impression he gave me.

R.37 at 133-34. In short, while working on the same shift

as Chief Bell, Mr. Stockwell expressed his belief that he

did not know how much longer he could continue

actively fighting fires. Chief Bell concluded from these

statements that Mr. Stockwell was planning to retire

sometime in the near future.

In his deposition, Mr. Stockwell does not deny having

made general comments to men on his shift concerning

his inability to continue in his present position. Instead,

Mr. Stockwell’s testimony is more focused on the subject

of retirement. The following question and answer series

is taken from Mr. Stockwell’s deposition:

Q. Did you have any conversation with anyone in

the Fire Department before December, 2005

about any plans to retire?

A. No.

22 No. 09-2355

Q. So you never suggested to anyone before you

applied for Deputy Chief or Assistant Chief that

you might be retiring in a year or two?

A. No. No. I never suggested—I never planned a

date of retirement. When it came up, it came up.

I finally decided that because of—and mostly

because of not being able to obtain this position,

one of those positions, is that I felt that I was

jeopardizing the guys I was working with staying

in the position I was in.

Q. How were you jeopardizing?

A. I am getting older and it is hard to fight fires.

Everybody works as a team. You have to depend

on one another. I didn’t want guys to have to

worry about me and having to pick up the slack

because of me. But I still had usefulness inside

me that I could serve the department and wanted

to get a position where I could still be there.

Id. at 224-25. Mr. Stockwell states clearly that he never

told anyone that he would be retiring in “a year or two”

and that he had “never planned a date of retirement.”

These statements are much narrower than Chief Bell’s

recollections of Mr. Stockwell’s statements that the physi-

cal strain of the job was getting to him—a sentiment

echoed in Mr. Stockwell’s own deposition testimony.

Based on these statements, Chief Bell was left with the

impression that Mr. Stockwell would be retiring in the

near future. Although Chief Bell may have been

mistaken in the conclusions drawn from Mr. Stockwell’s

statements, “[a] reason honestly described but poorly

No. 09-2355 23

founded is not a pretext, as that term is used in the law

of discrimination.” Pollard v. Rea Magnet Wire Co., Inc.,

824 F.2d 557, 559 (7th Cir. 1987). Nothing in Mr.

Stockwell’s statements explicitly contradicts Chief Bell’s

testimony concerning his conclusion about Mr. Stockwell’s

possible retirement. Therefore, those statements do not

create a genuine issue of fact for the jury.9

9

Nor can Mr. Stockwell establish pretext by showing that he

was more qualified than those eventually promoted to the

Deputy and Assistant Chief positions. Mere comparison of

relative qualifications cannot establish an illicit motive unless

“no reasonable person, in the exercise of impartial judgment,

could have chosen the candidate selected over the plaintiff for

the job in question.” Millbrook, 280 F.3d at 1180-81 (quotation

marks and citation omitted). Mr. Stockwell cannot meet this

standard. Chief Bell testified that Buie had been serving as a de

facto deputy chief without the title. Tyler, though a rank below

Mr. Stockwell, was a “top tier” fireman who had served two

stints with the Department covering a total of about 12 years.

R.37 at 12, 165. Patterson had been with the Gary Fire Depart-

ment for 20 years, and had been a captain there. We recite

these facts not to reassess Chief Bell’s decisions, but simply to

establish that, based on the information before us, a reasonable

person could have chosen Buie, Tyler and Patterson over

Mr. Stockwell.

Rich Stockwell testified that Tyler had been asked to resign

because he had alcohol in the ambulance and that Patterson

had “probably got a discipline record as long as my arm,” id. at

242, was chronically late, and would abandon his post. Buie

was “not a leader.” Id. at 241. However, Mr. Stockwell did not

(continued...)

24 No. 09-2355

Conclusion

The City of Harvey, through its Fire Chief, has set forth

legitimate, nondiscriminatory reasons for declining to

promote the plaintiffs to Deputy and/or Assistant Chief.

The plaintiffs have failed to produce sufficient evidence

to create a genuine issue of fact regarding whether the

reasons were pretextual. The district court’s grant of

summary judgment is therefore affirmed.

A FFIRMED

9

(...continued)

recall any conversations about Patterson, Tyler or Buie with

PSFA Bell or Chief Bell. He therefore has failed to show that

Chief Bell knew about these issues.

3-12-10