UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

REBECCA HACKNEY,
Plaintiff-Appellant,

v.
                                                                    No. 96-2845
ARLINGTON COUNTY POLICE
DEPARTMENT; ARLINGTON COUNTY,
VIRGINIA,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CA-96-354-A)

Argued: January 26, 1998

Decided: May 11, 1998

Before WILKINSON, Chief Judge, and HAMILTON and
MICHAEL, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion. Judge Michael wrote a
dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: Dennis F. Nee, Bethesda, Maryland, for Appellant. Lisa
Bryant Fowler, Fort Wayne, Indiana, for Appellees. ON BRIEF: Bar-
bara S. Drake, County Attorney, OFFICE OF THE COUNTY
ATTORNEY, Arlington, Virginia, for Appellees.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellant Rebecca Hackney appeals the district court's grant of
summary judgment in favor of appellee Arlington County [Virginia]
Police Department (the Department) on her claim of unlawful retalia-
tion in violation of the Fair Labor Standards Act (FLSA), see 29
U.S.C. § 215(a)(3). Finding no error, we affirm.

I.

Rebecca Hackney was hired by the Department on May 6, 1979.
She began her employment in the position of Police Officer I and was
promoted to Police Officer II in 1983. She was subsequently pro-
moted to Corporal in 1987 and to Sergeant in 1991. With the excep-
tion of one incident in 1985, for which she received a written
reprimand, Hackney's performance was excellent during this period.
Her excellent performance was reflected in her performance evalua-
tions and by her several promotions.

In mid-1993, Hackney began experiencing problems at work. Spe-
cifically, sometime in the spring of 1993, Hackney began dating one
of her subordinates in the Special Operations Section (SOS) of the
Department, Officer Chris Dengeles. According to Hackney's co-
workers, members of the SOS unit were aware of Hackney's relation-
ship with Dengeles, and fellow officers expressed resentment about
favoritism shown by Hackney toward Dengeles. In addition, both
Lieutenant Philip Beuchert, Hackney's immediate supervisor, and
Chief of Police William Stover reported receiving complaints that
there was low morale in the SOS unit as a result of Hackney's rela-
tionship with Dengeles. Chief Stover, in particular, received reports
that Hackney was giving Dengeles special assignments and that
Hackney and Dengeles would "ride off from details and be gone for
two, three hours at a time, and no one knew where they were." (J.A.
27).

                    2
On two occasions during July 1993, Lt. Beuchert discussed specific
incidents with Hackney that, while not apparently related to her rela-
tionship with Dengeles, were cause for concern. Despite these con-
cerns, however, on August 23, 1993, Hackney received her annual
performance appraisal and was rated "superior," receiving excellent
reviews in each category.

In a memorandum provided to Hackney in September 1993, Lt.
Beuchert noted that although Hackney's performance had been weak
during July and August of 1993, he considered the entire year in rat-
ing her overall performance for purposes of the annual review. Lt.
Beuchert then documented problems with Hackney's recent perfor-
mance, despite his favorable annual review, and noted specific inci-
dents of poor performance during July, August, and September up to
the September 28th date of the memorandum. These included several
instances in which Hackney was late to work, including occasions
when she and Officer Dengeles both were late, causing other officers
to comment unfavorably. In the memorandum, Lt. Beuchert also
noted that in response to Hackney's lateness and lack of focus when
at work, he had suggested that she take time off to resolve the per-
sonal issues which she alleged were the source of these problems.
Apparently, Hackney was scheduled to attend "Motor School," during
the week of September 13, 1993, and Lt. Beuchert suggested that she
not attend in order to get her rest, to resolve personal problems, or to
catch up on work. Hackney did not heed this suggestion, and though
she attended Motor School, she failed to pass the course. Next, the
memorandum detailed instances between September 18 and Septem-
ber 22, 1993, when Hackney failed to fulfill several commitments
without contacting Lt. Beuchert. During at least two of these days,
when Hackney was ostensibly home sick and when Lt. Beuchert had
unsuccessfully attempted to reach Hackney at home, Hackney later
admitted that she had been in Nags Head, North Carolina.

In the second part of the September 1993 memorandum, Lt. Beu-
chert stated his conclusion that Hackney's performance between July
and September 1993 needed improvement in decision-making, com-
munication, cooperation, and dependability. For those three months,
Lt. Beuchert stated that her overall performance rating was "unsatis-
factory." (J.A. 254). Finally, Lt. Beuchert set forth an "action plan,"
in which he stated that Hackney was capable of being a "superior per-

                    3
former" but that there were several specific areas of concern which
she needed to address. These included favoritism, which required that
she be "above reproach" when dealing with Officer Dengeles or any
other officer under her supervision, and commitment, which required
that she rededicate herself, attending all Department events and meet-
ings on time and with renewed dedication. The memorandum con-
cluded by questioning whether she might desire counseling or
whether she had any ideas for the improvement of her performance.

According to Hackney, the source of her problems during this time
was a series of illnesses suffered by family members and friends. For
example, she had learned that her father was going to lose his eye-
sight and, as a result, had to go to the doctor often; she had a sister
who was diagnosed with multiple sclerosis and was in and out of the
hospital; and she had a friend whose son was having asthmatic attacks
and had to stay in the hospital. Hackney asserts that she spent many
hours at the hospital and some nights, leading to her fatigue at work
and her tardiness.

In early October, members of the police department received sev-
eral anonymous phone calls alleging inappropriate behavior by Hack-
ney. These callers alleged that Hackney was engaging in an affair
with one of the "motormen" and other inappropriate behavior. On
October 3, 1993, someone left what was apparently a taped message
on several police department voice mail message boxes. The message
contained similar allegations about Hackney's personal relationships
and stated that there were nude pictures that were coming in the mail.1
In response to these phone calls, Chief Stover ordered an investiga-
tion into who was making the offensive calls. In addition, Chief Sto-
ver became concerned that Hackney's personal relationships were
disrupting the work place.

The investigation ordered by Chief Stover was subsequently con-
ducted by Lt. Thomas Panther, Commander of Internal Affairs. Dur-
ing the investigation, Lt. Panther had extensive discussions with
Hackney regarding her relationship with Officer Dengeles. Hackney
repeatedly denied that she was having a relationship with Dengeles
and insisted that they were "just friends." (J.A. 142). According to Lt.
_________________________________________________________________
1 There is no evidence that any such pictures ever arrived.

                    4
Panther, despite the general knowledge in the Department that Hack-
ney had engaged in such an affair, she never acknowledged that she
was or had been having an intimate relationship with Dengeles. As a
result, Lt. Panther concluded that Hackney was not being entirely
truthful during the investigation, a conclusion he shared with Chief
Stover.

Despite Lt. Beuchert's warnings to Hackney that she engage in
conduct that was above reproach, he continued to counsel her
between September 1993 and early 1994. On two occasions, in partic-
ular, he counseled her about poor decision-making. The first incident
involved her decision to have dinner alone with Officer Dengeles in
the face of his instructions to her to be "above reproach" in her deal-
ings with subordinates. The second incident involved her decision to
permit Officer Dengeles to conceal an audio-video camera in the
motorshed to determine who had been pulling his name off his locker.

In April 1994, out of concern for the deteriorating morale in the
SOS unit as a result of Hackney's relationship with Officer Dengeles,
Chief Stover arranged to have Hackney transferred to midnight patrol.
Hackney resisted the transfer, however, and a few days later, Chief
Stover agreed to rescind the transfer. Although Chief Stover told
Hackney that the transfer would be good for her professionally
because it would give her experience in another area of the Depart-
ment, giving her a broader base of experience and making it more
likely she would eventually be promoted to lieutenant, she insisted
that she did not want to transfer and he ultimately agreed.

On April 6, 1994, following the rescission of the decision to trans-
fer Hackney, Lt. Beuchert met with Hackney to discuss her current
level of performance and suggestions for improvement. During this
meeting, Lt. Beuchert reviewed with Hackney his concerns about her
performance during the fall of 1993 and her continued failure to make
improvements. In addition, he discussed strategies for improvement.

Despite these problems, Hackney was again evaluated in August
1994 in her annual review and was given an overall rating of "ex-
ceeds" from Lt. Beuchert. (J.A. 229). The performance evaluation
stated, in particular, that Hackney's administrative skills were excel-
lent; that no sergeant handled a higher volume of work; that she main-

                    5
tained a positive attitude; that she monitored and encouraged others
to be safety-conscious; that she had continued to increase her contacts
with other agencies; and that she handled various and diverse com-
plaints, often helping the front counter personnel handle uncoopera-
tive citizens.

On April 13, 1995, some of the sergeants in the Department,
including Hackney, filed suit in the United States District Court for
the Eastern District of Virginia against the Department, claiming vio-
lations of the FLSA. See Gabrielson v. Arlington County, Civil
Action No. 95-484-A (E.D. Va.). In the suit, the sergeants contended
that they were not supervisors and, therefore, that they were entitled
to overtime pay under the FLSA.

In May 1995, Richard Alt was promoted from sergeant to lieuten-
ant effective May 28, 1995, and was assigned to the SOS. At the time
Alt was promoted, Hackney was also eligible for promotion and had
been given the highest score of all five eligible individuals by the per-
sonnel department, which provides a list of certified candidates to
Chief Stover. Richard Alt had the second highest score, and according
to Chief Stover, Alt was promoted over Hackney because Alt had
broader experience in the Department, having worked in all three
divisions, and was the most qualified individual considering depend-
ability, integrity, judgment, decision-making, and education. In com-
parison with Hackney, in particular, Chief Stover stated that he did
not select Hackney because of her performance problems during 1993
and 1994 and her lack of truthfulness during the internal affairs inves-
tigation concerning the phone calls to the Department. Chief Stover
also stated that while the rank order on the promotion-eligible list is
a consideration in determining whom to promote, other consider-
ations, such as dependability, integrity, and judgment are also consid-
ered. Chief Stover stated further that generally he has not selected
personnel for promotion in the rank order arising from the personnel
department assessment. According to Chief Stover, Hackney's status
as a plaintiff in the FLSA lawsuit had "absolutely no bearing" on his
decision to promote Alt to lieutenant rather than Hackney. (J.A. 128).

Upon learning that Alt had been promoted, Hackney went to see
Chief Stover and asked him why she had not been promoted. In her
deposition, Hackney testified that in response to her question, Chief

                    6
Stover stated that "first of all, [he] was very disappointed to see that
[Hackney was] suing for . . . FLSA standards" and that "it didn't show
true leadership." (J.A. 122). In addition, Chief Stover told her that he
did not believe that she was ready to be promoted to lieutenant.

Several months later, in August 1995, Lt. Beuchert completed
another annual evaluation of Hackney's performance. In his deposi-
tion, Lt. Beuchert stated that when he initially completed the evalua-
tion, he had rated Hackney's decision-making skills, one of fifteen
categories of performance evaluated, as "exceeds." However, upon
submitting his draft evaluation to Deputy Chief of Police Gregory
Brewer, Deputy Chief Brewer showed Lt. Beuchert a copy of a docu-
ment submitted in connection with the FLSA lawsuit and signed by
Hackney. According to Deputy Chief Brewer, the document "was a
gross misrepresentation of what [Hackney's] job was." (J.A. 60).
After discussing the document with Deputy Chief Brewer, Lt. Beu-
chert changed his evaluation of Hackney's decision-making skills
from "exceeds" to "satisfactory."

On March 15, 1996, Hackney filed this action in the United States
District Court for the Eastern District of Virginia. In her complaint,
Hackney alleged that she had been denied a promotion in May 1995,
restricted from working overtime in August 1995, and denied a pro-
motion in March or April 1996 in retaliation for her participation as
a plaintiff in the FLSA suit.

On November 1, 1996, the Department filed a motion for summary
judgment as to all of Hackney's claims. On November 15, 1996, the
district court granted the Department's motion, holding that the
Department had articulated legitimate, non-retaliatory reasons for
each employment decision at issue and that Hackney had failed to
show that the Department's stated reasons were pretextual for unlaw-
ful retaliation. Hackney noted a timely appeal. 2
_________________________________________________________________

2 Hackney initially appealed the district court's decisions with respect
to the May 1995 promotion, an August 1995 decision to limit eligibility
for overtime by certain officers, and a March 1996 promotion. However,
she has since abandoned her claims based on the Department's decisions
to limit certain officers' overtime in August 1995 and to promote another

                    7
II.

We review a district court's decision to grant summary judgment
de novo. Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d 1162,
1167 (4th Cir. 1988). Summary judgment is appropriate when there
is no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In
reviewing the district court's grant of summary judgment, we must
construe the facts in the light most favorable to the non-moving party.
See Smith v. Virginia Commonwealth Univ., 84 F.3d 672, 675 (4th
Cir. 1996) (en banc).

III.

Section 215(a)(3) of the FLSA provides, inter alia, that it is unlaw-
ful for any person "to discharge or in any other manner discriminate
against any employee because such employee has filed any complaint
or instituted or caused to be instituted any proceeding under or related
to [the FLSA]." 29 U.S.C. § 215(a)(3). Courts agree that an adverse
employment action is unlawful under the FLSA's anti-retaliation pro-
vision only if it would not have occurred "but for" the employer's
retaliatory intent. See Conner v. Schnuck Markets, Inc., 121 F.3d
1390, 1394 (10th Cir. 1997); McKenzie v. Renberg's, Inc., 94 F.3d
1478, 1483 (10th Cir. 1996), cert. denied, 117 S. Ct. 1468 (1997);
Knickerbocker v. City of Stockton, 81 F.3d 907, 911 (9th Cir. 1996);
Reich v. Davis, 50 F.3d 962, 965 (11th Cir. 1995); Brock v. Casey
Truck Sales, Inc., 839 F.2d 872, 877-78 (2d Cir. 1988). As in cases
in which the plaintiff alleges unlawful discrimination in violation of
Title VII, a plaintiff asserting a cause of action under § 215(a)(3) may
proceed under either of two methods of proof. See Fuller v. Phipps,
67 F.3d 1137, 1141-43 (4th Cir. 1995) (discussing proof scheme dif-
ferences depending on whether plaintiff produces direct evidence of
_________________________________________________________________
officer to lieutenant in March 1996. Thus, the only issue remaining for
the court to decide is whether the district court erred when it held that
Hackney had not produced sufficient evidence from which a reasonable
jury could conclude that the Department's failure to promote her to lieu-
tenant in May 1995 was in retaliation for her participation in the FLSA
lawsuit.

                    8
discrimination or, alternatively, relies solely on circumstantial evi-
dence). First, where the plaintiff has produced direct evidence that her
employer was motivated by retaliatory animus, she may proceed
under the "mixed motive" proof scheme enunciated by the Supreme
Court in the context of a First Amendment retaliation claim in Mt.
Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977).
See, e.g., Knickerbocker, 81 F.3d at 911; Brock, 839 F.2d at 877-78;
see also NLRB v. Transportation Management Corp., 462 U.S. 393,
400 (1983) (upholding NLRB's application of Mt. Healthy proof
scheme to allegations that an employer committed an unfair labor
practice by unlawfully retaliating against an employee for engaging
in union activity), overruled in part on other grounds, Department of
Labor v. Greenwich Collieries, 512 U.S. 267, 276-78 (1994). Alterna-
tively, where the plaintiff relies on circumstantial evidence to prove
that retaliatory animus motivated the employer to take the disputed
adverse employment action, she must proceed under the burden-
shifting scheme set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). See, e.g., Conner, 121 F.3d at 1394.

In this case, Hackney is entitled to a "mixed motive" analysis
because she has produced direct evidence that Chief Stover, the deci-
sionmaker, acted with retaliatory animus when he decided not to pro-
mote Hackney to lieutenant in May 1995. Specifically, Hackney
stated in her deposition that when she asked Chief Stover why she had
not been promoted, he responded that he "was very disappointed to
see that [Hackney was] suing for . . . FLSA standards" and that "it
didn't show true leadership." (J.A. 122). Although Chief Stover also
gave Hackney other, non-retaliatory reasons for his decision, Hack-
ney's deposition testimony is evidence that "both reflect[s] directly
the alleged [retaliatory] attitude and . . . bear[s] directly on the con-
tested employment decision." Fuller, 67 F.3d at 1142 (explaining
what type of evidence is required to entitle a plaintiff to a mixed
motive analysis in Title VII disparate treatment case). Therefore, we
assess Hackney's evidence supporting her claim of unlawful retalia-
tion in violation of the FLSA under a mixed motive proof scheme.

Under the mixed motive proof scheme, a plaintiff must first pro-
duce sufficient evidence from which a reasonable jury could conclude
that her protected activity under the FLSA was a"substantial" or "mo-
tivating" factor in the employer's decision to take the disputed

                    9
adverse employment action. See Knickerbocker, 81 F.3d at 911; see
also Mt. Healthy, 429 U.S. at 287. If the plaintiff succeeds in this
task, the burden shifts to the defendant to prove that it would have
made the same decision even in the absence of the protected activity.
See Knickerbocker, 81 F.3d at 911. That is, the employer has the bur-
den to prove by a preponderance of the evidence that the plaintiff's
protected activity was not the "but for" cause of the adverse employ-
ment action. See id.

In this case, based on her direct evidence of retaliatory animus
alone, Hackney has produced sufficient evidence from which a rea-
sonable jury could conclude that her participation in the FLSA lawsuit
was a motivating factor in Chief Stover's decision to promote Richard
Alt to lieutenant over Hackney in May 1995. Taking Hackney's depo-
sition testimony as true, we must assume that when asked directly
why he had not promoted Hackney to lieutenant, Chief Stover gave
as one of his reasons that Hackney's participation in the FLSA law-
suit evidenced a lack of leadership. Thus, Hackney has met her initial
burden to prove that her protected activity was a motivating factor in
Chief Stover's decision not to promote her in May 1995.

The next issue is whether the Department has met its burden of
proving by a preponderance of the evidence that, even in the absence
of Hackney's participation in the FLSA lawsuit, she would not have
been promoted to lieutenant in May 1995. More precisely, in the con-
text of reviewing a grant of summary judgment in favor of the Depart-
ment, we must determine whether the evidence supporting the
Department's position is so strong that a reasonable jury could only
conclude, in light of the Department's evidence, that Hackney would
not have been promoted in May 1995, even if she had not participated
in the FLSA lawsuit. We believe that the Department has met this
considerable burden.

First, it is undisputed that beginning in the spring of 1993, Hackney
began dating one of her subordinates in the SOS unit, Officer Den-
geles. It is also undisputed that this relationship was the source of
some resentment among members of the SOS unit, who believed that
Hackney was showing favoritism toward Dengeles, and that as a
result of Hackney's relationship with Dengeles, the unit suffered from
low morale. Chief Stover received reports of these problems and

                    10
heard specifically that Hackney was giving Dengeles special assign-
ments and, while on duty, disappearing alone with Dengeles for hours
at a time. In addition, Hackney was counseled about this relationship
on more than one occasion and was instructed to be"above reproach"
in her dealings with Dengeles and other subordinates. Nevertheless,
even after she was instructed to make sure that her conduct was above
reproach, the Department received a number of disruptive phone
calls, alleging that Hackney was engaging in an affair with one of the
"motormen" and other inappropriate behavior. Next, Hackney had
dinner alone with Dengeles on one occasion, and on another occasion,
Hackney permitted Dengeles to conceal an audio-video camera in the
motorshed to determine who had been pulling his name off his locker.

Perhaps more troubling, Hackney never acknowledged the exis-
tence of anything more serious than a good friendship with Dengeles,
even when questioned directly about the relationship by Lt. Panther
during the Department's investigation into the anonymous phone calls
charging that Hackney was engaging in inappropriate behavior.
Because of Hackney's unwillingness to acknowledge the relationship,
Lt. Panther concluded that Hackney was not being entirely truthful
during the investigation and reported this conclusion to Chief Stover.

Also during late 1993 and early 1994, Hackney was often tardy to
work and lacked the focus and dedication she had previously brought
to her job. During a four-day period in September 1993, in particular,
Hackney failed to fulfill several commitments and, in addition, failed
to notify her supervisor, Lt. Beuchert. In addition, when Lt. Beuchert
attempted to contact Hackney who was ostensibly unable to come to
work because she was sick, he was unable to locate her at home.
Hackney later acknowledged that she was not home sick, but rather
spent this time in Nags Head, North Carolina. Although Hackney
blames her lack of focus on the illnesses of family and friends, she
does not dispute that her performance deteriorated during this time.

In light of these serious breaches of duty committed by Hackney
during 1993 and 1994, it would be surprising if she had been pro-
moted to lieutenant in the spring of 1995. In addition to relying on
mistakes made by Hackney, however, Chief Stover also explained
that he decided that Alt was better suited for the lieutenant's position
than Hackney because Alt had experience in all three divisions of the

                     11
Department, while Hackney's experience was limited to the SOS unit.
This assertion is supported by his suggestion to Hackney in April
1994 that she transfer to midnight patrol, in part, to give her a broader
base of experience making it more likely that she would eventually
be promoted to lieutenant. Hackney nevertheless rejected this transfer,
and at the time Chief Stover decided to promote Alt to lieutenant,
Hackney lacked the diverse experience within the Department she had
been told she needed for promotion to lieutenant. 3

All of this evidence establishes that even in the absence of Hack-
ney's participation in the FLSA lawsuit, she would not have been pro-
moted to lieutenant in May 1995. It is true that Hackney received only
positive performance evaluations during 1993 and 1994, notwith-
standing her problems concerning Dengeles and a lack of focus. How-
ever, despite these evaluations, it is undisputed that she experienced
these problems and that she was counseled on numerous occasions to
correct them. It is also true that the personnel department had given
Hackney the highest promotion score on the promotion list. However,
it is not clear how much the personnel department knew about the
problems Hackney had been having, and each of the five candidates
on the promotion list was qualified for the promotion. Chief Stover
was thus free to choose any one of them. According to Chief Stover,
the rank order on the promotion list is not the most important consid-
eration when deciding on a particular promotion, and he generally
does not promote the candidate given the highest assessment by the
personnel department. Rather, he considers dependability, integrity,
and judgment to be equally important.
_________________________________________________________________
3 In dissent, Judge Michael makes much of the fact that the evaluation
of Hackney's decision-making skills was reduced from"exceeds" to "sat-
isfactory" in her August 1995 performance evaluation, asserting that this
incident could be considered evidence of a "cover-up" within the depart-
ment relating to the failure to promote Hackney. We disagree. First,
Hackney's performance evaluation was reduced slightly in only one of
fifteen categories on one evaluation, hardly evidencing a department-
wide cover-up. Second, according to Deputy Chief Brewer, it was not
Hackney's participation in the lawsuit that concerned him, but the belief
that she had grossly misrepresented her duties in the context of that law-
suit. Finally, this evaluation was completed months after the decision at
issue in this case and, therefore, was not considered by Chief Stover at
the time he made the decision not to promote Hackney in May 1995.

                     12
When choosing which of his officers should be promoted to lieu-
tenant, one of the highest positions in the Department, Chief Stover
was charged with the responsibility of choosing between several qual-
ified candidates. At the time he made his decision, Chief Stover was
aware of Hackney's performance problems and her lack of truthful-
ness during the phone call investigation. There is no evidence that Alt
had experienced similar problems. In addition, Alt enjoyed a broader
base of experience within the Department, a quality Chief Stover tes-
tified was particularly important at the level of lieutenant. The over-
whelming evidence, then, demonstrates that Chief Stover's decision
to promote Alt to lieutenant over Hackney in May 1995, even if influ-
enced, in part, by Hackney's participation in the FLSA lawsuit, would
have been the same even if Hackney had not engaged in protected
activity. The Department's evidence on this point is so overwhelming,
in fact, that no reasonable jury could conclude that"but for" Hack-
ney's protected activity she would have been promoted in May 1995.

IV.

For the foregoing reasons, we affirm the decision of the district
court to enter summary judgment in favor of the Department as to
Hackney's claim that she was retaliated against in violation of
§ 215(a) of the FLSA when she was denied the promotion to lieuten-
ant in May 1995.

AFFIRMED

MICHAEL, Circuit Judge, dissenting:

I respectfully dissent.

I do agree with the majority that Sergeant Hackney"produced suf-
ficient evidence from which a reasonable jury could conclude that her
participation in the FLSA lawsuit [against the Arlington County
Police Department] was a motivating factor in Chief Stover's decision
to promote [Sergeant] Alt to lieutenant over Hackney in May 1995."
Maj. op. at 10. Because this is a mixed-motives case, the department
has the burden to show by a preponderance of the evidence that Hack-
ney would have been passed over regardless of her involvement in the

                     13
FLSA lawsuit. The department did present evidence from which a
rational jury could conclude that it satisfied this burden. However, I
do not believe that this evidence was so overwhelming or so uncon-
troverted "that a reasonable jury could only conclude . . . that Hack-
ney would not have been promoted in May 1995, even if she had not
participated in the FLSA lawsuit." Maj. op. at 10 (emphasis in origi-
nal). There remain several material questions of fact which, if
resolved in Hackney's favor, could lead a rational jury to conclude
that Hackney would have been promoted "but for" her involvement
in the FLSA lawsuit.

Sergeant Hackney testified that Chief Stover admitted to her, when
she asked him why he had not promoted her, that his first reason was
that she was a plaintiff in the FLSA lawsuit. (Hackney made and kept
written notes of the meeting in which the Chief made this admission.)
This evidence alone was enough to permit a jury to conclude that
Hackney's involvement in the FLSA lawsuit was the"but for" cause
of Chief Stover's failure to promote her. To hold otherwise is to take
on the job of a jury, which could accept Hackney's testimony about
Chief Stover's admission and reject the Chief's testimony that he
would not have promoted her in any event.

In addition to her direct evidence of Chief Stover's retaliatory
motivation, Hackney offered substantial circumstantial evidence to
show that she was passed over for a promotion as a result of her
involvement in the FLSA lawsuit. First, Hackney offered evidence
that she was well-suited for the promotion. She was an excellent offi-
cer over a 16-year period with the Arlington County Police Depart-
ment. In the two years before she was passed over for promotion, she
received departmental ratings of "Superior" (the highest) for 1993 and
"Exceeds" (next to highest) for 1994.1 Over her career Hackney
received numerous commendations from both inside and outside the
department.
_________________________________________________________________
1 The department contends that these ratings are irrelevant because
Chief Stover testified that he does not consult personnel files when mak-
ing decisions about promotions. I think it might be hard for a jury to
believe that a police department makes detailed formal evaluations of its
officers' performance, and yet entirely disregards those evaluations when
making promotion decisions.

                    14
Second, Hackney presented evidence which suggested that in the
normal course of things she -- not Sergeant Alt-- would have been
promoted to lieutenant in the Special Operations Section (SOS).
Hackney was the top candidate left on the lieutenant eligibility (pro-
motion) list in May 1995 and Alt was second on that list. Although
Chief Stover said in his deposition that he did not always promote the
top candidate on the promotion list, the evidence in the record could
have led a jury to draw the contrary conclusion. On the record before
us, it appears that the Chief promoted three sergeants to lieutenant in
Spring 1995, and two of those were at the top of the promotion list
when they were made lieutenants. The only time in Spring 1995 that
Chief Stover did not promote the top sergeant on the list was when
he promoted Alt (who was second) over Hackney (who was first).
Yet, even then Chief Stover chose the top person on the list if Hack-
ney, who was involved in the FLSA suit, was excluded.2

Further, although Chief Stover testified that Alt was better suited
for promotion than Hackney because the department needed new lieu-
tenants (like Alt) with prior experience in several units, a jury could
have concluded that Stover in fact felt otherwise. The Chief admitted
in his deposition that what the department needed in May 1995 was
a new lieutenant in its SOS unit, and it was uncontested that Hackney
had more experience in SOS than did Alt. Further, although "there is
no evidence that Alt had experienced similar problems" to those
Hackney allegedly experienced at work, Maj. op. at 13, Alt's record
was not unblemished. In his deposition Alt admitted that he had been
disciplined twice in the five years prior to his promotion.

Third, Hackney forecast evidence to show that the department's
proffered reasons for not promoting her, poor decision making and
lack of attention to her job, were false. The department claims that
Hackney dated a subordinate, Officer Dengeles, whom she favored
(some said) with better work assignments. The department also
_________________________________________________________________
2 Although Alt initially had been part of the coalition of sergeants that
eventually filed the FLSA lawsuit, he dropped out of the coalition after
he learned of his position on the promotion list (this was before the com-
plaint was filed). In his deposition Alt admitted that he dropped out
because he thought his involvement in the coalition might hurt his
chances for promotion.

                    15
asserts that Hackney was not truthful about her relationship with Den-
geles. However, Chief Stover admitted that there was no rule against
dating subordinates, saying that departmental rules only prohibited
preferential treatment. Although Hackney's relationship with Den-
geles was investigated by Internal Affairs, it appears that there were
no findings that Hackney gave preferential treatment to Dengeles with
respect to his work as a police officer. In any event, neither Hackney
nor Dengeles was disciplined as a result of their relationship. Further,
Sergeant Hackney vehemently denies that she lied about her relation-
ship with Dengeles. She said:

          The only Arlington County Police Officer who asked me
          about my personal connection to Chris Dengeles was Dep-
          uty Chief Brewer who inquired whether I was having a"sex-
          ual relationship" with Officer Dengeles. I responded that I
          am not going to answer questions pertaining to my personal
          life. I never denied having a relationship with Officer Den-
          geles.

If a jury believed Hackney rather than her superiors, it could conclude
that the department did not find fault in Hackney's relationship with
Dengeles and, thus, that this proffered reason (poor decision making)
for failing to promote Hackney was pretextual.

The department also says that Hackney's outstanding level of per-
formance dipped in the summer of 1993 and remained at a lower level
throughout early 1994. Hackney concedes that her work suffered for
a brief period in July and August 1993, but she says there were justifi-
able reasons for that. During this time, her sister was diagnosed with
Multiple Sclerosis, and her father (who was a diabetic) was losing his
eyesight and was making frequent trips to the doctor. Hackney also
spent time with a friend whose son was hospitalized with a serious
asthma condition. Hackney said that supporting her family and
friends, often at nightlong vigils at hospitals, did impair her stamina
in July and August 1993. Thereafter, she says that her high level of
performance resumed.

There is support in the record for Hackney's claim that her overall
performance at work was not affected by her performance in July and
August 1993. In her 1993 performance evaluation (conducted in

                    16
August 1993), her supervisor, Lieutenant Beuchert, said: "Sergeant
Hackney has had an outstanding year & has received a superior rating
for her contributions for this appraisal." Further, Hackney's 1993 per-
formance appraisal said that she was an excellent role model. In
Hackney's 1994 performance appraisal, Lieutenant Beuchert com-
mented that she "continues to maintain [a] good decision making bat-
ting average." Hackney's overall performance also remained at a high
level for 1994, rating a score of "Exceeds." Since Hackney's own
supervisors continued to give her glowing reviews during the period
in which the department claims her work suffered, a jury could find
that the department did not really believe her work suffered. From this
the jury could conclude that the department's second proffered reason
for failing to promote Hackney (lack of attention to work) was also
pretext.

In 1995 Hackney maintained a high level of performance, although
one of the ratings (for decision making) on her 1995 evaluation was
listed as "Satisfactory." Hackney proffered evidence to explain this
lower rating, however. In his deposition Beuchert admitted that after
he drafted Hackney's 1995 performance evaluation, his superior,
Deputy Chief Brewer, showed him a copy of Hackney's answers to
some interrogatories in the FLSA lawsuit. According to Beuchert,
Deputy Chief Brewer persuaded him that Hackney's answers demon-
strated poor decision making. Beuchert further admitted that Deputy
Chief Brewer convinced him (Beuchert) to reduce Hackney's
decision-making score from "Exceeds" to "Satisfactory" on the final
version of her 1995 appraisal. Deputy Chief Brewer also admitted that
he had asked Beuchert to downgrade Hackney's decision-making
score on the 1995 evaluation because of her answers to the interroga-
tories from the FLSA suit.

This evidence that Hackney's superiors changed their own formal
appraisal of her decision making based on the FLSA lawsuit, after
they decided not to promote her, is further evidence that the depart-
ment did not believe Hackney exhibited poor decision-making skills.
This evidence does more than just explain Hackney's average
decision-making grade for 1995, however. It also raises the specter of
a cover-up within the department relating to the failure to promote
Hackney. If a jury concluded that such a cover up existed, it could

                    17
well conclude that both of the department's proffered reasons for not
promoting Hackney were simply after-the-fact excuses.

In sum, I believe Sergeant Hackney offered evidence that would
allow a rational jury to conclude that the department's proffered rea-
sons for not promoting her (poor decision making and insufficient
attention to work) were pretextual. Moreover, as the majority
acknowledges, Hackney presented direct evidence from which a rea-
sonable jury could find that an impermissible reason (her involvement
in the FLSA lawsuit) motivated the Chief's decision not to promote
her. Since Hackney offered evidence that an improper reason moti-
vated Chief Stover, and since she also offered evidence that the offi-
cial reasons for not promoting her were pretextual, a rational jury
could decide that the FLSA lawsuit was the only reason that Hackney
was not promoted.

This case, like many mixed-motives cases, "is not grist for the sum-
mary judgment mill," Adler v. Madigan, 939 F.2d 476, 479) (7th Cir.
1991). Two questions are at the heart of this case: (1) was Hackney
telling the truth when she said that Chief Stover told her that he did
not promote her because of her involvement in the FLSA lawsuit; and
(2) was Chief Stover telling the truth when he said that he would not
have promoted Hackney regardless of the FLSA lawsuit. These are
classic jury questions, and they are material to the outcome of this
case for one reason: if a jury accepted Hackney's testimony and
rejected Stover's, it could find for Hackney. Because there are mate-
rial questions of fact, summary judgment for the defendants was inap-
propriate.

This case should go to trial.

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