Rozskowiak v. Village of Arlington Heights

In the
United States Court of Appeals
For the Seventh Circuit
____________

No. 04-2043
JASON ROZSKOWIAK,
Plaintiff-Appellant,
v.

VILLAGE OF ARLINGTON HEIGHTS, an
Illinois municipal corporation, RODNEY
KATH, in his individual capacity and in
his capacity as Chief of Police of the
Village of Arlington Heights Police
Department, PETER D. KINSEY, in his
individual capacity and in his capacity as
Supervisor for the Village of Arlington
Heights Police Department, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 01 C 5414—Robert W. Gettleman, Judge.
____________
ARGUED MAY 2, 2005—DECIDED JULY 8, 2005
____________

Before BAUER, EASTERBROOK, and EVANS, Circuit Judges.
BAUER, Circuit Judge. Plaintiff-Appellant Jason
Rozskowiak sued the defendants, claiming that he was
discriminated against because of his national origin in vio-
2 No. 04-2043

lation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e et seq., and 42 U.S.C. § 1981. The district court
granted summary judgment in favor of the defendants. We
affirm.

I. Background
Arlington Heights hired Rozskowiak as a probationary
police officer on October 8, 1998. Upon graduating from the
Illinois Police Basic Recruits School, he was placed in a field
training program. After completing the program in April
1999, he began solo patrol. On May 15, 1999, while on solo
patrol, Rozskowiak arrested Harvey Olson for driving
without a license on his person and speeding. Olson filed a
citizen complaint, alleging that Rozskowiak used excessive
force and “Gestapo-like tactics” against him and his wife
during the encounter.
Deputy Chief of Police Ronald McClaskey assigned
Sergeants William Martin and Kenneth Galinski to inves-
tigate the Olson complaint, and they reported their find-
ings. At his deposition, Sergeant Martin testified that he
concluded that Rozskowiak “overreacted to a traffic stop in
which he was confused about a charge of driving without a
driver’s license [on the person] and the charge of driving
without a valid driver’s license.” According to Sergeant
Martin, Rozskowiak had handcuffed Olson and brought him
into the police station.
In light of the Olson complaint and subsequent internal
investigation, Chief of Police Rodney Kath asked his
Command Staff whether he should recommend
Rozskowiak’s dismissal or invest more time in his training.
Chief Kath’s Command Staff is comprised of four command-
ers, two captains, and the deputy chief of police. Based on
the group’s recommendation, Chief Kath ordered
Rozskowiak to undergo further training under the supervi-
sion of Sergeant William Newman. Between June 17, 1999,
No. 04-2043 3

and July 12, 1999, Sergeant Newman spent thirteen days,
totaling between 90 and 100 work hours, directly observing
Rozskowiak. Sergeant Newman reported on his observa-
tions daily, and Rozskowiak confirmed the accuracy of each
report with his signature. Sergeant Newman was not asked
to nor did he make recommendations about terminating
Rozskowiak.
Rozskowiak testified that, during the thirteen-day ride-
along period, Sergeant Newman called him a “stupid
Polack” and made other derogatory comments about his
Polish ancestry. Sergeant Newman, however, denied this
characterization of his remarks. At his deposition, Sergeant
Newman testified:
Well, [Rozskowiak] would make a specific comment, he
would say—he would raise his hands and put a smile on
his face and he’d say, “What do you expect? I’m Polish,”
when confronted with a problem or some type of criti-
cism, and he would do that several times a day. . . . And
after several days of observing that, when he would
start to put his hands up on several occasions, as he
would start to say that, I would say, “Yes, I know you’re
Polish. Let’s move on,” and I would move on in our
conversation.
Sergeant Galinski also testified that Rozskowiak responded
to criticism by asking, “Come on, what do you expect from
a Polack?” Sergeant Raymond Rohde stated the same in his
affidavit. Rozskowiak, however, denies making derogatory
remarks about himself as an excuse for his performance.
Rozskowiak also testified that Commander Peter Kinsey
made derogatory remarks. During the ride-along period,
Commander Kinsey told him that he was not cut out to be
a police officer in Arlington Heights because he was Polish.
After the ride-along period ended, Sergeant Newman
submitted his final report to Deputy Chief McClaskey on
July 28, 1999. Rozskowiak stated in his affidavit that, after
4 No. 04-2043

the ride-along assignment was completed, Sergeant
Newman continued to tell him that he was going to be fired
because he was a “stupid Polack.” At his deposition, how-
ever, he testified that Sergeant Newman made no further
derogatory remarks after the ride-along assignment had
ended.
Chief Kath testified that after Sergeant Newman filed his
report, the Command Staff reviewed the report’s findings
and determined that Rozskowiak had not met the standards
required for service in Arlington Heights. This decision, he
stated, was based on not only Sergeant Newman’s report,
but also the report from the Olson incident and at least one
other citizen complaint. Deputy Chief McClaskey and
Commander Kinsey met with Rozskowiak on or about
August 10, 1999, to inform him that Chief Kath would
recommend his termination to the Board of Fire and Police
Commissioners (the “Board”). According to Deputy Chief
McClaskey, this meeting was the first time that he learned
of the derogatory remarks that were made to Rozskowiak.
There is no evidence that Chief Kath knew about those
statements prior to drafting his recommendation to the
Board.
On August 19, 1999, Rozskowiak met with the Director of
Human Resources and the Assistant Village Attorney for
Arlington Heights to discuss his claims. They investigated
and concluded that Chief Kath’s decision to recommend
Rozskowiak’s termination was made for legitimate, non-
discriminatory reasons. The Board terminated Rozskowiak
on August 30, 1999.
Rozskowiak filed a complaint against the defendants,
alleging that he was exposed to a hostile work environment
and discriminated against on the basis of national origin.
The complaint also alleged violations of the Labor Manage-
ment Relations Act and various state laws. After discovery,
the defendants moved for summary judgement. The district
No. 04-2043 5

court granted summary judgment in favor of the defendants
on March 24, 2004. Rozskowiak limits his appeal to the
national origin discrimination claim.

II. Discussion
We review the district court’s grant of a motion for
summary judgment de novo. Sartor v. Spherion Corp., 388
F.3d 275, 277 (7th Cir. 2004). Summary judgment is
appropriate when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with any
affidavits, show that there is no genuine issue of material
fact and the movant is entitled to judgment as a matter of
law. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S.
317 (1986). If the moving party meets this burden, the
nonmoving party must then go beyond the pleadings and
set forth specific facts showing that there is a genuine issue
for trial. FED. R. CIV. P. 56(e); Becker v. Tenenbaum-Hill
Assoc., Inc., 914 F.2d 107, 110 (7th Cir. 1990). The existence
of merely a scintilla of evidence in support of the nonmoving
party’s position is insufficient; there must be evidence on
which the jury could reasonably find for the nonmoving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252
(1986).
A plaintiff bringing a claim under Title VII can prove dis-
crimination using either the direct method or the indirect
method that the Supreme Court set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Cerutti v.
BASF Corp., 349 F.3d 1055, 1060-61. Rozskowiak proceeds
under both methods.

A. Direct Method of Proof
Rozskowiak claims that the district court erred in finding
that the derogatory remarks made by Sergeant Newman
6 No. 04-2043

and Commander Kinsey were unrelated to the decision to
fire him. A plaintiff can use direct or circumstantial evi-
dence to show that his employer’s decision to terminate him
was motivated by his national origin. See Cerutti, 349 F.3d
at 1061. “Direct evidence ‘essentially requires an admission
by the decision-maker that his actions were based upon the
prohibited animus.’ ” Id. (quoting Rogers v. City of Chicago,
320 F.3d 748, 753 (7th Cir. 2003)). Derogatory statements
made by someone who is not involved in making the
employment decision at issue are not evidence that the
decision was discriminatory. Gorence v. Eagle Food Centers,
Inc., 242 F.3d 759, 762 (7th Cir. 2001). However, if the
person who made the derogatory remarks provided input
into the employment decision—and the remarks were made
around the time of and in reference to that decision— “it
may be possible to infer that the decision makers were
influenced by those [discriminatory] feelings.” Hunt v. City
of Markham, Ill., 219 F.3d 649, 652-53 (7th Cir. 2000)
(emphasis added); see also Gorence, 242 F.3d at 762. Dis-
criminatory remarks are actionable only if they injure the
plaintiff; “there must be a real link between the bigotry and
an adverse employment action.” Gorence, 242 F.3d at 762.
Even reading the facts in the light most favorable to
Rozskowiak, we find that the district court was right to
conclude that Sergeant Newman’s remarks were unrelated
to Rozskowiak’s termination. Rozskowiak testified that on
several occasions Sergeant Newman told him that he
“would probably be losing [his] job because [he] was a stupid
Polack.” Rozskowiak Affidavit at ¶¶ 12-13. However, it was
Chief Kath—not Sergeant Newman—who recommended his
termination to the Board, and it was the Board that made
the ultimate decision on the matter. Sergeant Newman’s
input was limited to the content of his ride-along report,
which offered no recommendations. Rather, the report
identified deficiencies Rozskowiak had in the areas of report
writing, retention of knowledge, basic skills, and decision
No. 04-2043 7

making. Newman Deposition at 75. There is no evidence
that the information contained in the report was inaccurate;
indeed, Rozskowiak confirmed its accuracy. Therefore, the
district court’s determination that Sergeant Newman’s
remarks were unrelated to Rozskowiak’s termination was
appropriate.
Neither is there evidence that Commander Kinsey’s de-
rogatory remarks were related to Rozskowiak’s termination.
According to Rozskowiak, Commander Kinsey stated that
he was not cut out to be a police officer in Arlington Heights
because he was Polish. Rozskowiak Deposition at 34. Unlike
Sergeant Newman, Commander Kinsey was on the Com-
mand Staff which advised Chief Kath to recommend
Rozskowiak’s termination. The Command Staff’s recom-
mendation reflected a consensus of its members’ views.
McClaskey Deposition at 23. That distinguishes this situa-
tion from the one that we saw in Hunt v. City of Markham,
Ill., 219 F.3d 649 (7th Cir. 2000), which involved allegations
that a city council’s decision to deny requests for raises was
discriminatory. In Hunt, the district court had found that
the mayor’s racist and ageist statements had not influenced
the city council’s decision. Hunt, 219 F.3d at 652. We
reversed, holding that although the mayor had no actual
vote in the city council’s matters, the fact that he stood in
a position of influence and recommended that the council
take the action complained of made his statements evidence
of the city’s discrimination. Id. at 653.
In the case before us, Commander Kinsey did not have
the singular influence over decision makers that the mayor
in Hunt had; rather, he was one of the Command Staff’s
seven members, and they advised the Chief by consensus.
In fact, Commander Kinsey recalled times when his views
about Rozskowiak’s potential as a patrol officer were not
adopted by the group as a whole. Kinsey Deposition at 98.
Furthermore, there is no evidence that Chief Kath met
alone with Commander Kinsey to discuss matters per-
8 No. 04-2043

taining to Rozskowiak. Indeed, both Chief Kath and Deputy
Chief McClaskey testified that they were unaware of the
derogatory remarks that were directed at Rozskowiak until
after the Board recommendation was drafted. Kath Affida-
vit at ¶ 12 ; McClaskey Affidavit at ¶ 11.
In addition, there is no circumstantial evidence that the
decision to terminate Rozskowiak was based on anything
but a legitimate, non-discriminatory analysis of Sergeant
Newman’s report and several citizen complaints. Although
Rozskowiak argues that the existence of the citizen com-
plaints is a disputed fact that the district court erroneously
decided against him, we disagree. The Olson complaint pro-
duced an investigative report that was critical of
Rozskowiak’s handling of the matter, and this report was
the sole basis for the decision to provide him with further
training. Rozskowiak notes that the two authors of the re-
port disagreed as to whether he handled the incident cor-
rectly; Sergeant Martin was critical, but Sergeant Galinski
was not. Martin Deposition at 25; Galinski Deposition at 23.
Their difference of opinion, however, is not evidence that
the report contained no criticism of Rozskowiak. Further-
more, Deputy Chief McClaskey described a second com-
plaint in detail at his deposition and testified that he
believed it was investigated by Sergeant Lane at a supervi-
sory level. MacClaskey Deposition at 41-48. Rozskowiak has
produced no evidence to the contrary. We agree with the
district court that he has shown no direct proof of dis-
crimination.

B. Indirect Method of Proof
Rozskowiak also claims that the district court erred
in finding that he failed to establish a prima facie case of
discrimination. Under the indirect method of proving dis-
crimination, a plaintiff can establish a prima facie case by
showing that: (1) he is a member of a protected class; (2) he
No. 04-2043 9

was meeting his employer’s legitimate expectations; (3) he
suffered an adverse employment action; and (4) other
similarly-situated employees who were not members of
the class were treated more favorably. McDonnell Douglas,
411 U.S. at 802; Wells v. Unisource Worldwide, Inc., 289
F.3d 1001, 1006 (7th Cir. 2002). If a prima facie case is es-
tablished, the defendant must then produce evidence of a
legitimate, non-discriminatory reason for the adverse em-
ployment action. Id. If the defendant is able to do this, the
burden shifts back to the plaintiff to demonstrate that the
explanation is a pretext. McDonnell Douglas, 411 U.S. at
804; Wells, 289 F.3d at 1006.
We agree with the district court that Rozskowiak did not
establish a prima facie case of discrimination, as he failed
to produce any evidence that similarly-situated employees
who were not of Polish descent were treated more favorably.
The only evidence Rozskowiak offered is testimony by Chief
Kath that no other officer was terminated solely for their
inability to retain information or write a report. Kath
Deposition at 29. His termination, however, was based on
not only these deficiencies, but also two citizen complaints.
Rozskowiak was unable to produce any statistics or other
evidence that non-Polish officers who performed similar to
him were retained. As the district court observed, the
Arlington Heights police force employs several officers of
Polish ancestry, including Sergeants Galinski and Rohde.
Rozskowiak claims that, as sergeants, they are not “simi-
larly situated” to him for purposes of the McDonnell
Douglas analysis. However, they too were once patrol offi-
cers; Sergeant Galinski testified that he spent over eleven
years on the Arlington Heights police force before being
promoted to sergeant. Galinski Deposition at 4. Because
Rozskowiak failed to produce evidence that he was treated
differently than other officers because he was Polish, he did
not establish a prima facie case of discrimination.
10 No. 04-2043

III. Conclusion
For the reasons stated above, we AFFIRM the district
court’s grant of summary judgment.

A true Copy:
Teste:

________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit

USCA-02-C-0072—7-8-05