Carmen Consolino v. THOMAS J. DART, Sheriff of Cook County, Illinois

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-2968
C ARMEN C ONSOLINO, et al.,
Plaintiffs-Appellants,
v.
THOMAS J. DART, Sheriff of Cook County, Illinois, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 17 C 9011 — Jorge L. Alonso, Judge.
____________________
A RGUED M AY 16, 2024 — DECIDED NOVEMBER 5, 2024
____________________
Before EASTERBROOK, R IPPLE, and JACKSON -A KIWUMI , Cir-
cuit Judges.
EASTERBROOK, Circuit Judge. Among many duties, the Sher-
iff of Cook County manages the Cook County Jail. Each of the
Jail’s divisions has a superintendent plus multiple command-
ers, lieutenants, sergeants, and guards (correctional officers).
Rather, each division had commanders until late 2017, when
all were laid off. Superintendents, lieutenants, sergeants, and
guards remain. Six of the former commanders contend in this

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2 No. 23-2968
suit under 42 U.S.C. §1983 that the layoffs violated their rights
under the First Amendment, applied to the states by the Four-
teenth.
When the commanders were laid off, the Teamsters Union
was conducting an organizing campaign. Unions represent
about 90% of the Sheriff’s work force, but the Sheriff viewed
commanders as part of management and opposed their or-
ganization. On August 2, 2017, an administrative law judge
recommended that the Illinois Labor Relations Board permit
the Teamsters Union to represent the commanders in collec-
tive bargaining. (Public employers are outside the scope of the
National Labor Relations Act, see 29 U.S.C. §152(2), so only
state law governs unions in state or local public employment.)
Before the Board could act on this recommendation, a
budget crunch arrived. The Cook County Board of Commis-
sioners initially provided the Sheriff’s Office with a budget of
$625 million for Fiscal Year 2018, though the Sheriff con-
tended that the Office needed about $50 million more. In fall
2017 the County Board repealed a tax that it had counted on
to support the $625 million budget. The Board’s staff told the
Office that its revised FY 2018 budget would be $553 million,
about $120 million less than the Sheriff thought necessary.
That brought on a crisis, as FY 2018 was to begin on December
1, 2017, and the Office could not pay for all of its activities.
Most of the expense of running the Office is payroll, so hun-
dreds of positions had to be cut, in addition to achieving sav-
ings in other ways.
Teams throughout the Office discussed multiple plans for
cutting payroll. One plan entailed firing all of the command-
ers (the County Board’s staff supported this option, believing
the Sheriff’s Office top-heavy in management); another called

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No. 23-2968 3
for eliminating the commanders’ positions and allowing the
former commanders to “bump down” to lieutenant positions
(with the displaced lieutenants bumping sergeants, and so
on); other possible plans included thinning all ranks (e.g., go-
ing from 25 commanders to 15, with similar cuts elsewhere).
The Office ultimately concluded that removing all command-
ers, a well-paid rank, was faster and less disruptive than thin-
ning all ranks or bumping down—though plenty of other
workers also had to go for the budget to balance. The County
Board approved a revised budget on November 21, 2017, and
the new budget did not provide for the employment of any
commander. Their service ended on December 4, 2017.
Three months later, the Illinois Labor Relations Board
ruled that the commanders had been “supervisors” as state
law defines that term, 5 ILCS 315/3(r), and therefore had
lacked entitlement to engage in collective bargaining over
management’s opposition. International Brotherhood of Team-
sters, Local 700, 34 PERI ¶144 (Mar. 6, 2018); see 5 ILCS
315/3(s)(2). The Constitution does not entitle any state or local
worker to bargain collectively with a public employer. See,
e.g., Ysursa v. Pocatello Education Association, 555 U.S. 353, 359
(2009); Smith v. Highway Employees, 441 U.S. 463, 465 (1979).
But the First Amendment does create a right to lobby for gov-
ernmental benefits, including those to which the applicant
lacks entitlement. See, e.g., BE&K Construction Co. v. NLRB,
536 U.S. 516, 524–33 (2002) (describing the Noerr-Pennington
doctrine and its exceptions). The parties have assumed that
the former commanders enjoyed this sort of constitutional
right when seeking representation by the Teamsters Union;
we need not decide whether that assumption is correct.

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4 No. 23-2968
The district court granted summary judgment to the Sher-
iff, holding that the evidence does not support an inference
that the pro-union speech of any commander caused the
layoffs. 2023 U.S. Dist. LEXIS 167245 (N.D. Ill. Sept. 20, 2023).
The judge thought that every reasonable juror would be
bound to conclude that the commanders were the victims of
a budget shortfall.
The existence of a serious budget problem is undisputed.
Still, the top ranks of the Sheriff’s Office opposed unionization
of the commanders and were disappointed by the administra-
tive law judge’s decision (and with the campaign that pre-
ceded it). Plaintiffs say that this disappointment led the Office
to select their jobs for elimination, instead of taking other op-
tions such as allowing the commanders to bump down, or
laying off more lieutenants or sergeants. The evidence of a
connection between their speech and the layoffs is strong
enough to create a jury issue, plaintiffs insist.
Like the district judge, we think not. The Illinois Labor Re-
lations Board held that the Office was entitled to prohibit the
commanders from collective bargaining, because they were
supervisors who were supposed to be on management’s
team. Even so, letting the commanders go was not the Office’s
preferred course. Until the budget problem struck, the Office
had not laid off or fired even a single commander, although
the unionization drive began in 2013. Plaintiffs depict the
layoffs as hard on the heels of the ALJ’s recommendation, but
the right focus is on the plaintiffs’ speech, which began years
earlier. The Office did not fire any commander or take other
adverse action during the organizing campaign, including the
proceedings before the ALJ. See Zorzi v. Putnam County, 30
F.3d 885, 896 (7th Cir. 1994) (discussing constitutional

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No. 23-2968 5
protection for filing suits, which is closely analogous to pur-
suing administrative litigation).
Plaintiffs stress, and we acknowledge, that the Sheriff’s op-
position to the commanders’ proposal for a union, plus the
ALJ’s recent decision, supplies a plausible basis in theory for
inferring a causal connection between the commanders’
speech and the loss of their jobs. But the facts do not support
that theory.
Nothing happened to any commander until the budget
problem intervened, though some response would have been
expected if the Sheriff had been determined to punish pro-un-
ion speakers. More: the County Board’s staff recommended
that the Office dispense with the commanders, though there
is no evidence that the Board’s staff knew or cared about the
ongoing unionization campaign.
After the County Board cut the budget, the Office did not
try to get rid of union adherents among the lieutenants and
lower ranks. Most of the work force was and remains union-
ized, and the portion represented by unions rose after the
commanders (who were not part of a bargaining unit) were
laid off. A personnel decision that increases the unionized
fraction of the labor force is hard to depict as an anti-union-
speech maneuver. All commanders were let go, without re-
gard to any opinions they had expressed (pro, con, or neutral)
on the organization campaign. Again that is hard to under-
stand as a penalty for pro-union speech. In sum, although the
record shows that the Office opposed the formation of a com-
manders’ union, the record would not permit a jury to infer
that plaintiffs’ speech from 2013 through 2017 led to the
layoffs in 2017.

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6 No. 23-2968
Plaintiffs observe that in fall 2017, contemporaneous with
laying off the commanders and hundreds of other workers,
the Office hired 12 new employees. This does not begin to sug-
gest that the Office’s stated reason for laying off the com-
manders is a pretext. An organization needs not simply the
right number of employees but also the right mix of employees.
If the Office set a target of, say, 300 guards, and several retired,
it would need to hire more even though it was simultaneously
laying off workers in other categories. Plaintiffs have not ar-
gued that the pattern of hires (12 in fall 2017, about 70 in all of
2018) and the positions to which the new workers were as-
signed suggests that there is anything fishy about the Office’s
explanation that cutting out one tier of supervision in fall 2017
was a good way to save money. Indeed, almost any of the laid-
off workers, in any rank, could have pointed a finger and as-
serted that it would have been preferable to save money else-
where. That does not so much as hint that the real reason for
the choice was anyone’s speech.
Contending that an employer’s decision was mistaken
does not imply that it was pretextual. To show that a decision
is pretextual, a plaintiff must show that the employer itself
did not believe the explanation—that it is a lie, rather than just
a mistake. See, e.g., Texas Department of Community Affairs v.
Burdine, 450 U.S. 248, 259 (1981); Russell v. Acme-Evans Co., 51
F.3d 64, 68 (7th Cir. 1995). The Sheriff’s Office had many ways
to cope with the budget shortfall; choosing one rather than
another (such as allowing commanders to bump down) does
not imply that the explanation is pretextual. Nor does it mean
that jurors rather than managers must make the effective de-
cision about how to meet a payroll. To the contrary, the fact
that multiple options were considered and competing views
expressed implies a careful decisionmaking method.

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No. 23-2968 7
Reasonable jurors could not conclude that the Office’s expla-
nation is a falsehood.
A FFIRMED

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8 No. 23-2968
JACKSON -A KIWUMI , Circuit Judge, dissenting. Plaintiffs are
former county correctional officers who contend that the
Cook County Sheriff’s Office killed two birds with a single
stone called layoffs. One of those birds (the officers’ effort to
unionize) would be off limits. The other (a budget shortfall)
would be fair game. Defendants are the Cook County Sheriff’s
Office and various leaders in both the Sheriff’s Office and its
subdivision, the Cook County Department of Corrections
(collectively, the “Sheriff’s Office”). They see the layoffs dif-
ferently. Because I believe that a jury, not a judge, is the
proper decision-maker here, I respectfully dissent.
I agree with my colleagues that there is nothing wrong
with the Sheriff’s Office acting efficiently when it can. See Ap-
pelbaum v. Milwaukee Metro. Sewerage Dist., 340 F.3d 573, 579
(7th Cir. 2003) (“We are not, after all, a super-personnel de-
partment that sits in judgment of the wisdom of an em-
ployer’s employment decisions.”). Here, it proved efficient for
the Sheriff’s Office to eliminate a layer of supervision—the
commander rank to which Plaintiffs belonged—when cutting
its budget. But the central question is why the Sheriff’s Office
rid itself of the commander rank rather than target some other
rank or adopt some other budget-cutting solution. To resolve
this appeal, we must determine whether the record contains
enough evidence for a reasonable jury to conclude that retali-
atory animus motivated the Sheriff Office’s decision. I believe
the record does.
I
I begin with the facts, construed in the light most favorable
to the commanders as the non-moving party at summary
judgment. See Johnson v. Edward Orton, Jr. Ceramics Found., 71
F. 4th 601, 609 (7th Cir. 2023).

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No. 23-2968 9
A. Unionization and Budget Trouble
There were twenty-five commanders in the Cook County
Department of Corrections (“Department”), a department
within the Cook County Sheriff’s Office, until they were all
fired on November 20, 2017. Years earlier, in 2013, the com-
manders had begun a campaign to unionize their rank. Com-
manders were the only group in the Department who tried to
unionize between 2013 and 2017, and they were the only com-
plete rank eliminated in 2017.
Although more than ninety percent of the Sheriff’s Office
staff was unionized, the Sheriff’s Office opposed unionization
by any level of management, including commanders. During
the commanders’ organizing campaign, certain Sheriff’s Of-
fice leaders made negative comments about unions and col-
lective-bargaining agreements. On separate occasions in 2015,
the Department’s Executive Director Nneka Jones-Tapia said
that the commanders “have the audacity to want a union”;
called the Teamsters Union “ignorant” and “disrespectful”;
and did not want the Teamsters Union to attend a meeting
about manpower. In October 2016, Michael Miller, a Depart-
ment Assistant Executive Director, said “you commanders
are a bunch of lazy [expletive], and now you are trying to get
a union too.”
In June 2017, while the unionization effort continued,
Cook County provided the Sheriff’s Office with a budget tar-
get of $625 million for Fiscal Year 2018. That budget target
was already $50 million less than the Sheriff Office’s had re-
quested for 2018, and it relied in part on revenue anticipated
from a new tax on sweetened beverages, sometimes referred
to as the soda tax. But a month later, in July 2017, Cook
County notified the Sheriff’s Office that a looming repeal of

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10 No. 23-2968
the soda tax would reduce the Office’s 2018 budget even
more.
In response, Undersheriff Zelda Whittler, second in com-
mand to Cook County Sheriff Thomas Dart, asked that Helen
Burke, the Sheriff Office’s Chief Legal Officer (not to be con-
fused with Matthew Burke, who enters the picture later), as-
semble a team to manage the anticipated budget cuts. One of
Helen Burke’s first priorities was revising “Article S” of the
Sheriff’s Employment Action Manual. Article S related to
layoffs of nonunion employees at the Sheriff’s Office, and all
parties agree the revisions eased those procedures. Ulti-
mately, the Sherrif’s Office revised Article S about a month
before the commanders’ termination.
Meanwhile, on August 2, 2017, the commanders’ unioni-
zation effort finally bore some fruit. An administrative law
judge for the Illinois Labor Relations Board issued a Recom-
mended Decision and Order that day concluding that the
rank of commander should be included in the Teamsters Un-
ion’s petitioned-for bargaining unit. Sometime during the
weeks that followed, Mario Reyes, another Department As-
sistant Executive Director, stated that “higher-ups” at the
Sheriff’s Office were upset with the decision and had reck-
oned it meant that the Sheriff’s Office would have to “deal
with another” collective bargaining agreement and would not
“be able to control the commanders.”
In mid-October 2017, the Cook County Board of Commis-
sioners voted to repeal the soda tax. Two weeks later, at the
end of October, the Board held a hearing on the Sheriff’s Of-
fice’s 2018 budget, during which multiple commissioners
questioned Sheriff Dart about the layers of supervision within
the Department of Corrections. A couple days later, the

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No. 23-2968 11
County Board sent a letter to the Sheriff’s Office requiring the
office to submit an updated budget reduced by an additional
ten percent ($62.5 million) within seven days.
Around the same time, Jeff Johnsen, the Department of
Corrections Chief of Operations, sent an email to the com-
manders lauding their experience, knowledge, and leader-
ship, and stating that he would rest easy knowing that the
compound’s operations were in their capable hands.
B. Budget Cut Options
Chief Legal Officer Helen Burke and her team promptly
began working on the County’s demand that the Sheriff’s Of-
fice submit a reduced budget within seven days. Three days
after receiving that demand, Helen Burke wrote to Depart-
ment Chief of Staff Matthew Burke and others. She asked if
they could examine the savings and operational issues that
would result from eliminating the commanders’ rank. Nota-
bly, Undersheriff Whittler had not identified specific posi-
tions to be eliminated in her request to Helen Burke and oth-
ers to examine the impacts of potential layoffs. Instead, Whit-
tler merely directed bureau chiefs and department heads to
discuss with their managers “what the operational needs
were within [their] department to determine, if positions had
to be eliminated, what positions would not [have] … an over-
all adverse impact on their offices.”
Over the next few weeks, Sheriff’s Office leadership made
proposals to the Cook County Board President and Budget
Director that did not include layoffs. These proposals in-
cluded transferring forest preserve police duties to the Sher-
iff’s Office, converting to video status hearings, transferring
electronic monitoring to the Chief Judge’s Office, closing

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12 No. 23-2968
court facilities, implementing furlough days, reducing trans-
portation needs, and cutting security details—each of which
the County rejected.
Meanwhile, Sheriff’s Office leadership internally rejected
alternatives to termination for the commanders. The com-
manders were not permitted to be demoted, or “bump[ed],”
to lower ranks. Nor were they permitted to take reductions in
pay even though pay reductions were offered to other staff.
Those alternatives were rejected by Sheriff’s Office Chief Op-
erating Officer Brad Curry, even though Matthew Burke,
Jones-Tapia, and Johnsen thought they were operationally
and fiscally feasible.
C. Cutting the Budget
Ultimately, after consulting with Jones-Tapia, Johnsen,
Miller, Matthew Burke, Helen Burke, and others, Curry de-
cided to eliminate the commander rank. Sheriff’s Office fired
all commanders, plus some other employees, on November
20, 2017. The Office’s final budget was approved the follow-
ing day. Sheriff’s Office Superintendent Joseph Brown, who
had testified at a contested Illinois Labor Relations Board
hearing on the Sheriff’s Office’s behalf—and therefore, the
commanders contend, contributed to the Sheriff’s Office’s loss
before the administrative law judge—was the only superin-
tendent laid off around this time.
Karyn Williams, the Sheriff’s Office Executive Director for
Human Resources, was not consulted about the decision to
terminate the commanders. In an email, Williams expressed
concern to Sheriff Dart and Undersheriff Whittler about this.
Her email read: “The human resources department was not
involved in the process. What factors did the decision makers

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No. 23-2968 13
consider to identify staff for the recent layoffs to prevent ad-
verse impact and discriminatory and retaliatory decisions in
the layoffs?” Within a month, Sheriff’s Office leadership filed
an Office of Professional Review complaint against Williams.
Williams was eventually fired two weeks after her last meet-
ing about that complaint.
II
As my colleagues correctly observe, there is no dispute
that the Sheriff’s Office aimed its stone at the budget shortfall.
The only dispute is whether it did so with the intention of also
putting an end to the commanders’ unionization effort.
The Supreme Court has set forth a burden-shifting frame-
work for analyzing First Amendment retaliation claims. See
Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, 287 (1977)
(articulating framework). At the first step, a plaintiff must es-
tablish a prima facie case by showing: (1) the plaintiff engaged
in activity protected by the First Amendment; (2) the plaintiff
suffered a deprivation that likely would deter First Amend-
ment activity in the future; and (3) the First Amendment ac-
tivity was “a motivating factor” in the defendant’s decision to
take the retaliatory action. Douglas v. Reeves, 964 F.3d 643, 646
(7th Cir. 2020) (quoting Bridges v. Gilbert, 557 F.3d 541, 546 (7th
Cir. 2009)). If a plaintiff makes that showing, the burden shifts
to the defendant at the second step “to show that he would
have taken the same adverse action even in the absence of the
protected speech.” See Gonzalez v. Trevino, 602 U.S. 653, 663
(2024) (Alito, J., concurring) (citing Mt. Healthy City Bd. of Ed.,
429 U.S. at 287). Finally, if the defendant makes that showing,
the burden returns to the plaintiff to “persuade a fact-finder
that the defendant[’s] proffered reasons were pretextual and
that retaliatory animus was the real reason” behind the

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14 No. 23-2968
adverse action. Massey v. Johnson, 457 F.3d 711, 717 (7th Cir.
2006).
To show pretext, the commanders “must present evidence
suggesting that the employer [dissembled.]” Castro v. DeVry
Univ., Inc., 786 F.3d 559, 565 (7th Cir. 2015). “The question is
not whether the employer’s stated reason was inaccurate or
unfair, but whether the employer honestly believed the rea-
son it has offered to explain the discharge.” Id. To answer that
question and meet their burden, the commanders “must iden-
tify such weaknesses, implausibilities, inconsistencies, or con-
tradictions” in the employer’s proffered reason such that “a
reasonable person could find [it] unworthy of credence.” Id.
(cleaned up). Importantly, we have observed that “[o]ften, the
same evidence used to establish the prima facie case is suffi-
cient to allow a jury to determine that a defendant’s stated
reason for terminating a plaintiff was a mere front for an ul-
terior, unlawful motive.” Valentino v. Vill. of S. Chicago Heights,
575 F.3d 664, 673 (7th Cir. 2009). Such evidence includes, “sus-
picious timing, ambiguous statements oral or written, and
other bits and pieces from which an inference of retaliatory
intent might be drawn.” Coleman v. Donahoe, 667 F.3d 835, 860
(7th Cir. 2012) (cleaned up).
My colleagues and I agree that the commanders were en-
gaged in protected activity as they sought the protection of
Illinois law for their unionization effort. See Smith v. Ark. State
Highway Emps., 441 U.S. 463, 464 (1979) (“The First Amend-
ment protects the right of an individual to speak freely, to ad-
vocate ideas, to associate with others, and to petition his gov-
ernment for redress of grievances.”). We also agree that the
Sheriff’s Office had a legitimate, non-retaliatory reason to ter-
minate the commanders. See ante, at 4 (“The existence of a

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No. 23-2968 15
serious budget problem is undisputed.”). But we disagree as
to whether the commanders have presented sufficient evi-
dence for a reasonable jury to find in their favor on the ulti-
mate question here: Was Defendants’ proffered reason pre-
textual? As discussed below, I believe the commanders have
presented enough evidence to survive summary judgment.
A. Circumstantial Evidence of Pretext
Here, there are enough “weaknesses, implausibilities, in-
consistencies, or contradictions” to present the controversy to
a jury. Castro, 786 F.3d at 565. Broadly, the evidence falls into
three categories: (1) Sheriff’s Office leaders made anti-union
comments, appealed an administrative law decision favoring
the commanders, and generally opposed the unionization of
management-level employees; (2) without much explanation,
the Sheriff’s Office refused alternatives to firing the com-
manders; and (3) Sheriff’s Office leaders made inconsistent
statements about whether Cook County required layoffs to ef-
fectuate the ten percent budget cut. Together, this evidence is
enough to survive summary judgment in my view. See Ortiz
v. Werner Enters., Inc., 834 F.3d 760, 764 (7th Cir. 2016) (“Evi-
dence must be considered as a whole, rather than asking
whether any particular piece of evidence proves the case by
itself ….”).
1. Union Opposition and Anti-Union Comments
To begin, the decision to eliminate the commanders rank
came after Sheriff’s Office leadership disparaged and op-
posed the commanders’ unionization effort. Formally, the
Sheriff’s Office opposed the effort in court and appealed the
administrative law judge’s adverse decision. Informally,
Sheriff’s Office leadership, including Jones-Tapia, Miller, and

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16 No. 23-2968
Reyes, made multiple anti-union comments. Recall, for in-
stance, Miller’s comment that the commanders were “a bunch
of lazy [expletive] … now trying to get a union too” and Jones-
Tapia’s complaint that the commanders had the “audacity to
want a union.” We have previously observed that similar
comments suggest an anti-union animus. See, e.g., Huck Store
Fixture Co. v. N.L.R.B., 327 F.3d 528, 534 (7th Cir. 2003) (con-
cluding that employer’s motivating anti-union animus was
supported by substantial evidence including company presi-
dent “publicly voic[ing] his disdain for the Union”); Spurlino
Materials, LLC v. N.L.R.B., 645 F.3d 870, 878 (7th Cir. 2011)
(“General Manager Matney’s multiple anti-union statements
demonstrated an atmosphere of hostility toward the Union.”).
A reasonable jury could find the comments and actions
above relevant to Defendants’ conduct, including, for exam-
ple, Helen Burke’s request to Matthew Burke. When given a
general directive by Undersheriff Whittler to assess the im-
pacts of potential layoffs, Helen Burke quickly turned her
sights to the commanders and the commanders alone. She did
not ask Matthew Burke to examine the savings from eliminat-
ing any other rank. Viewed in a light most favorable to the
commanders and considering the anti-union conduct de-
scribed above, a reasonable jury could find that this specific
and unprompted focus by the Chief Legal Officer was suspi-
cious. She was, after all, fighting the commanders’ unioniza-
tion effort in court at the time and she had recently made it
easier to fire non-union employees.
2. Refusing Alternatives and Excluding Human Resources
Second, the Sheriff’s Office refused alternative budgetary
options without much explanation and did not include the
human resources department in their deliberations. Recall,

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No. 23-2968 17
the Office refused “operationally and fiscally feasible” alter-
natives, such as demotions and pay cuts, that would have
saved the commanders’ jobs. The rejection of those alterna-
tives could suggest to a jury a predetermined commitment to
getting rid of the unionizing commanders. Further, the email
from the human resources head, Williams, could be read to
suggest that she expected to be part of the layoff process. A
reasonable jury, then, could consider the email evidence of
foul play if the jury infers that the Sherrif’s Office deviated
from standard processes when terminating the commanders.
See Joll v. Valparaiso Cmty. Schools, 953 F.3d 923, 931 (7th Cir.
2020) (“Joll’s references were contacted more quickly than
usual. A jury could find that this deviation from standard pro-
cedures also lends support to her claims.”); Rudin v. Lincoln
Land Cmty. Coll., 420 F.3d 712, 727 (7th Cir. 2005) (“This court
has held in the past that an employer’s failure to follow its
own internal employment procedures can constitute evidence
of pretext.”); see also Acevedo-Parrilla v. Novartis Ex-Lax, Inc.,
696 F.3d 128, 142–43 (1st Cir. 2012) (reasoning that failure to
submit reasons for termination may be suspicious where dis-
cipline must be approved by human resources).
Together, the short shrift given to budget-cutting alterna-
tives and the failure to consult with human resources could
suggest that the Sheriff’s Office was not engaged in a consci-
entious effort to identify the least disruptive budget maneu-
vers but, rather, was committed to using the budget shortfall
as an excuse to eliminate an organizing campaign that was
finally gaining traction. Indeed, a reasonable jury could find
that the Sheriff’s Office was merely “dotting their i’s and
crossing their t’s” by ostensibly considering other options. Cf.
Baines v. Walgreen Co., 863 F.3d 656, 663 (7th Cir. 2017) (con-
cluding that plaintiff presented enough evidence of

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18 No. 23-2968
retaliatory animus to survive summary judgment where in-
terviewers had been told they could not hire plaintiff but in-
terviewed plaintiff anyways).
3. Inconsistencies in Defendants’ Proffered Rationale
Third, the Sheriff’s Office made inconsistent statements
about their rationale for the layoffs. As some leaders saw it,
the County Board required layoffs specifically; as other lead-
ers saw it, the Sheriff’s Office had discretion on how to cut the
budget. And, apparently, some leaders even saw it both ways
at different times.
For example, Sheriff Dart responded to the commanders’
interrogatories as follows: “Chief Curry did not decide that
layoffs should occur. Rather, when informed by Cook County
that individuals in the [Sheriff’s Office], particularly in
[CC]DOC, must be laid off, Chief Curry ultimately made the
decision to select the commanders and other individuals for
such layoff ….” Helen Burke likewise testified that the County
required the Sheriff’s Office to make cuts through layoffs. And
Jones-Tapia testified, “Generally, I recall [Whittler] saying
that the County wanted bodies.” Whitler herself testified that
“[The County Board’s] position was is [sic] that the Sheriff’s
[O]ffice …. did not identify positions [to lay off], that in fact
they would because there was no pending solution to closing
this $200 million gap other than the elimination of positions.”
Before the district court, the Sheriff’s Office repeated the idea
that the County required layoffs multiple times, including ar-
guing that budget cuts were necessary to “satisfy the
County’s demand that the CCSO actually lay people off.”
But, as the commanders point out, those assertions were
contrary to other statements made by Sheriff’s Office leaders

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No. 23-2968 19
and County Board members. For instance, Curry testified that
the direction from Cook County was that the Sheriff’s Office
had to cut $62.5 million, but they did not say how it had to be
done, and he could not recall anyone from the County Board
saying the Sheriff’s Office specifically had to use layoffs to
reach budget goals. Helen Burke also testified, contrary to her
own statement above, that she could not recall the County
Board making such a request and that her team “did not know
there were going to be layoffs.” Further, the commanders also
assert that the County Board’s October 17th letter to the Sher-
iff’s Office did not express a directive to lay off employees but
rather a general directive to cut expenditures. Because this ap-
peal is before us on Defendants’ summary judgment motion
and because the letter does not expressly demand layoffs, the
letter should be construed in the commanders’ favor as not
requiring layoffs. I thus disagree with the majority’s state-
ment that “the County Board’s staff recommended that the
Office dispense with the commanders.” Ante, at 5.
A jury should decide what to make of these inconsisten-
cies. See Simple v. Walgreen Co., 511 F.3d 668, 671 (7th Cir. 2007)
(“[I]nconsistency is suggestive of pretext ….”); Kasten v. Saint-
Gobain Performance Plastics Corp., 703 F.3d 966, 974 (7th Cir.
2012) (“[A]n employer’s inconsistent explanations for taking
an adverse employment action [is] suggestive of pretext,
which, when supported by other evidence of improper mo-
tive, was sufficient to defeat a summary judgment motion in
the employer’s favor.”) (citing Simple, 511 F.3d at 671); see also
O’Neal v. City of New Albany, 293 F.3d 998, 1005 (7th Cir. 2002)
(“Because a fact-finder may infer intentional discrimination
from an employer’s untruthfulness, evidence that calls truth-
fulness into question precludes a summary judgment.”).

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20 No. 23-2968
B. Suspicious Timing
In deciding whether there is sufficient evidence for a jury
to weigh in favor of the commanders, the three considerations
above must be assessed alongside the layoffs’ timing. See Cole-
man, 667 F.3d at 860–61 (7th Cir. 2012) (observing that an in-
ference of retaliatory intent may be drawn from suspicious
timing and concluding that plaintiff offered sufficient evi-
dence to survive summary judgment); see also McGreal v. Os-
trov, 368 F.3d 657, 681 (7th Cir. 2004) (“The timing of these
events provides a genuine issue of fact regarding the true rea-
son for the Department’s actions against McGreal.”).
While the Illinois Labor Relations Board was considering
the commanders’ certification petition, the Sheriff’s Office
amended an internal policy that made it easier to lay off its
employees. Then, within three days of the Board’s request for
a ten percent cut, the Chief Legal Officer asked the Chief of
Staff what would result from eliminating the commanders.
Less than a month later, it was done: the Sheriff’s Office had
rid itself of the unionizing commanders. That timing is suspi-
cious enough for jury consideration and can—together with
the circumstantial evidence discussed above—support an in-
ference that the Sheriff’s Office stated rationale was pretext.
Cf. Coleman, 667 F.3d at 843–44, 861 (plaintiff fired five weeks
after second EEOC complaint, five months after first EEOC
complaint, and nearly eight months after first informal com-
plaints).
On the issue of timing, my colleagues contend that the
“right focus is on the plaintiffs’ speech, which began years
earlier [than the recommended decision].” Ante, at 4. They
note that no commanders were laid off during the organizing
campaign until the budget crisis hit, so they conclude “the

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No. 23-2968 21
record would not permit a jury to infer that plaintiffs’ speech
from 2013 through 2017 led to the layoffs in 2017.” Id. at 5 (rea-
soning, “[S]ome [pre-recommended decision] response
would have been expected if the Sheriff had been determined
to punish pro-union speakers.”).
But there is reason in the record to disclaim this approach.
Consider, for example, Chief Operating Officer Curry’s testi-
mony that he was not aware of the commanders’ unionization
effort until “sometime in late 2016 or early 2017.” Moreover,
a reasonable jury could believe that the commanders’ pro-
tected speech did not become an actual nuisance until the ad-
ministrative law judge issued the decision in August 2017 rec-
ommending that the commanders be included in a new bar-
gaining unit. It was not until this development, perhaps, that
the Sheriff’s Office had to take the commanders’ effort seri-
ously. And the evidence showed that leaders within the Sher-
iff’s Office were upset that this development meant they
could no longer control the commanders. Within three
months, the entire rank had been eliminated. Framed this
way, the retaliation occurred mere weeks after a key point in
the commanders’ constitutionally protected endeavor.
A useful guidepost here is our decision in Carlson v. CSX
Transportation, Inc., 758 F.3d 819 (7th Cir. 2014). In that case,
Carlson “alleged that the resolution of her 2007 [sex discrimi-
nation] lawsuit in 2009 sparked animosity right away and that
all of her attempts to advance at CSX since then ha[d] been
thwarted.” Id. at 829. Carlson filed her initial suit against CSX
in September 2007 and then settled and dismissed the case in
May 2009. She alleged that retaliation then began shortly
thereafter, also in May 2009. On appeal, we agreed that the
proper focal point was the 2009 resolution of Carlson’s initial

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22 No. 23-2968
suit, so we reversed the district court’s dismissal of Carlson’s
action for failure to state a claim. Carlson’s settlement func-
tioned much like the Illinois Labor Relations Board’s August
2017 decision in this case. A reasonable jury could find that
the recommended decision, like the Carlson settlement,
prompted Defendants to act on their retaliatory intentions.
In sum, a reasonable jury could find that the Sheriff’s Of-
fice decided they would use the budget crisis that had been
forecast for them as early as July 2017 as cover to terminate
the commanders once the administrative law decision was is-
sued. The mere fact that Defendants then waited until shortly
before the budget crisis clock struck midnight three months
later does not necessarily defeat such an inference. Cf. Hicks v.
Forest Pres. Dist. of Cook Cnty., 677 F.3d 781, 788 (7th Cir. 2012)
(holding that a twenty-two month gap was not too long where
the suing employee put forward evidence that a supervisor
told someone that the employee needed to be fired because he
had filed discrimination charges against that supervisor);
Paluck v. Gooding Rubber Co., 221 F.3d 1003, 1009–10 (7th Cir.
2000) (“Of course, the fact that a year passed between [the em-
ployee’s] protected expression and her termination does not
mean that she cannot prove that retaliation caused her dis-
charge….”).

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No. 23-2968 23
III
The six commanders who brought this suit made a prima
facie showing of retaliation and presented enough circumstan-
tial evidence to raise a genuine dispute about whether the
Sheriff’s Office’s stated rationale for the commanders’ layoffs
was pretextual. When the record is viewed in the light most
favorable to the commanders, a reasonable jury could find in
their favor. For that reason, this case should have gone to a
jury. I respectfully dissent.

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