Thomas Brown v. County of Cook

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1953
THOMAS BROWN,
Plaintiff-Appellant,
v.
COUNTY OF COOK, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 C 617—Sharon Johnson Coleman, Judge.
ARGUED SEPTEMBER 30, 2011—DECIDED OCTOBER 25, 2011
Before EASTERBROOK, Chief Judge, and POSNER and
WILLIAMS, Circuit Judges.
POSNER, Circuit Judge. Thomas Brown, a sergeant in
the Cook County Sheriff’s Office, was passed over for
promotion to lieutenant. His suit, filed under 42
U.S.C. § 1983 primarily against the then-Sheriff, Demo-
crat Michael F. Sheahan (the only defendant whom
we need to discuss), charges that he was passed over
because he’s a Republican, didn’t contribute to Sheahan’s

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2 No. 11-1953
campaign fund in 1998, and voted for Sheahan’s Repub-
lican opponent that year, and that by thus discrim-
inating against Brown on the basis of his political
affiliation Sheahan infringed his freedom of speech. See,
e.g., Rutan v. Republican Party of Illinois, 497 U.S. 62, 68-76
(1990). Sheahan ran for re-election in 2002 and again
Brown neither attended any of his fundraisers nor con-
tributed to his campaign fund. The district judge granted
summary judgment for the defendants.
The parties haggle over the continued applicability of
“motivating factor” analysis to suits charging violations
of First Amendment rights. Mt. Healthy City School
District Board of Education v. Doyle, 429 U.S. 274, 287 (1977).
In a decision handed down shortly after the oral argu-
ment of this appeal, we ruled that it remains applicable
to such suits. Greene v. Doruff, No. 10-3497, 2011 WL
4839162 (7th Cir. Oct. 11, 2011). If Brown presented evi-
dence at the summary judgment phase of the litigation
that could convince a reasonable jury that his political
affiliation was a motivating factor in his being passed
over, the burden would shift to Sheahan to present evi-
dence that could convince a reasonable jury that Brown’s
political affiliation was not a “but for” cause of the
discrimination. (Sheahan doesn’t argue that denying
Brown promotion solely for political reasons might come
within one of the exceptions to the First Amendment’s
bar against political discrimination in public employment.)
To restate the standard of Mt. Healthy in simpler terms,
if Brown can prove that he would have been denied
promotion because of his political affiliation alone, then

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No. 11-1953 3
to avoid an adverse judgment Sheahan would have to
show that even so Brown would have been denied promo-
tion for some other reason, in which event his political
affiliation had no causal significance. If Sheahan can
meet that burden, it is as if he had told Brown “I can’t
promote you because there’s no opening for another
lieutenant, but if there were I still wouldn’t promote
you, because you made a donation to my opponent five
years ago.” There would be no constitutional violation
because if Sheahan was being truthful Brown would not
be worse off as a result of his political affiliation than
if he’d contributed to Sheahan’s campaign instead.
For two years, beginning in 2003 and ending a few
months before his voluntary retirement in 2005 (the
year before Sheahan retired as Sheriff), Brown was on a
list of 16 police officers eligible to be promoted to lieuten-
ant. Five were promoted during that two-year period;
11 including Brown were not. Of the 5 promoted,
3 had contributed to Sheahan’s campaign fund and
2 had not. Of the 11 denied promotions, 4 had con-
tributed to the fund and 7 (including Brown) had not.
The average contribution of the 3 applicants who con-
tributed and were promoted was $557; the average contri-
bution of the 4 who contributed but were not promoted
was $595—as a group the heavier contributors were
treated worse! Brown concedes that he had not been
asked to contribute and does not allege (and indeed
disclaims) that he was told he had to contribute money
to Sheahan’s campaign fund or otherwise assist in
Sheahan’s campaign if he wanted to be promoted.

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4 No. 11-1953
Five years before the promotion list was posted,
Brown had donated $100 to the campaign of Sheahan’s
Republican challenger and posted five signs adver-
tising that candidate. Apparently these were Brown’s
only contributions to the Republican candidate’s 1998
campaign besides voting for him; Brown’s wife was
not even aware of his participation in the campaign. He
seems not to have participated in any fashion in any
other recent campaign. The Cook County Sheriff’s Office
has some 7,000 employees, and Sheahan swears that
he never met Brown or had even heard of him before
this lawsuit. Sheahan’s deputies who were involved
in promotions knew Brown but not that he was a Republi-
can. Brown contests all this but produced no admissible
evidence to contradict the sworn denials of Sheahan
and the members of Sheahan’s senior staff. Brown
cannot satisfy his burden of showing that his political
affiliation was a motivating factor in his being passed
over for promotion if he can’t even show that people
who decided or advised on the decision were aware
of his political affiliation.
Much of the evidence tendered by Brown in an effort
to fend off summary judgment was inadmissible hearsay.
We’ll give just one example. Brown alleged that “a repre-
sentative of the Communications Section [of the Sheriff’s
Office] told me that Commander Palcu [a senior officer,
close to Sheahan] ran my license plate” (that is, did a
computer search to determine whether Brown had
a criminal record). We don’t see how, even if the allega-
tion were true, it would help Brown’s case, as it would
not be evidence of political animosity to him. And in

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No. 11-1953 5
any event its evidentiary value would be nil unless
what the “representative” told Brown was true—and
Brown was forbidden by the hearsay rule to attest to
its truth. See Fed. R. Evid. 801(c). Although there are
many exceptions to the rule, the only one he invokes is
the exception for statements by the opposing party (that
is, admissions) or the party’s agent—but in the latter
case the statement must concern “a matter within
the scope of the agency.” Fed. R. Evid. 801(d)(2)(D).
There is no indication that the job of the “representative
of the Communications Section” involved conducting
computer searches or monitoring Palcu’s activities.
Much of the evidence that Brown tendered in the
district court was irrelevant, such as that another senior
staff member, when Brown asked him about being pro-
moted to lieutenant, told him “call your clout.” Brown
could of course testify that the officer really did say that
to him, and we are certainly happy to learn that bit of
Chicago argot, previously unfamiliar to us. But all that
“clout” means in the expression “call your clout” is “some
person of influence who will back your candidacy.” The
“clout” need not be a Democratic politician; he or she
could be a relative of Sheahan, or someone for whom
Sheahan might have wanted to work after retiring as
Sheriff, or Sheahan’s pastor, or for that matter Bo Derek,
who if indeed instrumental in persuading the Illinois
legislature to close down Illinois’s only horse slaughter-
house, see Cavel Int’l, Inc. v. Madigan, 500 F.3d 551, 559
(7th Cir. 2007), might be able to persuade the Sheriff of
Cook County to promote a sergeant to lieutenant.

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6 No. 11-1953
Brown testified that one of the officers promoted
ahead of him was promoted only after he “called his
clout,” but the “clout” in question was the officer’s
former commander, who as far as appears was willing
to support his former subordinate’s candidacy because
the subordinate had done a good job working for him.
That wouldn’t even be “clout” in its usual pejorative
sense; but all that matters is that it wouldn’t be
political clout. Another officer was promoted ahead of
Brown because, Brown alleges, Sheahan knew the man
and had a high opinion of him, and whether that high
opinion was justified is likewise irrelevant to this
litigation, as there is no indication that it was because
of the officer’s politics.
Brown makes much of allegations of misconduct leveled
against the one woman who was among the 5 officers
promoted to lieutenant ahead of him. The allegations
are lurid; they include an incident in which she is
alleged to have had sex with her boyfriend in a hot tub
in her backyard in view of the neighbors. Most of the
allegations (including that one) concern conduct in
which she engaged after she was promoted to lieutenant,
and they cast only a faint light on the motivations
for promoting her instead of Brown, though a serious
allegation—conversion of department property—was of
misconduct before she was promoted. But even if she
was less well qualified than Brown whether for
ethical or other reasons (and let’s assume she was),
it doesn’t follow—it doesn’t begin to follow—that
Sheahan’s motivation for promoting her instead of
Brown (she filled the last vacancy that came open during

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No. 11-1953 7
his two-year eligibility period) was political. True, she
contributed money to Sheahan’s campaign, but we
know that the average contribution of the officers who
were not promoted exceeded that of the officers who were.
Lacking evidence that she was unqualified ex ante,
Brown tosses in the alternative argument that she was
given preferential treatment because she’s a woman,
treatment that he says is a form of unlawful discrim-
ination because there was no basis for the Sheriff’s en-
gaging in affirmative action in favor of women. But
this is not a sex discrimination case, so it is no more
material that she was promoted illegally because of her
sex (if she was) than that she was promoted even though
she was less qualified than Brown (as we are assuming),
or because she had clout and he did not—unless her
“clout” consisted of her not being a Republican; but
it seems instead to have derived from her having been
the sister-in-law and former police partner of one of
Sheahan’s top advisers.
Brown argues that once he carries his initial burden
of showing that a reasonable jury could find that the
defendant was committed to denying him promotion
on the basis of his political affiliation (not that he has
carried it—he hasn’t), Sheahan shouldn’t be permitted
to argue that he would have passed over Brown for
some other, albeit unrelated, reason if that reason was
improper. That’s wrong. If all that’s charged is discrimina-
tion on political grounds, any nonpolitical ground that
the defendant can prove would have caused the discrimi-
nation regardless of the presence of political hostility

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8 No. 11-1953
will preclude liability. Cf. Visser v. Packer Engineering
Associates, Inc., 924 F.2d 655, 657 (7th Cir. 1991) (en banc).
Brown did ask the district judge to let him amend his
complaint to add a claim of sex discrimination in
violation of the equal protection clause; and if the judge
had allowed the amendment, Sheahan could no longer
have argued that the suit should be dismissed because
his preferential treatment of the female officer was at
worst based on her sex rather than on Brown’s politics.
But the judge cannot be faulted for having denied the
motion as untimely, coming as it did 56 months
after Brown filed suit and 13 months after Sheahan
made the statements on which Brown wanted to base
a claim of sex discrimination.
The most amusing evidence that Brown tendered to
support his claim of political discrimination consisted
of proof that he had several times made accurate pre-
dictions of upcoming promotions before they were
publicly announced—as verified by his having placed an
ad in the Chicago Tribune congratulating the promoted
officers before their promotions were announced and
by his mailing to himself a sealed letter, setting forth
his predictions, to be opened only by the judge in cam-
era. If anything, Brown’s ability to predict promo-
tions suggests that they are based on visible criteria—such
as being well regarded by one’s superiors—rather than
on the frequently secretive operation of clout.
Brown’s most interesting evidence consists of a
number of written admissions made by Sheahan in re-
sponse to requests for admissions served on him by

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No. 11-1953 9
Brown’s lawyer. Typical were the following: “Admit that
Tom Brown did not make any political contribution to
your campaign.” “RESPONSE: Admitted to the best of
my knowledge. I have no independent recollection of
contributions as to my campaigns.” “Admit that Tom
Brown did not attend any of your political campaign
fundraisers.” “RESPONSE: Admitted to the best of my
knowledge.” But although confusingly worded, the
responses were not admissions of the truth of the asser-
tions that Brown wanted Sheahan to admit. They were
merely admissions that Sheahan could not deny on the
basis of his own knowledge that Brown had not con-
tributed to his campaign or attended his fundraisers,
because he had had many contributors, and many
persons attended his fundraisers, and the requests for
admissions were served on him in 2010, eight years after
he’d last run for Sheriff. The phrase, in the first of the
admissions we quoted, “I have no independent recol-
lection of contributions as to my campaigns,” indicates
that he wasn’t admitting anything except that he
didn’t remember the information sought—especially con-
tributions that were not made to his campaign funds.
The briefs are long and we have given only a glimpse
of their contentious contents. But we have hit the high
spots, and for the rest are content to rely on the district
court’s opinion.
AFFIRMED.
10-25-11

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