The Seventh Circuit reverses and remands a Title VII claim for trial that it describes as a potentially "strong case of race discrimination." In particular, it reminds district courts that the "same actor" inference - that a manager who hires Black employees is unlikely to be biased against them - is at most an argument for trial, not a rule for deciding summary judgment.
McKinney v. Sheriff's Office of Whitley Co., No. 16-4131 (7th Cir. Aug. 8, 2017): "McKinney was Whitley County's first black merit officer," hired for a probationary one-year period. Although "Sheriff Hodges discussed McKinney's race with him during his job interview" and McKinney was hopeful that it would not be an issue, his co-workers (allegedly) launched instantly into harassing and ostracizing him.
"One officer used the 'n-word' in front of him. Once when buying coffee, McKinney's fellow officer said that he wanted his 'coffee black like my partner.' McKinney also testified that the other officers refused to train him and sometimes would not speak to him. Sheriff Hodges told McKinney that he should watch the movie '42,' which is about Jackie Robinson breaking the color barrier in major league baseball in 1947. Hodges told McKinney that the movie would 'help [him] out.'"
Within nine months, he was fired for supposedly filing false time reports and violating standard operating procedures. Over time, the County added more reasons (supposedly damaging a county vehicle and "failure to complete a transport and follow verbal instructions") and, in litigation, offered further previously undisclosed rule violations.
During summary judgment briefing, along with the direct evidence of bias above, McKinney exhaustively rebutted the County's explanations:
"[McKinney] submitted unusually detailed evidence-including testimony, interrogatory answers, relevant gas receipts, scheduling records, prisoner transport records, the Sheriff's standard operating procedures, and much more-to show that the supposed reasons for firing him were not only wrong but so baseless as to support an inference of pretext, meaning dishonesty."
Nevertheless, the district court dismissed the case on summary judgment, holding that the plaintifff failed to specify the direct evidence in the record, and also failed as a matter of law to show (or present a genuine dispute of material fact) that he was meeting the Sheriff's legitimate job expectations.
The Seventh Circuit reverses, with some rather sharp criticisms of the district court:
1. "The district court disregarded most of McKinney's evidence, and that choice lies at the root of the erroneous grant of summary judgment." The panel holds that McKinney more than met the requirements for responding specifically to the County's motion and thus "there was no valid ground for refusing to consider McKinney's evidence." As a result of the error, the district court "did not address most of McKinney's other evidence, which, to be frank, demolishes the employer's shifting list of rationales" for his termination.
2. It holds that the numerous, factually shaky explanations offered for McKinney's termination furnish cause to believe that they are pretext for race discrimination. The claim that McKinney falsified time records was rebutted by evidence that he followed the Sheriff's own practices, and with "timesheets showing how other officers had calculated their time while attending the Academy" consistent with his own practice. Another reason (that he failed to timely file a report) was based on an alleged "standard operating procedure that does not actually exist, or about which he was not told." Down the line, McKinney showed that his practices were utterly consistent with stated policy and practices of white co-workers, who were not punished (let alone fired).
The last explanation offered by the Sheriff's office was especially preposterous:
"The defense also now claims that McKinney was late transporting a juvenile to a court proceeding. Again, McKinney explained the incident in detailed testimony. In short, he was told that two juveniles were at the same location when they were not, and as a result, the transport was about one minute late."
3. The panel holds that even without the benefit of McDonnell Douglas burden shifting, McKinney presented sufficient evidence of racial motivation: over a period of just nine months there were inappropriate racial remarks, ostracism and failure to train, charging McKinney with violations of nonexistent rules or minor infractions that were normally never punished, and even punishing him for things that the employer told him to do.
4. The panel criticizes the district court for discounting "McKinney's testimony as 'self-serving, speculative, and conclusory,'" considering that the circuit's "cases for at least the past fifteen years teach that 'Self-serving affidavits can indeed be a legitimate method of introducing facts on summary judgment.'"
5. The panel definitively holds that the same-actor inference has no place at the summary judgment stage, but at most constitutes argument for the jury. "[T]his inference is not a conclusive presumption and that it should be considered by the ultimate trier of fact rather than on summary judgment or the pleadings." That McKinney was hired and fired by the same commanding officer therefore gets no weight at this stage.
"The same supervisor could hire a county's first black police officer, hoping there would be no racial friction in the workplace. But after it became clear that other officers would not fully accept their new black colleague, that same supervisor could fire the black officer because of his race based on a mistaken notion of the 'greater good of the department."
It cites a law review article casting strong doubt on the same-actor inference. Victor D. Quintanilla & Cheryl R. Kaiser, The Same-Actor Inference of Nondiscrimination: Moral Credentialing and the Psychological and Legal Licensing of Bias, 104 Cal. L. Rev. 1, 6, 11-18 (2016) ("the implicit behavioral theories underpinning the same-actor doctrine have been discredited by decades of psychological science on aversive racism, implicit bias, and moral licensing").