Court Finds No Discrimination Despite Statement that Employees Were the “Wrong Color”

Sometimes employees, even those high up in the organization, say things that come back to haunt the employer in the form of lawsuits.  Thorough documentation of the basis for employment decisions can sometimes overcome a statement from a supervisor that seems to be  smoking gun evidence of discrimination.

Earlier this year, the Seventh Circuit held that a Village was not liable for racial discrimination when it did not promote either of  two Caucasian police sergeants to a Deputy Chief vacancy even though they were both eligible for promotion and despite evidence that the police chief told them that neither would receive the promotion because they were the “wrong color”.

In Garafalo v. Village of Hazel Crest 754 F.3d 428 the Seventh Circuit upheld summary judgment in favor of defendants because the Village was able to show that it had legitimate non-pretextual reasons for selecting another candidate.  The Village showed evidence that one sergeant lacked leadership and decision making abilities. Similarly, the court found that the Village showed that the other plaintiff candidate  had a history of “having a volatile and unstable personality”.   These reasons, the Seventh Circuit found, were legitimate reasons for not promoting either sergeant.

This case should again reinforce for employers the absolute importance of documenting employee deficiencies as well as documenting the reasons for selecting one employee over others for promotion (and the opposite, to document reasons for demotion of other adverse actions). Without evidence of legitimate, non-discriminatory reasons for not promoting these two sergeants, the Village would have likely been in real trouble in this case. A statement by a supervisor to an employee that he or she is the “wrong color” for promotion is usually pretty damning evidence of discrimination. Fortunately the Village here was able to show that this wasn’t the case and avoided liability.