In the

United States Court of Appeals

For the Seventh Circuit ____________________

Nos. 12-1668 & 12-1681 

MICHAEL J. GAROFALO and

MARK S. PEERS,

Plaintiffs-Appellants,

v.

VILLAGE OF HAZEL CREST, et al.,

Defendants-Appellees.

____________________

Appeals from the United States District Court for the

Northern District of Illinois, Eastern Division.

Nos. 06 C 3674 & 06 C 3735 — William T. Hart, Judge.

____________________

ARGUED NOVEMBER 4, 2013 — DECIDED JUNE 12, 2014

____________________

Before EASTERBROOK, KANNE, and TINDER, Circuit Judges.

TINDER, Circuit Judge. Plaintiff-Appellants Michael 

Garofalo and Mark Peers appeal from the district court’s 

grant of summary judgment in favor of DefendantAppellees, the Village of Hazel Crest and its individual officers, in their race discrimination case. Garofalo and Peers, 

both white, were sergeants on the Hazel Crest police force. 

They were among four front-runners considered for a depu-
2 Nos. 12-1668 & 12-1681

ty police chief position, which ultimately went to a black officer who was not one of the four initially-discussed candidates. Plaintiff-Appellants assert that the Village and its officers discriminated against them by promoting a black officer they contend is unqualified for the position. They sued 

the Village under, inter alia, Title VII of the Civil Rights Act 

of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. §§ 1981, 1983, 

as well as under Illinois state law. 

We affirm the district court’s finding that PlaintiffAppellants failed to present sufficient evidence to withstand 

Defendant-Appellees’ motion for summary judgment. Summary judgment was proper on Garofalo’s and Peers’s claims 

of racial discrimination because they did not present sufficient evidence to permit a reasonable jury to find that they 

were the object of unlawful discrimination. 

I. STANDARD OF REVIEW 

We conduct de novo review of the district court’s decision involving the cross-motions for summary judgment. 

Laskin v. Siegel, 728 F.3d 731, 734 (7th Cir. 2013). “As with any 

summary judgment motion, we review cross-motions for 

summary judgment construing all facts, and drawing all reasonable inferences from those facts, in favor of the nonmoving party.” Id. (citation and internal quotation marks 

omitted). Summary judgment is proper when “the movant 

shows that there is no genuine dispute as to any material 

fact and the movant is entitled to judgment as a matter of 

law.” Fed. R. Civ. P. 56(a). Accordingly, we review the record 

in the light most favorable to Garofalo and Peers. Our summary of facts thus reflects the facts set forth in a light most 

favorable to them. “We do not vouch for their truth in any 
Nos. 12-1668 & 12-1681 3

other sense.” Good v. Univ. of Chi. Med. Ctr., 673 F.3d 670, 673 

(7th Cir. 2012).

On the procedural issue of whether the district court correctly found that Defendant-Appellees timely raised their 

mixed-motives affirmative defense, we review for abuse of 

discretion. Williams v. Lampe, 399 F.3d 867, 871 (7th Cir. 2005).

II. FACTUAL BACKGROUND

A. Demographics of the Village of Hazel Crest

It is undisputed that Hazel Crest was, at the time of the 

disputed promotion, predominantly black. As measured by 

the 2000 Census, the Village of Hazel Crest was over 75% 

black and approximately 20% white, and as measured by the 

2010 Census, it was 85.2% black and 10.2% white. Despite 

these demographics, Hazel Crest had no black police officers 

in the supervisory ranks well into 2005, when the village 

elected Robert Donaldson, the Village’s second black mayor. 

Donaldson had campaigned on the promise to increase racial diversity in the Hazel Crest work force, including the 

police department. 

B. Structure of Hazel Crest Police Department

Hazel Crest’s police hierarchy is very compact: at the 

time of the events in question, the department comprised 

one chief, two deputy chiefs, five sergeants, and patrol officers. The two deputy chiefs each had different responsibilities. One deputy chief was Commander of the Patrol Division (also known as Deputy Chief–Detectives) and the other 

was Commander of the Support Services Division (Deputy 

Chief–Support Services). The chief was appointed by the village manager (at least nominally—more on the role of the 
4 Nos. 12-1668 & 12-1681

mayor later), and the deputy chiefs were selected by the 

chief. 

Chief Peter Fee and one of his deputy chiefs, Richard 

Lenz, resigned after the election of Donaldson to the mayorship. After these resignations, deputy chief Gary Jones was 

named acting police chief on April 22, 2005. Robert Palmer, 

the village manager, asked Jones not to make any appointments to the deputy chief position until the ‘acting’ designation was removed from his title and he received a full appointment. 

C. Hazel Crest’s Deputy Chief Promotion Policy

The Illinois Municipal Code, 65 ILCS 5/10-2.1-4, and a 

Hazel Crest village ordinance provide that the two deputy 

chiefs must be current members of the Hazel Crest police 

force, who have each served at least five years in the village. 

The chief is allowed a large amount of discretion in choosing 

from the candidates who meet these criteria; there is no application or test to qualify for the promotion.

Peter Fee, Gary Jones’s predecessor as chief, adopted a 

description for the deputy chief position in 2001, which was 

not part of the ordinance. The description was as follows:

DESIRED MINIMUM QUALIFICATIONS

Education and Experience 

(A)High school diploma or equivalent; and

(B) Completion of the State Basic Training Academy 

or equivalent academy; and

(C)Minimum of five (5) years work as a police officer 

for the Hazel Crest Police Department; and
Nos. 12-1668 & 12-1681 5

(D)Minimum of two (2) years work experience as a 

police sergeant or higher; and

(E) Although not required, desirable to possess at 

least a bachelor’s degree in law enforcement or related curriculum from an accredited college or 

university.

...

SPECIAL REQUIREMENTS

(A)Must possess a valid State of Illinois Driver’s License.

(B) Basic Law Enforcement Training (or Police Officer 

Standards and Training) certification or equivalent.

(C)No felony convictions.

(D)Successful completion of police supervision course 

of instruction from an accredited Illinois police 

academy. In addition, it is desirable that the individual have completed a mid-level police management course, such as the F.B.I. National Academy or the Northwestern University School of 

Staff and Command.

(E) Working knowledge of modern police and business information management systems.

The description also provided that,

The Deputy Police Chief is an exempt rank appointed by 

the Chief of Police ... . The job description does not constitute an employment agreement between the employer 

and employee and is subject to change by the employer 
6 Nos. 12-1668 & 12-1681

as the needs of the employer and requirements of the job 

change.

D. Gary Jones’s Conversations with Colleagues while 

Acting Chief, then Chief

Upon his initial promotion to acting chief, Jones spoke to 

a number of his colleagues about the officers he would like 

to promote should he receive a full appointment as chief. He 

had conversations with many people about filling the deputy chief vacancies, including his predecessor, Fee, as well as 

the officers he was considering for the spots. From the first, 

Jones was set on appointing Sergeant Gary Gentzle, his longtime friend and partner, to the position of Deputy Chief–

Detectives. Patrick Murray, Michael Garofalo, Mark Peers, 

and David Nelson were all sergeants, and all were considered for the other promotion—the position of Deputy Chief–

Support Services. 

Not all stood an equal chance of getting the promotion. 

Indeed, in many of the conversations, including conversations with Peers and Garofalo, Jones spoke of his plans to 

give Murray the promotion. In a conversation with Murray 

himself, Jones stated that he was planning to name Murray 

the Deputy Chief–Support Services. But in at least one conversation with the previous chief, Fee, Jones discussed why 

Murray would not be suitable for the job, including the fact 

that Fee found Murray untrustworthy, Murray’s past disciplinary history, as well as allegations against Murray that he 

had inappropriately propositioned a subordinate officer’s 

wife. It does not appear that Malcolm White was discussed 

during any of these initial conversations as a candidate for 

promotion. Nor does it appear that Garofalo or Peers was 

ever discussed as a frontrunner or a lock for the promotion.
Nos. 12-1668 & 12-1681 7

It was nominally the Village Manager, Robert Palmer, 

who appointed Jones the interim chief after Fee’s resignation, 

then gave him the full appointment, but Mayor Robert Donaldson played an outsize role in charting the course of 

Jones’s promotions. While Jones was serving as acting chief, 

Palmer made clear to Jones that the mayor expected an increase in racial diversity in the Hazel Crest workforce, including the police department. Palmer explained to Jones 

that the mayor expected the police force’s makeup to more 

closely reflect the racial makeup of the community. It is unclear if Malcolm White’s name was specifically mentioned by 

Palmer or Donaldson, but Donaldson did thank a “Malcom 

White” for support in his acceptance speech. Donaldson’s 

campaign materials also included a photograph showing 

Donaldson and White, with a caption identifying both by 

name.

Once these expectations were articulated to Jones, he 

openly lamented about the expected appointment of White. 

Jones told Gentzle that “the Mayor would like someone 

black to be the second deputy chief.” In a conversation with 

Richard Lenz, his former colleague, Jones stated that Donaldson had told Jones he had to promote White to deputy 

chief. And Jones told Murray that despite their earlier conversation, Jones had to name a black deputy chief in order to 

remain chief because Donaldson was demanding black representation at all levels of the department. Jones then asked 

Murray if he would accept the position of Administrative 

Sergeant, a newly-created position.

On July 12, 2005, Jones appointed White deputy chief. 
8 Nos. 12-1668 & 12-1681

E. Jones’s Conduct

From time to time, Jones made comments to his fellow 

officers about the future of the department, apparently in 

reference to the increasing importance of racial diversity following Donaldson’s election. For instance, before he was appointed chief, Jones recommended to his fellow officers that 

they seek employment elsewhere, and stated that they 

would have no opportunities at Hazel Crest because they 

were “the wrong color” for promotions. In the process, Jones 

used racial slurs in reference to Mayor Donaldson. PlaintiffAppellants also allege that management created a “hostile 

environment that fostered racial tension,” but do not present 

specific facts to support this statement. Once Jones capitulated to Donaldson’s plans for racial diversity by promoting 

White, Garofalo and Jones felt their career advancement opportunities were foreclosed. 

There were also isolated incidents in which Jones used 

profanity while speaking with Garofalo, and in which White 

used profanity to describe Garofalo to a fellow officer. When 

an anonymous note was left in a suggestion box, apparently 

one containing racially provocative content, a black officer 

was upset and stated that he would “kill” the author of the 

note.

F. The Relative Qualifications of the Candidates

Because Plaintiff-Appellants’ theory turns on the question of relative qualifications—whether either officer stood a 

chance of promotion, of which he was deprived by White’s 

promotion—we briefly examine the qualifications of the four 

sergeants who were widely considered frontrunners, as well 

as White’s qualifications. 
Nos. 12-1668 & 12-1681 9

1. Michael Garofalo

Garofalo met all of the desired minimum qualifications 

and special requirements for the deputy chief position listed 

in Fee’s position description. He possessed an associate’s degree, bachelor’s degree, and master’s degree in criminal justice, and graduated from the Northwestern University 

School of Police Staff and Command.

He was promoted to sergeant in October 2001, and had 

ranked first in the sergeant selection process that year, which 

included a written exam, oral interview, and an assessment 

test of practical skills. And he served as a team leader and 

team coordinator for the South Suburban Emergency Response Team, which he described as “similar to a SWAT 

team.” However, Jones stated that he believed Garofalo suffered from a lack of leadership, as well as deficiencies in his 

decision-making abilities, and former chief Fee also advised 

Jones that Garofalo “was very hesitant to make a meaningful 

decision.” Moreover, Jones stated that he had concerns with 

Garofalo’s reliability, as he had resigned from at least two 

appointments without serving out a full term.

2. Patrick Murray

Patrick Murray had been a sergeant since 1995. He held 

bachelor’s and master’s degrees in law enforcement, and had 

completed a police supervision course at the Northwestern 

University School of Staff and Command. He met all of the 

minimum and desired qualifications for the deputy chief position listed in Fee’s position description. Additionally, Jones 

believed Murray to be the only candidate who could make 

sure the department kept its accreditation by the Commission on Accreditation of Law Enforcement Agencies. 
10 Nos. 12-1668 & 12-1681

However, Jones had been involved in an internal investigation of Murray based on allegations by Nelson that Murray had made advances towards Nelson’s wife while Murray 

was Nelson’s superior officer, and that Murray had also improperly interfered in a traffic accident in which Nelson was 

involved. The internal investigation resulted in a three-day 

suspension of Murray. Jones stated that he “did not feel that 

he could place his trust and confidence in Murray” as a result of the investigation, and that he did not believe that the 

rank-and-file officers would respect Murray as a deputy 

chief. Jones’s predecessors, former chiefs Fee and Harold 

Moore, apparently agreed with this assessment. Jones had 

been told by Fee that Fee would never put Murray in a position of trust in the department, and Jones received similar 

counsel from Moore. 

3. David Nelson

David Nelson held a bachelor’s degree in criminal justice, 

and had been promoted to the position of Sergeant in 2003. 

Nelson did not have two years of work experience as a sergeant (he barely missed the cutoff, as he had 23 months of 

such experience), nor had he completed a mid-level police 

management course, though he claims he was scheduled to 

matriculate at the Northwestern University School of Police 

Staff and Command.

Jones was advised by former chief Fee and Murray that 

Nelson was not qualified for the position of deputy chief, as 

he failed to meet the minimum qualification of two years as 

a supervisor. Additionally, Jones stated that he felt Nelson 

was “lackadaisical” in his attitude, and lacked the command 

presence he was looking for in a deputy chief. 
Nos. 12-1668 & 12-1681 11

4. Mark Peers

Peers did not possess a college degree, but met all the 

other desired minimum qualifications and special requirements for the position of deputy chief stated in Fee’s position 

description. He received an Award of Valor from the Village, 

after demonstrating outstanding bravery and personal courage in the apprehension of an armed and dangerous felon. 

Peers had asked to be considered for the Deputy Chief of 

Patrol position. Jones stated that Peers, told that Gary 

Gentzle would be picked for the Deputy Chief–Patrol position, stated that he would rather stay a patrol sergeant since 

he would have the most seniority of any officer on the street 

and could pick his own schedule. Moreover, Jones commented that Peers was called “Hank” by the other officers, a 

nickname referring to a character played by Jim Carrey in 

the movie Me, Myself, and Irene. Jones asserted that this was 

meant to highlight Peers’s “volatile and unstable personality,” and that he did not believe Peers had the respect of the 

men he supervised. 

5. Malcolm White

White had been a patrol officer in Hazel Crest for approximately eight years, and before that had been a tactical 

officer with the City of Harvey. He held an associate’s degree 

from a community college. He had not been promoted to 

sergeant—he ranked sixth out of nine candidates on the sergeants’ promotional exam administered a year before his 

promotion—but had previously served as a shift commander in the absence of a sergeant. White served as an elected 

union representative for Hazel Crest officers, and represent-
12 Nos. 12-1668 & 12-1681

ed the union in union contract negotiations against Jones, 

who was a management representative. 

G. District Court Litigation

After they were not promoted, Garofalo, Murray, Nelson, 

and Peers brought suit against the Village of Hazel Crest and 

Donaldson, Jones, and Palmer. They alleged that the Defendant-Appellees had engaged in discriminatory and unlawful practices under Title VII of the Civil Rights Act, 42 

U.S.C. § 2000e–2; violated 42 U.S.C. § 1983 by intentionally 

interfering with plaintiffs’ civil rights under color of law; 

violated 42 U.S.C. § 1981 by intentionally interfering with 

Plaintiff-Appellants’ employment relationship based on race; 

conspired to deprive the officers of their civil rights in violation of 42 U.S.C. § 1985; and, under Illinois law, breached the 

contract between the Plaintiff-Appellants and the Defendant-Appellees created by the Hazel Crest employee personnel manual. 

After discovery, Defendant-Appellees and PlaintiffAppellants filed cross-motions for summary judgment, and 

Nelson voluntarily withdrew from the case. The district 

court granted Defendant-Appellees’ motion for summary 

judgment on all of the claims relating to Garofalo and Peers, 

and denied Garofalo’s and Peers’s summary judgment motions. The district court granted Defendant-Appellees’ motion for summary judgment on the state law claim, noting 

that Plaintiff-Appellants had failed to respond to Hazel 

Crest’s contention that the claim should be dismissed as the 

employee personnel manual is not an enforceable contract. 

As to the racial discrimination claims, the court granted 

summary judgment against Garofalo and Peers on the 

grounds that the officers had failed to present evidence that 
Nos. 12-1668 & 12-1681 13

they had “any significant chance of being the one actually 

selected as Deputy Chief,” as the evidence showed Murray 

had been bound to get the promotion. The court asserted 

that without evidence of this nature, Garofalo and Peers 

could not succeed on a lost chance theory, even if the court 

accepted as true the fact that race was considered in the 

promotion process and Defendant-Appellees failed to show 

that the policy was narrowly tailored to advance a compelling interest. The court also granted summary judgment in 

favor of Defendant-Appellees on all claims relating to constructive discharge. 

However, the district court denied Defendant-Appellees’ 

motion for summary judgment as it related to Murray, as 

well as Murray’s cross-motion, finding that disputed factual 

issues required a trial on Murray’s failure to promote claim. 

The court found the evidence on the record to be adequate to 

raise a genuine factual dispute as to pretext, but that it was 

not conclusively resolved whether “Jones’s stated legitimate 

reasons [for not hiring Murray] are pretext.” The court stated 

that “it cannot be assumed that Jones stated that he would 

have selected Murray if he had not been pressured to instead 

select an African American.”

Murray and the Defendant-Appellees settled before trial, 

and entered a consent decree stipulating that Murray was 

the most objectively qualified candidate for the Deputy 

Chief of Support Services position. Garofalo and Peers timely appealed. On appeal, they renew their argument that they 

should survive summary judgment on a lost chance theory, 

and also assert that the work environment in the Hazel Crest 

police force under Jones constituted constructive discharge. 

Plaintiff-Appellants also argue that Defendant-Appellees 
14 Nos. 12-1668 & 12-1681

were not entitled to use the mixed motives affirmative defense because they did not plead the affirmative defense explicitly. 

III. DISCUSSION

First, we quickly dispose of three peripheral arguments 

in the case: (1) Plaintiff-Appellants’ argument that Defendant-Appellees’ mixed-motives affirmative defense was untimely, (2) Plaintiff-Appellants’ argument that the work environment at Hazel Crest constituted constructive discharge, 

and (3) Defendant-Appellees’ argument that the consent decree precludes this appeal. All three are invalid arguments. 

We then move to the major issues at play: whether the evidence establishes a prima facie case of race discrimination, 

and if so, whether Plaintiff-Appellants can survive summary 

judgment. Because we conclude that Garofalo and Peers present no evidence suggesting that they had a chance at the 

promotion in the absence of the impermissible consideration 

of race, we affirm the district court’s grant of summary 

judgment.

A. Mixed-Motives Affirmative Defense

We are not moved by Garofalo’s and Peers’s contention 

that the district court improperly granted summary judgment on an affirmative defense that was waived. PlaintiffAppellants argue that Defendant-Appellees did not raise 

their affirmative defense of mixed motives—the argument 

that neither of the officers would have been promoted even 

in the absence of race-based discrimination—until the summary judgment stage. We review this contention for an 

abuse of discretion, and will only find that the district court 

abused its discretion if the defendants’ delay caused the 
Nos. 12-1668 & 12-1681 15

plaintiffs to suffer prejudice. Williams, 399 F.3d at 871. We do 

not find any such prejudice here, and decline to find that the 

district court abused its discretion. 

Plaintiff-Appellants are correct that the Federal Rules of 

Civil Procedure require that “a party must affirmatively 

state any avoidance or affirmative defense ... .” Fed. R. Civ. 

P. 8(c). Our circuit considers mixed motives an affirmative 

defense. Speedy v. Rexnord Corp., 243 F.3d 397, 401 (7th Cir. 

2001) (stating that the Supreme Court case of PriceWaterhouse 

v. Hopkins, 490 U.S. 228, 258 (1989), “established the ‘mixedmotive’ affirmative defense”). However, “the rule that forfeits an affirmative defense not pleaded in the answer (or by 

an earlier motion) is, we want to make clear, not to be applied rigidly.” Matthews v. Wis. Energy Corp., Inc., 642 F.3d 

565, 570 (7th Cir. 2011) (citation and internal quotation marks 

omitted). We will generally find that “[t]he failure to plead 

an affirmative defense in the answer works a forfeiture only 

if the plaintiff is harmed by the defendant’s delay in asserting it.” Id. (citation and internal quotation marks omitted). 

Defendant-Appellees correctly argue that the argument was 

obvious throughout the case, and that they raised it in detail 

in their initial summary judgment brief, as well as in their 

initial motion to disqualify one counsel from representing all 

plaintiffs. Garofalo and Peers had the opportunity to challenge this argument in their own summary judgment submissions, as well as in their opposition briefs to the Defendant-Appellees’ summary judgment brief. Additionally, the 

district court addressed this defense from the outset of the 

case, when it stated that “[t]o the extent that one plaintiff 

proves that he was the one who would have been promoted 

if not for discrimination, he provides a defense against the 

claims of the other three [plaintiffs].” 
16 Nos. 12-1668 & 12-1681

Defendant-Appellees did not waive the affirmative defense of mixed motives, and the district court did not abuse 

its discretion in allowing this argument to be raised in the 

summary judgment briefing. 

B. Constructive Discharge

Likewise, we agree with the district court that summary 

judgment was proper on Plaintiff-Appellants’ constructive 

discharge claim. “[T]o establish ‘constructive discharge,’ the 

plaintiff must ... show that the abusive working environment became so intolerable that her resignation qualified as 

a fitting response.” Penn. State Police v. Suders, 542 U.S. 129, 

134 (2004); see also id. at 146–47 (stating that constructive discharge “entails something more” than a mere hostile work 

environment claim: the plaintiff “must show working conditions so intolerable that a reasonable person would have felt 

compelled to resign”). Constructive discharge “is deemed to 

have occurred when the plaintiff shows that she was forced 

to resign because her working conditions, from the standpoint of the reasonable employee, had become unbearable.” 

Fischer v. Avanade, Inc., 519 F.3d 393, 409 (7th Cir. 2008) (citation and internal quotation marks omitted). For instance, 

“[a] person who is told repeatedly that he is not wanted, has 

no future, and can’t count on ever getting another raise 

would not be acting unreasonably if he decided that to remain with this employer would necessarily be inconsistent 

with even a minimal sense of self-respect, and therefore intolerable.“ Hunt v. City of Markham, Ill., 219 F.3d 649, 655 (7th 

Cir. 2000). If we accept Plaintiff-Appellants’ logic—that their 

failure to be promoted to deputy chief constituted constructive discharge—almost every member of a municipal or governmental hierarchy would end up being constructively dis-
Nos. 12-1668 & 12-1681 17

charged because hierarchies generally narrow at the top. 

This cannot be the case. 

Even accepting that Garofalo and Peers intend to make a 

more specific case for how the working environment at Hazel Crest worsened as to become intolerable, they fail to provide us with sufficient evidence for us to adduce that conclusion. Most of the statements of which Garofalo and Peers 

complain were made by Jones prior to his promotion, and 

none were made to suggest Garofalo and Peers could not 

continue as sergeants. Cf. Fischer, 519 F.3d at 409 (noting that 

constructive discharge occurs when “based on an employer’s 

actions, the handwriting was on the wall and the axe was 

about to fall”) (citation and internal quotation marks omitted). Moreover, there is no evidence that these were repeated 

statements by a person in position of authority—indeed, 

Jones’s comments read like the frustrated statements of a colleague commiserating with his fellows. Summary judgment 

was proper on Garofalo’s and Peers’s claim of constructive 

discharge. 

C. Preclusive Effect of the Consent Decree

We are not convinced by Defendant-Appellees’ assertion 

that the consent decree entered into between the Village and 

Murray has preclusive effect over the present matter. The 

consent decree, by its terms, did not “admit[] any fault or 

conced[e] the veracity of any allegations,” and merely stipulated in a conclusory statement that “[Murray and the village] agree that Patrick Murray will be retroactively promoted.” Moreover, the consent decree was entered into between 

Murray and the Village, and did not involve either Garofalo 

or Peers. It is a longstanding principle that “parties who 

choose to resolve litigation through settlement may not dis-
18 Nos. 12-1668 & 12-1681

pose of the claims of a third party ... . A court’s approval of a 

consent decree between some of the parties therefore cannot 

dispose of the valid claims of nonconsenting intervenors.” 

Firefighters Local 93 v. City of Cleveland, 478 U.S. 501, 518 

(1986). The consent decree cannot bar Garofalo and Peers 

from pursuing their valid claims, as they were not parties to 

the decree. 

D. Racial Discrimination Claim

That brings us to the substantive heart of the case. In 

challenging the grant of summary judgment, Garofalo and 

Peers argue that they produced sufficient evidence of discrimination, primarily under the direct method. Reviewing 

the record de novo, we disagree. While “[n]o real evidence 

has been submitted which would preclude a jury finding of 

discrimination” on the part of the Village as to Garofalo and 

Peers, the two Plaintiff-Appellants “offer[] no evidence that 

would allow a trier of fact to find” that unlawful discrimination caused the two officers not to be promoted. See Bass v. 

Joliet Pub. Sch. Dist. No. 86, 746 F.3d 835, 841 (7th Cir. 2014). 

“[W]hen all is said and done, the fundamental question 

at the summary judgment stage is simply whether a reasonable jury could find prohibited discrimination.” Id. at 840

(citing Perez v. Thorntons, Inc., 731 F.3d 699, 703 (7th Cir. 

2013); Coleman v. Donahoe, 667 F.3d 835, 863 (7th Cir. 2012) 

(Wood, J., concurring)). While it can be debated whether it is 

still useful to sharply distinguish between the direct and indirect methods of proof, under the direct method, “[a] plaintiff can survive summary judgment by producing either” 

circumstantial or direct evidence, “as long as it creates a triable issue on whether discrimination motivated the em-
Nos. 12-1668 & 12-1681 19

ployment action.” Diaz v. Kraft Foods Global, Inc., 653 F.3d 

582, 587 (7th Cir. 2011). 

Under the direct method, the case at hand is trickier than 

Bass, where the plaintiff “presented no—literally no—

evidence that her firing was for a prohibited reason.” Id. 

Here, there is evidence that White’s promotion was based on 

the prohibited consideration of his race. Evidence, too, that 

Murray’s sudden change of fortunes was due to Murray’s 

race—Jones admitted as much. But we are skeptical that the 

evidence that White was promoted based on his race, or the 

fact that Murray did not receive the promotion based on his, 

could be used by a reasonable jury in service of the conclusion that Garofalo and Peers were not promoted because of 

their race. There is no specific evidence, as it relates to 

Garofalo or Peers, “that would allow a trier of fact to find 

that [race] discrimination lay behind” the Village’s decision 

not to promote the Plaintiff-Appellants. Id. As pertains to the 

two Plaintiff-Appellants, “the record contains neither explicit declarations of a discriminatory motive nor sufficient circumstantial evidence for a rational jury to infer discrimination.” See Zayas v. Rockford Mem’l Hosp., 740 F.3d 1154, 1157 

(7th Cir. 2014). Plaintiff-Appellants argue that they have presented evidence of Murray’s shortcomings, and that they 

have established that his chance at the promotion, absent 

Jones’s impermissible considerations of race, was not a sure 

thing. But that is negative evidence that may lead a juror to 

conclude that Murray would not have gotten the promotion. 

Even construing that evidence in the light most favorable to 

Garofalo and Peers, there is no affirmative evidence on 

which a reasonable juror could—absent speculation or conjecture—decide that Garofalo or Peers would have received 
20 Nos. 12-1668 & 12-1681

the promotion absent the impermissible consideration of 

race.

The Plaintiff-Appellants fare slightly better under the indirect method, because they can get as far as establishing a 

prima facie case. For a failure-to-promote claim, the indirect 

method of proof required the Plaintiff-Appellants to offer 

evidence that: (1) they were members of a protected class; (2) 

they were qualified for the position sought; (3) they were rejected for the position; and (4) the employer promoted 

someone outside the protected group who was not better 

qualified than the Plaintiff-Appellants. See Johnson v. Gen. Bd. 

of Pension & Health Benefits of United Methodist Church, 733 

F.3d 722, 728–29 (7th Cir. 2013). They met the first prong of 

the test. See, e.g., McDonald v. Santa Fe Trail Transp. Co., 427 

U.S. 273, 280–81 (1976) (holding that Title VII prohibits discriminatory preference for any racial group, including the 

preference of black employees over white employees); Everett v. Cook Co., 655 F.3d 723, 730 (7th Cir. 2011) (explaining 

that in a case alleging discrimination against white plaintiffs, 

the first prong of the indirect method test requires that “the 

plaintiff show ‘background circumstances’ suggesting that 

the employer discriminates against the majority”) (internal 

quotation marks and citation omitted). And they met the 

second, as they introduced evidence that, if believed by the 

trier of fact, would show that they were meeting the requirements of their jobs, and that they met all or most of the 

preferred and required qualifications for the Deputy Chief 

position, and that they were well-regarded enough that they 

were being discussed for the promotion. The third prong, 

too, is uncontested. As for the fourth prong, construing the 

evidence in the light most favorable to Garofalo and Peers 
Nos. 12-1668 & 12-1681 21

would permit the conclusion that White was not better qualified than the two Plaintiff-Appellants.

However, the Defendant-Appellees were entitled to 

summary judgment because they “articulated nondiscriminatory reasons for the decisions not to promote” 

Garofalo and Peers, reasons that Garofalo and Peers could 

not prove were pretext. See Johnson, 733 F.3d at 729. Defendant-Appellees offered evidence that Garofalo was not selected for the promotion because Jones and others believed 

Garofalo suffered from a lack of leadership and deficiencies 

in his decision-making abilities. As for Peers, DefendantAppellees offered evidence that Peers was known by the 

other officers to have a “volatile and unstable personality,” 

and that Jones and others believed that Peers did not have 

the respect of the men he supervised. Jones also believed 

that Peers did not want the particular promotion in question. 

Garofalo and Peers have not “presented evidence to counter 

that explanation and permit a finding of pretext.” Id. Pretext 

is shown by the plaintiff asserting evidence demonstrating 

that “(1) the employer’s non-discriminatory reason was dishonest and (2) the employer’s true reason was based on a 

discriminatory intent.” Stockwell v. City of Harvey, 597 F.3d 

895, 901 (7th Cir. 2010). In this case, the Plaintiff-Appellants 

must “raise an issue of fact regarding each of the reasons 

proffered” for Jones’s decision not to promote them. Wolf v. 

Buss (Am.), Inc., 77 F.3d 914, 920 (7th Cir. 1996). They failed 

to do so. Accordingly, summary judgment was properly 

granted.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s 

judgment.