police officer...they don't want old fucks like you." (Teall Dep. at 165). Officer Sodergren told Mr. Teall he should quit the force and go back to working at Streets and Sanitation. Mr. Teall also alleges that Officer Sodergren would throw Mr. Teall's assignment sheets on the floor and then ask Mr. Teall if he was "too old to go down and get it." (Teall Dep. at 166).
Additionally, Officer Sodergren told Mr. Teall that he held Mr. Teall's job in his hands and he could give the job to Mr. Teall or take it away from him. (Teall Dep. at 155-56). Officer Sodergren informed Mr. Teall that he had gotten another officer fired. (Teall Dep. at 202). Taken as a whole, Officer Sodergren's comments are strong circumstantial evidence of intentional discrimination based on Mr. Teall's age. Since, according to Officer Sodergren, he knew how to get someone fired, a rational factfinder could conclude that Officer Sodergren was aware that poor marks on the PPOPE were an effective method to derail Mr. Teall's career. Officer Sodergren evaluated Mr. Teall twice in PPOPE forms and was uniformly negative in his assessment of Mr. Teall on both occasions. These PPOPE forms were presented to the Review Board when they considered Mr. Teall's case.
Officer Sodergren's evaluation conflicts with those of Officers Ladendorf and Vick. Officer Ladendorf, in Mr. Teall's third evaluation, concluded that Mr. Teall was intelligent, performing his duties properly, and was likely to be a good police officer. Officer Vick also wrote that Mr. Teall would be a good police officer. While both Officers indicated Mr. Teall needed further training, their evaluations of Mr. Teall stand in stark contrast to those completed by Officer Sodergren.
The City argues that Officer Sodergren's bias is irrelevant because it is solely the state of mind of the Review Board, the Superintendent, and those working under the Superintendent who ultimately approved Mr. Teall's discharge, that are relevant. The Seventh Circuit has found, however, that "summary judgment generally is improper where the plaintiff can show that an employee with discriminatory animus provided factual information or other input that may have affected the adverse employment action." Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1459 (7th Cir. 1994) (emphasis added); accord Mills v. First Fed. Sav. & Loan Ass'n of Belvidere, 83 F.3d 833, 841 (7th Cir. 1996) ("Statements which constitute direct evidence of discrimination may come from either an employer or his or her agents."); Fuka, 82 F.3d at 1404 n.5.
The City's argument is substantially similar to one proffered by the defendant in Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990). In Upjohn, an employee was fired, not by his supervisor, but by a Career Path Committee. The court found that the employee's supervisor had set the employee up to fail and influenced the Committee's deliberations by portraying the employee's performance in a poor light. Id. The Committee was not aware of the supervisor's possible age animus. The court found that the supervisor's violation of the ADEA could be imputed to the employer. Finding that the supervisor's influence may have been decisive, the court reversed the district court's grant of summary judgment. In the instant case, Officer Sodergren's possibly tainted PPOPE reports were not only presented to the Review Board, but Officer Sodergren testified before the Review Board, negatively commenting on Mr. Teall's abilities. Patrol Specialist Liaison Guiney, who was present at the Review Board's inquiry, found Officer Sodergren's testimony "damaging" to Mr. Teall's chances of becoming a police officer. (Guiney Dep. at 74).
The City responds by noting that Officers Wenger, Ladendorf, and Vick all testified negatively regarding Mr. Teall's abilities as a police officer and the Review Board did not consider Officer Sodergren's testimony any more important than the other officers. This may be, but as the Dey court noted, the issue is not whether Officer Sodergren's testimony and PPOPE forms were the decisive factors in the Review Board's decision, but whether Officer Sodergren's input "may have affected" the decision to terminate Mr. Teall. 28 F.3d at 1459. If Mr. Teall's evidence is believed, and it must be at this stage of the case, Officer Sodergren's actions are similar to those of the supervisor in Upjohn. Thus, Officer Sodergren's bias may be imputed to the City and is evidence of a direct violation of the ADEA.
The City also argues that Officer Sodergren's alleged statements should be disregarded since they were not made contemporaneously with the employment decision and were not related to the employment decision. Discriminatory remarks must be "related to the employment decision in question...." McCarthy v. Kemper Life Ins. Companies, 924 F.2d 683, 686 (7th Cir. 1991). A rational factfinder could conclude that Officer Sodergren's remarks indicate a discriminatory bias which pervaded his assessment of Mr. Teall and thus, because they were relied upon by the Review Board, are related to Mr. Teall's employment decision.
This issue could have been resolved had the Review Board considered the possibility of age bias by those officers testifying. The Review Board was presented with testimony that indicated such bias existed. Officer Sodergren testified that he was unsure whether Mr. Teall could perform the functions that "22 and 23 year old gung ho [sic] kids...should be doing...." (Review Board Trans. at 15.) Officer Sodergren further opined that some members of the Sixteenth District believed Mr. Teall had Alzheimer's disease. In the absence of confirming evidence, this is additional circumstantial evidence that Officer Sodergren was biased against Mr. Teall.
Mr. Teall raised the issue of age discrimination with the Review Board. He testified before the Review Board that Officer Sodergren "always made a reference to my age and what do I want this job for." (Review Board Trans. at 40). The Review Board then asked Mr. Teall his age. After getting a response, Patrol Liaison Guiney commented to another Review Board member, in obvious jest, that compared to the Review Board member, Mr. Teall was "[a] young man." Id. This ended the issue. Had the Review Board taken Mr. Teall's allegations seriously, it may have determined that Officer Sodergren was a biased witness and disregarded his testimony and PPOPE forms. As the evidence stands now, there is no indication the Review Board considered the possibility Officer Sodergren was biased against Mr. Teall due to his age.
The City argues that even if Officer Sodergren was biased, Mr. Teall was not qualified to be a police officer. If Officer Sodergren's PPOPE forms are disregarded, I believe there is a genuine issue of fact as to whether Mr. Teall was qualified to be a police officer. Both Officers Ladendorf and Vick indicated in PPOPE evaluations that Mr. Teall would be a good police officer. According to Mr. Teall, after an additional two weeks of training, Officer Ladendorf told him he had passed and was field qualified. At some point, Officer Ladendorf's view of Mr. Teall's abilities changed. Officer Ladendorf added a page of negative comments to Mr. Teall's fifth PPOPE, which Mr. Teall claims were not included when he signed his fifth PPOPE form. Officer Ladendorf also testified negatively regarding Mr. Teall's abilities before the Review Board.
Officer Vic's testimony before the Review Board, however, was more complimentary of Mr. Teall's abilities. Officer Vic indicated Mr. Teall initiated police activity, handled traffic stops properly, wrote tickets properly, and could generally function as a police officer. Given the totality of the evidence, there is a genuine issue of fact as to whether Mr. Teall was qualified to be a police officer.
"A little common sense is not amiss in a discrimination case." Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1400 (7th Cir. 1997). Mr. Teall presents evidence that Officer Sodergren remarked about Mr. Teall's age on a daily basis, questioning his desire to be a police officer, and arguing the job was more appropriate for a younger individual. This bias may have colored his PPOPE forms and testimony before the Review Board. Officer Sodergren's bias may be imputed to the City and may have influenced the Review Board. During Mr. Teall's training, two other officers found that he would likely be a good police officer. It may be that Mr. Teall was unqualified to be a police officer. But, given the evidence, it is premature at this time to state, as a matter of law, that the City's decision to discharge Mr. Teall was not based, in part, on illicit age bias. Accordingly, the City's motion for summary judgment is denied.
Elaine E. Bucklo
United States District Judge
Dated: December 3, 1997