discrimination by proving his prima facie case by a preponderance of the
evidence. See Robin, 200 F.3d at 1088. The burden then shifts to the
employer to articulate a legitimate non-discriminatory reason for its
action. Id. If the employer does so, the presumption of discrimination
disappears, and the plaintiff must prove by a preponderance of the
evidence that the employer's stated reasons are a pretext for intentional
discrimination. Id. As the Seventh Circuit pointed out in Robin, the
burden shifting framework is not a rigid analysis, but is tool for the
court to determine the need for a trial. Robin, 200 F.3d at 1088-89. If a
plaintiff does not have direct or indirect evidence that is conclusive by
itself, the plaintiff may be able to defeat summary judgment by composing
a convincing mosaic of direct and indirect evidence of discrimination.
Id.; Piraino, 84 F.3d at 274.
Aguilera chooses to proceed under the indirect McDonnell-Douglas burden
shifting approach. Therefore, Aguilera must present factual evidence
demonstrating that: (1) he was a member of a protected class; (2) he was
meeting the Village's legitimate performance expectations; (3) he
suffered an adverse employment action; and (4) the Village treated
similarly situated non-Hispanic officers more favorably than it treated
Aguilera. Peters v. Renaissance Hotel Oper. Co., 307 F.3d 535, 545 (7th
Cir. 2002); Robin, 200 F.3d at 1090. The parties dispute two elements of
Aguilera's prima facie case: his job performance and whether similarly
situated non-Hispanics were treated more favorably. Aguilera fails to
carry his burden on either element.
1. Job Performance:
The Village cited three causes for Aguilera's termination: poor
communication skills, the two missed meetings, and Aguilera's domestic
dispute. Aguilera contends that he performed adequately during his
probationary period, and that the reason he did not successfully complete
the field training program was that the Village did not afford him to
opportunity to do so. Aguilera's primary argument is that the field
training officers who submitted performance evaluations were the same
people that harassed him.
When an employer terminates an employee due to poor performance, an
inference of discrimination may exist if the decision maker had a
discriminatory animus or relied on information supplied by someone with
such an animus. See Hall v. Gary Comm, Sch. Corp., 298 F.3d 672, 676 (7th
Cir. 2002); Maarouf v. Walker Mfg. Co., 210 F.3d 750, 754 (7th Cir. 2000)
(citing Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1400 (7th Cir.
1997)); Hunt v. City of Markham, Ill., 219 F.3d 649, 652-53 (7th Cir.
2000). This is particularly so when the decision maker or source of
information for the decision maker expresses discriminatory feelings
around the time of, and in reference to, the adverse employment action.
See Hunt, 219 F.3d at 652-53. But, if there is corroboration of the
employee's poor performance that is independent of any discriminatory
animus, then the inference of discrimination lessens and will not defeat
summary judgment. See Hall, 298 F.3d at 676; Maarouf, 210 F.3d at 754.
This independent corroboration can come from persons who do not hold
discriminatory beliefs, admissions of employee/plaintiff, or objectively
verifiable data. See Hall, 298 F.3d at 676; Maarouf, 210 F.3d at 754-55.
Six officers, Murray, Peters, Peers, Arme, Preston and Nelson, acted as
Aguilera's field training officers. Of these, only Murray made any type
of comment that could be construed as evidence of a discriminatory animus
because of Aguilera's race or national origin.*fn2 All
six officers commented that Aguilera's language and communication skills
were poor, but those comments are not evidence of discriminatory animus.
Indeed, there is no evidence that these negative comments were motivated
by Aguilera's ethnicity or were prevarications. Moreover, all six
officers also related positive comments about portions of Aguilera's
performance. And, while Chief Fee also made negative comments about
Aguilera's English skills, there is no evidence that these comments were
motivated by Aguilera's race or were prevarications. In sum, Aguilera
fails to demonstrate that the negative performance reviews were the
result of discriminatory animus.
Moreover, Aguilera admits that he missed the two mandatory meetings and
was involved in a domestic dispute where he used his service weapon to
threaten his girlfriend. Aguilera argues that he was not informed about
the meetings and that the domestic dispute evidence is not relevant, but
these arguments are without merit. An employer can expect that employees
will attend scheduled meetings without being reminded to do so. And, as
discussed in greater detail below, Aguilera's actions during his domestic
dispute were quite relevant to the Village's decision to terminate his
employment. Thus, Aguilera fails to prove this element of his prima
facie case, and the Village is entitled to summary judgment.
2. Similarly Situated:
Aguilera must also demonstrate that the Village treated similarly
situated non-Hispanic officer more favorably than it did Aguilera. See
Radue v. Kimberly-Clark Corp., 219 F.3d 612, 618 (7th Cir. 2000). To
determine whether there are similarly situated employees, the court must
examine the facts and context of the case. See id. at 617. The other
employees need not be identical to Aguilera, but there must be a
substantial similarity so as to create the inference that discriminatory
intent could be the reason for different treatment. Id.; see also Greer
v. Board of Educ. of City of Chicago, 267 F.3d 723, 728 (7th Cir. 2001)
(noting that the similarity must be the same in all material respects);
Spath v. Hayes Wheels Intl., 211 F.3d 392, 397 (citing Mitchell v. Toledo
Hosp., 964 F.2d 577, 583 (7th Cir. 1992)). Factors the court should
examine are whether the same decision makers, standards, and conduct were
involved. See Radue, 219 F.3d at 617-18. In this case, Aguilera admits
that there are no similarly situated non-Hispanics who had the same
difficulties as Aguilera but received better treatment. Absent such
evidence, Aguilera fails to demonstrate an essential element of his prima
Out of an abundance of caution, the court also analyzes this case on
the issue of pretext. Pretext means a lie. Aguilera must demonstrate that
the Village's stated reasons for his termination were phony or completely
lacking a factual basis. Paluck v. Gooding Rubber Co., 221 F.3d 1003,
1012-13 (7th Cir. 2000); Jordan v. Summers, 205 F.3d 337, 343 (7th Cir.
2000). Pretext will not be found in an ill advised, incorrect, or even
stupid decision. See Stewart v. Henderson, 207 F.3d 374, 378 (7th Cir.
2000). The court does not sit as a super-personnel agency to review the
wisdom of an employer's action. Id., Instead, the court examines the
record to see if there is evidence that the employer is lying to cover up
Paluck, 221 F.3d at 1012-13; Jordan, 205 F.3d at 343.
The court need go no further than Aguilera's threatening use of his
weapon towards his girlfriend during a domestic dispute. Municipalities
and their police departments have the authority, if not the duty, to make
sure that their police officers are fit for the job. See Krocka v. City
of Chicago, 203 F.3d 507, 515 (7th Cir. 2000) (citing Duda v. Franklin
Park Pub. Sch. Dist. 84, 133 F.3d 1054, 1060 (7th Cir. 1998)); cf. Merheb
v. Illinois St. Toll Hwy. Auth., 267 F.3d 710, 714 (7th Cir. 2001)
(approving a supervisor's decision to terminate an employee that engaged
in threatening behavior). Aguilera's actions were extremely serious and
are intolerable for a police officer. The Village was amply justified in
terminating Aguilera's probationary employment after he acted as he did.
And, Aguilera concedes that these events occurred. He argues that the
domestic dispute is irrelevant to his suit, but that argument is without
merit. Aguilera's actions, at the very least, demonstrate extremely poor
judgment on his part. The Village was well within the bounds of
discretion to terminate his employment.
For the foregoing reasons, the court grants summary judgment in favor
of Defendant, the Village of Hazelcrest.