Brown v. County of Cook

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-1953

T HOMAS B ROWN,

Plaintiff-Appellant,

v.

C OUNTY OF C OOK, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 06 C 617—Sharon Johnson Coleman, Judge.

A RGUED S EPTEMBER 30, 2011—D ECIDED O CTOBER 25, 2011

Before E ASTERBROOK, Chief Judge, and P OSNER and

W ILLIAMS, Circuit Judges.

P OSNER, Circuit Judge. Thomas Brown, a sergeant in

the Cook County Sheriff’s Office, was passed over for

promotion to lieutenant. His suit, filed under 42

U.S.C. § 1983 primarily against the then-Sheriff, Demo-

crat Michael F. Sheahan (the only defendant whom

we need to discuss), charges that he was passed over

because he’s a Republican, didn’t contribute to Sheahan’s

2 No. 11-1953

campaign fund in 1998, and voted for Sheahan’s Repub-

lican opponent that year, and that by thus discrim-

inating against Brown on the basis of his political

affiliation Sheahan infringed his freedom of speech. See,

e.g., Rutan v. Republican Party of Illinois, 497 U.S. 62, 68-76

(1990). Sheahan ran for re-election in 2002 and again

Brown neither attended any of his fundraisers nor con-

tributed to his campaign fund. The district judge granted

summary judgment for the defendants.

The parties haggle over the continued applicability of

“motivating factor” analysis to suits charging violations

of First Amendment rights. Mt. Healthy City School

District Board of Education v. Doyle, 429 U.S. 274, 287 (1977).

In a decision handed down shortly after the oral argu-

ment of this appeal, we ruled that it remains applicable

to such suits. Greene v. Doruff, No. 10-3497, 2011 WL

4839162 (7th Cir. Oct. 11, 2011). If Brown presented evi-

dence at the summary judgment phase of the litigation

that could convince a reasonable jury that his political

affiliation was a motivating factor in his being passed

over, the burden would shift to Sheahan to present evi-

dence that could convince a reasonable jury that Brown’s

political affiliation was not a “but for” cause of the

discrimination. (Sheahan doesn’t argue that denying

Brown promotion solely for political reasons might come

within one of the exceptions to the First Amendment’s

bar against political discrimination in public employment.)

To restate the standard of Mt. Healthy in simpler terms,

if Brown can prove that he would have been denied

promotion because of his political affiliation alone, then

No. 11-1953 3

to avoid an adverse judgment Sheahan would have to

show that even so Brown would have been denied promo-

tion for some other reason, in which event his political

affiliation had no causal significance. If Sheahan can

meet that burden, it is as if he had told Brown “I can’t

promote you because there’s no opening for another

lieutenant, but if there were I still wouldn’t promote

you, because you made a donation to my opponent five

years ago.” There would be no constitutional violation

because if Sheahan was being truthful Brown would not

be worse off as a result of his political affiliation than

if he’d contributed to Sheahan’s campaign instead.

For two years, beginning in 2003 and ending a few

months before his voluntary retirement in 2005 (the

year before Sheahan retired as Sheriff), Brown was on a

list of 16 police officers eligible to be promoted to lieuten-

ant. Five were promoted during that two-year period;

11 including Brown were not. Of the 5 promoted,

3 had contributed to Sheahan’s campaign fund and

2 had not. Of the 11 denied promotions, 4 had con-

tributed to the fund and 7 (including Brown) had not.

The average contribution of the 3 applicants who con-

tributed and were promoted was $557; the average contri-

bution of the 4 who contributed but were not promoted

was $595—as a group the heavier contributors were

treated worse! Brown concedes that he had not been

asked to contribute and does not allege (and indeed

disclaims) that he was told he had to contribute money

to Sheahan’s campaign fund or otherwise assist in

Sheahan’s campaign if he wanted to be promoted.

4 No. 11-1953

Five years before the promotion list was posted,

Brown had donated $100 to the campaign of Sheahan’s

Republican challenger and posted five signs adver-

tising that candidate. Apparently these were Brown’s

only contributions to the Republican candidate’s 1998

campaign besides voting for him; Brown’s wife was

not even aware of his participation in the campaign. He

seems not to have participated in any fashion in any

other recent campaign. The Cook County Sheriff’s Office

has some 7,000 employees, and Sheahan swears that

he never met Brown or had even heard of him before

this lawsuit. Sheahan’s deputies who were involved

in promotions knew Brown but not that he was a Republi-

can. Brown contests all this but produced no admissible

evidence to contradict the sworn denials of Sheahan

and the members of Sheahan’s senior staff. Brown

cannot satisfy his burden of showing that his political

affiliation was a motivating factor in his being passed

over for promotion if he can’t even show that people

who decided or advised on the decision were aware

of his political affiliation.

Much of the evidence tendered by Brown in an effort

to fend off summary judgment was inadmissible hearsay.

We’ll give just one example. Brown alleged that “a repre-

sentative of the Communications Section [of the Sheriff’s

Office] told me that Commander Palcu [a senior officer,

close to Sheahan] ran my license plate” (that is, did a

computer search to determine whether Brown had

a criminal record). We don’t see how, even if the allega-

tion were true, it would help Brown’s case, as it would

not be evidence of political animosity to him. And in

No. 11-1953 5

any event its evidentiary value would be nil unless

what the “representative” told Brown was true—and

Brown was forbidden by the hearsay rule to attest to

its truth. See Fed. R. Evid. 801(c). Although there are

many exceptions to the rule, the only one he invokes is

the exception for statements by the opposing party (that

is, admissions) or the party’s agent—but in the latter

case the statement must concern “a matter within

the scope of the agency.” Fed. R. Evid. 801(d)(2)(D).

There is no indication that the job of the “representative

of the Communications Section” involved conducting

computer searches or monitoring Palcu’s activities.

Much of the evidence that Brown tendered in the

district court was irrelevant, such as that another senior

staff member, when Brown asked him about being pro-

moted to lieutenant, told him “call your clout.” Brown

could of course testify that the officer really did say that

to him, and we are certainly happy to learn that bit of

Chicago argot, previously unfamiliar to us. But all that

“clout” means in the expression “call your clout” is “some

person of influence who will back your candidacy.” The

“clout” need not be a Democratic politician; he or she

could be a relative of Sheahan, or someone for whom

Sheahan might have wanted to work after retiring as

Sheriff, or Sheahan’s pastor, or for that matter Bo Derek,

who if indeed instrumental in persuading the Illinois

legislature to close down Illinois’s only horse slaughter-

house, see Cavel Int’l, Inc. v. Madigan, 500 F.3d 551, 559

(7th Cir. 2007), might be able to persuade the Sheriff of

Cook County to promote a sergeant to lieutenant.

6 No. 11-1953

Brown testified that one of the officers promoted

ahead of him was promoted only after he “called his

clout,” but the “clout” in question was the officer’s

former commander, who as far as appears was willing

to support his former subordinate’s candidacy because

the subordinate had done a good job working for him.

That wouldn’t even be “clout” in its usual pejorative

sense; but all that matters is that it wouldn’t be

political clout. Another officer was promoted ahead of

Brown because, Brown alleges, Sheahan knew the man

and had a high opinion of him, and whether that high

opinion was justified is likewise irrelevant to this

litigation, as there is no indication that it was because

of the officer’s politics.

Brown makes much of allegations of misconduct leveled

against the one woman who was among the 5 officers

promoted to lieutenant ahead of him. The allegations

are lurid; they include an incident in which she is

alleged to have had sex with her boyfriend in a hot tub

in her backyard in view of the neighbors. Most of the

allegations (including that one) concern conduct in

which she engaged after she was promoted to lieutenant,

and they cast only a faint light on the motivations

for promoting her instead of Brown, though a serious

allegation—conversion of department property—was of

misconduct before she was promoted. But even if she

was less well qualified than Brown whether for

ethical or other reasons (and let’s assume she was),

it doesn’t follow—it doesn’t begin to follow—that

Sheahan’s motivation for promoting her instead of

Brown (she filled the last vacancy that came open during

No. 11-1953 7

his two-year eligibility period) was political. True, she

contributed money to Sheahan’s campaign, but we

know that the average contribution of the officers who

were not promoted exceeded that of the officers who were.

Lacking evidence that she was unqualified ex ante,

Brown tosses in the alternative argument that she was

given preferential treatment because she’s a woman,

treatment that he says is a form of unlawful discrim-

ination because there was no basis for the Sheriff’s en-

gaging in affirmative action in favor of women. But

this is not a sex discrimination case, so it is no more

material that she was promoted illegally because of her

sex (if she was) than that she was promoted even though

she was less qualified than Brown (as we are assuming),

or because she had clout and he did not—unless her

“clout” consisted of her not being a Republican; but

it seems instead to have derived from her having been

the sister-in-law and former police partner of one of

Sheahan’s top advisers.

Brown argues that once he carries his initial burden

of showing that a reasonable jury could find that the

defendant was committed to denying him promotion

on the basis of his political affiliation (not that he has

carried it—he hasn’t), Sheahan shouldn’t be permitted

to argue that he would have passed over Brown for

some other, albeit unrelated, reason if that reason was

improper. That’s wrong. If all that’s charged is discrimina-

tion on political grounds, any nonpolitical ground that

the defendant can prove would have caused the discrimi-

nation regardless of the presence of political hostility

8 No. 11-1953

will preclude liability. Cf. Visser v. Packer Engineering

Associates, Inc., 924 F.2d 655, 657 (7th Cir. 1991) (en banc).

Brown did ask the district judge to let him amend his

complaint to add a claim of sex discrimination in

violation of the equal protection clause; and if the judge

had allowed the amendment, Sheahan could no longer

have argued that the suit should be dismissed because

his preferential treatment of the female officer was at

worst based on her sex rather than on Brown’s politics.

But the judge cannot be faulted for having denied the

motion as untimely, coming as it did 56 months

after Brown filed suit and 13 months after Sheahan

made the statements on which Brown wanted to base

a claim of sex discrimination.

The most amusing evidence that Brown tendered to

support his claim of political discrimination consisted

of proof that he had several times made accurate pre-

dictions of upcoming promotions before they were

publicly announced—as verified by his having placed an

ad in the Chicago Tribune congratulating the promoted

officers before their promotions were announced and

by his mailing to himself a sealed letter, setting forth

his predictions, to be opened only by the judge in cam-

era. If anything, Brown’s ability to predict promo-

tions suggests that they are based on visible criteria—such

as being well regarded by one’s superiors—rather than

on the frequently secretive operation of clout.

Brown’s most interesting evidence consists of a

number of written admissions made by Sheahan in re-

sponse to requests for admissions served on him by

No. 11-1953 9

Brown’s lawyer. Typical were the following: “Admit that

Tom Brown did not make any political contribution to

your campaign.” “RESPONSE: Admitted to the best of

my knowledge. I have no independent recollection of

contributions as to my campaigns.” “Admit that Tom

Brown did not attend any of your political campaign

fundraisers.” “RESPONSE: Admitted to the best of my

knowledge.” But although confusingly worded, the

responses were not admissions of the truth of the asser-

tions that Brown wanted Sheahan to admit. They were

merely admissions that Sheahan could not deny on the

basis of his own knowledge that Brown had not con-

tributed to his campaign or attended his fundraisers,

because he had had many contributors, and many

persons attended his fundraisers, and the requests for

admissions were served on him in 2010, eight years after

he’d last run for Sheriff. The phrase, in the first of the

admissions we quoted, “I have no independent recol-

lection of contributions as to my campaigns,” indicates

that he wasn’t admitting anything except that he

didn’t remember the information sought—especially con-

tributions that were not made to his campaign funds.

The briefs are long and we have given only a glimpse

of their contentious contents. But we have hit the high

spots, and for the rest are content to rely on the district

court’s opinion.

A FFIRMED.

10-25-11