his friend Mr. Johnson who is also African-American. Alternatively, plaintiff maintains that his name could have at least raised the inference that he may be of Hispanic descent and that defendant Quist, who should be familiar with the neighborhoods in his area, may have known that the home address given by plaintiff in his application to defendant Sugar Grove was located in a neighborhood in which seventy-five percent of the people who live there are Mexican-American. While this evidence does not directly prove that defendant Quist knew what plaintiff's race was, it does support circumstantially an inference that defendant Quist hod knowledge of plaintiff's race. This court must view the evidence in the light most favorable to plaintiff. Looking at the totality of the evidence, plaintiff has presented sufficient circumstantial evidence that could lead to the inference that defendant Quist knew of plaintiff's race and acted with the intent to discriminate against plaintiff due to plaintiff's race. The issue is one of credibility that cannot be determined at this time.
Finally, plaintiff has presented evidence that defendant Quist did not follow his customary practice when he hired the two, white police officers, Mr. Barna and Mr. Perkins. Defendant Quist's customary preliminary background check is to call the last few places where a candidate has been employed. Defendant Quist, however, never contacted the prior employers of Mr. Barna and Mr. Perkins. These prior employers were police departments. Another reason defendant Quist gives as justification for not hiring plaintiff is that when defendant Kelley allegedly told him that he could not talk about plaintiff, defendant Quist was unable to speak with a prior employer who could comment directly on plaintiff's prior police experience. Yet defendant Quist never spoke with Mr. Barna's or Mr. Perkins' prior employers who were police chiefs, who would have thereby provided defendant Quist with references about Mr. Barna's and Mr. Perkins' police experience. According to plaintiff's evidence, these references would have been extremely negative for both Mr. Barna and Mr. Perkins. Given the evidence presented by plaintiff, there remains an unresolved issue as to the unequal treatment defendants Sugar Grove and Quist gave to Mr. Barna and Mr. Perkins versus plaintiff.
The evidence, when viewed in the light most favorable to plaintiff, is sufficient to raise a factual issue as to the motivation underlying defendant Quist's conduct. Plaintiff has presented evidence to raise an inference that the reasons articulated by defendant Quist for not hiring plaintiff are not credible and are thus a pretext for racial discrimination. There remains a material question of fact as to whether defendant Quist intended to discriminate against plaintiff based on plaintiff's race when he did not hire plaintiff and yet hired two, white officers who plaintiff maintains are less qualified and were hired under vastly differently criteria than what plaintiff faced. Whether defendants Sugar Grove and Quist improperly acted with a discriminatory motive cannot be determined at this juncture. Accordingly, defendants Sugar Grove's and Quist's motion for summary judgment on Count III of plaintiff's third amended complaint is denied.
Defendant Quist asserts that he is entitled to immunity from suit based on the doctrine of qualified immunity. Qualified immunity shields government officials, acting in their official capacity, from liability for civil damages if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982). "When the law is settled on a particular point, public employees are expected to conform their conduct accordingly, and they may be held liable when they do not." Smith v. Fruin, 28 F.3d 646, 650 (7th Cir. 1994), cert. denied, 513 U.S. 1083, 115 S. Ct. 735, 130 L. Ed. 2d 638.
To determine whether qualified immunity is applicable in a case, the court must make a two part inquiry: (1) does the alleged conduct set out a constitutional violation; and (2) were the constitutional standards clearly established at the time in question. Hill v. Shelander, 992 F.2d 714, 717 (7th Cir. 1993). Intent is relevant to the first part of the inquiry, but not to the second part. Wade v. Hegner, 804 F.2d 67, 70 (7th Cir. 1986). Thus, the defendant's subjective state of mind is relevant only to the determination of whether a constitutional violation exists but not in deciding if the constitutional standard was clearly established. Auriemma v. Rice, 910 F.2d 1449, 1453 (7th Cir. 1990), cert. denied, 501 U.S. 1204, 111 S. Ct. 2796, 115 L. Ed. 2d 970 (1991).
The first inquiry is whether plaintiff has alleged a constitutional violation. The evidence must be viewed in the light most favorable to plaintiff. Hill, 992 F.2d at 718-19. Plaintiff has alleged that defendant Quist violated his right to equal protection when defendant Quist made his hiring decision for defendant Sugar Grove's police department. Plaintiff claims that defendant Quist's actions were racially motivated. As stated above, there remain disputed issues of fact on the issue of whether defendant Quist's proferred reasons for not hiring plaintiff were mere pretext for racial discrimination and whether defendant Quist thus acted with the intent to racially discriminate against plaintiff. Plaintiff has presented evidence that the two, white police officers that were subsequently hired by defendant Quist were not evaluated under defendant Quist's customary policy for evaluating candidates and thus faced vastly different hiring criteria than plaintiff. As stated above, plaintiff has sufficiently alleged a constitutional violation based on a violation of his equal protection right to not be discriminated against based on his race. At a minimum, plaintiff has raised genuine issues of fact regarding defendant Quist's discriminatory intent.
In the second inquiry, the court must "determine whether, at the time of the alleged illegal act, the right asserted by the plaintiff was clearly established in the particular factual context presented." Polenz v. Parrott, 883 F.2d 551, 554 (7th Cir. 1989). In this case, the law at the time of the incident in question was clearly established. Plaintiff alleges that defendant Quist violated his right to equal protection when defendant Quist did not hire him and hired two, less qualified, white police officers in violation of defendant Quist's customary hiring practice. Plaintiff claims that defendant Quist's actions were racially motivated. A government official cannot practice racial discrimination when making hiring decisions. This constitutional standard was sufficiently clear in 1994 that a reasonable official would have understood that what he or she was doing, given the facts of this case, violated the right to be free from racial discrimination. Whether, in fact, defendant Quist violated this right cannot be determined at this juncture.
Defendant Quist argues that he is entitled to qualified immunity because he states that he never knew what plaintiff's race was during the events at issue in this case. Plaintiff claims that he has presented evidence to demonstrate that defendant Quist's knowledge of plaintiff's race can be inferred. Defendant Quist relies on Fiorenzo v. Nolan, 965 F.2d 348 (7th Cir. 1992), to support his position that he is entitled to qualified immunity. In Fiorenzo, the court affirmed a grant of qualified immunity to the Chief of the Sheriff's Police Department who was sued by officers alleging that they were improperly transferred by the Chief due to their race and political affiliation. Id. at 351-52. In the Chief's deposition, he had stated that he did not know the race or the political affiliations of the plaintiffs prior to the transfers. Id. at 352. The court said that since there was no evidence to rebut that testimony, no constitutional violation was proven. Id. In this case, however, as stated above, plaintiff has presented circumstantial evidence of defendant Quist's intent to not hire plaintiff because of plaintiff's race that serves to rebut defendant Quist's denial of ever knowing plaintiff's race and leaves the issue of defendant Quist's intent a material question of fact that cannot be decided at this time.
Because defendant Quist's alleged conduct sets out a constitutional violation and because the constitutional standard was clearly established at the time of the alleged violation, defendant Quist is not entitled to qualified immunity at this stage of the proceedings. Accordingly, defendants Sugar Grove's and Quist's motion for summary judgment on Count III of plaintiff's third amended complaint is denied.
Based on the above stated reasons, defendant Kelley's motion for summary judgment is GRANTED as to Counts I and II and DENIED as to Count III and defendants Village of Sugar Grove's and Quist's motion for summary judgment on Count III is DENIED. The parties are strongly urged to discuss the settlement of this case. This case is set for report on status at 10:00 a.m. on June 18, 1997.
JAMES F. HOLDERMAN
United States District Judge
DATED: May 30, 1997