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Rick Barnes v. W. Patrick Hartshorn and the County of Vermilion

July 18, 2011


The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge

E-FILED Monday, 18 July, 2011 01:18:45 PM Clerk, U.S. District Court, ILCD


This case is before the court for ruling on the Motion for Summary Judgment (#31) filed by Defendants, Patrick Hartshorn and the County of Vermilion. This court has carefully reviewed the following: Defendants' Summary Judgment Motion (#31), the Memorandum in Support (#32), the Memorandum in Opposition (#34) filed by Plaintiff, Rick Barnes, and the Defendants' Reply (#36). This court has also throughly reviewed all the parties' corresponding exhibits. Following this careful and thorough review, Defendants' Motion for Summary Judgment (#31) is DENIED.


In the Spring of 2007, Sheriff Patrick Hartshorn ("Sheriff"), announced his intention to fill six vacant sergeant positions on the Vermilion County Sheriff's Department ("Department"). In response, Rick Barnes ("Plaintiff"), a patrol officer on the Department, applied for the promotion. At that time, Plaintiff had worked nearly 22 years for the Department and was 46 years of age. Eleven other individuals applied for the promotion as well. Ten of those individuals were under the age of 40 years, and the remaining applicant was 41 years of age.

The promotion process consisted of two separate scores, a written test and an interview conducted by the Department. First, the applicants took a standardized written test with an interview component conducted by the Vermilion County Sheriff's Merit Commission. Plaintiff earned the fourth highest score of the twelve applicants examined by the Merit Commission.

Next, the applicants who passed the Merit Commission test were interviewed by the Sheriff and two Captains on the Department. Although the final promotion decisions were his alone, Sheriff Hartshorn wanted Captains Dennis Wood and Rodney Kaag to participate in the interviews because they had been supervising the eligible deputies and knew their performance. The interviewers scored the applicants based on eight interview questions drafted by Captains Wood and Kaag, and Sheriff Hartshorn. Based upon the Merit Commission score plus the interview scores, Plaintiff ranked sixth among the candidates. Plaintiff was not promoted.

The seventh question asked by the interviewers was, "Are you willing to work all shifts?" Sergeant Hartshorn considered a candidate's willingness to work all three shifts to be an important qualification for promotion to sergeant because: (1) the Department sought to have a supervisor working on all three shifts, and when a sergeant was absent for various reasons, other sergeants would have to work the absent sergeant's shift, (2) sergeants may sometimes have to rotate to different shifts if need arises since the collective bargaining agreement applicable to deputies prevents the rotation of deputies, and (3) sergeants must fill in for absent captains which requires each sergeant to shadow a captain, who may work a different shift, and also requires another sergeant to work the shift of the sergeant who is shadowing the captain. The requirement that a sergeant be capable of working any shift has been a longstanding custom and practice of the Department predating Sheriff Hartshorn's election. In fact, this requirement was so important that it was included as the seventh question in the interview, and according to the Sheriff, it was the sole reason why Plaintiff did not get the promotion even though he was more qualified than other candidates who were promoted. Captains Kaag and Wood both testified that the sole reason why Plaintiff did not get the promotion was because he said that he was unwilling to work all shifts. They testified that the other candidates who were unwilling to work any of the three shifts were not promoted either. In other words, unwillingness to work all three shifts was a deal breaker for the promotion.

Deputy Dustin Heckerson was one of the candidates under 40 years of age who was promoted. However, his composite score for question seven was 12 out of 30 possible points, while Plaintiff's score was 13 out of 30 points. Sheriff Hartshorn and Captains Kaag and Wood all testified that Heckerson answered "yes" to question seven, and Plaintiff answered "no." Heckerson also swore in an affidavit that he answered "yes" to the question. Plaintiff disputes Heckerson's answer to question seven based on the discrepancy between the Plaintiff's and Heckerson's scores. The discrepancy is that the Defendants promoted Heckerson over Plaintiff when Heckerson scored lower on question seven, and this question was a deal breaker for any candidate. Additionally, the Plaintiff was more objectively qualified than Heckerson.*fn1 Plaintiff contends in his opposition to the summary judgment that this issue of fact is in dispute and material to his age discrimination claim.

Initially, all the candidates selected were under the age of 40 years, however one of them passed up the opportunity for promotion, and the applicant who was 41 years of age was promoted. Plaintiff was not one of the six applicants who were promoted even though he scored fourth on the Merit Commission examination and sixth on the interviews conducted by the Sheriff.


On March 5, 2008, the Plaintiff filed a charge of employment discrimination because of his age with the United States Equal Employment Opportunity Commission ("EEOC") through the Illinois Department of Human Rights and received permission to sue from the EEOC.

Plaintiff filed a claim in this court within 90 days of receiving the notice of right to sue. On December 10, 2009, the Plaintiff filed a complaint (#1) with this court against the Defendants alleging age discrimination in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq. Specifically, Plaintiff alleges that Sheriff Hartshorn passed him over for promotion because he was over forty years old.

On April 28, 2011, the Defendants filed the pending Motion for Summary Judgment (#31) and a memorandum of law with exhibits (#32). On June 6, 2011, Plaintiff filed a memorandum in opposition to the Defendants' motion for summary judgment and exhibits (#34). On June 15, 2011, the ...

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