Terrance S. McKinney, Plaintiff-Appellant,
Office of the Sheriff of Whitley County, Defendant-Appellee.
April 19, 2017
from the United States District Court for the Northern
District of Indiana, Fort Wayne Division. No. l:15-cv-79 -
William C. Lee, Judge.
Bauer, Posner, and Hamilton, Circuit Judges.
Hamilton, Circuit Judge.
the Sheriff of Whitley County, Indiana hired the County's
first black police officer ever, Terrance McKinney Nine
months later, McKinney was fired. He sued for race
discrimination. The district court granted summary judgment
for the Office of the Sheriff, and McKinney has appealed.
reverse. Viewed in the light most favorable to plaintiff
McKinney, his extensive evidence adds up to a strong case of
race discrimination. As we explain in detail, the defendant
has offered an ever-growing list of rationales for firing
McKinney that fall apart in the face of his evidence. The
Sheriff's termination letter provided three reasons for
his discharge. Four days later, the Whitley County Board of
Commissioners sent McKinney another letter that added two
more reasons. After McKinney brought suit, the defense added
three more reasons. Yet patch after patch, the defense
arguments for summary judgment still will not hold water.
McKinney presented evidence that he was treated differently
than his similarly situated colleagues who are not black. He
also presented substantial evidence that the many rationales
offered for firing him were baseless and pretextual. In
addition, the district court erred by disregarding most of
McKinney's evidence, improperly discounting his testimony
as "self-serving, " and misreading our precedent on
the "common actor" inference that is sometimes
argued in discrimination cases. We remand for trial.
Factual and Procedural Background
McKinney's Tenure as a Deputy Sheriff
the Office of the Sheriff moved for summary judgment, we
construe all evidence and present the facts in the light most
favorable to McKinney, who was the non-moving party. E.g.,
Chaib v. GEO Group, Inc., 819 F.3d 337, 340 (7th
Cir. 2016). On August 5, 2013, then-Sheriff Mark Hodges hired
McKinney as a full-time merit officer. This position entails
a one-year probationary period during which the Sheriff may
fire the officer at his sole discretion, i.e., without
approval from the merit board. See Ind. Code §
36-8-10-10(b). The probationary period is intended to ensure
that new officers are capable of performing their duties
before they benefit from state law that requires good cause
for firing and provides extensive procedural protections. See
Ind. Code § 36-8-10-11.
was Whitley County's first black merit officer. Sheriff
Hodges discussed McKinney's race with him during his job
interview, and McKinney later testified that he did not
expect that he would experience racial discrimination at the
Sheriff's Office. After he began, however, a number of
incidents started to make him feel uncomfortable. One officer
used the "n-word" in front of him. Once when buying
coffee, McKinney's fellow officer said that he wanted his
"coffee black like my partner." McKinney also
testified that the other officers refused to train him and
sometimes would not speak to him. Sheriff Hodges told
McKinney that he should watch the movie "42, "
which is about Jackie Robinson breaking the color barrier in
major league baseball in 1947. Hodges told McKinney that the
movie would "help [him] out."
15, 2014, Sheriff Hodges fired McKinney. The termination
notice gave three reasons: submitting false work hours while
attending the Indiana Law Enforcement Academy; violating the
standard operating procedure that requires filing complete
monthly reports; and violating the standard operating
procedure that governs fueling county vehicles. Four days
later, the Whitley County Board of Commissioners sent
McKinney a termination letter that added two more reasons for
his discharge: damaging a county vehicle and "failure to
complete a transport and follow verbal instructions."
After McKinney brought suit, the defense added three more
reasons, claiming that McKinney once texted while driving,
crashed a county vehicle, and was late transporting a
juvenile to court. These various rationales and
McKinney's evidence undermining their credibility are
discussed below in Part II-C.
he was terminated, McKinney brought suit against the Office
of the Sheriff of Whitley County and Deputy Sheriff Tony
Helfrich on several theories. The only claim on appeal is
McKinney's claim against his employer, the Office of the
Sheriff itself, for race discrimination in violation of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e-2. The Office of the Sheriff moved for summary
judgment, arguing that McKinney "pointed to no direct
evidence of racial discrimination." The defense also
argued that McKinney could not establish discrimination
through the burden-shifting approach adapted from
McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), because he did not meet the Sheriff's legitimate
employment expectations. As evidence of this, the defense
relied on Sheriff Hodges' affidavit, which listed the
various rationales that had accumulated since McKinney was
responded that the racial comments, social exclusion at work,
and failure to train provided direct evidence of
discrimination. He also submitted unusually detailed
evidence-including testimony, interrogatory answers, relevant
gas receipts, scheduling records, prisoner transport records,
the Sheriff's standard operating procedures, and much
more-to show that the supposed reasons for firing him were
not only wrong but so baseless as to support an inference of
pretext, meaning dishonesty.
district court granted summary judgment for the defense.
McKinney v. Office of the Sheriff of Whitley County,
No. l:15-cv-79, 2016 WL 6680288 (N.D. Ind. Nov. 14, 2016).
The court wrote that McKinney failed to specify "any
direct evidence of discrimination." It also expressed
displeasure with the format of McKinney's response to the
motion for summary judgment, writing that McKinney
"points in general to his Statement of Genuine Issues of
Fact" but does "not specify which facts would
constitute such direct evidence." The court apparently
refused to consider these facts, saying it "is not the
Court's job to sift through the record to determine
whether there is sufficient evidence to support a party's
claim." 2016 WL 6680288, at *5.
district court also determined that McKinney failed to
establish a prima facie case under the McDonnell
Douglas framework because he failed to meet the
Sheriff's legitimate employment expectations. The court
based this conclusion almost exclusively on Sheriff
Hodges' version of events from his affidavit. The court
did not address most of McKinney's evidence, writing that
"all that McKinney offers is his own assertions that he
was meeting Defendant's legitimate job
expectations." The court discounted this testimony as
"self-serving, speculative, and conclusory" In
addition, the court noted the "strong
presumpti[on]" against finding discrimination when the
same person both hires and fires a plaintiff-employee:
"If Sheriff Hodges wanted to discriminate against
McKinney based on his race, he could have refused to hire him
in the first place."
judgment is appropriate only if the "materials in the
record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials"
show that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter
of law. Fed.R.Civ.P. 56(c); Magin v. Monsanto Co.,
420 F.3d 679, 686 (7th Cir. 2005), citing Celotex Corp.
v. Catrett, 477 U.S. 317, 322-23 (1986). To the extent
the district court's ruling was based on its local rules,
we review the application of those rules for abuse of
discretion. See Friend v. Valley View Comm. Unit School
Dist. 365U, 789 F.3d 707, 710 (7th Cir. 2015);
Harmon v. OKI Systems, 115 F.3d 477, 481 (7th Cir.
1997) (district court did not abuse discretion by overlooking
moving defendant's technical failure to comply with local
summary judgment rule where opposing party was not
VII prohibits an employer from discharging an employee
because of that person's race. See 42 U.S.C. §
2000e-2(a)(1). A plaintiff may prove race discrimination
either directly or indirectly, and with a combination of
direct and circumstantial evidence. The direct method
requires the plaintiff to set forth "sufficient
evidence, either direct or circumstantial, that the
employer's discriminatory animus motivated an adverse
employment action." Coleman v. Donahoe, 667
F.3d 835, 845 (7th Cir. 2012). The indirect method allows a
plaintiff to prove discrimination by using the
burden-shifting approach articulated in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See
Coleman, 667 F.3d at 845.
Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 765
(7th Cir. 2016), we clarified that the "direct" and
"indirect" methods are not subject to different
legal standards. Courts should not sort evidence of
discrimination "into different piles, labeled
'direct' and 'indirect, ' that are evaluated
differently." Id. at 766. Instead, there is a
single inquiry: it is "simply whether the evidence would
permit a reasonable factfinder to conclude that the
plaintiff's race ... caused the discharge."
Id. at 765. Our decision in Ortiz did not
alter "McDonnell Douglas or any other
burden-shifting framework, no matter what it is called as a
shorthand." Id. at 766.
McDonnell Douglas burden-shifting framework is
designed to "sharpen the inquiry into the elusive
factual question of intentional discrimination."
Texas Dep't of Community Affairs v. Burdine, 450
U.S. 248, 255 n.8 (1981). The plaintiff carries the initial
burden of establishing a prima facie case of discrimination,
which can be accomplished by setting forth evidence that:
"(1) she is a member of a protected class, (2) her job
performance met [the employer's] legitimate expectations,
(3) she suffered an adverse employment action, and (4)
another similarly situated individual who was not in the
protected class was treated more favorably than the
plaintiff." Burks v. Wisconsin Dep't of
Transportation, 464 F.3d 744, 750-51 (7th Cir. 2006)
(citation omitted). Once established, this prima facie case
creates a presumption of discrimination, and the "burden
then must shift to the employer to articulate some
legitimate, nondiscriminatory reason" for its employment
decision. McDonnell Douglas, 411 U.S. at 802.
"When the employer does so, the burden shifts back to
the plaintiff, who must present evidence that the stated
reason is a 'pretext, ' which in turn permits an
inference of unlawful discrimination." Coleman,
667 F.3d at 845, quoting McDonnell Douglas, 411 U.S.