### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ Nos. 12

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- 1681
M ICHAEL J. G AROFALO and M ARK S. P EERS , Plaintiffs

- Appellants ,

v.

V ILLAGE OF H AZEL C REST , et al

. , Defendants

- Appellees

.

____________________ Appeal s from the United States District Court for the Northern District of Illinois , Eastern Division. No s

. 06 C 3674 & 06 C 3735

— William T. Hart , Judge

.

____________________
A RGUED N OVEMBER 4, 2013

— D ECIDED J UNE 1 2 , 2014

____________________

Before E ASTERBROOK , K ANNE , and T INDER , Circuit Judges

. T INDER , Circuit Judge

. Plaintiff

- Appellants Michael Garofalo and Mark Peers appeal from the district court’s grant of summary judgment in favor of Defendant

Appellees, the Village of Hazel Crest and its individual o fficers, in their race discrimination case. Garofalo and Peers, both white , were sergeants on the Haz el Crest police force. They were among four front

- runners considered for a dep u-2 No s

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ty police chief position, which ultimately went to a black o fficer who was not one of the four initially

- discussed cand idates. Plaintiff

- Appellants assert that the Village and i ts o fficers discriminated against them by promoting a black o fficer 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 Plaintiff

Appellants failed to present sufficient evidence to withstand Defendant

- Appellees’ motion for summary judgment. Su mmary judgment was proper on Garofalo’s and Peers’s claims of racial discrimination because they did not present suff icient 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 dec ision invol ving 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 re asonable inferences from those fact s, in favor of the non

moving 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 su mmary of facts thus reflects the facts set forth in a light most favorable to them. “We do not vouch for their truth in anyNo s

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other sense.” Go od v. Univ. of Chi. Med. Ctr. , 673 F.3d 670, 673 (7th Cir. 2012). On the procedural issue of whether the district court co rrectly found that Defendant

- Appellees timely raised their mixed

- motives affirmative defense, we review for abuse of discretion. Willi ams 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 r acial 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 offi cers. The two deputy chiefs each had different res ponsibil ities. One deputy chief was Commander of the Patrol Div ision (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 vi llage manager (at le ast nominally

— more on the role of the4 No s

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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 mayo rship. 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 appoin tments to the deputy chief position until the ‘acting’ design ation was removed from his title and he received a full a pp ointment.
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 a pplication 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; andNo s

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(D) Minimum of two (2) years work experience as a police sergeant or higher; and (E) Although not required, desirable to possess at le ast a bachelor’s degree in law enforcement or r elated curriculum from an accredited college or university.

... SPECIAL REQUIREMENTS (A) Must possess a valid State of Illinois Driver’s L icense. (B) Basic Law Enforcement Training (or Police Officer Standards and Trai ning) certification or equiv alent. (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 ind ividual have completed a mid

- level police ma nag ement course, such as the F.B.I. National Aca demy or the Northwestern University School of Staff and Command. (E) Working knowledge of modern police and bus iness 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 co nstitute an employment agreement between the employer and employee and is subject to change by the employer6 No s

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as the needs of the employer and r e quirements of the job change.

D. Gar y 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 c onversations with many people about filling the dep uty 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 long

time friend and pa rtner, to the position of Deputy Chief

– Detectives. Patrick Murray, Michael Garofalo, Mark Peers, and David Nelson were all sergeants, and all were consi dered for the other promotion

— the position of Deputy Chief

– Support Services. Not all stood an equal cha nce of getting the promotion. Indeed, in many of the conversations, including convers ations 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 Mur ray the Deputy Chief

– Support Services. But in at least one co nversation 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 disc iplinary 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 tha t Garofalo or Peers was ever discussed as a frontrunner or a lock for the promotion.No s

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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 Do naldson 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 i ncrease in racial diversity in the Hazel Crest workforce, i ncluding the police depa rtment. 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 u nclear 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 ab out 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 Do naldson had told Jones he had to promote White to deputy chief. And Jones told Murray that despite their earlier co nversation, Jones had to name a black deputy chief in order to remain chief because Donaldson was demanding black re presentation 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 No s

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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 fo llowing Donaldson’s election. For instance, before he was a ppointed chief, Jones recommended to his fellow officers that they seek employment elsewhere, and stated that they would h ave 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. Plaintiff

Appellants also allege that management created a “hostile environment that fostered r acial tension,” but do not present specific facts to support this statement. Once Jones capitula ted to Donaldson’s plans for racial diversity by promoting White, Garofalo and Jones felt their career advancement o pportunities were foreclosed.
There were al so 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 provocativ e 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 que stion 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.No s

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1. Michael Garofalo
Garofalo met all of the desired min imum qualifications and special requirements for the deputy chief position listed in Fee’s position description. He possessed an associate’s d egree, bachelor’s degree, and master’s degree in criminal ju stice, 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 R esponse Team, which he described as “similar to a SWAT team.” However, Jones stated that he believed Garofalo su ffered from a lack of leadership, as well as deficiencies in his decision

- ma king 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 serv ing 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 p osition 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 Commi ssion on Ac creditation of Law Enforcement Agencies.10 No s

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However, Jones had been involved in an internal invest igation of Murray based on allegations by Nelson that Mu rray had made advances towards Nelson’s wife while Murray was Nelson’s superior officer, and that Murray had also i mproperly 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 r es ult 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 pos ition 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 d id not have two years of work experience as a se rgeant (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 Un iversity 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 s tated that he felt Nelson was “lackadaisical” in his attitude, and lacked the command presence he was looking for in a deputy chief.No s

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4. Mark Peers Peers did not possess a college degree, but met all the other desired minimum qualifications and special requi r ements 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 cou rage 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 pos ition, 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 co mmented 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 asserte d that this was meant to highlight Peers’s “volatile and unstable personal ity,” 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 a ppro x imately eight years, and bef ore 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 se rgeants’ promotional exam administered a year before his promotion

— but had previously served as a shift comman der in the absence of a sergeant. White served as an elected union representative for Hazel Crest officers, and represen t-12 No s

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ed the union in union contract negotiations against Jones, who was a managemen t 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 D efendant

- Appellees had engaged in discri minatory and u nlawful 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; vi o lated 42 U.S.C. § 1981 by intentionally interfering wi th Plaintiff

- Appellants’ employment relationship based on race; conspired to deprive the officers of their civil rights in viol ation of 42 U.S.C. § 1985; and, under Illinois law, breached the contract between the Plaintiff

- Appellants and the Defen dant

- Appe llees created by the Hazel Crest employee perso nnel manual. After discovery, Defendant

- Appellees and Plaintiff

Appellants filed cross

- motions for summary judgment, and Nelson voluntarily withdrew from the case. The district court granted Defendant

- Appelle es’ motion for summary judgment on all of the claims relating to Garofalo and Peers, and denied Garofalo’s and Peers’s summary judgment m otions. The district court granted Defendant

- Appellees’ m otion 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 G arofalo and Peers on the grounds that the officers had failed to present evidence thatNo s

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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 assert ed 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 compe lling interest. The court also granted summary judgment in favor of Defendant

- Appellees on all claims relating to co nstructive discharge. However, the district court denied Defendant

- Appellees’ motion for summary judgme nt 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 pre text, 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 t o 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 an d Peers tim ely 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. Plain tiff

- Appellants also argue that Defendant

- Appellees14 No s

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were not entitled to use the mixed motives affirmative d efense because they did not plead the affirmative defense e xplicitly.
III. DISCUSSION First, we quickly dispose of three peripheral arguments in the ca se: (1) Plaintiff

- Appellants’ argument that Defen dant

- Appellees’ mixed

- motives affirmative defense was u ntimely, (2) Plaintiff

- Appellants’ argument that the work env ironment at Hazel Crest constituted constructive discharge, and (3) Defendant

- Appellees’ ar gument that the consent d ecree precludes this appeal. All three are invalid arguments. We then move to the major issues at play: whether the ev idence 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 pr esent 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 jud gment on an affirmative defense that was waived. Plaintiff

Appellants argue that Defendant

- Appellees did not raise thei r 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 su mmary 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 theNo s

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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.

P laintiff

- 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. R exnord 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 ‘mixed

motive’ affirmative defense”). However, “the rule that fo rfeits an affirmative defense not pleaded in the answer (or by an earlier motion) is, we want to make clear, not to be a pplied 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 asser ting it.” Id. (citation and internal quotation marks omitted). Defendant

- Appellees correctly argue that the argumen t 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 cha llenge this argument in their own summary judgment su bmissions, as well as in their opposition briefs to the Defen dant

- 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 No s

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Defendant

- Appellees did not waive the affirmative d efense of mix ed 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 enviro nment became so intolerabl e 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 di scharge “entails something more” than a mere hostile work environment claim: the plaintiff “must show working cond itions so intolerable that a reasonable person would have felt compelled to resign”)

. Construc tive discharge “is deemed to have occurred when the plaintiff shows that she was forced to resign because her working conditions, from the stan dpoint of the reasonable employee, had become unbearable.” Fischer v. Avanade, Inc ., 519 F.3d 393, 409 (7th Cir. 2008) (cit ation and internal quotation marks omitted). For instance, “[a] person who is told repeatedly that he is not wanted, has no futur e, and can’t count on ever getting another raise would not be acting unreasonably if he decided that to r emain with this employer would necessarily be inconsistent with even a minimal sense of self

- respect, and therefore i ntolerable.“ Hunt v. City of Markh am, 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 constru ctive discharge

— almost every member of a municipal or go vernmental hierarchy would end up being const ructively di s-No s

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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 H azel Crest worsened as to become intolerable, the y fail to pr ovide us with sufficient evidence for us to adduce that co nclusion. 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 se rgeants. 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 omi tted). Moreover, there is no ev idence that these were repeated statements by a person in position of authority

— indeed, Jones’s comments read like the frustrated statements of a co lleague commiserating with his fellows. Summary judgment was proper on Garofalo’s and Peers’s claim of const ructive 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 stip ulated in a conclusory statement that “[Murray and the vi llage] agree that Patrick Murray will be retroactively promo ted.” Moreover, the consent decree was ent ered 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 di s-18 No s

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pose of the claims of a third party

... . A court’s approval o f 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 di scrimination, 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 P laintiff

- Appellants “offer[] no evidence that would allow a trier of fact to find” that unlawful discrimin ation 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 reaso nable 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 i ndirect methods of proof, under the direct method, “[a] plai ntiff can survive summary judgment by prod ucing either” circumstantial or direct evidence, “as long as it creates a tr iable issue on whether discrimination motivated the e m-No s

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ployment action.” Diaz v. Kraft Foods Global, Inc. , 653 F.3d 582, 587 (7th Cir. 2011). Under the direct method, the case at h and 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 M urray’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 reas onable jury in service of the concl usion 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” th e Village’s decision not to promote the Plaintiff

- Appellants. Id. As pertains to the two Plaintiff

- Appellants, “the record contains neither expli cit declarations of a discriminatory motive nor sufficient ci rcumstantial evidence for a rational jury to infer discrimin ation.” See Zayas v. Rockford Mem’l Hosp. , 740 F.3d 1154, 1157 (7th Cir. 2014). Plaintiff

- Appellants argue that they have pr esented 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, t here is no affirmative evidence on which a reasonable juror could

— absent speculation or co njecture

— decide that Garofalo or Peers would have received20 No s

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the promotion absent the impermissible consideration of

race. The Plaintiff

- Appellants fare slightly better under the i ndirect 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 r ejected 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 & Heal th 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 di scriminatory preference f or any racial group, including the preference of black employees over white employees); Eve rett 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 meth od 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 b y the trier of fact, would show that they were meeting the r equirements 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 di scussed 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 PeersNo s

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would permit the conclusion that White was not better qual ified than the two Plaintiff

- Appel lants. However, the Defendant

- Appellees were entitled to summary judgment because they “articulated non

discriminatory 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. Defen dant

- Appellees offered evidence that Garofalo was not selec ted 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, Defendant

Appellees 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 wan t 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

- discri minatory reason was di shonest 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 th e 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 A FFIRM the distri ct court’s judgment.