7th Circuit: Hostile work environment claim forfeited in military discrimination case 

A former South Bend police officer who sued the city alleging unlawful discrimination based on his military status did not sway a 7th Circuit Court of Appeals panel on Friday that affirmed a ruling against him.

After serving as a patrolman for the South Bend Police Department for more than a decade, Davin Hackett applied for a job posting for hazardous device technicians on the department’s bomb squad.

Hackett, who also served as a reservist with the Indiana Air National Guard and worked with aircraft weapons systems, was not selected for one of the three bomb squad positions. Hackett was told that although he was the most qualified candidate, he wasn’t selected because of his pending seven-month deployment and future National Guard commitments.

He subsequently filed complaints with the Equal Employment Opportunity Commission and the United States Department of Labor alleging that he had been discriminated against on the basis of his military service, prompting the city to change course and offer him one of the positions. In order for Hackett to get the position, however, another officer had to give up his spot on the team.

Hackett later alleged that he was unfairly excluded from bomb squad training because he stood up for his rights against discrimination based on his military service, and brought the issue to both the human resources department and chief of police. After an investigation ensued, Hackett was told that he should not attend bomb squad practices during the pending investigation, and ultimately never attended another training.

Meanwhile, Hackett was passed over for a promotion to patrol sergeant after he was deployed. The police department had moved Hackett’s interview for the promotion to accommodate him, but because of his deployment, Hackett was unable to submit his work sample until several days after the interview.

Hackett sued the city, alleging unlawful discrimination on the basis of military status in violation of the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C.§ 4301. He also asserted retaliation for being excluded from the bomb squad and discrimination for failing to promote him to sergeant because of his military deployment.

The U.S. District Court for the Northern District of Indiana granted summary judgment for the city on both claims, concluding that the city’s exclusion of Hackett from the bomb squad did not constitute a materially adverse employment action or cost Hackett pay, rank, or job duties. It also granted summary judgment on Hackett’s failure-to-promote claim, concluding that no reasonable jury could find that the promotion process was tainted by any impermissible motive.

Hackett brought his case to the 7th Circuit Court of Appeals, which affirmed in Davin Hackett v. City of South Bend, 19-2574.


“The only claim Hackett raises in his appellate brief is one he did not raise in the district court,” Circuit Judge David Hamilton wrote. “Hackett argues on appeal that he was subjected to a hostile work environment. But by failing to bring this argument before the district court, Hackett has forfeited it.”

The conduct underlying Hackett’s newly raised hostile work environment claim is the same as that underlying his retaliation claim, but these are legally distinct theories with different elements. At summary judgment, though not necessarily in a complaint, a plaintiff needs to spell out these distinct theories separately, at least to the extent that the brief gives the district judge fair notice that the theory is being asserted,” the 7th Circuit wrote. “Because the hostile work environment claim was not raised in the district court, we will not consider it on appeal.”

Additionally, the 7th Circuit noted that Hackett failed to engage with the district court’s reasoning for granting summary judgment to the city, “let alone shown there was any reversible error.

“… An appellant who does not address the rulings and reasoning of the district court forfeits any arguments he might have that those rulings were wrong,” Hamilton wrote. “It is not enough for Hackett to tell us that he is ‘advancing the same arguments he made in the district court.’ For us to consider those arguments, he needed to present them, not just gesture at them.”

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