Appeal from the United States District Court for the Southern District of Indiana, New Albany Division. No. NA 98-0018-C-G/H--John P. Godich, Magistrate Judge.
Before Flaum, Chief Judge, and Bauer, and Rovner,
The opinion of the court was delivered by: Rovner, Circuit Judge.
Kenneth O'Neal sued the City of New Albany, Indiana, its police merit commission, and the local police pension board for racial discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. §§ 1981 and 1983, and for violating the Americans with Disabilities Act (ADA), 42 U.S.C. § 12112(d). The magistrate judge, handling the case with the parties' consent, granted summary judgment for the defendants on all counts. We affirm the judgment with respect to O'Neal's ADA claim, but because O'Neal is entitled to a trial on his race discrimination claims, we vacate in part and remand the case to the district court for further proceedings.
O'Neal, who is African-American, has been trying to become a New Albany police officer for nearly twenty years. He first applied in 1983, when he was 25 years old. The city rejected his application, and he reapplied the next year. This time the police merit commission placed him on its list of eligible candidates. The commission ranked O'Neal sixth on the list, and the city hired two white applicants. O'Neal then filed charges of race discrimination against the city with the EEOC, claiming that less-qualified white candidates were ranked above him on the eligibility list. The EEOC found probable cause to believe that the city's hiring practices indeed discriminated against African-Americans. O'Neal received a notice of right to sue, which he did in 1990. The parties settled this suit in October 1995.
In December 1993, while his suit was pending, O'Neal applied to become a New Albany police officer for the third time. He was 35 years old. Shortly thereafter, O'Neal passed a written examination and was interviewed by three members of the merit commission. No positions were available until early 1995, but when a position opened up, the city again hired a white applicant. In 1996, partly as a response to O'Neal's lawsuit, the commission adopted an affirmative action hiring plan that created two eligibility lists, one for all applicants and another for minority applicants. The merit commission alternated in selecting the top person from each list as positions became available. O'Neal was ranked third on the minority list, and by the time a position opened up later that year, the top two individuals had dropped out making O'Neal the number-one candidate. By then, however, O'Neal was 38 years old. Nevertheless, a merit commission representative called O'Neal to confirm that he was still interested in the job. O'Neal said that he was, and so the commission informed the chief of police, Mathie Anderson, that O'Neal was the top candidate. Police captain Mike Mills then arranged for O'Neal to take a medical examination that is required by the Public Employees Retirement Fund, or PERF. PERF administers the 1977 Police Officers and Firefighters Pension and Disability Fund, in which all new New Albany police officers must participate. Chief Anderson and Captain Mills are members of the local police pension board.
Dr. Howard Pope, an independent physician who performs medical examinations for the local pension board, examined O'Neal in February 1997. Several weeks later, O'Neal was told that he had "flunked" the medical examination because of heart problems. O'Neal then went to see his cardiologist, who wrote Dr. Pope a letter stating that O'Neal's heart was in good condition and that his high blood pressure was well-controlled with medication. O'Neal also underwent a treadmill stress test, which showed normal cardiac functioning. After receiving this information, Dr. Pope concluded that O'Neal did not suffer from coronary disease. Nonetheless, Dr. Pope refused to certify O'Neal as having passed the examination without additional medical tests that would have cost O'Neal $1,500. O'Neal did not have these tests performed, and Anderson and Mills refused to forward O'Neal's medical information to PERF for approval. O'Neal complained to the merit commission but was told that nothing could be done; it was up to Dr. Pope and the local pension board. His information was never sent to PERF for approval, and as a result, the city did not hire him. No one told O'Neal that his information was not being forwarded to PERF because he now was over 36 years old.
In May 1997 O'Neal filed charges of race and disability discrimination against the city with the EEOC. After receiving a right-to-sue letter, O'Neal filed suit in federal district court claiming that the defendants discriminated against him on the basis of race and that their medical examination violated the ADA. *fn1 He seeks make-whole relief of back and front pay, damages for his mental suffering, and an injunction preventing future discrimination and instating him as a New Albany police officer with seniority. The parties consented to have the case heard by a magistrate judge under 28 U.S.C. § 636(c). The magistrate judge granted summary judgment in favor of the defendants, concluding that O'Neal could not make out a prima facie case of race discrimination because his age disqualified him from employment as a police officer in Indiana. The magistrate judge concluded that O'Neal's ADA claim likewise failed because he could not prove that any injury resulted from the medical examination. O'Neal moved to vacate the judgment under Federal Rule of Civil Procedure 59(e). The magistrate judge denied that motion, and O'Neal appeals.
We review a grant of summary judgment de novo, viewing all the facts and inferences in a light most favorable to the nonmoving party. Johnson v. Nordstrom, Inc., 260 F.3d 727, 731 (7th Cir. 2001). Summary judgment is appropriate only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Generally, if the plaintiff presents evidence from which an inference of discrimination could be drawn, summary judgment is improper and a trial is required. Fuka v. Thomson Consumer Elec., 82 F.3d 1397, 1402 (7th Cir. 1996).
A. Race Discrimination Claims
Under Title VII, as well as § 1981, race discrimination can be proved by direct or indirect evidence. Vakharia v. Swedish Covenant Hosp., 190 F.3d 799, 806 (7th Cir. 1999). O'Neal lacks direct proof of discrimination, and so he relies on the indirect, burden-shifting approach delineated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this approach, O'Neal must first make out a prima facie case of discrimination by showing that: (1) he is a member of a protected class; (2) he applied and was qualified for the position sought; (3) he was rejected; and (4) the position remained open and the city continued to seek applicants. See id. at 802. To withstand summary judgment on the prima facie case, O'Neal need only show that there is a genuine issue of material fact regarding these elements. See Stalter v. Wal-Mart Stores, Inc., 195 F.3d 285, 289 (7th Cir. 1999).
The parties do not dispute that O'Neal satisfied the first, third, and fourth elements. But the defendants contend that the magistrate judge correctly concluded that O'Neal failed to establish the second prong. In so holding, the magistrate judge relied on Indiana Code § 36-8-4-7(a), which provides that a "person may not be appointed as a member of the police department or fire department after the person has reached thirty-six (36) years of age." O'Neal had turned 36 by the time any positions were available, and so, the magistrate judge reasoned, O'Neal could not prove that he was qualified for the job. We disagree. An employer may still be liable for race discrimination under Title VII even though it later discovers information that would have otherwise disqualified the plaintiff from employment. See McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352, 356-60 (1995). In McKennon, the Court held that evidence of an employee's misconduct that would have led to her termination, but was not discovered until after she was fired and litigation ensued, did not bar the employee's age discrimination claim; rather, such afteracquired evidence merely affected her remedy. Id. at 359-60; Venters v. City of Delphi, 123 F.3d 956, 974 (7th Cir. 1997). The Court explained that private litigants who seek redress for their injuries vindicate Title VII's objective of eliminating discrimination in the workplace. That purpose, the Court stated, would not be served if an employer was free to discriminate against an ...