Full opinion text
MEMORANDUM OPINION AND ORDER HART, Senior District Judge. As presently constituted, this case has approximately 90 named plaintiffs, all of whom are African-American women with United States citizenship who allegedly were searched by employees of the United States Customs Service at Chicago’s O’Hare International Airport (“O’Hare”) following their arrival on international flights. The searches of the named plaintiffs allegedly occurred between March 1996 and August 1999. Named as defendants are the United States, the United States Customs Service (“Customs”), and approximately 70 current or former employees of Customs. Management officials, lower-level supervisors, and nonsupervisory employees are sued in their individual capacities. Presently pending are certain defendants’ motions for summary judgment and related procedural motions. I. ISSUES RAISED A. Allegations of the Complaint Following prior rulings on motions to dismiss, for class certification, and for summary judgment, the following claims remain pending in the Seventh Amended Complaint. See Anderson v. Cornejo, 199 F.R.D. 228 (N.D.Ill.2000) (“Anderson IV”); Anderson v. Cornejo, 1999 WL 258501 (N.D.Ill. April 21, 1999) (‘Anderson II”). See also Anderson v. Cornejo, 1999 WL 35307 (N.D.Ill. Jan.11, 1999) (‘Anderson I” ). Count I is an equal protection claim that Customs inspectors targeted African-American women for non-routine personal searches. Count III is a Fourth Amendment claim that Customs inspectors lacked sufficient cause or suspicion to seize, detain, and search plaintiffs. Count V is a Federal Tort Claims Act claim against the United States that the conduct of the individual defendants constitutes false imprisonment, assault, and battery. Count VI is a Fourth and Fifth Amendment claim that Customs inspectors denied due process by not obtaining judicial authorization for the searches and by holding plaintiffs “in communicado.” Count II is an equal protection claim that Managerial and Supervisory Defendants failed to take proper action to prevent or stop the discriminatory selection of African-American women for nonroutine personal searches alleged in Count I. Count IV is a Fourth Amendment claim that Managerial and Supervisory Defendants failed to take proper action to prevent or stop the illegal seizures, searches, and detentions alleged in Count III. Count VII is a Fourth and Fifth Amendment due process claim that Managerial and Supervisory Defendants promulgated and executed a “policy and practice allowing the Customs inspectors, on nothing more than alleged ‘reasonable suspicion,’ (a) to detain plaintiffs for an indefinite and wholly discretionary time-period; (b) to conduct the non-routine personal searches described herein without judicial authorization; (c) while holding the plaintiffs in communica-do. ” 7th Am. Compl. ¶ 175. Count IX is a claim that Managerial Defendants, Supervisory Defendants, and possibly Customs inspectors conspired together in violation of 42 U.S.C. § 1985(3) to commit the violations alleged in Counts I, III, and VI, including by establishing criteria for targeting persons to be searched, fabricating search justifications, destroying plaintiffs’ Customs declaration cards, and ignoring complaints of discrimination against African-American women. Count X is a claim that Managerial and Supervisory Defendants violated 42 U.S.C. § 1986 by failing to prevent the conspiratorial conduct alleged in Count IX. Count VIII is a claim for injunctive relief on behalf of a putative class of all persons in the country subjected to non-routine personal searches at international airports. It is labeled as an Administrative Procedure Act (“APA”) due process claim based on the various Customs Commissioners’ promulgation of the policy and practice alleged in Count VII. The damages claims of each count are on behalf of the named plaintiffs only. Classes have been certified for injunctive relief only as to Counts II, IV, VII, VIII, IX, and X. Anderson IV, 199 F.R.D. at 237-45, 264-65, 267. B. The Motions for Summary Judgment Managerial Defendants Sam Banks (“Banks”), George Weise, Kevin Weeks, Sergei Hoteko, and Robert Trotter have moved for summary judgment on all the individual capacity claims brought against them in Counts II, IV, VII, IX, and X, primarily on the ground that they were not personally involved in any of the alleged misconduct. Managerial Defendant Patrick Noonan also moves for summary judgment, adopting the briefs of the other Managerial Defendants. The parties have agreed that any ruling as to Counts II, IV, and VII should also be applied to the claims in those counts that are against Supervisory Defendants Mario Cornejo, Larry DiGianntonio, William Desmond, Gloria, Banks, Ronald Zaczek, Gene Taylor, David Gooding, Dominic Biagioni, Michael Johnson, and Mark Woods, except as to selected searches in which one or more of these Supervisory Defendants were directly involved. See Agreed Motion of Certain Defendants to Join in the Pending Motion for Summary Judgment of the Managerial Defendants [Docket Entry 313]. The parties have also agreed that any ruling as to Count IX should apply as to the Count IX § 1985 conspiracy claims against Customs inspectors Olga Martinez, Maria Rocha, Michelle Belcastro, Jennifer Usleber, Melissa Zytowski, Lynda Hall, Guadalupe Corona, Chen W. Yu, and Samuel Ko. See id. C. Issues Adequately Raised by the Motions On a motion for summary judgment, the entire record is considered with all reasonable inferences drawn in favor of the non-movant and all factual disputes resolved in favor of the nonmovant. Schneiker v. Fortis Insurance Co., 200 F.3d 1055, 1057 (7th Cir.2000); Baron v. City of Highland Park, 195 F.3d 333, 337-38 (7th Cir.1999). The burden of establishing a lack of any genuine issue of material fact rests on the movant. Wollin v. Gondert, 192 F.3d 616, 621-22 (7th Cir.1999); Essex v. United Parcel Service, Inc., 111 F.3d 1304, 1308 (7th Cir.1997). The nonmovant, however, must make a showing sufficient to establish any essential element for which she will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Shank v. William R. Hague, Inc., 192 F.3d 675, 681 (7th Cir.1999); Wintz v. Northrop Corp., 110 F.3d 508, 512 (7th Cir.1997). The movant need not provide affidavits or deposition testimony showing the nonexistence of such essential elements. Celotex, 477 U.S. at 324, 106 S.Ct. 2548. Also, it is not sufficient to show evidence of purportedly disputed facts if those facts are not plausible in light of the entire record. See NLFC, Inc. v. Devcom Mid-America, Inc., 45 F.3d 231, 236 (7th Cir.), cert. denied, 515 U.S. 1104, 115 S.Ct. 2249, 132 L.Ed.2d 257 (1995); Covalt v. Carey Canada, Inc., 950 F.2d 481, 485 (7th Cir. 1991); Collins v. Associated Pathologists, Ltd., 844 F.2d 473, 476-77 (7th Cir.), cert. denied, 488 U.S. 852, 109 S.Ct. 137, 102 L.Ed.2d 110 (1988). As the Seventh Circuit has summarized: The moving party bears the initial burden of directing the district court to the determinative issues and the available evidence that pertains to each. “[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); id. at 325, 106 S.Ct. 2548 (“the burden on the moving party may be discharged by ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case”). Then, with respect to issues that the non-moving party will bear the burden of proving at trial, the non-moving party must come forward with affidavits, depositions, answers to interrogatories or admissions and designate specific facts which establish that there is a genuine issue for trial. Id. at 324, 106 S.Ct, 2548. The non-moving party cannot rest on the pleadings alone, but must designate specific facts in affidavits, depositions, answers to interrogatories or admissions that establish that there is a genuine triable issue. Id. The non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). “The mere existence of a scintilla of evidence in support of the [non-moving party’s] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Selan v. Kiley, 969 F.2d 560, 564 (7th Cir.1992). A dispute exists regarding the precise issues raised by defendants’ summary judgment motions. Plaintiffs have moved to strike defendants’ reply brief and Local Rule 56.1(a) reply [Docket Entry 326]. Plaintiffs have also moved to file a surre-ply and supplemental surreply. The motion to strike will be denied without prejudice. To the extent defendants’ reply contains impermissible argument or improper factual assertions or evidence, the arguments will be rejected or treated as waived and the assertions or evidence will not be treated as establishing undisputed facts. There is, however, no need to actually strike the brief or Local Rule 56.1(a) statement. Plaintiffs will be granted leave to file the surreply and supplemental surreply and both surreplies have been fully considered in reaching today’s ruling. In their opening brief, the Managerial Defendants contend they cannot be liable on Counts II and IV because, with one exception, they were not personally involved in the searches. As to the one exception, it is argued that defendant Ho-teko’s involvement in the search of plaintiff Arcadia Letkemann was limited to approving a search based on reasonable suspicion. As to Count VII, it is asserted that there is no evidence that the Managerial Defendants promulgated or approved a policy of permitting searches on less than reasonable suspicion. As to Counts IX and X, it is asserted that there is no evidence of an unlawful conspiracy or class-based animus and defendants argue that there can be no conspiracy because defendants were all members of the same organization, that is, there can be no intra-corporate conspiracy. As to any individual capacity claim for injunctive relief, defendants contend such claims are moot because they are no longer employed in Customs positions in Chicago. Alternatively, defendants generally assert they would be entitled to qualified immunity as to the damages claims because any law under which they might be held liable was not clearly established as of the pertinent time. In sections 9 and 10, defendants also make the following assertions which are quoted in their entirety. 9. Each Plaintiff Must Show Injury To Obtain Damages. Plaintiffs have not identified any illegal policies promulgated by the managerial officials and it is hard to imagine how plaintiffs can possibly present evidence sufficient to create a genuine factual dispute that the managerial officials] conspired to violate plaintiffs’ constitutional rights. It should nevertheless be noted that plaintiffs, in addition to showing actionable misconduct by the managerial officials, must as a prerequisite to obtaining damages also prove that they were injured as [a] proximate result of the alleged misconduct. See Indianapolis Minority Contractors Association, Inc. v. Wiley, 187 F.3d 743, 754 (7th Cir.1999) (plaintiff must show an injury to his person or property or a deprivation of some right or privilege). If the individual Customs inspectors who searched a particular plaintiff were not improperly motivated, then that plaintiff was not injured due to any Constitutional violation by the managerial officials, regardless [of] what the managerial officials may have done. Each plaintiff who wishes to survive summary judgment must present evidence from which a reasonable jury could conclude that she in particular was subjected to an illegal search as a result of the acts of the managerial officials. 10. Each Plaintiffs Case Against Each Defendant must Be Considered on its Own Facts. As written, the complaint does not distinguish among the plaintiffs as to their various potential claims against the managerial officials. The plaintiffs were searched at different times for different reasons by different Customs inspectors. Different managerial officials worked at different jobs at the times that the various plaintiffs were searched. Until plaintiffs specify the facts on which they base their- claim, we cannot say more than we have in this memorandum; we merely note in advance that in response to this motion, each plaintiff has an independent burden to show a factual basis for her damages claim against each managerial official that she wants to keep in the case. Def. Memo, in Support of Summ. Jmt. [Docket Entry 255] at 12-13. In their Local Rule 56.1(a)(3) statement [Docket Entry 256], defendants recite the Customs positions they were in and the dates. Although reciting the titles of then-job positions, neither the Local Rule 56.1(a)(3) statement nor the supporting affidavits describe the duties and responsibilities of the positions. Each of the Managerial Defendants provides an affidavit generally denying direct involvement in any of the searches of a plaintiff, except the one search involving Hoteko. They also generally deny establishing, promulgating, or encouraging any policy to use race or gender in the selection of a person for a search, and instead state Customs inspectors are trained not to consider race as a factor. They also generally state that any allegations of discrimination brought to their attention were routinely delegated to subordinates for investigation and appropriate action. Defendants also provide evidence regarding the retention of baggage declarations and the O’Hare Passenger Analysis Unit (“PAU”). No factual assertions or evidence are provided as to any specific search of a plaintiff other than the search of Letkemann in which Hoteko was involved. In neither their opening brief nor Local Rule 56.1(a)(3) statement do defendants contend, even in a conclusory manner, that Customs inspectors at O’Hare did not engage in a pattern or practice of discrimina-torily selecting African-American women for searches and searching them on less than reasonable suspicion. The closest defendants come to such an assertion is in sections 5 and 6 of their opening brief. In § 5, it is asserted: “In any event, this court may reasonably grant summary judgment as to Count VII, because there is no evidence that the managerial officials promulgated or approved a policy of allowing searches on less than reasonable suspicion.” The court understands this conclu-sory assertion (which is unsupported by any factual statement in defendants’ Local Rule 56.1(a)(3) statement nor by any background evidence of the policies actually claimed to be in place) to be a contention that there were no formal policies to that effect, not a denial that a custom, pattern, or practice of such conduct existed. In § 6, it is asserted that “[sjummary judgment is appropriate as to Count IX because there is no evidence of an unlawful conspiracy.” The only reference to somewhat more particularized facts is the contention that the PAU had a proper purpose and that records of passenger entry were destroyed in a routine manner. There is no assertion, even a conclusory one, that there was no unlawful conspiracy because no underlying pattern of discrimination by Customs inspectors. There is also no contention, conclusory or otherwise, that Counts II and IV fail because there is no practice of, respectively, discriminatory selection of African-American women and nonroutine searches without adequate suspicion. In response to defendants’ summary judgment motions, plaintiffs provide detailed factual assertions and evidence to support their contention that the Managerial Defendants were aware of improper searches and the ineffectiveness of search procedures and were personally involved in supporting, encouraging, or turning a blind eye to such conduct. The focus of plaintiffs’ response is on the Managerial Defendants’ knowledge of policies and practices. Except as to the search of Let-kemann, plaintiffs do not provide evidence as to the particular searches of each plaintiff. Although they responded with some evidence as to policies and practices, plaintiffs argue that the summary judgment motions could otherwise be denied in their entirety because defendants failed to provide adequate factual support for their motion. See PI. Response to Summ. Jmt. [Docket Entry 321] at 30-31. As to the arguments contained in sections 9 and 10 of defendants’ brief, plaintiffs also contend that these arguments should not be considered because not supported by sufficient legal argument. See id. at 29 n. 12. In their reply, defendants focus much of their argument on the contention that plaintiffs have failed to provide evidence that any of them was subjected to an unlawful search and therefore, regardless of any policies or practices, no Managerial or Supervisory Defendant can possibly be liable. Even if an improper policy or practice is shown, defendants contend that plaintiffs have not shown that any of their searches were pursuant to such policy or practice, that is, a causal relationship has not been shown. Defendants also point out that plaintiffs did not dispute that each Managerial Defendant was in his pertinent position during a specific time period, yet plaintiffs fail to acknowledge that plaintiffs searched outside a particular time period cannot have a claim against that defendant. Additionally, defendants contend in their reply that no practice of equal protection or Fourth Amendment violations has been shown. In their motion to strike and surreplies, plaintiffs contend each of these arguments is waived because not adequately raised in defendants’ opening brief. As to the timing argument, however, plaintiffs provide a chart (Pl.Exh. 77) showing which plaintiffs’ searches predated each Managerial Defendant’s employment in a Managerial position and concede that such plaintiffs would have no claim against that defendant or defendants. Even as to issues on which the nonmov-ant will bear the burden of proof at trial, on summary judgment the moving party has an “initial burden of production ... to identify those specific portions of the record that it believes demonstrate the absence of a genuine issue of material fact.” Logan v. Commercial Union Insurance Co., 96 F.3d 971, 978 (7th Cir.1996). The movant has “the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Id. (quoting Celotex, 477 U.S. at 323, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 56(c))). An “unsupported — or ‘naked’ — motion for summary judgment does not require the nonmovant to come forward with evidence to support each and every element of its claims. Russ [v. International Paper Co.], 943 F.2d [589], 591 [(5th Cir.1991), cert. denied, 503 U.S. 987, 112 S.Ct. 1675, 118 L.Ed.2d 393 (1992) ]. Only after the mov-ant has articulated with references to the record and to the law specific reasons why it believes there is no genuine issue of material fact must the nonmovant present evidence sufficient to demonstrate an issue for trial.” Logan, 96 F.3d at 979. The movant still must place its argument within a factual context and a court is not obliged to address unfocused arguments. In re ContiCommodity Services, Inc. Securities Litigation, 733 F.Supp. 1555, 1571 (N.D.Ill.1990), rev’d in part on other grounds sub nom., Brown v. United States, 976 F.2d 1104 (7th Cir.1992), aff'd in part sub nom., ContiCommodity Services, Inc. v. Ragan, 63 F.3d 438 (5th Cir.1995), cert. denied, 517 U.S. 1104, 116 S.Ct. 1318, 134 L.Ed.2d 471 (1996). Also, the movant may not raise one ground for summary judgment in its motion and raise a different ground in its reply. Titran v. Ackman, 893 F.2d 145, 147 (7th Cir.1990) (“When a party moves for summary judgment on ground A, the opposing party need not address grounds B, C, and so on; the number of potential grounds for (and arguments against) summary judgment may be large, and litigation is costly enough without requiring parties to respond to issues that have not been raised on pain of forfeiting their position.”). While defendants’ opening brief asserted that no plaintiff can possibly have a cognizable claim against a Managerial Defendant unless she was improperly searched by a Customs inspector, defendants do not even eonclusorily or generally assert why the search of any plaintiff was lawful. Nor (with the one exception previously noted) does defendants’ Local Rule 56.1(a)(3) statement contain any facts regarding the search of a particular plaintiff. Moreover, if defendants truly intended to raise this issue, there was no reason to limit the summary judgment motion to Managerial Defendants or even Supervisory Defendants. Instead, lack of an unlawful search would be a basis for denying the claims against all defendants (including Customs inspectors), yet there is absolutely no indication that the motion was intended to be brought on behalf of all defendants. Defendants did not meet their initial burden of presenting an adequate argument or factual background regarding the lack of any unlawful searches. Plaintiffs were not required to respond with evidence supporting that each of them was subjected to an unlawful search. Defendants’ opening brief also does not adequately raise issues as to the existence of a pattern or practice of discriminatory selection and searches on less than adequate suspicion. For purposes of ruling on the pending summary judgment motions, it will therefore be assumed that such practices existed as to searches at O’Hare. The summary judgment motions do adequately raise the issue of defendants’ knowledge of, encouragement of, and involvement in such practices. Plaintiffs are required to provide evidence linking each defendant to such practices, which may necessitate some affirmative evidence of the existence of the practices. As to an issue of causal relationship between any policy or practice shown and a plaintiffs actual search, no such contention is even conclusorily raised in the opening brief. Defendants cannot raise this argument for the first time in their reply. Plaintiffs were not compelled to provide evidence of a causal relationship between their individual searches and any policy or practice that was in existence. The only cause issue raised in the opening brief concerns the dates the Managerial Defendants were employed in the pertinent positions and the date each plaintiff was searched. Defendants Local Rule 56.1(a)(3) statement recites the dates each Managerial Defendant served in the pertinent positions. No attempt is made to specifically correlate those dates with the dates particular plaintiffs were searched. Also, neither the opening brief nor defendants’ reply makes any argument as to when during a particular Managerial Defendant’s service time he may have first learned of the challenged practices or taken an action related to them. Although contending the timing issue is not adequately raised, plaintiffs concede that they are not entitled to recover from any defendant who entered a pertinent position subsequent to a particular plaintiffs search. As to all the other arguments raised in defendants’ opening brief, they are also generally raised in a cursory manner with only a limited factual background being provided in support thereof. Defendants do make legal arguments as to intracorpo-rate conspiracy and personal involvement. Plaintiffs have been able to respond with a well developed argument (contained in an oversized, 35-page brief) and detailed factual support, including a 196-paragraph Local Rule 56.1(b)(3)(B) statement. Defendants’ opening brief adequately raises the issues of (a) whether the Managerial Defendants were personally involved in the alleged unlawful conduct and responsible for any unlawful policy or practice; (b) whether the conspiracy claims fail as an intracorporate conspiracy; (c) whether any conspiracy is based on a racial animus on the part of the Managerial defendants; (d) certain issues as to Hoteko being liable for the search of Letkemann; (e) whether individual capacity injunctive relief is moot; and (f) whether, as to these arguments, defendants are entitled to qualified immunity because the law underlying such claims was not clearly established. II. FACTS ON SUMMARY JUDGMENT Resolving all genuine factual disputes and drawing all reasonable inferences in plaintiffs’ favor, the facts assumed to be true for purposes of summary judgment are as follows. A. Managerial Defendants’ Positions Kelly was the Commissioner of Customs from August 1998 through January 2001. Banks was Acting Commissioner of Customs from September 1997 to August 1998. Weise was Commissioner of Customs from May 1993 until August 1997. Trotter was Assistant Commissioner of Field Operations from June 1997 to February 1999. He also acted in that position from October 2, 1996 until March 14, 1997. During all or most of Trotter’s tenure, the Chicago Port Director reported to MidAmerica Customs Management Center Director Garnet Fee who in turn reported to Trotter. Trotter reported directly to the Commissioner of Customs. Weeks was the acting or permanent Port Director of Chicago from February 1997 to July 1998, and since then has been Director of Field Operations for the West Great Lakes Customs Management Center based in Detroit, Michigan. O’Hare is within Customs’ Port of Chicago. As Port Director, Weeks had monthly meeting with Hoteko and O’Hare’s supervisory Customs inspectors. Hoteko was Chief Inspector of Passenger Operations for the Port of Chicago from July 1995 until June 1999 and reported directly to the Chicago Port Director. In that position, Hoteko was responsible for all passenger processing operations for O’Hare international arrivals. Hoteko had weekly meetings with O’Hare Customs inspectors and also met with supervisory Customs inspectors. Noonan was the Passenger Service Representative in Hoteko’s office from 1993 or 1994 through May 2000. Noonan’s responsibilities included investigating passenger complaints regarding Customs inspectors. As part of his duties, Noonan spent as much time as possible directly observing O’Hare passenger processing. B. Statements of Commissioner Kelly Plaintiffs contend that statements of Commissioner Kelly show wrongdoing on the part of Managerial Defendants. This contention is without merit for two reasons. Plaintiffs refer to these statements as “admissions binding on Customs.” The present summary judgment motion, however, concerns the individual liability of Customs employees, not the liability of Customs itself. The statements of Kelly are not admissions as against the other parties; Kelly is not a representative, authorized spokesperson, or agent of the other defendants and plaintiffs have dropped their contention that he is a co-conspirator. See Fed.R.Evid. 801(d)(2). But even if Kelly’s statements were admissions that may be used against defendants, plaintiffs generally do not provide admissible evidence showing that he made the statements attributed to him. Kelly apparently was available to be deposed, but plaintiffs chose not to depose him. On summary judgment, quotes or paraphrased statements in a newspaper or magazine article are not acceptable evidence that a person actually made a statement contained in the article. Eisenstadt v. Centel Corp., 113 F.3d 738, 742-43 (7th Cir.1997); Chicago Firefighters Local 2 v. City of Chicago, 249 F.3d 649, 654 (7th Cir.2001); Jim Sowell Construction Co. v. City of Coppell, Tex., 61 F.Supp.2d 542, 550 (N.D.Tex.1999); Barnes Foundation v. Township of Lower Merion, 982 F.Supp. 970, 995-96 (E.D.Pa.1997). The only purported statement of Kelly that is not from a newspaper or magazine article is his May 20, 1999 testimony before a congressional committee, presumably under oath, that Customs’ use of personal searches is “a procedure that we have found in recent years to have suffered from poor oversight, insufficient training, and a lack of supervision.” C. Statistical Evidence Defendants object to plaintiffs’ use of a March 2000 General Accounting Office report entitled “U.S. Customs Service: Better Targeting of Airline Passengers for Personal Searches Could Produce Better Results”. PI. Exh. 16 (“GAO Report”). Such governmental reports, however, are admissible evidence. Fed.R.Evid. 803(8). The GAO Report provides some support for plaintiffs’ contentions, but it must be recognized that it is an analysis of nationwide practices and generally does not separately consider practices at O’Hare. Banks, Weise, and Trotter, though, were in national positions; their responsibilities were not limited to O’Hare. The GAO Report analyzes the personal search reports for the approximately 102,-000 passengers that were subjected to personal searches in fiscal year 1997 and 1998. The personal searches were categorized as patdowns (or frisks), strip searches, X-ray examinations, and body cavity searches. 95% of the personal searches were limited to patdown searches. Among United States citizens selected for searches, Whites were the racial group most likely to be strip searched (8.2%). However, within each racial group except Whites, women were more likely to be strip searched than men. Broken down by race and gender, Black women were the most likely group to be strip searched (14.2%), a rate 73% higher than the next highest groups (White men and WTiite women) and 281% higher than Black men. It is also more than 6 times the rate of Hispanic men (2.2%) and more than twice the rate of Hispanic women (6.1%). Black women were also the racial/gender group of United States citizens most likely to be X-rayed (6.4%), a rate more than 8 times that of WTiite women (0.73%) and almost 12 times that of WTiite men (0.53%), as well as 39% higher than Black men (4.6%). Despite being the racial/gender group of United States citizens most likely to be strip searched, Black women were not the group most likely to be found to have contraband when strip searched. Of those Black women that were strip searched, contraband was found on 27.6% of them, which is a higher positive rate than for White men (25.1%) and White women (19.5%), but a substantially lower positive rate than for Black men (61.6%), Hispanic men (58.8%), and Hispanic women (45.7%). As to X-ray examinations, Black women were the least likely to be found to have contraband (28.2%). That is less than half the 58.7% positive rate for White men, White women, and Black men. For all searches, including both citizens and non-citizens, the positive rate was 3.1% for patdowns, 22.8% for strip searches, 30.6% for X-ray examinations, and 56.3% for body cavity searches. GAO Report at 42. As for searches at O’Hare, plaintiffs have gleaned data from the negative search reports that were provided in discovery. These reports are limited to passengers subjected to personal searches on whom no contraband was found. For the period from January 1, 1995 to April 2000, African-American women were 9.9% of those subjected to all types of negative personal searches. However, they were subjected to 41.6% of the negative strip searches and 34.4% of the negative X-ray examinations. By comparison, African-American men were 13.2% of all negative searches, 6.7% of negative strip searches and 48.9% of negative X-ray examinations. The respective percentages were 35.6, 7.4, and 7.8 for White men and 14.5, 24.9, and 4.4 for White women. During the period from May 15 to September 15, 1997, the respective percentages for each group were: 16.2, 57.1, and 50.0 for African-American women; 12.6, 0, and 40.0 for African-American men; 27.0, 7.1, and 0 for White men; and 15.4, 28.8, and 0 for White women. As to all strip searches (positive and negative) conducted at O’Hare in 1997 and for which there are records, 44% were of Black women. The next highest group was White women at 23%. Statistics for both O’Hare and the nation as a whole show that, during the pertinent time period, African-American women that were selected for nonroutine searches were then selected for strip searches and X-ray examinations at a rate greatly disproportionate to their representation in this pool. Thus, plaintiffs present adequate evidence of this discriminatory effect. Though the disparity is great and defendants do not proffer an alternative explanation for the disparity, additional evidence apparently would still be needed to show that this effect was motivated by a racial and gender animus on the part of front-line Customs inspectors. Chavez v. Illinois State Police, 251 F.3d 612, 647-48 (7th Cir.2001); McCray v. City of Dothan, 169 F.Supp.2d 1260, 1289-90 (M.D.Ala.2001). Plaintiffs contend there is additional evidence from which the inference of discriminatory motives may be drawn. It need not be decided, however, whether any inference can be drawn as to the motivations of the Customs inspectors. As discussed in § 1(C) supra, defendants’ summary judgment motion does not put at issue the existence of a practice of discrim-inatorily selecting African-American women for nonroutine searches. As previously held, on summary judgment, it must be accepted that such a practice existed. Plaintiffs also provide some statistical evidence regarding contraband found during searches at O’Hare. Plaintiffs, however, misdescribe the evidence. Plaintiffs cite to fiscal year 1997 and 1998 data for the number of secondary searches, not the number of personal searches. Secondary searches involve any questioning or luggage search beyond the initial examination upon a passenger’s arrival at Customs. The document shows there were 31,428 secondary searches at O’Hare in fiscal 1997, but only 3,344 personal searches. PI. Exh. 18. In fiscal 1998, there were 38,067 secondary searches. Plaintiffs focus on the number of times narcotics were found and contend it is an extremely low “success rate.” In fiscal 1997, narcotics were found in 61 of 31,428 secondary searches (.19%). In fiscal 1998, narcotics were found in 20 of 38,067 secondary searches (.05%). The present case, however, involves the narrower class of searches that have been referred to as personal searches or nonroutine searches. Plaintiffs also ignore that other contraband or violations were found during the personal searches. In fiscal 1997, 158 Category 1 violations were found and 145 Category 2 violations. PL Exh. 18. That would be a secondary search “success rate” of 0.96%. The document does not set forth how many of the violations were found during personal searches. Assuming all the violations were found during personal searches, the best possible fiscal 1997 “success rate” for personal searches would be 9.06%. The secondary search evidence is also broken down between randomly selected searches and those searches of passengers specifically selected by enforcement personnel (“rover” searches). In each year, approximately one-third of the secondary searches were randomly selected. In fiscal 1997, the “success rate” for rover searches was 14.21 times higher than for random searches and 13.21 times higher in fiscal 1998. D. Management Involvement in Discriminatory Search Practices Plaintiffs contend that the Managerial Defendants’ facilitation of and acquiescence in the practice of discriminatorily selecting African-American women for personal searches is shown by evidence of written policies sanctioning discriminatory search procedures, a lack of concern for the disproportionate effect on African-American women, the reckless disregard of passenger complaints and Congressional inquiries regarding racial targeting, and attempts to marginalize, silence, and cover up internal complaints of wrongdoing. 1. Written Policies The official Customs training manual includes the following in the section entitled “Selectivity in Passenger Processing.” Pay special attention to females. Young pretty females are used extensively for narcotics cornier work. As with the male passenger, decide if the clothing is intended to stir a particular emotion or project a certain image? ... Is the clothing designed to take your attention off the baggage and onto the bustline? ... Look closely at the jewelry worn on the hands. Is there a wedding ring? If so, where is the spouse? Few married people vacation abroad by themselves without being up to something. Married women on sightseeing trips without their husbands constitute a high-risk passenger in more ways than one.... PI. Exh. 30 at 169.25,169.27. This quotation is from the Revised April 1999 version of the training manual. A supervisory Customs inspector who had been employed since 1979 recalled receiving instructions about being wary of women traveling alone, but did not recall receiving any special instructions about men traveling alone. He did not recall when he received these instructions. Plaintiffs contend the remaining Commissioner defendants (Banks and Weise) are responsible for the contents of the official training manual. However, there is no evidence that either of them were aware of the cited passages in the training manual. Contrary to plaintiffs’ contention, they have not provided sufficient evidence from which it can be found or inferred that any of the Managerial Defendants promulgated, enforced, or sanctioned a written policy to profile passengers or select them for searches based on a passenger’s race and/or gender. 2. Knowledge of Discriminatory Effects and Reaction Thereto In July 1998, then-Senator Carol Mosely Braun was inquiring about searches at O’Hare. On July 21, 1998, MidAmerica Customs Management Center Director Fee emailed Trotter and one of Trotter’s other subordinates (John McGowan) to inform them that Fee’s meeting with Braun had been cancelled. Fee also provided data for 1997 strip searches at O’Hare. Fee highlights the source countries involving the most strip searches and the race and gender of the strip-searched passengers that had narcotics. He also notes that 47 of the 107 strip-searched passengers were Black females, with 8 having narcotics. 25 of the 107 strip-searched passengers were White females, with 6 having narcotics. Narcotics were found on 27 of the 107 passengers who were stripped search, a success rate of at least 25.2%. Fee does not expressly state the percentage of Black females, nor does he emphasize the Black female data over the other data, though the reference to the Braun meeting could be read as bringing attention to the issue of racial and gender profiling. After reciting the various data, Fee closes with: “Any thoughts on this?” Trotter did not, in any way, follow up on this information and query. Neither did he contact McGowan about the email nor did he refer the information to any other subordinate. At his deposition in June 2001, Trotter did not recall ever seeing the email, but admitted he received a lot of email and does not necessarily recall every one that he reads. On May 24, 1997, five O’Hare passengers were found with narcotics. That is a high total for one day. Four of the passengers were African-American women arriving from Jamaica, two of whom had narcotics- inserted in their vagina. One apparently had the narcotics under her clothes, or at least somewhere where the narcotics were discovered during a strip search. The fourth women apparently had the narcotics hidden internally, since the narcotics were discovered through an X-ray examination. It is reasonably inferred that Customs followed its usual practices of issuing an internal communique about the seizures and discussing the seizures at Hoteko’s weekly meetings. The communique would have included the passengers’ race and gender, as well as information about age, length of stay, method of payment of the ticket, and the passengers’ stories as to the purposes of their trips. During an approximately four-month period after the May 24 seizures, African-American women’s proportionate share of personal searches, strip searches, and X-ray examinations at O’Hare increased. From January 1, 1995 through May 14, 1997, African-American women were subjected to 9.5% of all personal searches, 41.5% of strip searches, and 18.8% of X-ray examinations. From May 15 through September 15, 1997, they represented 16.2% of personal searches, 57.1% of strip searches, and 50.0% of X-ray examinations. For the period from September 16, 1997 through April 2000, African-American women’s proportionate shares were again at lower levels: 8.7% of all personal searches, 85.8% of strip searches, and 33.3% of X-ray examinations. It can reasonably be inferred that personal searches, strip searches, and X-ray examinations of African-American women increased as a result of communications regarding the May 24, 1997 seizures from four African-American women. It can reasonably be inferred that Hoteko was involved in discussions of the May 24 seizures at one or more of his weekly meetings. The communique, however, would be a different matter. The evidence as to a communique being issued supports that it would originate from the Custom inspectors involved in the seizures. See PI. Exh. 4, Fee Dep. at 39. While such a communique may have been communicated to some of the Managerial Defendants, see id. at 41 (nondefendant manager Fee was one of the persons who would have received such a communique), it would only show their knowledge that information about the four seizures was distributed, including the race and gender of the passengers. It does not show they were personally responsible for its distribution. 3. Adverse Inferences From False Testimony Citing Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000), and Kasper v. St. Mary of Nazareth Hospital, 135 F.3d 1170, 1173 (7th Cir.1998), plaintiffs contend wrongful intent on the part of Hoteko and Trotter can be inferred from certain false denials at their depositions. The cited cases, however, concern inferring a discriminatory motive from a showing that a proffered ground for an adverse employment action was pretextual. In those cases, the false testimony or proffer directly concerns the issue of the defendant’s motive. Moreover, those cases involved indirect proof under the McDonnell Douglas. framework. In such cases, the plaintiff has already presented a prima facie case of discrimination from which a discriminatory motive can be ■ inferred. Thus, proof that a proffered ground for an adverse employment action was pretextual leaves the prima facie inference of discrimination intact. See Reeves, 530 U.S. at 148, 120 S.Ct. 2097; Loyd v. Phillips Brothers, Inc., 25 F.3d 518, 522 (7th Cir.1994); McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 372 (7th Cir.1992); King v. Wiseway Super Center, Inc., 954 F.Supp. 1289, 1292 (N.D.Ind.1997). Here, Trotter’s purported false testimony is his failure to recall receiving the July 1998 Fee email or the strip search data contained therein. See PL Exh. 3, Trotter Dep. at 45-48. It is not a reasonable inference that Trotter lied about such knowledge instead of simply forgetting or never having read that email. Even if it is reasonable to infer intentional falsity, or at least intentional evasiveness, this particular question is not so central to the issue of motive as to be sufficient by itself to infer a discriminatory motive on Trotter’s part. There would still have to be other substantial evidence of a discriminatory motive. As to Hoteko, plaintiffs point to his testimony that, in 1997, he had no “access” to data as to the percentage of strip-searched passengers that were African-American women. PL Exh. 2, Hoteko Dep. at 83-84. This testimony should be understood as being that the data had not been compiled from individual reports until an effort was made in 1998 to tabulate it. Moreover, the actual question was 'about African-American women being 46% [sic] of those strip searched in 1997. That total could not have been known until after 1997 was completed. But even if Hoteko’s testimony was intentionally false, it is not so central to the issue of motive as to be sufficient by itself to infer a discriminatory motive on Hoteko’s part. There would still have to be other substantial evidence of a discriminatory motive. 4. Passenger Complaints of Discrimination As to passenger complaints, each of the Managerial Defendants acknowledges in his summary judgment affidavit that he has received complaints of racial and gender discrimination, though none specifies a time period or number. Plaintiffs provide written complaints concerning searches following arrival at O’Hare on 12 different flights. See PL Exh. 49. The written complaints were received by Customs officials between December 1996 and February 1999 and concern searches that occurred between March 1996 and October 1998. As to three of the incidents, the complainant was an African-American male, though one of those three also complained about his African-American wife being searched. All of the remaining complaints were initiated by African-American women or their representatives. Five of the complainants are named plaintiffs in this case. A number of the letters were not limited to the person’s own search, but also complained that additional African-Americans on the particular flight had been disproportionately selected for searches. The correspondence indicates that at least eight of the complaints were brought to Noonan’s attention, at least four to Weeks’ attention, at least two to Weise’s attention, and at least one to Ho-teko’s attention. As to one of the complaints, none of the remaining defendants is indicated as having received a copy. As to all of the incidents, Customs’ official response was that neither race nor gender were factors in conducting the search. Evidence, however, supports that investigations of the complaints were usually limited to examining Customs’ records and talking to the inspectors involved, who often did not recall the incident. Noonan states that he never found a justified passenger complaint of racial discrimination, nor even a justified complaint of an unfair strip or personal search. Only one of the 12 complaints was forwarded to Internal Affairs for an investigation.- Although Noonan did not find discrimination, on the pending motions for summary judgment, the five incidents involving the named plaintiffs must be assumed to have involved discriminatory selection of African-American women. While the evidence supports that Noonan conducted a less than adequate inspection, there is no basis for inferring that any of the other Managerial Defendants were aware of or condoned Noonan’s deficient investigatory practices. Twelve written complaints of discrimination over a period of approximately two and one-half years must be viewed in light of the number of passengers passing through Customs at O’Hare. During the pertinent time period, more than 30,000 O’Hare passengers per year were being subjected to secondary searches and more than 3,000 O’Hare passengers per year were being subjected to personal searches. Also, a total of more than 3,000,000 passengers passed through O’Hare Customs each year. 5. Congressional Inquiries In May 1998, Senator Braun sent a letter to Acting Commissioner Banks noting “concern!] about recent reports that airline passengers are arbitrarily being detained by Customs officials because they fit into certain ‘profiles.’ ” She further noted that she was concerned about invasions of the “privacy of innocent Americans, and particularly minority Americans.” She requested information as to the number of airline passenger searches; “the race, national origin, and gender of those searched;” and the number and type of violations discovered in such searches. The letter did not specifically mention O’Hare and the information requested was national in scope. By June or July 1998, however, O’Hare data was being requested and Weeks was involved in the process by at least June. The data was not provided before Weeks and Banks left their positions in July and August of that year, and their replacements did not provide the information to Braun before she left office in January 1999. For 1997 and 1998, however, there was no existing database with racial and gender statistics. Compilation of the data had to be performed manually. 6. Employee Complaints and Internal Investigations Before 1999, a Customs inspector’s report that minorities were being disproportionately targeted should have been reported up the chain of command to the Port Director. If there was a complaint about a specific inspector engaging in such conduct and it was believed credible, it probably should have been referred to Internal Affairs, but there was no specific policy to that effect. As of sometime in 1999, it became mandatory to refer to Internal Affairs both general and specific complaints of discriminatory targeting. Apparently in August or September 1998, African-American Customs inspector Ray Smith informed his immediate supervisor and her superior, Supervisory Defendants Gloria Banks and Mario Cor-nejo, that he believed passengers of color were being disproportionately targeted and that certain Customs inspectors were engaging in discriminatory selection. The complaint was passed on to Hoteko, who also met with Smith. In response, Cor-nejo suggested that Smith see a psychologist and also indicated that minorities should be searched more often because they were more likely to possess contraband. When Smith met with Hoteko, Hoteko expressed concern and said he would have an EEO Counselor look into the allegations. A meeting was then held with the EEO Counselor, Smith, Gloria Banks, Cornejo, Hoteko, and the specifically accused Customs inspectors. At the meeting, the Customs inspectors and supervisors were reminded not to target minorities. No referral was made to Internal Affairs. Hoteko testified that he left to the EEO counselor any decision to further pursue the allegations. The EEO counselor apparently determined that the accusations against the specific Customs inspectors were unfounded. See PL Exh. 2, Hoteko Dep. Exh. 19 at 2. Hoteko also testified that, as a result of the discussions at the meeting, Hoteko understood that Smith agreed his accusations were unfounded. Plaintiffs also provide evidence regarding two other situations that they contend should have been referred to Internal Affairs for investigation of discriminatory selections for secondary searches. The evidence, however, does not support that the situations involved discriminatory selection by Customs inspectors or a failure on the part of supervisory Customs inspectors to adequately inquire or refer for investigation. 7. Destruction of Evidence Plaintiffs also seek an adverse inference from the destruction of PAU daily lists. Based on various factors, the PAU selects passengers for questioning prior to their arrival. The questioning may or may not result in a decision to conduct a personal search. The persons selected are referred to as “PAU lookouts” and a written list of PAU lookouts is produced each day. At the end of each day, the copies of the daily list are destroyed. Apparently beginning in May 1999, one copy of the daily list was retained in the PAU office. Prior to that practice, no copies were retained. Defendants provided the daily lists for May 1999 through December 1999 and informed plaintiffs that subsequent lists were also available. Plaintiffs point to no evidence that they first requested the lists prior to May 1999, nor do they point to any evidence that the daily destruction of prior lists was intended to evade discovery. It apparently was a practice that predated this lawsuit. There is no basis for drawing an adverse inference. E. Goals and Incentives Plaintiffs provide evidence of performance goals and a cash award system that they contend are an incentive for conducting searches on less than the required suspicion. Statutes require that Customs establish annual performance plans that generally must include “objective, quantifiable, and measurable” goals. 31 U.S.C. § 1115. See also 5 U.S.C. § 306. Accordingly, Customs sets yearly performance targets for the overall poundage of narcotics interdiction. It also sets goals regarding the success rate of rover searches compared to random searches, goals that O’Hare Customs exceeded in fiscal years 1997 and 1998. GAO Report at 27-28. In a newsletter to the ranks, Hoteko recited the national goals as to the amounts for various narcotics seizures and stated “NARCOTIC ENFORCEMENT is still OUR number ONE goal. It MEANS we use TARGETS and MEASURES to ensure that we are headed to OUR goal.” This was probably a quote or paraphrase from a headquarters communication. Ho-teko has stated that seizure activity at O’Hare helps Customs achieve the national goals. In the newsletter, he has also stated that seizure activity at O’Hare creates good press, puts Chicago on the map, and keeps Customs employees at O’Hare in contention for the Commissioner’s Unit Citation Award, which is a coveted award. When O’Hare received the award for fiscal 1997, Hoteko described it as the “highlight of the year.” In the newsletter, Hoteko proudly quoted the national drug czar’s description of Customs as “the most PROFESSIONAL and AGGRESSIVE law enforcement agency in the government today!!” In the newsletter, Hoteko also highlighted and reported proudly that the fiscal 1997 success rate for rover secondary searches was 14.21 times higher than for random searches. It was Hoteko’s belief that the more narcotics that were seized, the more resources that would be allocated to Customs and O’Hare. Trotter, though, has expressed the view that he believed failing to meet seizure targets would not affect funding. From October 1992 through May 1999, Michael Perron worked on national programs at headquarters, and was involved in the process for setting some of the national goals. When Kelly became Commissioner, Perron noticed a new emphasis on search efficacy, that is, producing more seizures from less personal searches. Under Weise and Banks, however, the emphasis was primarily on the amount of drugs seized. “We were concerned more with the raw outcome, which would have been the number of seizures, the amount of narcotics seized, and we did not really get into the aspect of how much work was going on to do that, how many people were being searched.” PL Exh. 23, Perron Dep. at 88. The Customs inspector evaluation form in effect from 1996 through 1999 did not specifically refer to the inspector’s aggregate amount of seizures. Search efficacy also was not included on the form. Customs has two award systems. The SHARE awards come from an annual pool of money that is shared by a large number of employees in accordance with a formula for assigning each employee a percentage. Other awards (sometimes called on-the-spot awards), which may be in the form of cash, time off, or a citation, are for particular acts or activities. It is undisputed that on-the-spot awards have sometimes been made for particular drug seizures. It is unclear whether drug seizures can be a basis for increasing an employee’s percentage of a SHARE award. There, however, is no evidence as to how frequently or regularly a drug seizure results in an award. Plaintiffs provide evidence of four or five awards based on drug seizures, but only one occurred in the pertinent time period and one occurred as far back as the 1980’s. The evidence does not support an inference that a Customs inspector would have an expectation of receiving an award every time he or she seized drugs, nor even every time there was a seizure of a large amount of drugs. There is no basis in the evidence for inferring that the cash award system in place provided an undue, or even significant, incentive to engage in unlawful searches in the hope of finding drugs that would result in an award. Plaintiffs also make much of a district court opinion that contains dictum criticizing Customs’ cash award system. See Buritica v. United States, 8 F.Supp.2d 1188, 1193-95 (C.D.Cal.1998). There, the court indicated that Customs had a program under which the amount of drugs seized was a factor to be considered in granting a “Superior Achievement Award.” Id. at 1193. The court did not reach a conclusion as to whether the defendants in that case were actually motivated by the incentive program, but did state that “such a program creates perverse law enforcement incentives that have an unduly dangerous propensity to encourage unreasonable searches and detentions.” Id The court did not conclude that the incentive program actually violated the Constitution, but indicated that it might. The court did not resolve the issue because it instead held that Buritica lacked standing to seek declaratory relief. Id. at 1195-97. Plaintiffs contend that the failure to end the cash award program following the Buriti- ca case indicates a disregard for constitutional rights. The cited criticism, however, is dictum. Moreover, there is no evidence in the present case of a cash award system that has produced an undue influence on seizures. No inference can be drawn from the failure to change policies following the Buritica case. Plaintiffs also point to a discussion of the Buritica case contained in a Trotter memorandum. In addition to reaching the issue of standing as to injunctive and declaratory relief, the Buritica case denies a motion for new trial or remittitur as to $225,000 in damages awarded against two Customs inspectors and denies a motion for judgment as a matter of law regarding punitive damages awarded against a supervisory Customs inspector. See id. at 1191-92. Neither of those rulings, however, address the issue of the applicable legal standard for the search that was found to be unlawful. The opinion does not describe the nature of the unlawful search, other than to imply that it concerned suspected internal smuggling of drugs. See id. at 1191. Plaintiffs complain that Trotter’s memorandum does not mention the cash award system “rebuke” and fails to criticize the unlawful conduct, instead conveying the message that Customs will stand behind its employees even when they act in an unconstitutional manner. First, plaintiffs ignore that Trotter’s memorandum is dated October 29, 1998 and therefore could have had no effect on any of the searches of named plaintiffs except possibly the August 1999 search, which was almost a year later and six months after Trotter left his Assistant Commissioner position. In any event, no negative inference may reasonably be drawn from a failure to comment on dictum in a case. Trotter does note that no Customs employee was personally liable under the settlement and that Customs backed them up during the litigation process. He describes the Buritica defendants’ decision to conduct the search as being in accordance with established procedures and not found to be unlawful, only the length of the detention being found unlawful. He suggests that a different judge and jury may have decided differently as to the length of detention and refe