The Seventh Circuit Court of Appeals reversed a federal district court's summary judgment granted to Indiana's Whitley County Sheriff's Office in a racial discrimination suit. The court found that the district court erroneously applied the "common actor" provision to grant summary judgment, and that "self serving" affidavits are not admissible in discrimination cases.

In 2013, Terrance McKinney was hired as Whitley County's first black officer. Nine months later, he was fired by Sheriff Mark Hodges. McKinney alleged that his termination was racially motivated. He filed a discrimination suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e. In support of his complaint he attached evidence that the bases for firing him were baseless and pretextual, or they were equally applicable to non-black officers, but not equally applied.

The district court granted summary judgment to the defendants, but the Seventh Circuit held that where the district court did not strike McKinney's attached evidence and filings, it prejudicially erred in not fully considering the evidence.

The Seventh Circuit held that a proper review of the evidence supported McKinney's allegations that Hodges' accusations were baseless and even pretextual. He was accused of padding his hours, but records show that his  supervisors and Hodges himself instructed him to report his hours as he did, and in fact all academy attendants used the same procedures, but non-blacks were not reprimanded for the same conduct.

McKinney was cited for failing to timely report an accident that dinged his mirror. His delay was because it occurred during an emergency situation, and the law relaxed time restraints in lieu of an emergency. Also, a non-black officer who tore his entire front bumper off in his accident was presented that bumper as a gag gift at a Christmas party, and he did not even receive a reprimand.

McKinney was accused of misusing the agency's gas credit card, but the evidence showed he was given permission to us it, agency rules permitted its use, and non-black fellow officers used them in the same way without reprimand.

Hodges accused McKinney of violating the agency's standard operating procedures (S.O.P.) by not filing a monthly report, however, no such S.O.P. exists, and the oversight was corrected within an hour after he was advised that the report was requested.

He was accused of texting while driving even though prior investigation had already disclosed that he was actually using his cell phone's GPS, which agency rules allowed.

He was accused of failing to make a transport, but records showed the transport was completed. Then he was accused of being late in a juvenile transport, but the record showed he was erroneously advised that both juveniles that he had to transport to court were located at the same location they were not, so he had to make an additional stop and arrived one minute late.

These facts and documents were not fully reviewed because the district court erroneously believed they were inadmissible because they were self-serving. The Seventh Circuit held that 15 year old precedent has clarified that "self-serving affidavits" can be used to introduce facts on summary judgment.

The Seventh Circuit also held that the district court seems to have overestimated the strength of the "common actor" inference that if a person was unbiased when he hired someone, he could be presumed unbiased at the firing. The court clarified that this concept was not for use in summary judgment determination, but only as a factor that a jury may consider in deliberations. The district court's summary judgment was reversed.

See: McKinney v. Office of the Sheriff of Whitley County, no. 16-4131, F. 3d (7th. Cir. 2017).

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