Garofalo v. Village of Hazel Crest, 2014 U.S. App. LEXIS 11087 (7th Cir. June 12, 2014):

Plaintiff-Appellants Michael Garofalo and Mark Peers appeal from the district court's grant of summary judgment in favor of Defendant-Appellees, the Village of Hazel Crest and its individual officers, in their race discrimination case. Garofalo and Peers, both white, were sergeants on the Hazel Crest police force.  [*2] They were among four front-runners considered for a deputy police chief position, which ultimately went to a black officer who was not one of the four initially-discussed candidates. Plaintiff-Appellants assert that the Village and its officers discriminated against them by promoting a black officer they contend is unqualified for the position. They sued the Village under, inter alia, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. §§ 1981, 1983, as well as under Illinois state law.

We affirm the district court's finding that Plaintiff-Appellants failed to present sufficient evidence to withstand Defendant-Appellees' motion for summary judgment. Summary judgment was proper on Garofalo's and Peers's claims of racial discrimination because they did not present sufficient evidence to permit a reasonable jury to find that they were the object of unlawful discrimination.

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We are not moved by Garofalo's and Peers's contention that the district court improperly granted summary judgment on an affirmative defense that was waived. Plaintiff-Appellants argue that Defendant-Appellees did not raise their affirmative defense of mixed motives--the argument that neither of the officers would have been promoted even in the absence of race-based discrimination--until the summary judgment stage. We review this contention for an abuse of discretion, and will only find that the district court abused its discretion if the  [*19] defendants' delay caused the plaintiffs to suffer prejudice. Williams, 399 F.3d at 871. We do not find any such prejudice here, and decline to find that the district court abused its discretion.

Plaintiff-Appellants are correct that the Federal Rules of Civil Procedure require that "a party must affirmatively state any avoidance or affirmative defense ... ." Fed. R. Civ. P. 8(c). Our circuit considers mixed motives an affirmative defense. Speedy v. Rexnord Corp., 243 F.3d 397, 401 (7th Cir. 2001) (stating that the Supreme Court case of PriceWaterhouse v. Hopkins, 490 U.S. 228, 258 (1989), "established the 'mixed-motive' affirmative defense"). However, "the rule that forfeits an affirmative defense not pleaded in the answer (or by an earlier motion) is, we want to make clear, not to be applied rigidly." Matthews v. Wis. Energy Corp., Inc., 642 F.3d 565, 570 (7th Cir. 2011) (citation and internal quotation marks omitted). We will generally find that "[t]he failure to plead an affirmative defense in the answer works a forfeiture only if the plaintiff is harmed by the defendant's delay in asserting it." Id. (citation and internal quotation marks omitted). Defendant-Appellees correctly argue  [*20] that the argument was obvious throughout the case, and that they raised it in detail in their initial summary judgment brief, as well as in their initial motion to disqualify one counsel from representing all plaintiffs. Garofalo and Peers had the opportunity to challenge this argument in their own summary judgment submissions, as well as in their opposition briefs to the Defendant-Appellees' summary judgment brief. Additionally, the district court addressed this defense from the outset of the case, when it stated that "[t]o the extent that one plaintiff proves that he was the one who would have been promoted if not for discrimination, he provides a defense against the claims of the other three [plaintiffs]."

Defendant-Appellees did not waive the affirmative defense of mixed motives, and the district court did not abuse its discretion in allowing this argument to be raised in the summary judgment briefing.