Appeal from the United States District Court for the Central District of Illinois. No. 07 C 2172-Michael P. McCuskey, Chief Judge.
The opinion of the court was delivered by: Tinder, Circuit Judge.
SUBMITTED FEBRUARY 8, 2010
Before BAUER, EVANS, and TINDER, Circuit Judges.
Robert Leonard, a Native American, worked at Eastern Illinois University ("EIU") for nearly twenty years, during which time EIU passed him over for several promotions. Believing that the most recent denied promotion was motivated by anti-Native American bias, Leonard sued EIU under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-1 - 2000e-17. The district court granted summary judgment in favor of EIU, and in Leonard's appeal, we consider de novo whether the following evidence, construed in Leonard's favor, creates a triable issue on his Title VII claim. See Turner v. The Saloon, Ltd., 595 F.3d 679, 683 (7th Cir. 2010).
Leonard is a Native American through the family history of his father, who was a member of the Saginaw Band of the Ojibway Nation. While at EIU, Leonard worked as a "building services worker," a janitorial and mechanical support position, but his time on campus was more than a job for a paycheck. Leonard was an outspoken advocate on Native American issues, and he frequently complained to the EIU student newspaper about Native-American-related articles or advertisements that he found offensive.
Leonard was a particular critic of "Chief Illiniwek," the image formerly used by the University of Illinois at Urbana-Champaign ("U of I") to represent University athletics. Leonard was not alone in opposing the Chief, which had generated controversy for decades. See, e.g., Jodi S. Cohen, Hail to the Chief-and Farewell, Chi. Trib., Feb. 22, 2007, at 1; Tracy Dodds, Illinois Fans Still Divided Over Use of Mascot, Indianapolis Star, Sept. 4, 2005, at C1. But Leonard's opposition even led to a nationally publicized lawsuit. Sometime around 2005, Leonard sued the "Honor the Chief Society" for denying him entry to the showing of a pro-Chief movie, allegedly based on his Native American status. Leonard's involvement in the lawsuit, which ultimately settled out of court, received CNN news coverage.
As mentioned, in between his civil rights activities, Leonard had a regular job at EIU as a building services worker. Over the years, Leonard participated in several interviews (four or five, he didn't recall exactly) for promotion to the more supervisory "building services subforeman," but none led to a promotion. One of the more recent interviews, on March 24, 2005, triggered the dispute that is the basis of this lawsuit.
Leonard interviewed before a panel of six EIU supervisors: Herb McElwee, Travis Magee, Valerie Leonard (no relation), Kevin Larkin, Steven Gilbert, and John Sigler. Although the appellant had worked with all of these people before, the interview started out tensely for him when McElwee and Magee removed their jackets to reveal shirts with the Chief Illiniwek logo.
McElwee's and Magee's choice to wear Chief shirts that day might have been unremarkable given the "March Madness" context. During the 2005 college basketball season, the U of I men's team was making a strong showing in the NCAA tournament. In fact, on the very March 24 date of Leonard's interview, the Fighting Illini were scheduled to play (and ultimately won) a Sweet Sixteen match against the University of Wisconsin- Milwaukee. This Illini basketball hype provides one possible, innocuous explanation for McElwee's and Magee's Chief shirts. As Leonard acknowledged during his deposition, the EIU campus was home to many Illini fans, who frequently wore Chief apparel during the 2005 season.
Still, March Madness aside, Leonard thought that McElwee and Magee wore their Chief shirts as a statement against Leonard's opposition to Chief Illiniwek. He was offended by the shirts and felt that his anger came across during the interview, negatively affecting his performance. As it turned out, Leonard didn't get the promotion after his March 2005 interview, but notably, no one else was promoted to building services subforeman at that time. The record does not reveal how many other candidates, if any, participated in the March 2005 interviews, how Leonard performed compared to those candidates, or why no one was promoted.
Shortly after his interview, in April 2005, Leonard made a complaint to EIU's Office of Civil Rights about McElwee's and Magee's Chief shirts. After hearing Leonard's complaint, a representative from the civil rights office told McElwee and Magee not to wear Chief apparel when dealing with Leonard, and Leonard said that he was satisfied with this outcome.
Several months later, in October 2005, Leonard inter-viewed again for the building services subforeman job along with seven other candidates. The interview panel consisted of the same six supervisors, none of whom wore anything Illini-related or otherwise offensive to Leonard. Leonard thought that he interviewed well, but unfortunately, he didn't do well enough to get the promotion. Based on the numerical scoring system used by the panel, Leonard ranked seventh out of the eight candidates. Only the candidates with the top three scores were promoted.
Leonard sued EIU under Title VII, claiming that the interview panel's decision not to promote him was retaliation for his April 2005 civil rights complaint about the Chief Illiniwek shirts. The district court granted summary judgment in favor of EIU, concluding that Leonard had no evidence linking the denied promotion to the civil rights complaint. Leonard appeals.
The controversy surrounding the use of Chief Illiniwek to symbolize U of I athletics is not new to this court. In Crue v. Aiken, 370 F.3d 668, 678-80 (7th Cir. 2004), we addressed the tension between students' First Amendment right to protest the Chief and the smooth operation of the University's athletic programs. (While the free speech issues in Crue were important, the Crue opinion's lasting contribution may be its scholarly discussion of great college nicknames, including the all-time favorite "Banana Slug" of the University of California-Santa Cruz. Id. at 671-72.) Fortunately, this case does not require us to delve ...