                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 03-3631
THOMAS HALL,
                                           Plaintiff-Appellant,
                               v.

STEVE BABB, BRIAN PIERSMA,
and BARBARA WESTELL,
                                        Defendants-Appellees.

                        ____________
           Appeal from the United States District Court
                for the Southern District of Illinois.
          No. 01-4172-JLF—James L. Foreman, Judge.
                        ____________
  ARGUED AUGUST 3, 2004—DECIDED NOVEMBER 24, 2004
                    ____________



  Before POSNER, ROVNER, and WOOD, Circuit Judges.
  WOOD, Circuit Judge. Plaintiff Thomas Hall has brought
this suit on the basic premise (with which few would
disagree in the abstract) that political patronage is not yet
dead in Illinois. Hall was passed over for a new job within
the Illinois Department of Transportation (IDOT) in 1999.
He believed that his lack of success could be traced to the
fact that the other applicant, while a fellow member of the
Republican Party, was somehow a more zealous Republican
than Hall. Hall sued the three state officials who had in-
terviewed him and made the decision to hire the other ap-
2                                                No. 03-3631

plicant under 42 U.S.C. § 1983 for violation of his First
Amendment rights. The district court granted summary
judgment for the defendants. While we find the allegations
in Hall’s complaint to be troublesome, we conclude that Hall
did not present enough evidence to bolster those allegations
at the summary judgment stage. For that narrow reason,
we affirm the judgment of the district court.


                              I
  We summarize the pertinent facts based on the state-
ments that the parties submitted in conjunction with the
defendants’ motion for summary judgment. Where disputes
exist, we present the story in the light most favorable to
Hall. In June 1999, the position of Business Services
Manager became available in IDOT’s Carbondale office. Hall
and David Barger, both IDOT employees at the time, were
the only two applicants for the position. Barger was a “high-
way maintainer,” which entailed flagging traffic, patching
potholes, mowing grass, and plowing snow. Hall had worked
previously as a highway maintainer but, at the time of the
job opening, he held another position in the Business
Services office.
  Hall and Barger both had been involved in the Republican
Party in Illinois. Hall ran for a county board seat in 1992 as
a Republican, served as treasurer of the Jackson County
Republican Committee until his resignation in 1995, and
served as a precinct committeeperson until 1998, when he
chose not to run again. Hall also volunteered in 1997 for a
phone bank on behalf of George Ryan’s gubernatorial cam-
paign (at the request of defendant Babb) and donated at
Republican fundraisers. Barger also had been active in the
Republican Party, putting up signs and attending fundrais-
ers for Ryan’s gubernatorial campaign in 1998. He might
also have volunteered for Jim Edgar’s earlier campaign for
governor. Barger was also the son-in-law of Sammye Fark,
No. 03-3631                                                  3

who Hall contends was very influential in Republican poli-
tics in Illinois at the time. Fark worked in the Secretary of
State’s office during George Ryan’s term and was the man-
ager of the state fair during Ryan’s gubernatorial term.
  Defendants Steve Babb, Brian Piersma, and Barbara
Westell, all managers of one sort or another within IDOT,
were selected to interview Hall and Barger for the job open-
ing. Someone in IDOT’s central office in Springfield, where
Piersma worked, selected Piersma for the panel. A person
in the same office instructed Babb to select two additional
interviewers from IDOT’s Carbondale office. Babb selected
himself and Westell, who reported to Babb. Babb received
two recommendations from Republican politicians on behalf
of Hall, but he did not convey these to the other two panel
members. As far as the record shows, no one on the panel
received any recommendations on behalf of Barger.
  Hall highlights several incidents that occurred before the
interview that suggest to him that Barger had been “pre-
selected” to get the job. First, Hall contends that Babb al-
lowed Barger to “train” in the Business Services office for
up to two weeks before the interview. The defendants
counter that Barger was allowed merely to visit the office
for one day. They point out that Babb testified at his
deposition that this was “standard practice” for IDOT
applicants. Second, Hall highlights evidence that Barger
told fellow highway maintainers before the interview that
“he thought he had the job.” Another IDOT employee,
according to Hall, overheard panel member Westell tell
others before the interview that Hall “wouldn’t be getting
the position.” The defendants admit that Westell made this
comment, but they claim that it referred to Hall’s past job
performance. Finally, Hall claims that while Barger was
“training” for the position in the Business Services office, he
told Hall that he had an advantage in getting the job
because his mother-in-law was Sammye Fark.
4                                                 No. 03-3631

  During the interview the three defendants asked both
Hall and Barger an identical set of questions from a pre-ex-
isting interview questionnaire, which focused on the appli-
cants’ experience and qualifications. The defendants did not
ask either Hall or Barger any questions about political
support, affiliation, or activities. The panel members indi-
vidually scored the applicants’ answers without consulting
each other, and all three of them assigned a higher total
score to Barger. Based on the score results, and after re-
ceiving approval from the supervisor in charge of the
Carbondale office, Barger was offered and accepted the job.
  The district court granted summary judgment for the
defendants for two independent reasons. First, the district
court concluded that Hall had not presented any admissible
evidence that the defendants knew of either applicant’s
political affiliations or activities. Second, the district court
concluded that even if the defendants did have this knowl-
edge, Hall presented no admissible evidence that the
defendants considered the applicants’ political backgrounds
in reaching the hiring decision.


                              II
  On appeal, Hall argues that the district court erred in
failing to recognize that he presented evidence sufficient to
create an issue of material fact on the question whether
political motivation was a substantial factor in the decision
to hire Barger over him. Hall contends that, although he
and Barger were both affiliated with the Republican Party,
his evidence (if believed by a trier of fact) shows that the
defendants selected Barger because he was more active and
connected in the party, particularly after Hall chose to not
run for party office again in 1998.
  It is well established that hiring, firing, or transferring
government employees based on political motivation violates
the First Amendment, with certain exceptions for policy-
No. 03-3631                                                  5

making positions and for employees having a confidential
relationship with a superior. See Rutan v. Republican Party
of Ill., 497 U.S. 62, 65, 71 n.5 (1990); Elrod v. Burns, 427
U.S. 347, 367, 375 (1976). To make out a prima facie case
for this type of employment discrimination, a plaintiff must
show two things: first, that the plaintiff’s conduct was con-
stitutionally protected, and second, that the protected conduct
was a substantial or motivating factor in the employment
decision. Simmons v. Chi. Bd. of Educ., 289 F.3d 488, 495
(7th Cir. 2002); Nelms v. Modisett, 153 F.3d 815, 818 (7th
Cir. 1998); see also Mt. Healthy City Sch. Dist. Bd. of Educ.
v. Doyle, 429 U.S. 274, 287 (1977). It is not enough to show
only that the plaintiff was of a different political persuasion
than the decisionmakers or the successful applicant. See
Nelms, 153 F.3d at 818. If a plaintiff can make the prima
facie showing, the burden shifts to the defendant to demon-
strate a legitimate, nonpolitical reason for the employment
decision. Simmons, 289 F.3d at 495; Nelms, 153 F.3d at 818.
  In this case, the parties agree on several propositions:
that the job at issue did not fall under the policymaking
exception to Rutan, that the defendants are proper parties
under § 1983, that none of the defendants is entitled to
qualified immunity, and that Hall’s chosen level of political
activity was protected conduct. Moreover, as we note below,
we conclude as a matter of law that the protection afforded
by the Rutan principle applies to distinctions based on
relative degrees of support for a single party, just as it
reaches favoritism based on simple party membership. The
only issue on appeal is thus whether the two applicants’
relative level of political activity in the Republican Party
was a substantial or motivating factor in the defendants’
decision to hire Barger rather than Hall.
  In analyzing this issue, the threshold question is whether
the defendants even knew about the political activities of
Hall and Barger. See Nelms, 153 F.3d at 819; Garrett v.
Barnes, 961 F.2d 629, 632 (7th Cir. 1992). Hall argues that
6                                                 No. 03-3631

it was not essential for him to make this showing because,
as Barger allegedly had been “preselected” for the job based
on his level of involvement in the Republican Party, the
defendants’ knowledge of Hall’s own political activities is
irrelevant. This argument, however, ignores the fact that,
for Hall’s theory about Barger’s preselection to be true, the
defendants still must have wanted to favor Barger because
of his political involvement. Hall has assumed that no one
could have been a better Republican than Barger, but there
is no reason to believe that this is true. If Hall had been
better, then (according to his theory of the case), he is the
one who would have been rewarded with the job.
   In the past, we have sometimes assumed that a person’s
holding of an arguably prominent party office could support
a finding of common knowledge among decisionmakers, and
sometimes we have not. Compare Cusson-Cobb v. O’Lessker,
953 F.2d 1079, 1081 (7th Cir. 1992) (no assumption), with
Nelms, 153 F.3d at 819 (holding of prominent positions creates
issue of material fact on question of defendants’ knowledge),
and Garrett, 961 F.2d at 632 (same). This is a factual question,
however, and on summary judgment review, we are willing
to assume (as Hall urges) that the facts support the in-
ference that the defendants knew about his political activ-
ities. But the record is still missing any concrete evidence
that they knew (or thought) that Barger’s involvement in
the party was more prominent. At the most, the defendants
may have conceded through omission that defendant Babb
knew something about both applicants’ political back-
grounds. But Westell and Piersma presented affidavits
denying that either of them knew anything about Hall’s or
Barger’s political involvement. Even if these affidavits
create an issue of fact with respect to their knowledge of
Hall’s activities, there is nothing in the record to contradict
the denials relating to Barger. Hall has given us only
speculation in response (for example, that Babb appointed
Westell and so Westell must have been told what he knew)
to contradict the defendants’ attestations. See Simmons,
No. 03-3631                                                 7

289 F.3d at 492; Cusson-Cobb, 953 F.2d at 1081. Unless a
majority of the interviewing board knew something about
the relative strength of both applicants’ political involve-
ment (keeping in mind that it is undisputed that the panel
members did not confer with each other before scoring the
applicants), political motivation could not have been a
substantial factor in the group hiring decision. See Felton v.
Bd. of Comm’rs, 5 F.3d 198, 202 (7th Cir. 1993) (focusing on
knowledge of majority of decisionmaking body). Hall’s
failure to offer evidence that would have shown that at least
two of the three hiring committee members knew about the
political background of the two applicants, or that the
hiring decision was manipulated by one member who
possessed such knowledge, dooms his case.
  This conclusion is not undermined by the other evidence
in the record to which Hall draws our attention. For in-
stance, Hall emphasizes Barger’s apparently higher level of
involvement and connection in the Republican Party.
Although Hall’s waning commitment to the party and Barger’s
connections to the allegedly influential Sammye Fark could
explain why a hypothetical set of politically-motivated deci-
sionmakers might select Barger over Hall, these facts do
not reveal anything about whether the defendants in this
case actually considered these facts in making their hiring
decision. See Garrett, 961 F.2d at 633. Hall also cites what
he deems to have been his superior qualifications for the
open job (presumably because, unlike Barger, Hall already
held a position in the Business Services office). Although
superior qualifications of the unsuccessful applicant can be
evidence of discrimination, see Felton, 5 F.3d at 202, they
are not enough in themselves to support an inference that
the defendants made their hiring decision based on political
motivation rather than any other factor, permissible or
forbidden, see Nelms, 153 F.3d at 818 n.4; Garrett, 961 F.2d
at 633.
  Hall also tries to buttress his point that Barger was “pre-
selected” for the job based on political consideration. He
8                                                No. 03-3631

relies on Barger’s being given the opportunity to learn about
the position before the interview. But defendant Babb tes-
tified at his deposition that this was standard practice with-
in IDOT, and Hall did not rebut this assertion except to
note that Babb could not recall the names of applicants who
had used this procedure in the past. Hall also cites Barger’s
comments to fellow workers before the interview that he
thought he had the job and his comment to Hall that he had
a leg up because of his relation to Sammye Fark. Even if
these comments are not hearsay, perhaps because they
reveal Barger’s state of mind, they also fall short of being
evidence of political motivation in the employment decision,
because they were not made by anyone who had control
over that decision. See Nelms, 153 F.3d at 819. Defendant
Westell’s statement that Hall would not be getting the job
is similarly unilluminating. Particularly in light of Westell’s
explanation in her affidavit that she was referring to Hall’s
past job performance, there is nothing in the comment that
smacks of political motivation.
  Hall also complains about alleged procedural irregularities
in the selection process, including what he paints as sub-
jective scoring of the applicants, the defendants’ not check-
ing into the applicants’ employment histories, and Barger’s
not filling out an application until after the interview.
Although these may suggest deficiencies in the selection
process, they do not suggest that the defendants made the
hiring decision on the basis of politics.
  Finally, Hall wants to rely on generic evidence that sug-
gests that the Republican Party in Illinois, and defendant
Babb in particular, had a history of filling government jobs
on the basis of political patronage. Hall identifies instances
in which he contends that Babb was involved in filling po-
sitions with political cronies. Although a showing of a past
pattern of political patronage may sometimes support a
finding of political motivation, see Felton, 5 F.3d at 202-04,
Babb’s alleged past practices do not implicate the two other
No. 03-3631                                                   9

defendants, who constituted a majority of the decisionmak-
ing body in this case. Hall also cites the testimony of Janine
Oxencis (who ran the Secretary of State’s patronage office
during George Ryan’s term and served as a volunteer co-
ordinator during his gubernatorial campaign) during the
highly-publicized trial of Scott Fawell about political cor-
ruption in the Secretary of State’s office and her repeated
assertion of her Fifth Amendment rights during her depo-
sition in Hall’s case. Although the parties hotly contest
whether negative inferences may be drawn from Oxencis’s
refusal to talk, her potential testimony is irrelevant to this
case because none of her testimony during the Fawell trial
dealt with practices within IDOT. Furthermore, although
Oxencis became head of personnel at IDOT six months
before the filling of the job at issue in this case, Hall pre-
sented no independent evidence that she had any personal
involvement in the filling of this particular job. Finally, Hall
points to emails authored by Babb expressing his distaste
for disloyal members of the Republican Party. But these
emails, written several years after the hiring decision at
issue in this case, do not provide evidence of political moti-
vation in this particular hiring decision because they were
made in a context unrelated to that decision. See Nelms,
153 F.3d at 819 (explaining that statements unrelated to
decisional process at issue do not help satisfy plaintiff’s
burden); McClure v. Cywinski, 686 F.2d 541, 545-46 (7th
Cir. 1982).
  Although Hall’s evidence comes up short in all the ways we
have discussed, there is one point made by the defendants
that requires comment. They assert that they should prevail
as a matter of law because Hall and Barger were affiliated
with the same political party. As we indicated earlier, this
goes too far. It fails to recognize that state workers in the
Rutan-protected group are entitled to be treated apoliti-
cally. We see nothing to distinguish patronage based on a
relatively higher level of involvement within the same po-
10                                               No. 03-3631

litical party from patronage based more simply on member-
ship alone in a particular party. See Tomczak v. City of
Chi., 765 F.2d 633, 640 (7th Cir. 1985); Curinga v. City of
Clairton, 357 F.3d 305, 311 (3d Cir. 2004). Either one
coerces public employees to engage in political activity
regardless of their wishes.


                             III
  Although the circumstantial evidence on which Hall
wants to rely may raise some eyebrows about the hiring
practices used in his case, it is insufficient to create an is-
sue of material fact as to whether political motivation was
a substantial or motivating factor in the defendants’ deci-
sion to hire Barger rather than Hall. Nothing he presented
was enough to overcome the uncontradicted evidence pre-
sented by the defendants that a majority of the decision-
making body (that is, Piersma and Westell) did not even
know about the political backgrounds of Barger and Hall.
We therefore AFFIRM the judgment of the district court.


A true Copy:
       Teste:

                         ________________________________
                         Clerk of the United States Court of
                           Appeals for the Seventh Circuit




                   USCA-02-C-0072—11-24-04
