inferences that favor the non-moving party. Anderson, 477 U.S. at 255; Bay v. Cassens
Transport Co., 212 F.3d 969, 972 (7th Cir. 2000). With these principles in mind, we
turn to the motion before us.
DISCUSSION

Where an employer in a Title VII case brings a motion for summary judgment
the plaintiff has two approaches that can be used to defeat the motion. Under the
“direct” approach , the plaintiff can show through direct or circumstantial evidence that
the alleged harmful action of the employer was “motivated by an impermissible
purpose, such as her race or national origin.” Pafford v. Herman, 148 F.3d 658, 665
(7th Cir. 1998). Under the “indirect” approach the plaintiff must establish a prima facie
case which will allow an inference of discrimination. Id. If a prima facie case is
established then there is a rebuttable presumption of discrimination and the employer
is required to offer a “legitimate, non-discriminatory reason for the adverse
employment action.” Cianci v. Pettibone Corp., 152 F.3d 723, 726 (7th Cir. 1998).
If the employer provides such a reason the plaintiff must then show that the reason
alleged by the employer is merely a pretext for discrimination. Jd.
L Title VII Direct Approach

Guerra claims that he has sufficient evidence to proceed under the direct

approach. A plaintiff can defeat a summary judgment motion in a Title VII action

4.


performance appraisal rating to 75 because he had only been a Master Sergeant for a
short period of time. Artificially manipulating evaluation scores is inconsistent with
ISP’s assertion that the ISP conducted its promotion process according to set
procedures and it casts doubt on the veracity of the reasons given for promotions such
as that the applicant was the best qualified.

ISP does not deny that Hevia was told to lower Guerra’s score. ISP only claims
that the statement is incomplete and points out that Hevia was told to lower Guerra’s
score because he had only been a Master Sergeant for a short period of time. ISP’s
tesponse to Hevia’s assertion that such artificial manipulation of evaluation scores was
the standard procedure is that the statement is inadmissible because there is not a
proper foundation. No federal rule of evidence requires a foundation. A.I. Credit
Corp. v. Legion Insurance Co., 265 F.3d 630, 637 (7th Cir. 2001) (stating that a
foundation is merely a “loose term for preliminary questions designed to establish that
evidence is admissible”). Under Local Rule 56.1, ISP is required to deny facts in
Guerra’s statement of additional facts or else the facts are deemed to be admitted. ISP
must deny facts in a clear and definitive manner. An incomplete or evasive denial is
not sufficient.

Clearly, Hevia’s statement concerning the standard practice of manipulating

evaluation scores is relevant and ISP’s general assertion that the Hevia statement is

-9-


Hevia started on the force as the affidavit indicates is of minimal relevance. Guerra
offers a variety of other evidence such as that an acting Hispanic Lieutenant was not
promoted and that certain command officers never recommended a Hispanic candidate
for promotion. Guerra also points to statistics regarding the number of Hispanics
promoted to Lieutenant since 1994, the ISP mission statement, and other evidence.
However, the evidence provided by Guerra is not sufficient to defeat the motion for
summary judgment under the direct approach. Therefore, Guerra must proceed under
the indirect approach.
IL, Title VII Indirect Approach

Guerra is Hispanic and there is no indication that he was not meeting his
employer’s legitimate expectations or that he was not qualified for the Lieutenant
position. He suffered an adverse employment action when he was not promoted. ISP
concedes that Guerra can establish a prima facie case under the indirect approach, but
argues that it has presented a legitimate non-discriminatory reason and Guerra has not
shown that reason to be a pretext. To show a pretext the plaintiff must establish that
the given reason is a lie made by the employer to conceal its unlawful discriminatory
intentions. Hasham v. California State Bd. of Equalization, 200 F.3d 1035, 1045 (7th
Cir. 2000) (stating that the focus is on whether the employer intended to lie and that

it is not relevant whether the given reason is ultimately found to be sound). A plaintiff

-6-



using the direct approach “by putting in enough evidence, whether direct or more
commonly circumstantial, to create a triable issue of whether the adverse employment
action of which he complains had a discriminatory motivation... ..” Wallace Iv. SMC
Pneumatics, Inc., 103 F.3d 1394, 1397 (7th Cir. 1997). According to Guerra the
command at ISP held stereotypes concerning Hispanics. He points to a belief by a
Lieutenant Snyder that Guerra was “essentially a street agent.” However, Guerra does
not provide evidence to show that such a belief was based on Guerra’s national origin.
Guerra also refers to an affidavit signed by Carlos Hevia (“Hevia”), a former
commander at the ISP. The affidavit states generally that Hevia thought he was treated
unfairly while working for the ISP. Hevia also claims that Guerra performed his job
well and that Hevia was told to fix Guerra’s evaluation scores to prevent his promotion.
In addition, Hevia states generally that the “command structure” of the ISP is
prejudiced against Hispanics and that he observed throughout his career that the
animus existed. Hevia’s general opinion that the command structure at the ISP has an
anti-Hispanic animus is of little evidentiary value. In places Hevia’s affidavit lacks the
specific facts necessary to back up some of his generalized accusations and it is not
clear from the accusations in the affidavit whether all the alleged wrongful conduct
directed against him was based on a hostility towards his Hispanic ancestry. Also,

whether the ISP command structure held an animus for Hispanics years ago when

5.


was that he or she was the best qualified individual. Guerra claims that this excuse is
not true. Guerra claims that the best qualified candidates could not have been chosen
because some of the promotion decision makers limited their search to their own
region. However, we see no reason why decision makers could not neutrally choose
from the best qualified applicants within a particular region. Such an approach would
not necessarily diminish the likelihood that a Hispanic applicant would be chosen. In
fact, in a region containing more Hispanic applicants than the overall average per
region, the likelihood that a Hispanic officer would be promoted in that region is
actually increased under this approach. Guerra argues at length that he was better
qualified than each applicant chosen instead of him and ISP responds with a lengthy
list of reasons why the other applicants were better or as qualified as Guerra. Guerra
has not shown that his credentials were so superior that a reasonable impartial person
could not choose the other applicants. Therefore, the qualifications of Guerra and the
applicants chosen instead of him are not evidence of discrimination. See id. (stating
that it is not a court’s job to “act as a super personnel department that second guesses
employers’ business judgments.”). However, Guerra offers other evidence besides the
qualifications evidence that, when viewed in a light most favorable to Guerra, shows
that the reasons given by ISP are pretextual. Hevia claims that while he was Guerra’s

supervisor in 1995, he was told by his supervisor Robert Johnson to limit Guerra’s

-8-



Minute Order Form (06/97)
«

United States District Court, Northern District of Wlinois

‘eraetatnge | Charis P.Kocons | Stu

CASE NUMBER 01 C 2839 DATE 12/24/2002
CASE Guerra vs. Illinois State Police
TITLE

[lin the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION: of the motion being presented.]

DOCKET ENTRY:

qd) Qo Filed motion of [ use listing in “Motion” box above.]

(2) im Brief in support of motion due

(3) Oo Answer brief to motion due___. Reply to answer briefdue__.

(4) Oo Ruling/Hearing on setfor at . .

(5) o Status hearing[held/continued to] [set for/re-set for]on__—_—sset for___—_at

(6) o Pretrial conference[held/continued to] [set for/re-set for]on__—sssetfor_—— sat.
(C)) QO Trial{set for/re-set for]on__—_—_—sat

(8) Oo [Bench/Jury trial] [Hearing] held/continuedto__at

(9) 0 This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4m) CO) Local Rule 41.1 C/FRCP41(a)(1) OO FRCP41(a)(2). -

(10) Mi [Other docket entry] ENTER MEMORANDUM OPINION; Defendant’s motion (Doc 33-1) for
summary judgment is denied. Joint pretrial order to be filed by February 18, 2003.

(jl) ff {For further detail see order attached to the original minute order.]

‘No notices required, advised in open court.
No notices required.
Notices mailed by judge's staff
Notified counsel by telephone.
7 | Docketing to mail notices.
Mail AO 450 form. LuNod L9H Sia Sn
YW 7}
Copy to judggmagistrate judge. neal
gh :zivd 4293020
courtroom
scT deputy’s a ae
initials gta
Datetime received in
central Clerk’s Office



Guerra eventually ended up ranked in the top ten is not the point. Just because Guerra
ended up making the top ten despite an arguable attempt to sabotage his rank and delay
his promotion does not make the attempt meaningless. Neither does it remove the
shadow of doubt cast over ISP’s assertions that ISP made promotions according to set
formal procedures and that the reasons given for the promotions were truly the reasons
behind the promotions.
CONCLUSION

We must conclude that the proffered evidence of pretext is sufficient to create

a material issue of fact as to the bona fides of the decision-making process.

Consequently, Defendant’s motion for summary judgment is denied.

Cha Phocerea

Charles P. Kocoras
Chief Judge
United States District Court

Dated: DEC 2 4 2002

-l1-



inadmissible is unsatisfactory. ISP offers no specific reason as to why the statement
would be inadmissible and ISP did not deny the statement’s truth. It is not this court’s
function at this time to make rulings on evidentiary objections in order to determine if
the Hevia statement is admissible. We are satisfied that, based on the information
before us, there appear to be avenues by which the evidence might be properly
admitted. ISP has not sought to strike the Hevia affidavit and they have not properly
denied Guerra’s statement of additional facts which reiterates Hevia’s claim that he was
told to lower Guerra’s score and that it was the standard practice to do so.

Also, a factual contention in a 56.1 statement of facts need not be admissible as
long as it at least “represent[s] admissible evidence.” Malec v. Sanford, 191 F.R.D.
581, 585 (N.D. Ill. 2000). Besides the fact that Hevia was allegedly told by his
superior to limit Guerra’s performance appraisal rating to 75, it can be reasonably
inferred from the affidavit evidence that Hevia actually limited Guerra’s score. There
is no indication in the affidavit that Hevia refused to obey his superior’s orders and
submitted a score above the proscribed limit. Thus, evidence that Hevia, a supervisor
with the ISP who was involved in the promotion determination process, artificially
adjusted evaluation scores is evidence that is relevant to pretext.

ISP argues that, even if Hevia was told to lower Guerra’s score, Guerra ended

up ranked in the top ten anyways and was therefore not disadvantaged. Whether or not

-10-


can show a pretext by presenting “direct evidence that a discriminatory reason
motivated the employer’s decision or by presenting evidence that the employer’s
proffered reason is unworthy of credence, thus raising the inference that the real reason.
is discriminatory.” Essex v. United Parcel Service, Inc., 111 F.3d 1304, 1310 (7th Cir.
1997).

Also, the Seventh Circuit has recently addressed the pretext analysis in
Millbrook v. IBP, Inc., 280 F.3d 1169, 1180-81 (7" Cir. 2002). In Millbrook the court
held that, where an employer presents as its legitimate non-discriminatory reason for
not promoting a plaintiff that the employer promoted the best qualified applicant, the
qualifications of the chosen individual and the plaintiff are not evidence of pretext
except where the “differences are so favorable to the plaintiff that there can be no
dispute among reasonable persons of impartial judgment that the plaintiff was clearly
better qualified.” Jd. (quoting Deines v. Texas Dept. of Protective and Regulatory
Services, 164 F.3d 277 (5" Cir. 1999)), Stated another way, the qualifications are not
evidence of pretext unless the “plaintiffs credentials are so superior that no reasonable
person” could have chosen the other person over the plaintiff. Id.

Guerra’s response to this argument is that ISP has not met its burden of
presenting a legitimate non-discriminatory reason. All of the promotion

recommendations in question indicate that one reason that the applicant was chosen

-7-



LEGAL STANDARD

Summary judgment is appropriate when there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). In
employment discrimination cases, we apply this standard with “added rigor” before
granting summary judgment. Mills v. Health Care Service Corp., 171 F.3d 450, 454
(7th Cir. 1999). The moving party bears the initial burden of showing that no genuine
issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 312 (1986). This
burden may be satisfied by presenting specific evidence on a particular issue or by
pointing out “an absence of evidence to support the nonmoving party’s case.” Id.
Once the movant has met this burden, the non-moving party cannot rest on the
allegations in the pleadings, but “must set forth specific facts showing that there is a
genuine issue for trial.” Fed R. Civ. P. 56(e). A “genuine issue” in the context of a
motion for summary judgment is not simply a “metaphysical doubt as to the material
facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). Rather, a genuine issue exists when “the evidence is such that a reasonable
jury could find for the nonmoving party.” Anderson, 477 U.S. at 248; Insolia v. Philip
Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). The court must consider the record

as a whole in a light most favorable to the non-moving party and draw all reasonable

3.



of Lieutenant. Of the five officers promoted from Region I, only one was higher
ranked on the promotion list than Guerra. None of the promoted officers were
Hispanic or of Mexican national origin. The ISP rules governing promotions state that
all the candidates ranked in the top ten are equally eligible for promotion. Promotions
do not have to be made according to rank and often the promotions do not directly
coincide with the applicants’ rank. Guerra alleges that the ISP did not promote him
because of his race and national origin. Guerra alleges that further discrimination
against him occurred in the spring of 1999, when he applied for a training opportunity
at the Southern Police Institute and that training position was granted to anon-Hispanic
male not eligible for promotion to Lieutenant. On November 11, 1999, Guerra filed
a complaint with the EEOC, alleging discrimination based on race and national origin.
On January 23, 2001, the EEOC issued a Notice of Right to Sue authorizing the
Plaintiff to sue the ISP in federal court. On August 31, 2001, this court dismissed
Guerra’s claims based on alleged discrimination occurring outside the limitations
period. This court also dismissed claims against the State of Illinois and Guerra’s
retaliation claim. Guerra filed a two-count amended complaint on September 4, 2001.
Only the first count, which alleges discrimination on the basis of race and national
origin in the conditions and privileges of employment in violation of 42 U.S.C. § 2000

et seq., is currently before this Court.


UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS a.
EASTERN DIVISION eo
* Se ”

& “
FRANK GUERRA,
Plaintiff, a
a
vs. 01 C2839

ILLINOIS STATE POLICE and THE STATE OF
ILLINOIS,

wees ae

Defendants.

MEMORANDUM OPINION

CHARLES P. KOCORAS, Chief District Judge:

This matter is before the Court on Defendant Illinois State Police’s motion for
summary judgment. For the reasons set forth below, this motion is denied.

BACKGROUND

Plaintiff Frank Guerra, a Hispanic male whose national origin is Mexican, is
employed by the Illinois State Police (“ISP”) as a Master Sergeant. Guerra was
assigned to the District of Chicago and detailed to the Metropolitan Enforcement
Group of Cook County as an Area Supervisor from April 1993 through December
1998, Guerra then transferred to District 15 as a Master Sergeant in Patrol. During

August and September 1999, the ISP promoted eleven Master Sergeants to the position