Daniel Houlihan, et al v. City of Chicago, et al
Filed opinion of the court by Judge Kanne. AFFIRMED. Frank H. Easterbrook, Circuit Judge; Michael S. Kanne, Circuit Judge and Ilana Diamond Rovner, Circuit Judge. [6867758-1]  [16-2949]
United States Court of Appeals
For the Seventh Circuit
DANIEL HOULIHAN, et al.,
CITY OF CHICAGO, et al.,
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12-CV-6377 — Harry D. Leinenweber, Judge.
ARGUED APRIL 18, 2017 — DECIDED SEPTEMBER 8, 2017
Before EASTERBROOK, KANNE, and ROVNER, Circuit Judges.
KANNE, Circuit Judge. Chicago Police Department Unit 542
provides protective services for the city’s mayor. The plaintiffs
here are current and former police officers who served on this
unit when Richard M. Daley was Mayor. But after Rahm
Emanuel took office, the department demoted them, appointing different officers in their stead.
The plaintiffs sued the City of Chicago, Emanuel, and numerous government officials, asserting two types of claims:
first, that the defendants considered political loyalties when
appointing officers to Emanuel’s security detail in violation of
the First Amendment and various consent decrees known as
the Shakman decrees; and second, that the defendants considered race when selecting Emanuel’s detail in violation of the
Equal Protection Clause and various federal statutes.
In one way or another, each of the plaintiffs’ claims failed:
the district court either dismissed them at summary judgment
or they were decided against the plaintiffs at trial. The plaintiffs appealed, alleging that the district court committed numerous errors in the proceedings below. Because we conclude
that the court did not err, we affirm.
On April 24, 1989, Richard M. Daley began his term as Chicago’s mayor. During his tenure, the Chicago Police Department assigned a security detail to protect him and his family.
The plaintiffs here—Patrick Doyle, Daniel Houlihan, John
Nolan, Robert Olson, Michael Padalino, John Pigott, Eusebio
Razo, Veronica Rodriguez, Michael Roman, Richard Soto, and
Carol Weingart—were once members of this detail, known as
Unit 542. Although each held the rank of patrol officer, each
was assigned to the security-specialist position, and as such,
received a sergeant’s pay.
In September 2010, Daley announced that he would not
seek reelection. Soon after, Rahm Emanuel began his mayoral
campaign. Several Chicago police officers volunteered to provide security and to perform other tasks relevant to his campaign, like driving him to various speeches and events.
On February 22, 2011, Emanuel was elected Mayor. The
same day, the police department decided to assign a security
detail to him until he was sworn in. The department asked an
Emanuel aide named Michael Faulman to recommend officers for this detail. But Faulman was not experienced in security matters, so he asked Raymond Hamilton—one of the officers who volunteered on Emanuel’s campaign—to recommend six people. Hamilton recommended himself and five of
the other volunteers. All six of them had driven Emanuel to
events during the campaign and knew their way around the
city. Hamilton claimed that he based his recommendations
solely on his and the other officers’ merits.
Faulman knew these officers and thought that they acted
professionally and were good drivers, so he adopted Hamilton’s recommendations. The department then appointed the
six officers to the transition detail. Hamilton’s appointment
was later rescinded because he was a SWAT officer and the
department concluded that working on this detail was an inefficient use of SWAT resources. In the end, the transition detail consisted of five officers.
After finalizing the transition detail, the department began
working on Emanuel’s permanent security detail. The department’s interim superintendent, Terry Hillard, took the reins
on this task. Emanuel explained to Hillard that the detail
should reflect the diversity of the city and should be “bare
bones.” (Tr. at 342.) Hillard considered the term diversity to
include things like gender, people skills, language, and culture, in addition to race. And regarding the “bare bones” request, Hillard decided to reduce the number of positions from
twenty-one officers and two commanders to sixteen officers
and one commander.
Hillard chose Brian Thompson as the commander.
Thompson had served as a commander on Richard M. Daley’s
detail. Hillard had known Thompson for twenty years and
considered him to be competent.
To fill the sixteen officer spots, Hillard began his search
with the officers already serving in Unit 542 on Daley’s detail.
Because Thompson had worked with these officers and knew
them well, Hillard ask him to recommend some of them for
Emanuel’s detail. Thompson recommended ten officers; only
two of them—Nolan and Roman—are plaintiffs here. Thompson claimed that he was embarrassed that he could not recommend more officers from Daley’s detail, but in his view,
these were the only ones warranting recommendation. He
further claimed that he based his recommendations solely on
the officers’ abilities.
Hillard also solicited and received recommendations from
Assistant Superintendents Beatrice Cuello, Eugene Williams,
and James Jackson—trusted members of his command team.
About a week before Emanuel’s inauguration, Hillard
made the final selections for the sixteen officer spots on the
detail. Irrespective of Emanuel’s request for diversity, Hillard
claimed that he did not base his selections on race. Instead, he
relied on Thompson’s and his command team’s recommendations, appointing eight officers from Thompson’s list and
three officers from his command team’s list. He filled the remaining spots with the five officers working on Emanuel’s
transition detail: he chose these officers not only because
Emanuel was familiar with them and Daley wanted a smooth
changeover between administrations but also because their
work on the transition detail was relevant work experience.
The final detail contained seven white officers, five Hispanic
officers, and five black officers (including Thompson).
None of the plaintiffs—all of whom are white or Hispanic—made the cut. The department immediately reassigned most of them as patrol officers. A few, however, were
not reassigned right away. After Emanuel’s May 16, 2011 inauguration, the department decided to assign a small courtesy detail to Daley. A Daley assistant requested that Nolan,
Olson, and Roman serve on this detail. These officers retained
the security-specialist title and pay until September 15, 2011,
when the new superintendent, Garry McCarthy, decided to
terminate the courtesy detail, finding it to be no longer necessary.
The plaintiffs filed a lawsuit in the Northern District of Illinois against Emanuel, Faulman, Hillard, Thompson, Cuello,
Williams, Jackson, McCarthy, and the City of Chicago. The
plaintiffs alleged that the individual defendants engaged in
patronage hiring in violation of the First Amendment under
42 U.S.C. § 1983; the City of Chicago engaged in patronage
hiring in violation of various consent decrees known as the
Shakman decrees; the individual defendants, excluding
Faulman, engaged in race discrimination in violation of both
42 U.S.C. § 1981 and the Equal Protection Clause under 42
U.S.C. § 1983; and the City of Chicago engaged in race discrimination in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. § 2000e et seq.
The district court granted summary judgment, dismissing
all of the claims against Emanuel, Faulman, Cuello, Williams,
Jackson, and McCarthy—leaving only Hillard, Thompson,
and the City of Chicago as defendants in the case. As for Hillard and Thompson, the court granted summary judgment in
the First Amendment claim on qualified-immunity grounds
but denied summary judgment in the equal-protection and
§ 1981 claims. And as for the City, the court granted summary
judgment in the Title VII claim but denied summary judgment in the Shakman claim. Finally, the court dismissed all of
Nolan’s, Olson’s, and Roman’s claims.
The equal-protection claim then went to a jury trial, 1 and
the Shakman claim went to a bench trial. In the jury trial, the
jury found for Hillard and Thompson. And in the bench trial,
the court found for the City.
The plaintiffs timely appealed.
On appeal, the plaintiffs raise three issues. First, they argue that the district court misadjudicated their patronage
claims. Second, they contend that the court committed reversible error in the equal-protection trial when excluding evidence of past racial discrimination and when instructing the
jury. And third, they claim that summary judgment as to Nolan, Olson, and Roman was improper. We address each issue
A. The Patronage Claims
The plaintiffs’ patronage claims include a First Amendment claim against Hillard and Thompson and a Shakman
claim against the City of Chicago. Both of these claims rely on
the same argument—that the defendants impermissibly considered political loyalties when selecting officers for Eman-
During trial, the plaintiffs voluntarily dismissed their § 1981 claim.
uel’s detail. Specifically, the plaintiffs allege that the department demoted them because they remained politically neutral and appointed different officers to the detail solely because those officers had volunteered to work on Emanuel’s
campaign. With five spots reserved for Emanuel’s allies off
the table, the plaintiffs claim that they were put at a disadvantage vis-à-vis the volunteer officers.
The district court granted summary judgment for Hillard
and Thompson on qualified-immunity grounds. The claim
against the City then proceeded to a bench trial. After that
trial, the court found in favor of the City. The plaintiffs challenge these decisions on appeal, arguing that Hillard and
Thompson are not entitled to qualified immunity and that the
district court’s factual findings in the bench trial lack supporting evidence. For the reasons that follow, we disagree.
1. The First Amendment Claim
The First Amendment generally prohibits government
employers from considering one’s political views when making employment decisions. Moss v. Martin, 614 F.3d 707, 711
(7th Cir. 2010). Nevertheless, political loyalty may be a valid
job requirement in two situations. The first is when the job
involves policymaking, which entails exercising political
judgment. Davis v. Ockomon, 668 F.3d 473, 477 (7th Cir. 2012).
And the second is when the job gives one access to his boss’s
confidential, politically-sensitive thoughts. Id. 2 The reason for
Although the Supreme Court has abandoned the “policymaker” and
“confidential employee” labels for a case-by-case analysis on whether it is
appropriate to consider politics, these labels still “accurately describe the
vast majority of offices that fall within the realm of legitimate patronage.”
Davis, 668 F.3d at 477.
this latter exception is that “[y]ou cannot run a government
with officials who are forced to keep political enemies as their
confid[ants].” Soderbeck v. Burnett Cty., Wis., 752 F.2d 285, 288
(7th Cir. 1985).
At summary judgment, Hillard and Thompson invoked
this second exception, arguing that they were entitled to qualified immunity because security specialists are confidential
employees. To thwart qualified immunity, the plaintiffs had
to prove two things: “first, that the facts alleged describe a violation of a protected right; and second, that this right was
clearly established at the time of the defendant's alleged misconduct.” Mordi v. Zeigler, 770 F.3d 1161, 1163–64 (7th Cir.
The district court determined that the plaintiffs failed to
prove the second point—that, at the time of their reassignment, the law clearly established that security specialists are
nonconfidential employees. Accordingly, the court held that
Hillard and Thompson were entitled to qualified immunity
and dismissed the claim on summary judgment.
We review the court’s decision to grant summary judgment on qualified-immunity grounds de novo. Rabin v. Flynn,
725 F.3d 628, 632 (7th Cir. 2013). In our review, we need not
decide whether Hillard and Thompson actually committed
the alleged misconduct; instead, we view the facts in the light
most favorable to the plaintiffs and decide whether Hillard
and Thompson are nonetheless entitled to qualified immunity. See Borello v. Allison, 446 F.3d 742, 747 (7th Cir. 2006).
“Qualified immunity protects officers performing discretionary functions from civil liability so long as their conduct
does not violate clearly established statutory or constitutional
rights that a reasonable person would know about.” Mustafa
v. City of Chi., 442 F.3d 544, 548 (7th Cir. 2006). Although the
First Amendment typically prohibits government employers
from making politically motivated employment decisions, a
court’s qualified-immunity analysis cannot simply rely on
this general principle; rather, the court must determine
whether there was a clear violation in the specific context of
the case. Moss, 614 F.3d at 712. Indeed, qualified immunity
ensures that government officials had notice that their conduct was unlawful before enduring litigation. White v. City of
Markham, 310 F.3d 989, 993 (7th Cir. 2002). These officials are
thus entitled to some degree of certainty in the law.
Given the “considerable uncertainty [that] exists in the
area of patronage law,” it is often difficult to prove that a government official violated a clearly established right by considering politics when making an employment decision. Flenner
v. Sheahan, 107 F.3d 459, 465 (7th Cir. 1997). The reason for this
uncertainty is that determining whether it is permissible to
consider politics is a highly fact-specific inquiry—one that requires considering “a wide range of government positions,
which in turn involve an endless variety of job responsibilities
and varying degrees of discretion and autonomy.” Id. Between the low-level government worker (who typically receives protection from patronage hiring and firing) and the
confidential employee (who receives no such protection),
there are numerous government positions for which the propriety of patronage-based employment decisions “has depended largely on the courts’ juggling of competing constitutional and political values.” Upton v. Thompson, 930 F.2d 1209,
1213 (7th Cir. 1991). For that reason, “it is difficult to imagine
how any plaintiff … could have a clearly established right to
be free from patronage dismissal unless a nearly identical case
had already been decided.” Pounds v. Griepenstroh, 970 F.2d
338, 341 (7th Cir. 1992).
The plaintiffs have identified no such case. In fact, in
Greene v. Cook County Sheriff’s Office—decided four years after
the police department reassigned them—the Northern District of Illinois granted qualified immunity after concluding
that the law did not clearly establish that the security-specialist position is nonconfidential. 79 F. Supp. 3d 790 (N.D. Ill.
2015). The court noted that our case law regarding security
specialists is unclear. Id. at 814. On the one hand, we have held
that certain low-level government employees with limited access to confidential files—like court bailiffs and city investigators—are not necessarily confidential employees. See Meeks v.
Grimes, 779 F.2d 417, 420–21 (7th Cir. 1985); Matlock v. Barnes,
932 F.2d 658, 665 (7th Cir. 1991). On the other hand, we have
held that a government worker who had a close relationship
and direct access to a policymaker held a confidential position
and thus was not protected from termination for political reasons. See Benedix v. Vill. of Hanover Park, Ill., 677 F.3d 317, 320
(7th Cir. 2012). The court found that security specialists fell
somewhere in the middle: although they may not be the righthand men and women of policymakers, they have “greater
access to high-level and sensitive political conversations of a
chief policymaking official than [do] the special investigators
and bailiffs” that we have considered in other cases. Greene,
79 F. Supp. 3d at 814. Because of this uncertainty in our case
law, the court held that the plaintiffs could not rely on existing
precedent to circumvent qualified immunity. Id.
Although pointing to an analogous case is the typical way
to defeat qualified immunity, see Humphries v. Milwaukee Cty.,
702 F.3d 1003, 1006 (7th Cir. 2012), it’s not necessarily the only
way: “if there is no such case, then [a plaintiff] needs to offer
a different explanation for why the constitutional violation is
obvious.” Moss, 614 F.3d at 712.
Here, the plaintiffs offer as their different explanation a series of consent decrees binding the City of Chicago. These decrees—known as the Shakman decrees—derived from a 1969
federal lawsuit titled Shakman v. Democratic Organization of
Cook County, No. 69 C 2145 (N.D. Ill.). As a result of that litigation, the City entered into a 1972 consent decree prohibiting
it from “considering, basing or knowingly prejudicing or affecting any term or aspect of governmental employment, with
respect to one who is at the time already a governmental employee, upon or because of any political reason or factor.”
O’Sullivan v. City of Chi., 396 F.3d 843, 848 (7th Cir. 2005). In
1983, the City entered into a new decree, expanding the previous one to cover hiring decisions. Id. at 848–49. Taken together, these decrees generally prohibit patronage-based employment decisions.
The plaintiffs note that certain government jobs receive no
protection under Shakman. But these jobs are expressly delineated on an exempt list. And it is undisputed that the securityspecialist position is not on this list, and thus, the job is protected from political considerations.
To enforce this protection, as part of the City’s hiring plan,
the Chicago Police Department issued Notice 07–47, which
states that political considerations may not factor into employment decisions regarding security specialists. In fact, the
notice explicitly requires those involved in the hiring process
to sign a form certifying that “[p]olitical reasons or factors”—
which include “[t]he fact that the job applicant worked in a
political campaign”—played no role in the hiring. (R. 297-48
at 2.) Thompson signed one of these forms for each of the five
volunteer officers appointed to Emanuel’s detail.
Based on the Shakman decrees and the City’s measures to
enforce them, the plaintiffs contend that Hillard and Thompson had notice that it was unconstitutional to consider politics
when appointing security specialists.
We disagree. Although the Shakman decrees reflect one of
the First Amendment’s proscriptions—that is, the general
prohibition of patronage-based employment decisions—the
decrees are not an edict encapsulating the contours of the constitutional rule; the decrees instead are the result of settlement
between the parties to litigation. The Greene court held as
much when dismissing a similar claim on qualified-immunity
grounds, observing that the exempt list is “the product of negotiation between the parties rather than the result of an indepth analysis of each position’s unique functions.” 79 F.
Supp. 3d at 819. Thus, “[a]bsence from the list could … be the
result of horse trading between the parties, of simple oversight, or of some other factor related to the negotiations.” Id.
The record here supports that proposition. As Hillard and
Thompson note, the decrees prohibit the City from increasing
the number of exempt positions by more than ten percent.
This cap has nothing to do with the First Amendment. For example, the cap does not account for whether the positions on
the exempt list are policymaking or confidential positions; rather, the cap is an arbitrary product of negotiation. Moreover,
the record suggests that the parties negotiating the exempt list
believed that the security-specialist position required confidentiality but nevertheless excluded the position because the
list was meant to include only policymaking positions. Accordingly, just because the security-specialist position is not
included on the exempt list does not mean that the position is
To the contrary, whether the position is confidential is
subject to debate. The plaintiffs note that security specialists
have a separate office from the mayor, do not attend meetings, and do not provide policy advice. Hillard and Thompson, however, argue that security specialists accompany the
mayor from the moment he leaves home to the moment he
returns, drive the mayor around as he conducts business in
his car, and protect the mayor’s family.
The court agreed with Hillard and Thompson’s position.
As the court observed,
The [security-specialist] duties involve close scrutiny of the mayor and his family which could involve observations of the family in intimate circumstances. They also involve driving the mayor with
his close aides when they may well be discussing
important and highly sensitive subjects. They also
involve providing physical safety and satisfying
emotional concerns that might arise from the fact
that Emanuel is the first Jewish mayor of Chicago
and had been Chief of Staff of the first AfricanAmerican president of the United States. It is therefore not unreasonable for the mayor to wish to have
the right to select [his] own security staff.
(R. 182 at 9–10.)
The evidence shows that a reasonable person not only
could debate whether the security-specialist position is a confidential one, but in fact could conclude so. And because the
position is arguably confidential, a patronage-based employment decision regarding the position—although illegal under
Shakman—does not necessarily entail a First Amendment violation. Accordingly, at the time of the plaintiffs’ reassignment,
Hillard and Thompson did not have notice that it is an obvious constitutional violation to consider politics when appointing security specialists. Hillard and Thompson are thus
entitled to qualified immunity.
2. The Shakman Claim
Like the First Amendment, the Shakman decrees generally
prohibit patronage-based employment decisions. A Shakman
claim is one for civil contempt of court. Coleman v. Dunlap, 695
F.3d 650, 651 (7th Cir. 2012). To prove this claim, the plaintiffs
had to present clear and convincing evidence showing that “a
political reason or factor was the cause of [an] adverse employment action.” Bonnstetter v. City of Chi., 811 F.3d 969, 973
(7th Cir. 2016); see Shakman v. Democratic Org. of Cook Cty., 533
F.2d 344, 351 (7th Cir. 1976).
The district court rejected the plaintiffs’ claim, finding that
politics did not factor into the City officials’ decisions regarding the security-specialist position. On appeal, the plaintiffs
argue the court’s judgment lacks supporting evidence.
“We review the district court’s factual findings for clear
error.” Karlin v. Foust, 188 F.3d 446, 457 (7th Cir. 1999). “If the
district court’s account of the evidence is plausible in light of
the record viewed in its entirety, the court of appeals may not
reverse it even though convinced that had it been sitting as
the trier of fact, it would have weighed the evidence differently.” Cent. States, Se. & Sw. Areas Pension Fund v. Neiman, 285
F.3d 587, 594 (7th Cir. 2002) (quoting Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573 (1985)). Put differently, when
“there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.”
Carpet Serv. Int’l, Inc. v. Chi. Reg’l Council of Carpenters, 698
F.3d 394, 397 (7th Cir. 2012) (quoting Nemmers v. United States,
870 F.2d 426, 429 (7th Cir. 1989)).
After reviewing the record, we hold that the court committed no clear error. Let’s recap what happened. After Emanuel was elected Mayor, the police department decided to assign a detail to him during the transition. The department
sought officer recommendations from an Emanuel aide
named Faulman. Faulman, however, had no experience with
security matters, so he solicited recommendations from Hamilton—an officer he knew through the officer’s volunteer
work on Emanuel’s campaign. Hamilton in turn recommended himself and five other volunteer officers. Faulman
recommended those same officers, and the department appointed all of them except Hamilton to the transition detail;
the department thought that Hamilton’s experience as a
SWAT officer overqualified him for the position. Ultimately,
Hillard appointed these officers to the permanent detail.
The plaintiffs, who claim to be politically neutral, argue
that the department’s decision not to appoint them to the transition detail and instead to seek officer recommendations directly from the Emanuel campaign is clear evidence of political motivation. Not so. For one thing, it would have made no
sense to reassign the plaintiffs to the transition detail when
they were already working on Daley’s detail: Daley was still
Mayor and needed his own detail throughout the transition.
For another thing, it made perfect sense to seek recommendations from the Emanuel campaign, given that the officers appointed would be responsible for protecting Emanuel’s and
his family’s lives. Moreover, the Shakman decrees expressly
permit job recommendations from public officials and their
aides “insofar as the basis for [their] recommendation[s] relates to the person’s relevant work experience” and they have
“personal knowledge of the person’s work skills, work experience or other job-related qualifications.” (R. 297-63 at 11–12.)
Therein lies the problem, say the plaintiffs, who claim that
no one involved in this hiring process considered any of the
volunteer officers’ qualifications or experience. Regarding the
transition detail, the plaintiffs argue that Faulman did nothing but pass along a list of officers that originated with the
volunteers themselves—a list that the department then rubberstamped without any vetting or investigation; thereafter,
Hillard appointed these officers to the permanent detail
simply because “they were already with Emanuel.” (Appellant’s Br. at 28.) The plaintiffs assert that these facts show that
the volunteers became security specialists, not because they
were qualified, but because they volunteered to work on a political campaign.
But the record belies this assertion. Indeed, there is ample
evidence suggesting not only that the volunteers were qualified but also that the City officials who hired them did so
based on their qualifications. For example, the district court
found that Faulman recommended the volunteer officers because they “were the best of the volunteers, i.e., ones that had
a history of not getting lost.” (R. 281 at 7.) The record supports
this finding. At trial, Faulman testified that he knew the officers that Hamilton recommended. Faulman further testified
that the officers interacted professionally with Emanuel and
were good drivers who knew their way around the city. Had
this not been the case, Faulman said he wouldn’t have recommended them.
Likewise, Hillard had rational reasons for appointing the
volunteers to the permanent detail. Hillard testified that Daley wanted a smooth changeover between the mayoral administrations. So in Hillard’s mind, it made sense to appoint
the volunteers: the volunteers knew Emanuel and his preferences and thus could be an invaluable source of information
for the officers transferred from Daley’s detail. Moreover, as
the police department’s director of human resources testified,
the experience that the volunteers gained while working on
the transition detail was relevant work experience that Hillard could consider when deciding whether to appoint them.
Finally, as the court found, Hillard, who was sixty-seven
years old at the time, had no incentive to play political gamesmanship at this late stage in his career: he did not know
Emanuel or any of the volunteers, and he was to be the Interim Superintendent only through the transition period.
The plaintiffs make a few more arguments, which we address briefly. First, they take issue with the fact that Faulman’s
list of recommended officers originated with Hamilton—one
of the volunteers. But as Hamilton testified, he considered
only the officers’ abilities—not political loyalties—when making his recommendations. The district court was free to credit
The plaintiffs next claim that the district court erred by
“overlook[ing] politically based employment decisions made
by other City employees”—namely, those who forwarded the
volunteers’ names up the chain of command without knowing the volunteers’ qualifications. (Appellants’ Br. at 28–29.)
We disagree that the court erred. It was enough that Faulman
knew the officers and vouched for their qualifications. A requirement that every person involved in the hiring process
must reconfirm the qualifications of a recommended employee would be a tremendous misallocation of resources.
Finally, the plaintiffs argue that the City violated various
aspects of the hiring plan it adopted to enforce the Shakman
decrees. We need not delve into these alleged violations. The
Shakman decrees allow only the named Shakman plaintiffs to
seek enforcement of the City’s hiring plan. (See R. 297-63 at
13.) The plaintiffs here are not named plaintiffs and thus are
not the proper parties to bring this claim. See Bonnstetter, 811
F.3d at 973 (rejecting a similar attempt to hold the City liable
for purported hiring-plan violations, explaining that such a
“theory does not constitute a genuine claim under Shakman”).
The record contains sufficient evidence supporting the
district court’s finding that City officials did not consider political factors when appointing Emanuel’s detail. We need not
disturb the court’s decision.
B. The Equal Protection Clause Claim
In addition to the patronage claims, the plaintiffs brought
a discrimination claim under the Equal Protection Clause, alleging that Hillard and Thompson impermissibly considered
race when selecting officers for Emanuel’s security detail.
Specifically, the plaintiffs contend that they lost their positions as security specialists because they are white and Hispanic. The district court denied Hillard and Thompson’s motion for summary judgment on this claim, and the claim proceeded to a jury trial.
At trial, the plaintiffs had to prove that, in selecting officers for Emanuel’s detail, Hillard and Thompson were “motivated in part by a racially discriminatory purpose.” Smith v.
Wilson, 705 F.3d 674, 681–82 (7th Cir. 2013) (quoting Vill. of
Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 270
n.21 (1977)). The plaintiffs’ narrative began with Emanuel’s
request to Hillard that the detail be diverse. Hillard testified
that he understood diversity to include race, and he admitted
that he considered race as part of his selection process. Hillard
further testified that, regarding the commander position, he
chose Thompson—who is black—without having worked
with him and without knowing his abilities as a commander.
Hillard instructed Thompson to recommend “the best diverse individuals from Mayor Daley’s detail to be transitioned over to Mayor Rahm’s detail.” (Tr. at 273.) When
Thompson submitted his recommendations, he said nothing
of the officers’ qualifications, but instead noted only the officers’ races and genders. Hillard kept track of this information
throughout the process. For example, at the bottom of a document containing the names of the sixteen officers selected for
Emanuel’s detail, Hillard wrote that the final detail included
seven whites, five Hispanics, and four blacks. (R. 297-3 at 2.)
In selecting the final detail, Hillard heavily relied on
Thompson’s recommendations. Thompson admitted that he
recommended all of the black officers from Daley’s detail, including himself. Thompson further admitted that he did not
conduct interviews before making his recommendations. In
the end, all of the black officers on Daley’s detail made the cut
for Emanuel’s detail. The plaintiffs, however, did not. At trial,
one of the plaintiffs testified that, when he asked why he was
excluded from the detail, Thompson responded, “[T]he color
of your skin is your sin.” (Tr. at 532.)
Hillard and Thompson’s evidence painted a drastically
different picture. Hillard testified that, irrespective of the request for a diverse detail, he appointed none of the officers
“because of their race.” (Tr. at 326.) Instead, race was just one
component of diversity, as was gender, people skills, language, and culture.
Hillard further testified that he did not appoint Thompson
because Thompson is black; rather, Hillard had known
Thompson for years and believed that he would be more familiar with the officers on the detail. For the same reason, Hillard thought that it made sense to accept Thompson’s officer
recommendations: after all, Thompson would be the one
working with them long after Hillard stepped down as Interim Superintendent.
As for Thompson, Thompson denied considering race at
all when making his recommendations. Although he indicated the officers’ races and genders on his list of recommendations, he did so only because Hillard had asked for this information. At trial, Thompson offered a nonracial justification
for each officer that he recommended. These justifications
centered on the officers’ skills, work ethic, experience, and
professionalism. Moreover, he explained that he did not recommend the plaintiffs because of performance issues, bad
judgment, poor demeanor, or because he believed that they
would remain on Daley’s courtesy detail. Finally, he completely disavowed the “color of your skin is your sin” comment, explaining that he doesn’t speak in rhymes.
After hearing this evidence, the jury found for Hillard and
Thompson. On appeal, the plaintiffs do not challenge the
jury’s verdict. Instead, they argue that the district court made
two errors that skewed the jury’s decision. First, they claim
that the court improperly excluded evidence of the City’s past
racial discrimination. And second, they contend that the court
gave an erroneous jury instruction that misstated the plaintiffs’ burden of proof. For the reasons that follow, we disagree
that the court erred.
1. Evidence of Past Racial Discrimination
To recall, the department appointed seven white officers,
five Hispanic officers, and five black officers (including
Thompson) to Emanuel’s detail. The plaintiffs assert that this
is so because of a quota system that the department has historically used when selecting officers for Unit 542—a quota
system that requires that four blacks and four Hispanics serve
on the unit. To prove this, the plaintiffs sought to introduce
the testimony of a former police commander who would have
explained the department’s procedures for maintaining this
quota system. The plaintiffs also wanted to present evidence
showing that, in 1999, Hillard recommended Thompson for
Daley’s detail because the department told Hillard to select a
The plaintiffs claimed that the purpose of this evidence
was to show discriminatory motive. Hillard and Thompson
disagreed, arguing that this evidence was prejudicial and was
truly offered for propensity purposes; so they moved in limine
to exclude it under Federal Rules of Evidence 403 and 404(b).
The court agreed with Hillard and Thompson, holding that
“evidence of what may have occurred in the past would not
be particularly relevant and certainly would be discriminatory as far as balancing is concerned [under Rule 403] and also
based on [the] general prohibition against propensity evidence [under Rule 404(b)].” (R. 295 at 2–3.) The court thus
granted Hillard and Thompson’s motion.
We review evidentiary rulings for abuse of discretion. Manuel v. City of Chi., 335 F.3d 592, 595 (7th Cir. 2003).
The plaintiffs claim that the court abused its discretion in
excluding their evidence of historical discrimination. They argue that such evidence is often relevant in race-discrimination
cases, especially when the current defendants engaged in the
discriminatory practices. Maybe so. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 805 (1973) (noting that statistics
on an employer’s past practices might discern whether the
employer’s actions conformed to a general pattern of race discrimination); Arlington Heights, 429 U.S. at 267–68 (stating that
“[t]he historical background of the decision is one evidentiary
source” for “determining whether racially discriminatory intent existed”). But that doesn’t mean that evidence of past
practices is always admissible. Indeed, like all relevant evidence, a court may exclude such evidence after deciding that
it runs afoul to the evidentiary rules. Fed R. Evid. 402.
District courts have broad discretion in making these decisions. Jenkins v. Chrysler Motors Corp., 316 F.3d 663, 664 (7th
Cir. 2002). Here, the court determined that the plaintiffs’ proposed evidence did not pass muster under Rule 403 on the
ground that evidence of what happened years ago involving
mostly different people is certainly prejudicial, yet not particularly probative. Moreover, the court found that the plaintiffs
introduced the evidence primarily for propensity purposes—
essentially, to prove that City officials had a knack for discriminating; Rule 404(b) precludes introducing evidence for
this purpose. These findings were rational, falling well within
the court’s discretion.
As a fallback argument, the plaintiffs contend that Hillard
and Thompson opened the door to evidence of past discrimination at trial. The plaintiffs note that, during opening argument, counsel for the defense introduced an exhibit comparing the racial makeup of Daley’s and Emanuel’s security details and argued that “the evidence will show that the racial
composition of Mayor Emanuel’s security detail was virtually
the same as it had been under Mayor Daley.” (Tr. at 27.) The
plaintiffs claim that this statement misled the jury into thinking that the racial composition of the two details was the same
for benign reasons—not because of some unconstitutional
quota system, which the plaintiffs could not prove existed
without their evidence of historical discrimination.
We agree that the defense counsel’s statement arguably
opened the door. Nevertheless, “the Rules of Evidence do not
simply evaporate when one party opens the door on an issue.” Duran v. Town of Cicero, Ill., 653 F.3d 632, 645 (7th Cir.
2011) (quoting Manuel v. City of Chi., 335 F.3d 592, 597 (7th Cir.
2003)). The court’s pretrial evidentiary rulings prohibiting the
plaintiffs’ evidence still applied.
At trial, the parties presented competing evidence on the
discrimination issue. In the end, the jury believed Hillard and
Thompson’s story. Would the jury have reached the same
conclusion had it heard the plaintiffs’ evidence of past racial
discrimination? It’s a close call—but it’s one that we are not
the best equipped to make. The district judge was in the best
position to rule on this issue, and he decided that the risk of
prejudice to Hillard and Thompson substantially outweighed
the evidence’s probative value. True enough, it wouldn’t have
been an abuse of discretion to admit the evidence; but it
wasn’t an abuse of discretion to exclude the evidence, either.
See Viramontes v. City of Chi., 840 F.3d 423, 432 (7th Cir. 2016)
(Hamilton, J., concurring). We need not second-guess the
2. The Jury Instruction
The plaintiffs also contend that the court gave an improper
jury instruction. They sought an instruction explaining that
they had the burden to prove that Hillard and Thompson’s
decision to demote them “was motivated in part by their
race.” (R. 257.) But the court’s instruction was a little bit different: the court told the jury that the plaintiffs had to prove
that Hillard and Thompson demoted them “because of their
race.” (Tr. at 857.) The plaintiffs contend that the court’s instruction suggested that they had to prove that race was the
only factor, rather than a factor.
Insofar as the court erred, the court cured the error immediately after making it. In the sentence following the purportedly flawed instruction, the court explained that the plaintiffs
could meet their burden if they could show “that race contributed to [the] decision to remove them.” (Id.) This further instruction clarified that the plaintiffs had to show that race was
only a contributing factor, not the sole factor. Reversal is thus
C. Nolan’s, Olson’s, and Roman’s Claims
At last, we arrive at Nolan’s, Olson’s, and Roman’s claims.
To recall, the police department retained Nolan, Olson, and
Roman as security specialists assigned to Daley’s courtesy detail. And they kept their positions until September 15, 2011
when McCarthy, who was Superintendent at the time, decided to terminate that detail. The court found that there was
no evidence suggesting that McCarthy terminated the detail
for political or racial reasons; rather, he simply believed that
Daley no longer needed a detail. Because Nolan, Olson, and
Roman suffered no adverse employment action, the court dismissed their claims at summary judgment.
On appeal, the plaintiffs invoke the so-called “cat’s paw”
theory of liability. This theory “refers to a situation in which
an employee is fired or subjected to some other adverse employment action by a supervisor who himself has no discriminatory motive, but who has been manipulated by a subordinate who does have such a motive and intended to bring
about the adverse employment action.” Roberts v. Columbia
Coll. Chi., 821 F.3d 855, 865 (7th Cir. 2016). In the plaintiffs’
view, although McCarthy may have lacked discriminatory
motive when terminating the courtesy detail, he made this decision based on advice from Thompson, who the plaintiffs
claim had a discriminatory motive.
The only evidence supporting this position comes from
McCarthy’s deposition in which McCarthy admitted that he
sometimes relies on his subordinates when making decisions.
At no point, however, did McCarthy say that he relied on advice from Thompson when deciding whether to terminate the
courtesy detail. To the contrary, McCarthy testified that he
never spoke with Thompson about the security details. And
even if McCarthy had relied on Thompson, it’s puzzling to see
why Nolan and Roman have any beef at all: indeed, Thompson recommended them for Emanuel’s detail.
At any rate, the plaintiffs’ evidence amounts to nothing
more than speculation that Thompson influenced McCarthy’s
decision. And speculation cannot defeat summary judgment.
See McDonald v. Vill. of Winnetka, 371 F.3d 992, 1001 (7th Cir.
2004). Accordingly, the district court properly dismissed Nolan’s, Olson’s, and Roman’s claims.
For the reasons above, we AFFIRM the district court’s decisions.
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