Stephen Radentz v. Marion County

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1523
STEPHEN RADENTZ, et al.,
Plaintiffs-Appellants,
v.
MARION COUNTY, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:07-cv-01161-WTL-DML—William T. Lawrence, Judge.
ARGUED SEPTEMBER 20, 2010—DECIDED APRIL 5, 2011
Before EASTERBROOK, Chief Judge, and POSNER and
ROVNER, Circuit Judges.
ROVNER, Circuit Judge. The plaintiffs-appellants
Stephen Radentz, Michele Catellier, and Forensic Pathol-
ogy Associates of Indiana, brought an action under 42
U.S.C. § 1983 alleging that the defendants violated their
rights under the Equal Protection Clause of the Four-
teenth Amendment. The suit was brought against
Marion County, as well as against Kenneth Ackles indi-
vidually and in his official capacity as Marion County

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2 No. 10-1523
Coroner, and Alfarena Ballew, individually and in her
official capacity as Chief Deputy Coroner. The suit
alleged that the defendants’ decision to terminate the
plaintiffs’ contract of employment was based on race
discrimination, and specifically was part of a broader
effort to replace white workers with African-American
workers. The district court granted the defendants’
motion for summary judgment against Radentz and
Catellier, and the plaintiffs now appeal that determination.
We consider the facts as set forth by the district court,
in the light most favorable to the plaintiffs, the non-
moving party. Casna v. City of Loves Park, 574 F.3d 420, 424
(7th Cir. 2009). In November 2004, Dr. Kenneth Ackles,
an African-American chiropractor, was elected Marion
County Coroner. At that time, the Marion County Coro-
ner’s Office (the “Coroner’s Office”) had a contract with
Indiana University, whereby the University provided
the Coroner’s Office with physicians and support staff
who performed forensic pathology services and autopsies.
The contract was a financial boon to the Coroner’s
Office, because it essentially subsidized Marion County
in the amount of several hundred thousand dollars
each year. That contract expired on December 31, 2004,
the day before Ackles took office, but Indiana University
continued to provide forensic pathology services despite
the expiration of the contract. Ackles’ Chief Deputy
Coroner, John Linehan, learned in April 2005, that
Indiana University had not been paid for its services
since January 2005. Indiana University eventually termi-
nated its contract with the Coroner’s Office, providing
60 days’ notice of that termination in July 2005.

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No. 10-1523 3
That decision sparked the search for a replacement. In
order to ensure the continuity of autopsy services in
the Coroner’s Office, Linehan contacted Dr. Radentz and
Dr. Catellier, who were both board-certified forensic
pathologists employed by Indiana University and who
had been performing autopsy services for the Coroner’s
Office under its contract with the University. Radentz
and Catellier formed a limited liability company,
Forensic Pathology Associates of Indiana (“Forensic
Pathology”), and the parties negotiated a contract
designed to replicate closely the Indiana University con-
tract. They entered into a five-year contract in Septem-
ber 2005 under which Forensic Pathology would pro-
vide forensic pathology services to the Coroner’s Office
and would perform autopsies upon request. The
contract also allowed Forensic Pathology to provide
outside autopsies for other counties, and required the
Coroner’s Office to furnish all of the supplies for such
autopsies. According to the plaintiffs, because Forensic
Pathology was allowed to make additional money by
performing outside autopsies, it was able to charge the
Coroner’s Office a lower price for Marion County’s own
autopsies. The contract provided that it could be termi-
nated by either party without cause on six months’
notice. It further provided that upon six months’ notice,
the Coroner’s Office could cause Forensic Pathology to
cease performing outside autopsies. It is undisputed
that the contract between Forensic Pathology and the
Coroner’s Office was more costly for Marion County
than the one with Indiana University, in which the Uni-
versity effectively subsidized some of the costs.

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4 No. 10-1523
In November 2005, Ackles terminated Linehan, ulti-
mately replacing him with Alfarena Ballew, an African-
American woman. Linehan subsequently filed a
complaint of reverse race discrimination against the
Coroner’s Office, which was successful. See Marion County
Coroner’s Office v. EEOC, 612 F.3d 924 (7th Cir. 2010).
Almost immediately, Ballew took charge of most of the
day-to-day decisions at the Coroner’s Office, with only
minimal input or oversight by Ackles. Ballew began
expressing concern about the costs of the contract with
Forensic Pathology. The defendants devote much of their
briefs in this appeal to detailing each conversation,
letter, or notation indicating Ballew’s dissatisfaction
with the costs of the contract, and more specifically
her concerns over the costs of providing the sup-
plies for the outside autopsies. We will not repeat
those facts here, because we can assume that Ballew was
legitimately concerned that the costs of the supplies
for outside autopsies were excessive. The Coroner’s
Office ultimately terminated the contract with Forensic
Pathology under the contract provision that allows termi-
nation without cause upon six months’ notice. Although
no reason for the termination was given at the time,
the defendants assert that the termination was based
on the legitimate, nondiscriminatory reason of budgetary
concerns regarding Forensic Pathology’s use of the Coro-
ner’s Office supplies to perform out-of-county autop-
sies. The plaintiffs, however, maintain that the termina-
tion of the contract was actually based on the defendants’
desire to replace them with African-Americans.

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No. 10-1523 5
In order to succeed on their claim, the plaintiffs first
must demonstrate by a preponderance of the evidence
that they were the victims of intentional discrimination
when the defendants terminated the Forensic Pathology
contract. They may do so through direct proof of dis-
criminatory intent or they may prove such intent
through the indirect method outlined in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See Williams
v. Seniff, 342 F.3d 774, 788 n. 13 (7th Cir. 2003) (“Our
cases make clear that the same standards for proving
intentional discrimination apply to Title VII and § 1983
equal protection.”). The district court held that the plain-
tiffs met their burden under the indirect method,
and no one contests that determination on appeal. Under
that approach, the plaintiffs must first establish by a
preponderance of the evidence a prima facie case
of discrimination, which then creates a presumption
that the employer unlawfully discriminated against the
plaintiffs. Id. at 788. Once that prima facie case is met,
the burden shifts to the employer to produce evidence
of a legitimate, nondiscriminatory reason for the action
alleged to be discriminatory, in this case the termination
of the contract. Id. If the employer satisfies that burden
of production, the plaintiffs must establish by a prepon-
derance of the evidence that the proffered reasons for
the alleged discriminatory action are pretextual. Id.
The district court conflated the prima facie and
pretext inquiries, noting that under the indirect method,
the prima facie and pretext analyses often overlap and
that courts can proceed directly to the pretext inquiry
if the defendants offers a nondiscriminatory reason for

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6 No. 10-1523
their action. Adelman-Reyes v. Saint Xavier University,
500 F.3d 662, 665 (7th Cir. 2007). The parties likewise
focus solely on whether the plaintiffs have established a
genuine issue of fact as to whether the nondiscrimina-
tory reason provided by the defendants was pretextual.
The defendants contend that the contract was
terminated because it was too costly, and specifically
that the cost of providing supplies for the out-of-county
autopsies was prohibitively expensive. The defendants
specifically deny any concerns with the quality of the
plaintiffs’ work. In fact, in a letter three months after
the termination notice was given, Ackles indicated a
desire to retain the plaintiffs, noting that their work
was valuable and essential to the office. Ballew similarly
indicated that she had no problems with the quality
of their work, and maintained that she was interested
in retaining them.
In order to demonstrate that the reason for the termina-
tion was pretextual, the plaintiffs must demonstrate
that the nondiscriminatory reason was dishonest and
that the defendants’ true reason was based on discrim-
inatory intent. An employer’s justification may be con-
sidered pretextual where the plaintiff demonstrates that
it had no basis in fact, it did not actually motivate
the decision to terminate employment, or it was insuf-
ficient to motivate that decision. Davis v. Wisconsin Dept.
of Corrections, 445 F.3d 971, 977 (7th Cir. 2006); Davis v. Con-
Way Transp. Cent. Express, Inc., 368 F.3d 776, 784 (7th
Cir. 2004). The focus for the court is not whether the
defendants’ decision was a wise one, but whether it was

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No. 10-1523 7
honestly believed. “If a reasonable factfinder would be
compelled to believe [the defendants’] explanation, then
the [defendants are] entitled to summary judgment.”
Argyropoulos v. City of Alton, 539 F.3d 724, 736 (7th Cir.
2008); Culver v. Gorman & Co., 416 F.3d 540, 547-48
(7th Cir. 2005). A review of the evidence reveals that a
reasonable factfinder would not be compelled to believe
that the contract was terminated because it was too
expensive, and therefore the district court improperly
granted summary judgment.
The sole justification for the termination was that
the use of Marion County supplies for out-of-county
autopsies rendered the contract too expensive. As was
noted, there is ample evidence in the record that Ballew
was concerned about the cost of the contract because
of the extra-county autopsies. Although the plaintiffs
dispute whether Ballew honestly believed the costs
were excessive, or whether she used that as a hook to
disturb the contract, we can assume for this opinion
that the defendants were indeed concerned with the
expense of the supplies under the contract. The ques-
tion remains whether the termination of the contract
was based on those concerns.
The contract provision with which Ballew took issue
was provision K, which in conjunction with provision
B.4 allowed the plaintiffs to use Marion County facilities
and supplies to conduct out-of-county autopsies, for
which the county received no payment. Provision B.4
provided that the Coroner’s Office was responsible
for “furnishing any and all supplies and other materials

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8 No. 10-1523
necessary to provide the services described in this Agree-
ment.” The authority to perform out-of-county autopsies
authority was set forth in provision K of the contract,
which provides in its entirety:
Contractor’s Use of Facility
The Coroner acknowledges and consents to the Con-
tractor performing the same or similar services for
political subdivisions within Indiana in the Coroner’s
facility. The Coroner may, in its sole discretion and
without cause, request that the Contractor cease
performing such services upon six (6) months’ written
notice to the Contractor.
Those provisions indeed authorize the use of County
facilities for out-of-county autopsies. Provision K also,
however, provides for the termination of that authority
upon six months’ notice. Although the plaintiffs note
in their opening brief that the defendants had that
ability to end the extra-county autopsies, the defendants
do not explain why that option was not exercised. At
oral argument, counsel for the defendants asserted
that they did not exercise that option because they
feared that if they were to do so, the plaintiffs would
find the contract too unprofitable and would exercise
their option to terminate the contract. Essentially, the
defendants are asserting that they terminated the
contract because if they just modified it the plaintiffs
might terminate it. That is nonsensical.
In their briefs to this court, the defendants appear to
believe that it is not our province to inquire as to why
they chose to terminate rather than modify the con-

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No. 10-1523 9
tract, and that we cannot examine the wisdom of their
business decisions. They further argue that the plain-
tiffs brought a discrimination complaint based on the
termination, not based on a failure to renegotiate the
contract. We do not examine the wisdom of busi-
ness decisions, but we do consider whether the asserted
justification for the termination was honestly-held. That
determination is relevant to the claim of discriminatory
termination. Here, the defendants consistently have
maintained that they were pleased with the quality of the
plaintiffs’ services, and that they wished to retain the
services of the plaintiffs, but that they could not do
so because the out-of-county autopsies rendered the
contract too expensive. They failed, however, to utilize
the contract provision that would have directly met
both of those professed desires—it would have elimi-
nated the extra expense while retaining the services
of the plaintiffs. Nor could the requirement of six
months’ notice have been a factor in that choice, because
in terminating the contract, the defendants relied on
the provision for terminating without cause, and gave
the six months’ notice required by that provision.
The failure to exercise the right under provision K
to eliminate the troublesome expenses, and to instead
terminate the contract, casts doubt on whether the ex-
pense was actually the reason for the termination.
Those doubts are magnified by other evidence in the
record. Although the defendants expressed a desire to
retain the services of the plaintiffs, there is evidence
that, if believed, would indicate that they made no real
efforts to negotiate a new contract or rehire the plain-

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10 No. 10-1523
tiffs. Instead, they hired an African-American woman,
Dr. Joye Carter, for the position of forensic pathologist,
and there is evidence indicating that was their intent
from the outset. When Ackles was first elected, he met
with Linehan and discussed ways to hire more African-
Americans and to replace white workers in the
Coroner’s Office. Linehan was concerned about the
legality of such a suggestion and he consulted with
the Office of Corporation Counsel which confirmed to
Ackles that he could not fire white workers solely to
install more African-American employees. In Janu-
ary 2005, Ackles expressed to Linehan his desire to hire
an African-American pathologist, and specifically men-
tioned Dr. Joye Carter. That the defendants in fact
hired Dr. Carter to replace the plaintiffs allows an in-
ference that the termination of the contract was the cul-
mination of a plan to replace the white Indiana
University pathologists with an African-American.
The district court was dismissive of the relevance of
those statements, noting that they occurred well before
the Forensic Pathology contract was signed and charac-
terizing them as mere stray comments unrelated to the
decision to terminate Forensic Pathology. The timing
of the comments is relevant, and the court properly
noted that after indicating the desire to hire an African-
American forensic pathologist in January 2005, Ackles
nevertheless entered into a contract with the defendants
who are white in September 2005. That does not render
the race-based statements “stray comments,” however,
given the urgency surrounding the initial contract with
Forensic Pathology. In April 2005, Indiana University

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No. 10-1523 11
informed Linehan that it had not been paid for its
services for some time, and in July 2005 the University
sent a 60-day notice terminating its contract. Because
the investigation and prosecution of crimes is dependent
on autopsies and pathologist testimony, Ackles was
faced with the need to find a replacement quickly to en-
sure a seamless transition. The hiring in September 2005
of the pathologists who had been working for Indiana
University must be viewed in that context. Moreover,
Linehan was the Chief Deputy Coroner at the time of the
contract with Forensic Pathology. Ballew took over his
position in December 2005. Within just nine months
after Forensic Pathology began its five-year contract,
and six months after Ballew became Chief Deputy
Coroner, the defendants issued a notice terminating
that contract. They then replaced the plaintiffs with an
African-American, Dr. Carter. Given that sequence of
events, the hiring of the white plaintiffs does not
neutralize Ackles’ earlier comments that he desired to
replace white employees with African-Americans. See
Marion County Coroner’s Office, 612 F.3d at 930 n. 6 (in
discrimination case brought by Linehan, a white male,
court considered the defendant Ackles’ stated preference
for hiring African-Americans even though Ackles
initially hired Linehan and another white employee,
where Linehan was retained for the sake of continuity
in the office and the white male who replaced him
took over on an interim basis for only a few weeks
until Ballew, an African-American, was hired). The
need for a quick transition and the short duration of the
Forensic Pathology contract allows for an inference that

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12 No. 10-1523
their hiring was merely as a placeholder while the de-
fendants pursued the goal of hiring African-Americans.
Therefore, the court erred in dismissing outright any
consideration of the clear statement by Ackles that
he wanted to replace white workers with African-Ameri-
cans, and that he wanted to hire an African-American
pathologist. Those statements provide some support
for the plaintiffs’ claim that their termination was race-
based.
Adding to the impact of that progression of events
is the manner in which the hiring decision was made.
There is evidence indicating that no national search
was undertaken to fill the position and Ballew acknowl-
edged that to her knowledge the position was not
even posted with the National Association of Medical
Examiners. Ballew indicated that Dr. Carter was the
only individual interviewed in person for the position
of Chief Forensic Pathologist. Evidence further indicates
that the Coroner’s Office did not receive letters of recom-
mendation for Dr. Carter until after she was offered
the position. The sequence of events, and the manner
in which it occurred, further indicates that the decision
to terminate the contract rather than exercise the
provision K rights was race-based.
Other evidence lends further support to that conclu-
sion. The racial makeup of the office changed significantly
during Ackles’ tenure. As a whole, the office went
from 16.67% African-Americans to 36%. That figure,
however, includes the large number of part-time em-
ployees, who according to plaintiffs work only sporadic

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No. 10-1523 13
hours and receive no benefits. The racial change was
even more dramatic when considering full-time em-
ployees. From the time of Ackles’ election to the end
of 2007, the Coroner’s Office changed from 8 full-
time white employees to 6, and the number of African-
American employees transitioned from 2 full-time em-
ployees to 7, or 54% of the full-time workforce. All three
full-time supervisory positions were held by African-
Americans. The plaintiffs produced evidence that the
change was not inadvertent, citing a statement made
during the search for the replacement for the defendants.
One of the receptionists heard Ackles discussing how to
replace the doctors, in which he laughingly told Ballew
“I will put my people where they belong.” That state-
ment was construed as again indicating a desire to
place African-Americans in the positions.
Finally, the evidence indicated that the termination of
the defendants’ contract and the hiring of Dr. Carter did
not result in any financial benefit. Moreover, in response
to questioning at deposition, Ballew stated that she had
conducted an analysis of forensic pathology services
prior to terminating the Forensic Pathology contract,
and that the analysis did not lead her to conclude that
terminating Forensic Pathology’s contract would save
the county money. The district court again dismissed
the evidence of the lack of financial savings based on
the caution that we should not second-guess the defen-
dants’ legitimate business decisions. That is an important
proviso, but the financials are nevertheless relevant to
the question as to whether the cost of the contract was
the true reason for its termination. The lack of monetary

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14 No. 10-1523
savings—or even of an attempt to achieve monetary
savings with Dr. Carter’s contract—is relevant to the
determination as to whether the need for cost savings
was the driving force in the decision to terminate the
contract.
Taken as a whole, we cannot conclude that a jury
would have been compelled to believe the defendants’
explanation. The plaintiffs have produced evidence
casting doubt as to whether the decision was truly
based on the allegedly exorbitant costs of the out-of-
county autopsies. The ability to end those autopsies
upon six months’ notice under provision K of the
contract, without terminating the contract itself, is a
significant factor, particularly given the defendants’
claims that they were pleased with the quality of the
plaintiffs’ work and wanted to retain them. The other
evidence cited above further indicates that race, rather
than cost concerns, were the true reason for the deci-
sion. The issue before us is whether summary judg-
ment was proper. There is a factual dispute as to
whether the decision to terminate the contract was
based on a nondiscriminatory reason or whether it
was race-based. Therefore, the decision of the district
court is REVERSED and the case REMANDED for further
proceedings consistent with this opinion.
4-5-11

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