The July 17, 2000 Promotion Posting

On or about July 17, 2000, Defendant posted an internal posting for the position of
Division Chief, Fire Department/Operations Division. Def.’s 56.1 | 44. This posting was
substantially similar to the July 1999 posting; but the July 17, 2000 posting required the applicant
to possess only a State of Illinois Fire Officer I Certification. Def.’s 56.1 J 51-52. The
applicant could then obtain the State of Illinois Instructor II Certification within eighteen months
of the promotion. Def.’s 56.1 9 52.

Plaintiff, Blair Haltom, and three other employees applied for this promotion. Def.’s 56.1
(57. Plaintiff's application and resume did not refer to fire suppression experience, any union
activities, and specified that his areas of expertise with Defendant were stated as code
enforcement, public education, and fire investigation. Def.’s 56.1 {{] 60-65. Haltom, a
Caucasian, worked in fire suppression, supervised fire fighters and paramedics, was the union
president for the local fire fighters, and was responsible for shift operations and fire station
operations throughout his career. Def.’s 56.1 {] 68-76.

On or about October 5, 2000, Plaintiff, Haltom, and the remaining candidates were
interviewed before a panel consisting of Chief Wilkinson, Whalen, Berkowsky, Hunter, Robert
Gustafson, and Witt. Def.’s 56.1 § 79. The panel was an advisory panel, and Chief Wilkinson
held the decision on who should be appointed. Def.’s 56.1 80. All applicants were orally
interviewed and required to perform a written exercise. Def.’s 56.1 481.

During the panel’s discussion regarding the candidates for the promotion, the panel
members immediately concluded that Plaintiff and Haltom were the only candidates to consider.

Def.’s 56.1 86. Berkowsky and Witt believed Haltom performed better than Plaintiff in the


does not constitute evidence of pretext ‘unless those 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 for the position at issue.”” Millbrook, 280 F.3d at 1180 (citation
omitted).

Plaintiff claims that Defendant’s proffered justification is a pretext for discrimination
because it is undisputed that Haltom did not possess the Fire Officer I Certification required by
the Defendant. Plaintiff claims that Haltom was ineligible to even be considered for the
promotion; and, therefore, the Mil/wood standard for comparing qualifications does not apply.

A legitimate, non-discriminatory reason for failing to promote Plaintiff is pretextual if the
reason is “a lie, specifically a phony reason for some action.” Plaintiff may establish pretext by
showing that Defendant’s explanation: (1) had no basis in fact, (2) was not the “real reason,” or
(3) was insufficient to warrant the denial of Plaintiff's promotion. James y. Sheahan, 137 F.3d
1003, 1007 (7th Cir. 1998).

In this case, a genuine issue of material fact exists as to whether Defendant’s legitimate,
non-discriminatory reason for promoting Haltom had a basis in fact. Defendant explained that it
promoted Haltom because he had finished the required training and course work for the Fire
Officer I Certificate.

However, it is undisputed that Haltom did not possess the certificate on the date he
applied for his promotion. In fact, according to the Illinois State Fire Marshal Office, as of July
12, 2002, Haltom still did not possess the Fire Officer I Certificate. Defendant has failed to
present any affidavits, depositions, answers to interrogatories, or admissions that demonstrate

Haltom actually possessed the certificate on the relevant dates. Therefore, a genuine issue of


Illinois Instructor II Certification. Pl.’s 56.1 39. Plaintiff was the only qualified applicant for
the promotion. Def.’s 56.1 ff 6-9.

Plaintiff was interviewed for the promotion on or about July 13, 1999. Def.’s 56.1 7 11.
Plaintiff interviewed for the promotion before a panel consisting of Fire Chief John Wilkinson;
Division Chiefs Michael Whalen, Alan Berkowsky, and Samuel Hunter; and the Director of the
Department of Human Resources, Judy Witt. Def.’s 56.1 §§ 11-14. Plaintiff also answered a set
of written questions for the panel. Def.’s 56.1 20. The panel was an advisory panel, and Chief
Wilkinson held the ultimate decision on who should be appointed. Def.’s 56.1 7 15.

After the interview and the completion of the written exercise, none of the members of
the panel concluded that Plaintiff should be promoted to the position of Fire Chief. Def.’s 56.1
4 21-27. Plaintiff did not receive that promotion. Def.’s 56.1 4 28.

On or about July 22, 1999, Defendant posted an internal posting for the position of
Division Chief, Fire Department/Operations Division. Def.’s 56.1 { 30. This promotion
required a candidate to possess a State of Illinois Fire Officer I Certification and State of Illinois
Instructor II Certification. Pl.’s 56.1 74. Plaintiff and Ben Jaremus applied for the promotion.
Def.’s 56.1 9 31-32.

On or about December 3, 1999, before Plaintiff was interviewed and completed written
exercises for the promotion, Plaintiff filed a complaint with the City of Evanston Human
Relations Commission. Def.’s 56.1 { 33; Pl.’s 56.1777. After Plaintiff filed his complaint, the

promotion process was halted. PI.’s 56,1 {{j 80-83.


interview and the written portion of the promotion process; Whalen felt both candidates were
equally qualified for the promotion, and Hunter felt Plaintiff was the better candidate. Def.’s
56.1 99] 87-96.

Chief Wilkinson, in choosing Haltom over Plaintiff, considered Haltom’s greater
experience in operations and suppression compared to Brewer’s experience in the Fire
Prevention Bureau, the fact that Haltom acted as shift chief and would bring operational
experience to the position, and his experience with union activities. Def.’s 56.1 97.

Minimum Qualifications for the Promotion

On July 17, 2000, Plaintiff had previously acquired his State of Illinois Fire Officer I
Certification and State of Illinois Instructor II certificate. P].’s 56.1 4 121. Haltom did not
possess the Instructor II Certificate. Pl.’s 56.1 | 122. Both Chief Wilkinson and Haltom himself
believed that Haltom had completed all the training and the required course work for the Fire
Officer I certification. Def.’s 56.1 4 103; Def.’s Ex. 23, Haltom Aff. J 8.

However, at the time of his application for the promotion, Haltom did not possess the Fire
Officer I Certification. P1.’s 56.1 | 123. According to the Iilinois State Fire Marshal Office,
Haltom still did not possess the Fire Officer I Certification as of July 12, 2002. Pl.’s 56.1 124.

Prior Discriminatory Acts by Defendant

In 1978, four African-Americans sued Defendant for racial discrimination associated with
its promotion process. As a result of the litigation, Hunter was promoted but only after a
Caucasian fire chief was promoted because of his refusal to promote an African-American, Pl.’s

56.1 142. Hunter also stated that Defendant racially discriminated because, when Berkowsky



material fact exists as to whether Defendant’s legitimate, non-discriminatory reason for not
promoting Plaintiff was pretextual.
Motion to Strike
Plaintiff also filed a motion to strike Defendant’s Exhibit 38 and Defendant’s denial of
paragraph 85 of Plaintiff's Additional Statement of Fact. Because the Court did not consider that
exhibit, that motion is denied as moot.
CONCLUSION
For the foregoing reasons, Defendant’s Motion for Summary Judgment is denied.

Plaintiffs Motion to Strike Defendant’s Additional Exhibit is denied as moot.

Dated: 3, 10 5 cool

ited States District Judge



‘Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge John W. Darrah Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 02 C 8796 DATE 2/5/2004
CASE Brewer vs. City of Evanston
TITLE

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

of the motion being presented.)

ay)

MOTION:

DOCKET ENTRY:

qd) Qa Filed motion of [ use listing in “Motion” box above.}

(2) oO Brief in support of motion due

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

(4) im Ruling/Hearingon set fort

(5) imi} Status hearing[held/continued to] {set for/re-set for]on___setfor___—__ at.

(6) o Pretrial conference[held/continued to] [set for/re-set for]on__——s set for atts.

m oa Trial{set for/re-set for]on___at

(8) im} {Bench/Jury trial] [Hearing] held/continued to__at

(9) Q This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}
OOFRCP4(m) CLocal Rule 41.1 CFRCP41(a)(1) CFRCP41(a)(2).

qo) =f {Other docket entry} Hearing held on plaintiff's motion to strike defendant's additional exhibits

[36-1]. For the reasons stated in the attached memorandum opinion and order, plaintiff's motion to strike
defendant's additional exhibits [36-1] is denied as moot. Defendant’s motion for summary judgment [21-]

is denied. Enter Memorandum Opinion and Order.

a (For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required.
qt umber of notices

Notices mailed by judge’s staff.

FEB 06 2004

Notified counsel by telephone. date docketed

docketiny deputy icitihis a

Docketing to mail notices
Mail AO 450 form.
Copy to judge/magistrate judge.

date mailed notice

courtroom
MF deputy’s
initials

"Dateltime fécejved in
central Clerk's Office mailing deputy initials



was acting Chief of the Fire Department, two African-Americans were not notified of a fire
training class while a Caucasian captain was notified and allowed to attend. Pl.’s 56.1 4 145.
ANALYSIS

Plaintiff relies on the indirect method and the McDonnell Douglas burden-shifting
framework to overcome his burden on summary judgment. First, Plaintiff must establish a prima
facie case of job discrimination. Once Plaintiff has established his prima facie case, the burden
shifts to Defendant to present a legitimate, non-discriminatory reason for its decision to promote
Haltom instead of Plaintiff. If Defendant presents a legitimate, non-discriminatory reason for its
job decision, Plaintiff must establish that Defendant’s reason was a pretext for discrimination,
“an explanation designed to obscure the unlawful discriminatory employment action.”
Millbrook y. IBP, Inc., 280 F.3d 1169, 1174 (7th Cir. 2002) (Millbrook).

Defendant does not contest that Plaintiff has met his prima facie case. Defendant’s
legitimate, non-discriminatory reason for promoting Haltom instead of Plaintiff is that the
relevant decision-makers concluded Haltom was better qualified. In response, Plaintiff argues
this reason is pretextual because: (1) based on work experience, Plaintiff was more qualified for
the promotion; (2) Haltom failed to meet the minimum qualifications for the promotion; and
(3) Defendant twice failed to promote Plaintiff in the past. Plaintiff also asserts that because a
history of minority under-representation existed at the Evanston Fire Department, it should be
considered as part of the evidence.

Defendant claims that Plaintiff was not more qualified for the position than Haltom.
“TW]here an employer’s proffered non-discriminatory reason for its employment decision is that

it selected the most qualified candidate, evidence of the applicants’ competing qualifications


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
JOHN W. BREWER, ) DOCKETED
) FEB 06 2004
Plaintiff, )
)
v. ) No: 02 C 8796
)
CITY OF EVANSTON FIRE DEPARTMENT, ) Judge John W. Darrah
a Municipal Corporation, )
)
Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff, John W. Brewer, filed suit against Defendant, the City of Evanston Fire
Department. Plaintiff alleges a violation of Title VII of the Civil Rights Act of 1964. Presently
before the Court is Cook County’s Motion for Summary Judgment. For the reasons that follow,
Defendant’s Motion for Summary Judgment is denied.

LEGAL STANDARD

Summary judgment is appropriate when no genuine issue of material fact exists and the
moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Cincinnati Ins. Co.
y. Flanders Elec. Motor Serv., Inc., 40 F.3d 146, 150 (7th Cir. 1994). “One of the principal
purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims
or defenses... .” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Thus, although the
moving party on a motion for summary judgment is responsible for demonstrating to the court
why there is no genuine issue of material fact, the non-moving party must go beyond the face of

the pleadings, affidavits, depositions, answers to interrogatories, and admissions on file to


demonstrate, through specific evidence, that a genuine issue of material fact exists and to show
that a rational jury could return a verdict in the non-moving party’s favor. Celotex, 477 U.S. at
322-27; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254-56 (1986); Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Waldridge v. American Hoechst Corp.,
24 F.3d 918, 923 (7th Cir. 1994).

Disputed facts are material when they might affect the outcome of the suit. First Ind.
Bank vy, Baker, 957 F.2d 506, 507-08 (7th Cir. 1992). When reviewing a motion for summary
judgment, a court must view all inferences to be drawn from the facts in the light most favorable
to the opposing party. Anderson, 477 U.S. at 247-48; Popovits v. Circuit City Stores, Inc., 185
F.3d 726, 731 (7th Cir. 1999). However, a metaphysical doubt will not suffice. Matsushita, 475
U.S. at 586. If the evidence is merely colorable or is not significantly probative or is no more
than a scintilla, summary judgment may be granted. Anderson, 477 U.S. at 249-250.

BACKGROUND

The undisputed facts, for the purposes of this motion, taken from the parties’ Local Rule
56.1(a) & (b) statements of material facts (referred to herein as “P1.’s 56,1” and “Def.’s 56.1”)
and exhibits, are as follows.

Previous Promotion Postings

Plaintiff, an African-American, is a Captain in the Bureau of Fire Prevention. P1.’s 56.1
41. On or about November 4, 1998, the Defendant posted an internal posting for the position of
Division Chief in the Fire Department/Administration Division. Def.’s 56.1 4. This posting

required that a candidate possess a State of Illinois Fire Officer I Certification and State of