November 3, 2015
from the United States District Court for the Southern
District of Illinois. No. 13-cv-455-SMY-SCW- Staci M. Yandle,
Wood, Chief Judge, Easterbrook, Circuit Judge, and Bruce,
District Judge. [*]
Easterbrook, Circuit Judge.
McCurdy, a patrol deputy with the Williamson County
Sheriff's Department, applied for a job as an inspector
with the Southern Illinois Enforcement Group, which
investigates drug crimes. She was selected, subject to a
background check. While that check was conducted, she
remained in her deputy's post. Agent Barbee Braddy, who
conducted the check, recommended that she not be hired.
Braddy discovered that McCurdy had recently filed for
bankruptcy and was in a long-term relationship with Jon
Mohring, who belonged to a biker gang associated with
criminal activity. Braddy thought that these facts made
McCurdy unsuitable for a more responsible job, particularly
given what had happened when the Group hired Caleb Craft. He,
too, had been in financial difficulty and had some criminal
associates, and he was fired when the Group discovered that
he was stealing drugs and money from the unit. McCurdy wanted
to fill the Craft vacancy; following the adage "once
burned twice shy" the Group decided to look elsewhere.
suit under 42 U.S.C. §1983, McCurdy contends that the
officers who made these decisions engaged in sex
discrimination. She offers two theories: first, that she
would have been promoted immediately had she been a man;
second, that the Group gave her background and associates
more scrutiny than it does for male applicants. She does not
deny that the Group had legitimate reasons for thinking that
someone else would be more suitable; instead she contends
that the Group would not have discovered these matters had
the applicant been male. The district court, however, granted
summary judgment for the defendants, ruling that McCurdy was
treated the same as a male applicant would have been.
district court's conclusion is well founded with respect
to the hiring decision, because Agent Braddy testified in
discovery that she investigated McCurdy exactly the same way
as she investigates other applicants, and that she
always checks financial details and romantic
entanglements. Indeed, Braddy had investigated Craft and
recommended that he not be hired because she discovered that
he had financial problems and associated with people engaged
in shady activities. The Group overrode her recommendation
about Craft, suffered the consequences, and was determined
not to make that mistake again. This has nothing to do with
sex. McCurdy points to Craft as a comparator treated more
favorably, but employers are entitled to learn from their
errors. Given Agent Braddy's uncontested testimony that
she investigated McCurdy exactly as she investigates men who
apply to be inspectors, and McCurdy's concession that
Braddy's findings constitute sex-neutral reasons for not
hiring her, summary judgment was proper.
brings us to McCurdy's contention that a man would have
taken the inspector's job pending Braddy's
investigation. McCurdy contends that she lost the difference
between her deputy's salary and an inspector's salary
during that interval. Defendants reply that there was no
difference-that a person receives the salary of her existing
position until a promotion or new appointment becomes final.
McCurdy replies that this is wrong and that her income would
have been higher in the interim.
district court did not resolve this dispute, and the record
on appeal does not enable us to say which side is correct.
Nor did the district court address McCurdy's contention
that keeping her in the deputy's job pending the
background check was an instance of sex discrimination.
McCurdy contends that every man who has been selected for an
inspector's position with the Group has been transferred
to that job (and given its salary) immediately-though subject
to final approval after the background check. Defendants
concede that this is so. They contend that McCurdy's
transfer was delayed not because she is female but because
she was needed in the Sheriff's Department until her
replacement could be hired.
district court needs to determine whether there is a material
dispute of fact about either the defendants' explanation
for delaying McCurdy's transfer or the salary she would
have received had she been promoted conditionally. If the
salaries would have been identical, or if any reasonable
trier of fact would be bound to conclude that the delay was
unrelated to sex, then defendants are entitled to prevail,
but otherwise this subject requires a trial.
judgment of the district court is affirmed to the extent it
rejects McCurdy's hiring theory but vacated to the extent
it rejects her delay theory, and the case is remanded for
further proceedings consistent with this opinion.
the Central District of Illinois, sitting by