author: KANNE, Circuit Judge.

text:
    Eric T. ALSTON, Plaintiff-Appellant, v. CITY OF MADISON, et al., Defendants-Appellees.
    No. 16-1034
    United States Court of Appeals, Seventh Circuit.
    Argued February 16, 2017
    Decided April 10, 2017

      ■Andrew Bentz, Attorney, Washington, DC, Nicole C. Henning, Attorney, Chicago, IL, Jones Day, for Plaintiff-Appellant.
    Kathryn A. Harrell, Attorney, Catherine M. Rottier, Attorney, Boardman & Clark, Madison, WI, for Defendants-Appellees City of Madison, Noble Wray, Madison Police Chief, Tom Woodmansee, Lieutenant, Cory Nelson, Lieutenant.
    Steven C. Kilpatrick, Attorney, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Defendant-Appellee Brian Reynolds, Probation Officer.
    Before FLAUM, MANION, and KANNE, Circuit Judges.
   KANNE, Circuit Judge.

The Madison Police Department established a focused deterrence program to increase surveillance of repeat violent offenders in Madison. Eric Alston was one of ten repeat violent offenders originally selected for the program.

Alston brought this § 1983 suit against the City of Madison, then Chief of Police Noble Wray, Lieutenant Tom Woodman-see, and three detectives — Cory Nelson, Samantha D. Kellogg, and Paige Valenta— claiming that he was selected for the program because of his race in violation of his equal-protection rights. Alston also argued that his inclusion in the program deprived him of liberty without due process of law: he contended that he was stigmatized as a repeat violent offender and subjected to increased surveillance, penalties, and reporting requirements, and to a biased probation-revocation hearing examiner.

While in the program, Alston’s probation officer Brian Reynolds issued an apprehension request when Alston allegedly failed to attend a scheduled appointment. Alston argued that he rescheduled the appointment before he missed it, so the apprehension request violated his Fourth Amendment rights.

The district court granted the defendants’ motion for summary judgment. Because Alston failed to produce evidence that would allow a reasonable trier of fact to conclude that the program had a discriminatory effect or purpose, that Alston’s legal rights were altered by being included in the program, and that the apprehension request issued without reasonable suspicion, we reject Alston’s arguments.

I. Background

Repeat violent offenders are responsible for a disproportionate percentage of crime in Madison, and the police department expends more resources policing those offenders than others. The department created the Special Investigations Unit to run a focused deterrence program designed to combat that problem. The program used a two-pronged approach: (1) increase surveillance of repeat violent offenders to deter criminal conduct and (2) provide resources to repeat violent offenders to help them become productive members of society.

If program members continued to reof-fend, the department wanted them to be punished to the greatest extent possible. To promote enforcement and punishment, investigations unit detectives met with other law-enforcement agencies to explain the program and to seek the agencies’ help implementing it. In particular, the detectives met with probation-revocation hearing examiners and encouraged them to revoke the probation of program members who violated their probation terms.

Not every repeat violent offender in Madison was a part of the program; the aim was to monitor only the worst of that group. The investigations unit relied on two lists to select participants for the program: one from the department of corrections, which identified the most violent offenders released in the last year, and one from the police department technology staff, which identified the most prolific violent offenders in the department’s database. From those lists, investigations unit detectives made qualitative and quantitative judgments about potential candidates’ criminal history, likelihood of reoffending, effect on the community, and drain on department resources. Detectives chose eighteen candidates and created a candidate profile for each person. Each candidate’s profile included the candidate’s age, gang membership (if any), a breakdown of prior criminal conduct (including convictions and charged offenses), and pending cases.

The investigations unit presented the candidate profiles to a selection committee, which chose ten candidates for the program. The department of corrections then sent a letter notifying the selected candidates that they had been chosen for the program. The members were told both in the letter and by their probation officers that they had to attend a notification meeting to learn more about the program.

Alston, who was one of the first ten people chosen for the program, described the program less charitably. He argued that the program was designed to reduce disproportionate minority incarceration in Madison by making examples of minority offenders. He based this conclusion on three pieces of evidence. First, blacks accounted for only 4.5 percent of the Madison population but 37.6 percent of arrests and 86 percent of the program. Second, as to the first ten members chosen, the four candidates associated with allegedly black gangs were selected while the one candidate associated with an allegedly white gang was not. And third, quotes from two high-ranking police-department officials, both involved in establishing the program, revealed that the disparity in minority incarceration was a concern when creating the program. Lieutenant Woodmansee stated that “the goal, truly, was to have a positive impact on disproportionate minority confinement.” (R. 113 at 6.) And an investigations unit report credited Chief of Police Noble Wray with describing the program “as a tangible means of addressing racial disparity in the criminal justice system.” (R. 111-1 at 34.)

Alston also argued that Reynolds, his probation officer, violated his Fourth Amendment rights. After receiving notice that he had been selected for the program, Alston started having problems with law enforcement. One of Alston’s probation conditions required him to attend appointments with Reynolds. On November 16, Alston was not at home for a scheduled visit. Alston alleges that he called Reynolds before he missed the meeting and told Reynolds that he would be late. According to Alston, they rescheduled the appointment for December 2.

Reynolds contends that he did not hear from Alston on November 16. According to Reynolds, Alston did not contact him until November 25. Reynolds claims that Alston’s phone died during the November 25 conversation and that Alston did not call him back until November 30. Under Reynolds’s version of the story, only then did they reschedule the appointment for December 2.

Regardless of the details surrounding the November 16 meeting, Reynolds issued an apprehension request for Alston on November 23. On December 1, the police department began investigating a domestic battery that allegedly involved Alston. A day later, Alston missed the rescheduled appointment. His next contact with Reynolds or law enforcement was on December 6, when he turned himself into the police because of the domestic-battery investigation.

After the missed appointments and domestic-battery incident,- Alston had a probation-revocation hearing. At the hearing, Alston appeared before his hearing examiner, Beth Whitaker. Whitaker was one of the hearing examiners that investigations unit detectives met with at the start of the program. At those meetings, the detectives encouraged the hearing examiners to revoke the probation of any program member who violated a probation term. Alston asked Whitaker to recuse herself, but she refused. She ultimately revoked Alston’s probation, noting that the investigations unit’s presentation played at least some role in her decision.

Alston brought a § 1983 suit, claiming that his inclusion in the program violated his equal-protection and due-process rights. Alston also claimed that the apprehension request violated his Fourth Amendment rights. The district court granted the defendants’ motion for summary judgment. This appeal followed.

II. Analysis

We review de novo a grant of summary judgment, construing all facts and reasonable inferences in the nonmoving party’s favor. Tapley v. Chambers, 840 F.3d 370, 376 (7th Cir. 2016). We affirm summary judgment if “the admissible evidence shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Id. (quoting Hanover Ins. Co. v. N. Bldg. Co., 751 F.3d 788, 791 (7th Cir. 2014)).

A. Equal-Protection Claim

Alston first argues that he was selected for the program because of his race in violation of his equal-protection rights. To prove an equal-protection claim, Alston must show that the program “had a discriminatory effect” and that the defendants “were motivated by a discriminatory purpose.” Chavez v. Ill. State Police, 251 F.3d 612, 635-36 (7th Cir. 2001).

To prove discriminatory effect, Alston must show that he was a member of a protected class and that he was treated differently from a similarly situated member of an unprotected class. Id. at 636. He may do so either by statistical analysis or by identifying a particular similarly situated member of the unprotected class who was treated differently from him. Id.

Blacks accounted for 4.5' percent of the Madison population, 37.6 percent of arrests, and 86 percent of the program— statistics that Alston repeats time and again in his brief as evidence of discriminatory effect. Even the defendants admit that these statistics are regrettable. (Ap-pellees’ Br. at 37.) But that does not mean that the statistics prove discriminatory effect. Statistics are relevant only if they address the pertinent question, that is, whether Alston was treated differently from a similarly situated member of the unprotected class. Chavez, 251 F.3d at 638. Alston’s statistics do not address whether black, repeat violent offenders were treated differently from white, repeat violent offenders and thus are not evidence of discriminatory effect.

In the absence of sufficient statistics, Alston also attempts to identify a particular similarly situated member of the unprotected class who was treated differently from him. He alleges that, although each candidate’s profile did not include race, gang affiliation was used as a proxy for race. This argument addresses the appropriate concern because it compares similarly situated people (repeat violent offenders) of different classes (black versus white). And the candidates associated with allegedly black gangs were chosen for the program while the one candidate identified with an allegedly white gang was not.

But the argument fails for another reason: Alston never made the racial-proxy argument at the district court. On review of a district court’s decision on a motion for summary judgment, we do not consider factual arguments not raised below. Packer v. Trs. of Ind. Univ. Sch. of Med., 800 F.3d 843, 849 (7th Cir. 2015). “It is a well-settled rule that a party opposing a summary judgment motion must inform the trial judge of the reasons, legal or factual, why summary judgment should not be entered. If it does not do so, and loses the motion, it cannot raise such reasons on appeal.” Id. (quoting Milligan v. Bd. of Trs. of So. Ill. Univ., 686 F.3d 378, 389 (7th Cir. 2012)). Because he did not make the racial-proxy argument at the district court, he cannot do so here. It would be unfair to both the district court and the defendants to conclude that there is a genuine dispute of material fact precluding summary judgment when Alston did not present the district court with the evidence and the defendants were never given a chance to respond. Id.

But even if Alston could show a discriminatory effect, his equal-protection claim fails because he cannot show a discriminatory purpose. Discriminatory purpose means more than simple knowledge that a particular outcome is the likely consequence of an action; rather, discriminatory purpose requires a defendant to have selected “a particular course of action at least in part ‘because of ... its adverse effects upon an identifiable group.” Chavez, 251 F.3d at 645 (quoting McCleskey v. Kemp, 481 U.S. 279, 298, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987)). “Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.” Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977).

Alston first tries to rely on his statistics showing a disparate impact to prove a discriminatory purpose. But disparate impact alone is almost always insufficient to prove discriminatory purpose. Washington v. Davis, 426 U.S. 229, 239, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). Without more, a court’s acceptance of a disparate-impact argument “would render suspect each difference in treatment among the grant classes, however lacking in racial motivation and however otherwise rational the treatment might be.” Id. at 241, 96 S.Ct. 2040 (quoting Jefferson v. Hackney, 406 U.S. 535, 548, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972)). Only in rare cases are statistics alone enough to prove discriminatory purpose. McCleskey, 481 U.S. at 298 n.12, 107 S.Ct. 1756. And even when equipped with such statistics, a plaintiff must always “point to a defendant’s policy or policies causing that disparity.” Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc., — U.S. -, 135 S.Ct. 2507, 2523, 192 L.Ed.2d 514 (2015). The two leading cases for this are Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960) and Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). In Gomillion, the state legislature redrew the city boundary from a square to a twenty-eight-sided figure. Redistricting removed 395 of 400 black voters from city limits while no white voter was affected. Yick Wo involved a law that prohibited operating a laundromat in a wooden building without a permit. All but one white applicant received a permit but none of the 200 Chinese applicants did.

“Absent a pattern as stark as that in Gomillion or Yick Wo, impact alone is not determinative, and the Court must look to other evidence.” Arlington Heights, 429 U.S. at 266, 97 S.Ct. 555. The statistics must be so stark that they are “unexplainable on grounds other than race,” id. leading to the inescapable conclusion, “tantamount for all practical purposes to a mathematical demonstration,” of discriminatory intent, Gomillion, 364 U.S. at 341, 81 S.Ct. 125.

True enough, Alston’s statistics show disparate impact: we know that a substantial majority of the program was black. Yet that does not lead to the inescapable conclusion that the defendants acted with discriminatory intent. Consider more closely the statistics present in Gom-illion and Yick Wo. There, the statistics showed that minorities were disproportionately affected by the law. But the statistics showed more than disparate impact. They revealed that almost all minorities — every minority in Yick Wo and all but five minorities in Gomillion — were negatively affected by the law. The statistics also revealed that almost no whites — none in Gomillion and only one in Yick Wo — were negatively affected by the law. In both cases, it was clear that the statistical disparity at issue was caused by the defendants’ actions, which allowed the Court to conclude that statistics alone were enough to prove unconstitutional disparate treatment. See Gomillion, 364 U.S. at 341, 81 S.Ct. 125; Yick Wo, 118 U.S. at 373-74, 6 S.Ct. 1064.

Alston’s statistics here lack any of those details. There is no evidence about the number of black, repeat violent offenders who qualified for the program but were not chosen. Nor is there any evidence about the number of white, repeat violent offenders chosen compared to the number of white, repeat violent offenders who could have been chosen. Absent more specific statistics, we cannot say that mere disparate impact is sufficient to prove discriminatory purpose.

So Alston had to provide other evidence of discriminatory purpose. As noted above, to show discriminatory purpose, a plaintiff must show that the decisionmaker “selected or reaffirmed a particular course of action at least in part ‘because of ... its adverse effects upon an identifiable group.” Chavez, 251 F.3d at 645 (quoting McCleskey, 481 U.S. at 298, 107 S.Ct. 1756) (emphasis added). Here, Alston points to two statements made by men in charge of creating and implementing the program. Neither statement, however, is sufficient. For instance, Lieutenant Wood-mansee said that “the goal, truly, was to have a positive impact on disproportionate minority confinement.” (R. 113 at 6) (emphasis added). While the incarceration rate of minorities might have been part of the reason for adopting the program, Wood-mansee’s deposition testimony shows the opposite of discriminatory purpose. The testimony demonstrates that the program was created to benefit, not discriminate against, Madison’s minority population.

Former Chief of Police Wray’s comment does not show a discriminatory purpose for the same reason. That the program was a “tangible means of addressing racial disparity in the criminal justice system” does not show that the department created the program to negatively affect blacks. (R. 111-1 at 34.) Quite the contrary: if the police department wanted to address the disparity in minority incarceration then it did not intend to negatively affect blacks.

For those reasons, Alston has provided no evidence that the program had a discriminatory effect or that the defendants acted with a discriminatory purpose. Thus, the district court appropriately granted the defendants’ motion for summary judgment on Alston’s equal-protection claim.

B. Due-Process Claim

Next, Alston argues that his inclusion in the program deprived him of liberty without due process of law. He claims that being chosen for the group stigmatized him as a repeat violent offender and subjected him to increased reporting requirements, surveillance, and penalties, and to a biased probation-revocation hearing examiner.

“A plaintiff may prove a deprivation of a protected liberty interest by showing damage to his ‘good name, reputation, honor, or integrity.’ ” Hannemann v. S. Door Cty. Sch. Dist., 673 F.3d 746, 753 (7th Cir. 2012) (quoting Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971)). But not every defamatory statement by a public official constitutes “a deprivation of liberty within the meaning of the Due Process Clause.” Paul v. Davis, 424 U.S. 693, 702, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). State action that simply harms a plaintiffs reputation is insufficient; the action must also alter a previously recognized legal status or right. Hinkle v. White, 793 F.3d 764, 767-68 (7th Cir. 2015). This is known as a “stigma-plus” injury. Id. at 768.

Alston can prove the “stigma” portion of the stigma-plus test. The focused deterrence program’s entire purpose was to monitor repeat violent offenders. Anyone selected for the program carried that brand. Without question, being classified as a “repeat violent offender” harms one’s reputation.

But Alston can get no further because he has not shown that being selected for the program altered a previously recognized legal status or right. Alston’s additional reporting requirements amounted to a single event: the notification meeting that he had to attend after he was initially chosen for the program. But a probationer, unlike an ordinary citizen, does not retain the absolute right to come and go as he pleases: a probationer’s liberty interest is necessarily limited by special probation conditions. Griffin v. Wisconsin, 483 U.S. 868, 874, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987). So to prevail on this claim based on his required attendance at the notification meeting, Alston must show that being forced to attend the notification meeting constituted “a sufficiently large incremental reduction in freedom to be classified as a deprivation of liberty.” Domka v. Portage Cty., Wis., 523 F.3d 776, 781 (7th Cir. 2008) (quoting Paige v. Hudson, 341 F.3d 642, 643 (7th Cir. 2003)).

As a probationer with reduced liberty interests, we cannot say that being forced to attend the single notification meeting deprived Alston of his liberty without due process of law. Alston’s probation terms make this especially clear. One of the terms required Alston to report to appointments with his probation officer. Although the notification meeting was with the investigations unit detectives and not his probation officer, Alston’s probation officer was the one who told him about the meeting and told him that he had to attend it. Given his probation requirement, being forced to attend the notification meeting did not result in a large enough reduction in Alston’s liberty to require due process.

Nor did the police department or investigations unit implement the program in a way that altered Alston’s previously recognized legal status or rights. The defendants do not dispute that program members were subjected to increased surveillance and increased punishment. Indeed, that was the program’s entire purpose. But neither fact altered Alston’s legal rights. Alston has provided no evidence that being included in the program authorized the investigations unit to conduct its surveillance in a way that violated his preexisting rights. The detectives just did what they always had the authority to do: closely monitor Alston’s conduct. Likewise, the increased penalties that the police department wanted enforced against program members were penalties already authorized by law. Alston was not threatened with new or increased sentencing ranges. The department always had the discretion to seek punishment at the strong end of the spectrum. Bryn Maur Care, Inc. v. Sebelius, 749 F.3d 592, 602-03 (7th Cir. 2014). It simply chose to exercise that discretion within the scope of the program.

Finally, Alston’s argument about a biased hearing examiner is a nonstarter. A plaintiff cannot recover damages in a § 1983 suit if a judgment in the plaintiffs favor would “necessarily imply the invalidity” of a prior conviction. Heck v. Humphrey, 512 U.S. 477, 487, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). And a ruling that his hearing examiner was biased would necessarily imply the invalidity of the probation-revocation hearing. “A criminal defendant tried by a partial judge is entitled to have his conviction set aside, no matter how strong the evidence against him.” Edwards v. Balisok, 520 U.S. 641, 647, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997) (applying the principle to a prison disciplinary hearing). The only appropriate way to challenge the validity of a prior conviction is on collateral review. Alston pursued this argument on collateral review and lost. Alston v. Smith, 840 F.3d 363 (7th Cir. 2016).

Despite providing sufficient evidence to conclude that he was stigmatized, Alston has provided no evidence that being included in the program altered his previously recognized legal status or rights. Thus, the district court appropriately granted the defendants’ motion for summary judgment on Alston’s due-process claim.

C. Fourth Amendment Claim

Finally, Alston argues that Reynolds violated his Fourth Amendment rights by issuing the apprehension request without a reasonable suspicion that he violated his probation terms. Alston insists that he called Reynolds and rescheduled the November 16 appointment before he missed it and thus did not violate his probation.

When reviewing a grant of summary judgment, we construe all facts and reasonable inferences from the record in the nonmoving party’s favor. Tapley, 840 F.3d at 376. Yet even at the summary-judgment stage not every purported factual dispute precludes summary judgment. A factual dispute must be material and genuine. Carroll v. Lynch, 698 F.3d 561, 564 (7th Cir. 2012). A factual dispute is genuine only if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

While the factual dispute here is material, it is not genuine. A probation officer needs only a reasonable suspicion that the probationer violated a probation term to issue an apprehension request. Knox v. Smith, 342 F.3d 651, 657 (7th Cir. 2003). And no reasonable trier of fact could conclude that Reynolds lacked reasonable suspicion that Alston missed the November 16 appointment.

Alston’s affidavit forecloses any argument to the contrary. In his response to the defendants’ proposed findings of fact, Alston asserted that he remembered “rescheduling the office visit just minutes after missing the November 16, 2011 ‘home visit’.” (R. 71 at ¶ 7:) Alston attempts to evade his admission by arguing that he meant he called Reynolds “minutes after the home visit was to begin.” (Appellant’s Br. at 42.) Even so, he was not at home when he was supposed to be for the scheduled appointment. Rather than lacking reasonable suspicion, Reynolds knew with certainty that Alston had violated his probation. Accordingly, the apprehension request was issued with reasonable suspicion and did not violate Alston’s Fourth Amendment rights.

III. Conclusion

For the foregoing reasons, we Affirm the district court’s grant of the defendants’ motion for summary judgment.

      . Defendants Cory Nelson, Samantha D. Kellogg, and Paige Valenta were investigations unit detectives.

      . Eighty-six percent refers to the racial composition of the program at the time of oral argument: fifty-five of sixty-four program members were black.

      . Alston was charged with domestic battery but was acquitted.


source: Caselaw Access Project

author: WOOD, Chief Judge.

license: Public Domain

text:
    Tina M. EWELL, Plaintiff-Appellant, v. Eric TONEY, et al., Defendants-Appellees.
    No. 16-1009
    United States Court of Appeals, Seventh Circuit.
    Argued December 2, 2016
    Decided April 10, 2017

      Richard Dvorak, Attorney, Law Offices of Richard Dvorak, Willowbrook, IL, Kenneth N. Flaxman, Attorney, Joel A. Flax-man, Attorney, Law Office of Kenneth N. Flaxman P.C., Chicago, IL, for Plaintiff-Appellant.
    Gabe Johnson-Karp, Attorney, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Defendant-Appellee Eric Toney.
    Remzy D. Bitar, Attorney, Luke A. Mar-tell, Attorney, Arenz, Molter, Macy & Riffle, Waukesha, WI, for Defendants-Appel-lees William Ledger, Matt Bobo.
    Before WOOD, Chief Judge, and EASTERBROOK and WILLIAMS, Circuit Judges.
   WOOD, Chief Judge.

Tina Ewell was a close friend and confidante of her sister, Eve Nance. So close, in fact, that when Nance shot and killed her husband, Ewell helped Nance dispose of his body. For this, a Wisconsin court convicted Ewell of a number of felony and misdemeanor charges in October 2016. But she is not asking us to second-guess those convictions. Instead, she is complaining about an aspect of the criminal investigation — namely, her initial arrest and detention immediately after the murder. During the period between her release from that detention and her indictment in the criminal case, she filed a civil rights action complaining that the detention was not supported by probable cause but was instead for the impermissible goal of building a case against her. Resolving the ease before the state criminal proceeding began, the district court dismissed her suit, and this appeal followed. Because we conclude that Ewell is not entitled to damages on most of her claims, and that the defendants are entitled to qualified immunity on the rest, we affirm.

I

Eve Nance shot and killed her husband, Timothy Nance, as he stood in the shower of their Fond du Lac, Wisconsin, home on November 1, 2013. Four days later, Nance reported him missing. Two detectives from the Fond du Lac Police Department, William Ledger and Matt Bobo (“the detectives”), were assigned to investigate. What follows is their account of their actions. They began by interviewing Timothy’s family, his new girlfriend, and various friends, including Ewell. Some of those friends told them about the Nance couple’s fraught history of threats and violence, including recent discord over Timothy’s new girlfriend and his purported plan to divorce Nance. The detectives also said that a witness had noticed that the shower curtain, liner, and hooks in the Nance bathroom had been replaced after Timothy disappeared. Nance and her daughter confirmed this detail, which one of the detectives had observed independently.

The detectives also reviewed surveillance tapes from a local store. The tapes showed Ewell and Nance buying new shower curtain liners and hooks the night Timothy went missing. On November 20, the day after they reviewed the surveillance tape, the detectives and crime lab technicians executed a search warrant at the Nance house and seized “biological specimens,” a “projectile” from the bathtub pipes, clothing, and other evidence. That same day, the detectives spoke to Ewell again. When they asked her to accompany them to the police station for further questioning, she refused. They did not take “no” for an answer: they arrested Ewell and transported her to the Fond du Lac police station sometime between 2 and 4 p.m. — approximately an hour after arresting Eve Nance.

Ewell asserted her right to remain silent, requested counsel, and was moved to the Fond du Lac County Jail around 3:45 or 4 p.m. that same day. She spent the next two days in custody. At 4:02 p.m. on November 22, Detective Ledger signed a probable cause statement in front of a Fond du Lac County judge. In that statement, Ledger reported that he believed that Timothy Nance was murdered, that the shower curtain and liner had been used to conceal evidence of Timothy’s death, and that Nance and Ewell had removed Timothy’s body and concealed it in an unknown location. At 4:15 p.m., the judge, relying exclusively on Ledger’s statement and accompanying affidavit, determined that probable cause existed to detain Ewell and denied Ewell bond pending a court appearance. Ewell’s public defender filed a habeas corpus petition on her behalf with the Fond du Lac County Circuit Court on November 26. The following afternoon, the same judge who had found probable cause on November 22 conducted a hearing on the habeas corpus petition. At that hearing, Ewell’s public defender contended that the November 22 probable cause determination had occurred after the expiration of the 48-hour period considered presumptively reasonable under County of Riverside v. McLaughlin, 500 U.S. 44, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991), and that there had not been an initial appearance or the filing of a complaint within a reasonable time of arrest.

The county judge agreed that the Riverside determination was outside the 48-hour window, and so the burden shifted to the state to show extraordinary circumstances. The state, the judge decided, satisfied that burden, given the activity related to the case on the court calendar. The judge stated that although Detective Ledger had contacted him earlier to sign the statement, he (the judge) could not have diligently reviewed and signed it any earlier than he did. The judge then reiterated his conclusion that probable cause existed to detain Ewell. Immediately thereafter, the court held a bond hearing and set a $50,000 cash bond for Ewell. The court was closed from November 28 through December 1 for the Thanksgiving holiday and weekend. On December 2, 2013, the Fond du Lac County District Attorney, Eric Toney, requested Ewell’s release, and the state court ordered her release that same day. At that point, the state had filed no charges against her; in all, she had spent 12 days in custody.

On August 4, 2014, Ewell filed a complaint in federal court under 42 U.S.C. § 1983, alleging that the detectives and DA Toney had arrested and held her without probable cause and had conspired to deprive her of her constitutional rights by false arrest and unlawful detention. The district court granted the defendants’ motions to dismiss on January 4, 2016, finding that some of Ewell’s allegations against DA Toney failed to state a claim and that he was entitled to qualified immunity on the remaining claims; that the detectives were entitled to qualified immunity because probable cause existed to arrest Ewell; and that, on the understanding that her complaint alleged a conspiracy to interfere with her civil rights in a manner prohibited by 42 U.S.C. § 1985, Ewell failed to state a claim because she had not named any private actors. Ewell filed a timely notice of appeal from the court’s final judgment on January 8, 2016.

While her appeal was pending before our court, the Fond du Lac District Attorney filed charges against Ewell on April 12, 2016. See Wisconsin v. Tina M. Ewell, Fond du Lac County Case No. 2016-CF-231. She was accused of committing four crimes: (1) felony hiding a corpse, Wis. Stat. Ann. § 940.11(2); (2) felony harboring or aiding a felony, Wis. Stat. Ann. § 946.47(l)(b); (3) misdemeanor resisting or obstructing an officer, Wis. Stat. Ann. § 946.41(1); and (4) misdemeanor failure to report a death under unusual or suspicious circumstances, Wis. Stat. Ann. § 979.01(l)(a). After those charges were filed, the detectives moved this court to stay the appellate proceedings in her civil rights case, arguing that Younger abstention was appropriate. We denied that motion and invited the detectives to address Younger in their responsive brief. On October 28, 2016, prior to oral arguments before our court, a state jury found Ewell guilty of the first three counts. (The prosecutor had dismissed the fourth count a few days earlier.) The detectives again asked us to dismiss the proceedings, this time on the basis of- both Younger abstention and the bar established in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). We ordered this motion to be taken with the case for resolution after oral argument. On December 8, 2016 — six days after we heard oral argument on her appeal — the state court sentenced Ewell to two years’ imprisonment.

II

Simultaneous state and federal court cases relating to the same events pose important questions relating to federal-state comity. These are not jurisdictional questions, but the defendants have properly raised them, and they should be resolved before we push on to the merits.

A

The Younger abstention doctrine, which is rooted in traditional principles of equity, comity, and federalism, requires federal courts to refrain from exercising their jurisdiction when relief may interfere with certain state proceedings. SKS & Assocs., Inc. v. Dart, 619 F.3d 674, 677 (7th Cir. 2010) (citing Younger v. Harris, 401 U.S. 37, 53-54, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971)). Situations in which Younger abstention is appropriate include those in which there is an ongoing state proceeding that is judicial in nature, involves important state interests, provides the plaintiff an adequate opportunity to raise the federal claims, and no exceptional circumstances exist. Stroman Realty, Inc. v. Martinez, 505 F.3d 658, 662 (7th Cir. 2007). In addition, the constitutional issues raised must be capable of being raised in the state proceedings, including in the state appellate process. Simpson v. Rowan, 73 F.3d 134, 138 (7th Cir. 1995).

If Ewell’s federal case were in its infancy in the federal courts, the district court might have had good reason to stay its proceedings while the state criminal case was underway. Ewell could have contested probable cause in the state courts. But the timeline of the two cases did not lend itself to Younger abstention, which is proper only when state court proceedings are initiated “before any proceedings of substance on the merits have taken place in the federal court....” Hicks v. Miranda, 422 U.S. 332, 349, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975). This does not call for a simple check of the calendar to see which case was filed first. A federal court should abstain when a state criminal complaint is filed while the federal litigation is an “embryonic stage” and no contested matter has been decided. Doran v. Salem Inn, Inc., 422 U.S. 922, 929, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975). In all other cases, “federal courts must normally fulfill their duty to adjudicate federal questions properly brought before them.” Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 238, 104 S.Ct. 2321, 81 L.Ed.2d 186 (1984). Once a case has progressed beyond the embryonic stage, “considerations of economy, equity, and federalism counsel against Younger abstention....” Id.

Here, the district court considered the issues, entertained numerous motions, and finally resolved the federal case four months before the state’s initiation of criminal proceedings against Ewell. In those circumstances, nothing called for abstention at the district court level, nor should we take that step at the appellate level. Instead, we will heed our “virtually unflagging obligation ... to exercise the jurisdiction given” to us, Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), and proceed.

B

There is, however, another preliminary obstacle to some of Ewell’s section 1983 claims now that she has been convicted and sentenced by a state court — a court whose proceedings are relevant to this matter and the proper subject of judicial notice. Opoka v. I.N.S., 94 F.3d 392, 394-95 (7th Cir. 1996). At her sentencing, Ewell received credit for the 12 days she spent in custody following her initial arrest — the same time for which she now contends she was unlawfully detained. See Wisconsin v. Ewell, No. 16-CF-231, Sentencing Tr., Dec. 8, 2016. The problem she faces is this: a section 1983 plaintiff may not receive damages for time spent in custody, if that time'was credited to a valid and lawful sentence. Bridewell v. Eberle, 730 F.3d 672, 677 (7th Cir. 2013); Ramos v. City of Chicago, 716 F.3d 1013, 1020 (7th Cir. 2013).

After reviewing Ewell’s complaint and the 2016 state criminal proceedings, we conclude that Ewell is not entitled to seek damages related to her detention and therefore to this extent has no injury that a favorable decision by a federal court may redress. Without a redressable injury, Ewell lacks Article III standing to press this claim. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-62, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

We note in passing that the Supreme Court recently held in Manuel v. City of Joliet, — U.S. -, 137. S.Ct. 911, 197 L.Ed.2d 312 (2017), that the Fourth Amendment continues to govern at least some claims for unlawful pretrial detention even after the legal process has begun through a judicial probable-cause determination or comparable procedure. The rule in this circuit".had been that claims (such as Ewell’s) for unlawful detention could be brought only under the Due Process Clause once legal process had begun. See, e.g., Llovet v. City of Chicago, 761 F.3d 759, 763 (7th Cir. 2014). Nothing in Manuel, however, affects the question now before us, which is whether Ewell is entitled to damages for time spent in custody that was fully credited to her state sentence.

This means that Ewell’s conspiracy allegations are out as well. She asserts almost in passing at the end of her appellate brief that the district court misread her allegation that the detectives and DA Toney had engaged in a conspiracy to hold her without charge or probable cause as a claim under section 1985, when she was relying on section 1983. Insofar as she notes that plaintiffs do not need to plead legal theories, she is correct. In addition, it is true that claims for alleged conspiracies between state actors are possible under section 1983, though as we have observed, they add nothing but needless complexity. See Fairley v. Andrews, 578 F.3d 518, 526 (7th Cir. 2009); see also Geinosky v. City of Chicago, 675 F.3d 743, 749 (7th Cir. 2012). But Ewell fails to develop this argument on appeal, and we have repeatedly noted that perfunctory and undeveloped arguments do not preserve a claim for our appellate review. See, e.g., Puffer v. Allstate Ins. Co., 675 F.3d 709, 718 (7th Cir. 2012); United States v. Berkowitz, 927 F.2d 1376, 1384 (7th Cir. 1991). Even if she squeaks past forfeiture, she cannot succeed. In any case, there must be an underlying constitutional injury or the conspiracy claim fails. Because Ewell cannot maintain a claim for her alleged unlawful detention — the only possible injury for this part of the case — her conspiracy claim also fails.

C

Ewell’s claim of unreasonable delay in obtaining a prompt judicial determination of probable cause under Riverside v. McLaughlin, 500 U.S. 44, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991), meets the same fate. In Bridewell v. Eberle, we determined that a litigant in very similar circumstances, who was held for 63 hours after her arrest before a judicial determination of probable cause, could not demonstrate that she was injured by the presumptively unreasonable delay of more than 48 hours. 730 F.3d at 676-77. The critical fact was that the judge ultimately found probable cause and denied bail. The plaintiff thus would not have been entitled to release any sooner. Id. Moreover, because her time in custody was later credited to a criminal sentence on another charge, she could not receive damages for the time she spent in custody after her arrest. Id. at 677. So too here. The state court judge found probable cause and denied bond pending a further hearing in his November 22, 2013 determination. Had the judicial determination occurred earlier, the outcome would have been the same: Ewell would not have been released at that point.

Even if Ewell could show at least nominal damages from the delay, our review of the state habeas corpus proceedings convinces us that the detectives would not be the correct parties to hold liable for any such damages. The judge indicated that although Detective Ledger had contacted him to review and sign the probable cause statement within the 48-hour presumptive period, the judge turned him away and indicated that he could not possibly have made the determination any sooner than he did. This suggests that the delay of longer than 48 hours was not a result of the detectives’ actions. And Ewell’s amended complaint does not assert that either the county or the police department had any policy or practice that caused excessive delays. On these facts, she has not stated a Riverside claim against the defendants she names.

Ill

That leaves Ewell’s claim for false arrest. While we are skeptical that she could show any injury from the arrest, her case was dismissed at the pleading stage, and so she never had the opportunity to develop a record on this point. But giving Ewell the benefit of the doubt and assuming that she may have suffered damages related to the arrest itself — perhaps emotional injury or nominal damages independent of the time already credited to her criminal sentence — we must consider whether her suit against the detectives is nevertheless barred by qualified immunity.

Our review of a district court’s ruling on qualified immunity in response to a Rule 12(b)(6) motion is de novo; we consider the facts, including all reasonable inferences from them, in the light most favorable to the nonmoving party. Chasensky v. Walker, 740 F.3d 1088, 1093 (7th Cir. 2014). But we need not accept any legal assertions as true when we review a dismissal under Rule 12(b)(6). Lodholtz v. York Risk Servs. Group, Inc., 778 F.3d 635, 639 (7th Cir. 2015). We may affirm a district court’s dismissal on any ground contained in the record. Brooks v. Ross, 578 F.3d 574, 578 (7th Cir. 2009).

“Qualified immunity shields government officials from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct.” Reichle v. Howards, 566 U.S. 658, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012). In other words, qualified immunity “shields from liability police officers ‘who act in ways they reasonably believe to be lawful.’ ” Jewett v. Anders, 521 F.3d 818, 822 (7th Cir. 2008) (quoting Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). Qualified immunity is an affirmative defense, but the plaintiff carries the burden of defeating it once it is raised. Rabin v. Flynn, 725 F.3d 628, 632 (7th Cir. 2013). To defeat the qualified immunity defense, a plaintiff must show: (1) that the defendant violated a constitutional right, and (2) that the right was clearly established at the time so that it would have been clear to a reasonable officer that her conduct was unlawful in the situation. Saucier v. Katz, 533 U.S. 194, 201-02, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). These questions can be addressed in either order. Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009); Locke v. Haessig, 788 F.3d 662, 667 (7th Cir. 2015).

Probable cause is an absolute defense to claims of wrongful or false arrest under the Fourth Amendment in section 1983 suits. Williams v. City of Chicago, 733 F.3d 749, 756 (7th Cir. 2013). In other words, if an officer has probable cause to arrest a suspect, the arrest was not false. Probable cause exists at the time of an arrest if “the facts and circumstances within the officer’s knowledge ... are sufficient to warrant a prudent person, or one of reasonable caution, in believing ... that the suspect has committed, is committing, or is about to commit an offense.” Id. (quoting Gonzalez v. City of Elgin, 578 F.3d 526, 537 (7th Cir. 2009)). Probable cause is gauged from the vantage point of a reasonable officer facing the same situation. Id.

Ewell’s complaint said little about the detectives’ alleged lack of probable cause. She pleaded only that “[n]othing [she] said or did during the ... police questioning could have caused a reasonable law enforcement official to believe that [she] had engaged in criminal wrongdoing,” and that they did not have probable cause when they arrested her. But she also referred to the probable cause affidavit prepared by Ledger in her complaint. We may take notice of that complaint. See Williamson v. Curran, 714 F.3d 432, 436 (7th Cir. 2013). Ewell contends that it contained “several material false statements and material omissions.” But she has not pointed to any specific errors or misstatements, and in district court she asserted that her claim was not that the detectives had lied or committed misconduct. And when we asked at oral argument whether she was contending that the detectives lied in their affidavit, Ewell refrained from going that far. Instead, she repeated that nothing in the affidavit established probable cause. We are therefore free to rely on this affidavit to show what the detectives at least believed to be true at the time, without needing to make a finding about the truth of the underlying assertions.

This permits us to accept for present purposes that at the time Ewell was arrested, the detectives knew or believed: that she claimed she had not seen or talked to Timothy Nance since Friday, November 1, 2013; that she admitted having had the keys to the Nance house over the following weekend, including having been in the house on the following Sunday, and having spoken to her sister; that video surveillance showed Ewell and Nance entering a local store and purchasing shower curtain liners and hooks the Friday night that Timothy went missing;-that witnesses indicated that the curtains were replaced after Timothy went missing; and that the search at the Nance residence had turned up a “projectile” from the bathtub plumbing pipes. This all plausibly supports the detectives’ suspicion that Ewell had helped to hide a body or conceal a homicide.

None of this, we assume, proves Ewell’s guilt. But the question before us is a different one: whether a reasonable officer would have been justified in believing that he had probable cause to arrest Ewell. Here, it would not have been plain to a reasonable officer that arresting and detaining Ewell under those circumstances would have been unlawful under the Fourth Amendment, and this is all that the qualified immunity inquiry requires. Although qualified immunity is sometimes a factual question better reserved for summary judgment, here the pleadings and items subject to judicial notice support immunity for the detectives.

We note for the sake of completeness that we need not reach the issue of absolute or qualified immunity for DA Toney because Ewell’s allegations against him all stem from conduct subsequent to her arrest. She alleges that he learned of her arrest after it occurred, and that he was aware while she was detained that probable cause was lacking. But even assuming this were so, and that she could establish that he was at least partially responsible for her continued detention, the only claim she would have had against him is for unlawful detention. And, as we already have concluded, she cannot maintain that claim because she has been credited for the time served.

Finally, the appellees contended that some of Ewell’s claims would be barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), which holds that a prisoner’s claims for damages that would implicate the validity of her underlying conviction or sentence are not cognizable under section 1983 until she receives favorable collateral relief, such as through the issuance of a writ of habeas corpus. The Heck bar is not jurisdictional, however, and we therefore are not concerned that it would affect our power to hear this case. Because we may affirm a dismissal on any ground contained in the record, Brooks, 578 F.3d at 578, we decline to reach the Heck issue.

We therefore Affirm the judgment of the district court.


author: RILEY, Chief Judge. SMITH, Circuit Judge,

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner Eastern Missouri Laborers’ District Council, Intervenor v. MISSOURI RED QUARRIES, INC., Respondent Missouri Red Quarries, Inc., Petitioner v. National Labor Relations Board, Respondent Eastern Missouri Laborers’ District Council, Intervenor
    No. 16-1450, No. 16-1682
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 20, 2016
    Filed: April 6, 2017

      Counsel who presented argument on behalf of Missouri Red Quarries was Rick E. Temple, of Springfield, MO.
    Counsel who presented argument on behalf of the NLRB was Valerie L. Collins, of Washington, DC.
    The following attorney(s) appeared on the intervenor brief; James Singer and Christopher N. Grant, of Saint Louis, MO.
    Before RILEY, Chief Judge, MURPHY and SMITH, Circuit Judges.

      . The Honorable William Jay Riley stepped down as Chief Judge of the United States Court of Appeals for the Eighth Circuit at the close of business on March 10, 2017. He has been succeeded by the Honorable Lavenski R. Smith.

   RILEY, Chief Judge.

The National Labor Relations Board ruled Missouri Red Quarries, Inc. (Missouri Red) committed an unfair labor practice under the National Labor Relations Act (NLRA), see 29 U.S.C. § 158(a)(1), (5), by refusing to recognize and collectively bargain with the Eastern Missouri Laborers’ District Council (the union). The key issue before us is not about the unfair labor practice itself, but rather whether the Board was correct to certify the union in the first place. The Board certified the union only after it upheld a challenge to Steve Johnston’s potentially determinative ballot by declaring him a statutory supervisor and thus not entitled to vote. Missouri Red contends this was error and petitions for review of the Board’s decision. The Board cross-petitions for enforcement of its order, and the union intervened in support of the order. We deny the petition for review and grant the cross-petition for enforcement.

1. BACKGROUND

Missouri Red operates a granite quarry in Ironton, Missouri. The quarry is staffed by ten individuals who excise granite from the quarry pits, called the “ledge,” cut the granite to the desired specifications in the saw plant, and ship it to a facility in Georgia where it is manufactured for sale. The company is owned by Tom Oglesby, who also owns and oversees four other operations in Georgia and Oklahoma that employ about 140 individuals in all. Oglesby’s principal office is in Elberton, Georgia, 621 miles from Ironton. As a result, his visits to the Ironton quarry are limited to a daylong visit every month or sometimes more. Oglesby stays informed by talking with Johnston — the subject of the instant petitions — for about ten minutes every week. Despite Oglesby’s other business ventures, the distance, and his limited physical presence, Oglesby testified he manages Missouri Red “totally” and is “in charge of everything.”

There was a clear on-site supervisor at the Ironton quarry until June 2013, when his employment at Missouri Red ended. Rather than hire a replacement, Oglesby implemented a decentralized system at Ironton with four foremen and no named supervisors. Johnston was elevated to one of these foreman positions and took on certain administrative responsibilities in addition to his duties in the saw plant. Johnston estimated about 90% of his time is spent performing typical bargaining-unit work and the other 10% is spent completing administrative tasks. Though Oglesby claimed he vested each foreman with identical (non-supervisory) authority, employees viewed Johnston as the head person, having been told by Oglesby to take any problems to Johnston, and one Missouri Red employee testified “[Johnston] was the guy in charge and everybody knew it.”

Crucial to this appeal is the role Johnston played in Missouri Red hiring two new employees. The first employee is Josh Moses, who was hired at some point in 2014. Johnston had gone to school with Moses’s parents, knew he was young and in need of a job, and “figured he’d be a hard worker” because Moses had grown up on a farm. Johnston also knew Missouri Red had fired an employee from the ledge several weeks earlier, and he did not believe anyone had yet applied to fill the opening. Sensing a match, Johnston called Oglesby and told him about Moses. Ogles-by told Johnston to “have him come in, do his drug test, and if he passes,” hire him. Moses came in the next day, filled out an application for the first time, passed his drug test, spoke with Johnston briefly, and went to work. Shane Horn was hired in a similar fashion. In August 2014, another employee told Johnston that Horn was interested in a job. Johnston, who had “known Shane since he was a kid,” called Oglesby to relay his co-worker’s comment and inquire about hiring Horn. Oglesby said to “have him come in, get his drug test, and if he passes, send him to work.” Johnston did just that, and Horn was hired.

In April 2015 the union filed a petition with the Board seeking to represent all quarry employees not excluded under the NLRA, 29 U.S.C. §§ 151, et seq. An election was held shortly thereafter and the votes were tallied: five votes for union representation and four votes against. Johnston’s ballot remained sealed because the union argued he was a statutory supervisor under § 152(11) of the NLRA and therefore not entitled to vote. Because Johnston’s vote was potentially determinative — as a five-five even split would result in the union not being certified, see id. § 159(a) — the Regional Director ordered a hearing be held. The parties presented their evidence and arguments to the Hearing Officer, who concluded Johnston was not a supervisor and thus recommended his vote be counted. The union filed exceptions and each party submitted briefs to the Regional Director. The Regional Director accepted the Hearing Officer’s credibility determinations, but declared Johnston a supervisor given his effective authority to recommend hire and various secondary indicia.

Having upheld the union’s challenge to Johnston’s ballot, the Regional Director certified the union. Missouri Red sought review by the Board, which summarily denied the request. In order to seek review of the certification, Missouri Red declined to recognize the union and refused to bargain with it. The union filed an unfair-labor-practiee charge with the Board, alleging violations under § 158(a)(1) and (5) of the NLRA. Missouri Red admitted its refusal to bargain, but reiterated its position that the underlying certification was improper. The Board granted summary judgment to the union because “[a]ll representation issues raised by [Missouri Red] were or could have been litigated in the prior representation proceeding.” The Board ordered Missouri Red to cease and desist, and “bargain on request with the Union.” Missouri Red has not done so, and petitions this court for review of the Board’s order and underlying decision to certify the union. The Board cross-petitions for enforcement of its order. See id. § 160(f) (appellate jurisdiction).

II. DISCUSSION

The NLRA affords employees certain rights — including the right to organize and vote on representation — that do not extend to supervisors, thus whether Johnston’s vote should be counted depends on whether he is a supervisor. See id. §§ 152(3), 157, 159. The statutory definition of “supervisor” has three components. See id. § 152(11); Multimedia KSDK, Inc. v. NLRB, 303 F.3d 896, 899 (8th Cir. 2002) (en banc). First, the individual must have the authority to accomplish or effectively to recommend one or more of the twelve supervisory actions listed in § 152(11), which includes hiring. See Multimedia KSDK, 303 F.3d at 899. Second, “the authority must involve the use of independent judgment and be more than routine or clerical in nature.” Id. Third, the authority must be held in the interest of the employer. See id. The party asserting supervisory status — here, the union — bears the burden of establishing these requirements. See NLRB v. Ky. River Cmty. Care, Inc., 532 U.S. 706, 711, 121 S.Ct. 1861, 149 L.Ed.2d 939 (2001).

Determining supervisory status under this three-part approach is fact-intensive and “ ‘calls upon the [Board’s] special function of applying the general provisions of the [NLRA] to the infinite gradations of authority within a particular industry.’ ” Securitas Critical Infrastructure Servs., Inc. v. NLRB, 817 F.3d 1074, 1078 (8th Cir. 2016) (quoting NLRB v. Chem Fab Corp., 691 F.2d 1252, 1256 (8th Cir. 1982)). We review the Board’s conclusion “ ‘under the deferential substantial evidence standard of review.’ ” Id. (quoting NLRB v. Whitesell Corp., 638 F.3d 883, 890 (8th Cir. 2011)); see 29 U.S.C. § 160(f) (“[T]he findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall ... be conclusive.”). Provided there is substantial evidence, “ ‘we may not preempt the Board’s choice between two fairly conflicting views of that evidence.’” Securitas, 817 F.3d at 1078 (quoting JHP & Assocs. v. NLRB, 360 F.3d 904, 911 (8th Cir. 2004)).

Missouri Red tries to chip away at the considerable discretion we give the Board by asserting “the Board is known for inconsistent determinations in regard to ‘supervisory status’ ” and in this case “seemingly went to great lengths, contrary to its precedent and policy of narrowly defining supervisory status, to define Johnston as a statutory supervisor.” We are not wholly unreceptive to this argument, and have in fact expressed our own concern about the Board’s apparent attempts to stretch the NLRA’s protections. See Beverly Enters. v. NLRB, 148 F.3d 1042, 1045-46 (8th Cir. 1998); Schnuck Mkts., Inc. v. NLRB, 961 F.2d 700, 704 (8th Cir. 1992). The Board asserts such perceived pro-union bias is attributable to a “bygone era of Board decision-making.” We do not necessarily agree.

As a result of this concern, “ ‘our review necessarily becomes more probing’ ” and “a close and thorough examination of the record is called for to ensure that the Board’s findings are supported by substantial evidence and that its decision is not arbitrary and capricious.” Beverly Enters., 148 F.3d at 1046 (quoting Schnuck Mkts., 961 F.2d at 704). Yet we have rejected a plea to alter our standard of review so as to presume Board decisions are “the inevitable product of a pro-union bias,” id. and the deferential substantial evidence standard remains, see Securitas, 817 F.3d at 1078. Thus we will uphold the Board’s order if (and only if) a close examination of the record reveals substantial evidence Johnston had authority effectively to recommend that Missouri Red hire Moses and Horn, and in so doing exercised his independent judgment.

A. Authority to Recommend Hire

The Regional Director’s conclusion that “Johnston effectively recommended both Moses and Horn for hire” relied primarily on its finding “Johnston’s recommendation to hire proved determinative,” given that Oglesby did not conduct “any sort of independent review.” “The Board has consistently applied the principle that authority effectively to recommend generally means that the recommended action is taken without independent investigation by superiors.” Children’s Farm Home, 324 N.L.R.B. 61, 61 (1997) (emphasis added); see, e.g., Schnuck Mkts., 961 F.2d at 705; Donaldson Bros. Ready Mix, Inc., 341 N.L.R.B. 958, 962 (2004) (finding supervisory status because management’s “independent evaluation of [the supervisor’s] recommendations consisted] solely of reviewing ... applications”); Venture Indus., Inc., 327 N.L.R.B. 918, 919-20 (1999) (finding authority effectively to recommend discipline and hiring even though management would “eonduct[ ] a followup investigation about 30 to 40 percent of the time” and did not always follow the supervisors’ recommendations); Fred Meyer Alaska, Inc., 334 N.L.R.B. 646, 647 (2001).

Missouri Red does not suggest Oglesby conducted any sort of independent investigation before instructing Johnston to hire Moses and Horn, and the evidence bears this out. Oglesby’s involvement was limited to receiving calls from Johnston, requiring the candidates pass a drug test, and giving final approval for them to be hired. Oglesby did not speak with either candidate, and there is no indication Oglesby sought information beyond what Johnston provided or ever withheld approval for Johnston’s hiring recommendations. In comparison, Johnston played a role that exceeded “the mere screening of applications or other ministerial participation.” J.C. Penney Corp., 347 N.L.R.B. 127, 129 (2006). Johnston initiated the hiring process by suggesting Moses and Horn — neither of whom had even applied — to Oglesby. While perhaps not a formal “interview,” he spoke to both candidates before they were hired. Horn went to Johnston when he first arrived at Missouri Red because “[t]hat’s who [he] heard to talk to.” It was Johnston who made sure Moses and Horn completed their paperwork and drug tests before sending them to work. There is evidence to suggest Johnston’s co-workers were aware of his unique role in hiring. According to one employee, “[i]f we had an opening in the company and you had somebody in mind that you thought would be a good person, you’d go tell Steve Johnston.” This testimony supports the Regional Director’s inference that the employee who initially told Johnston about Horn’s interest in a job “did not feel empowered to make a word-of-mouth recommendation directly to Oglesby” and instead told Johnston.

Missouri Red contends this evidence is insufficient when compared to other Board decisions, and that Johnston’s comments to Oglesby about Moses and Horn are more akin to personal references than recommendations evidencing any sort of supervisory authority. On the surface, the Board’s decision in Jefferson Chemical Co., 237 N.L.R.B. 1099, 1102 (1978), could be read to support this contention. In that case, management sometimes asked a welding inspector to recruit a new employee given his “wide acquaintance among welders in the locality as a result of his many years in the trade and the fact that he ha[d] served as a welding instructor.” Id. In such instances the welder would “vouch[] for their character and qualifications,” and the recruits were thereafter hired. Id. In finding such participation did not confer supervisory status, the Board held: “The fact that a recommendation for the employment of an applicant is approved out of respect for the judgment of another, rather than because of his delegated authority to participate in the hiring process, is ... not an indicium of supervisory authority.” Id.

The Board has not required the delegation of such authority to be explicit, however. In Your Public Radio Corp. Employer, 200 L.R.R.M. (BNA) 1055, 2014 WL 3613193, at *3-9 (July 7, 2014), the Board found supervisors possessed delegated authority effectively to recommend hire where they handled virtually every aspect of the hiring process. Depending on the situation, the supervisors screened applicants or took it upon themselves to recruit co-workers they thought would be a good fit for the job; they met with applicants; and they made recommendations to management, who “relied exclusively on their recommendations when making job offers.” Id. at *9. Management would then meet with candidates, “discuss[] salary and mak[e] job offers.” Id. Presumably management rubber stamped the supervisors’ recommendations out of a respect for their judgment, but the Board’s analysis focused entirely on comparing the supervisors’ proactive and extensive role in hiring to management’s passive and marginal role. See id. at *8-9.

We are not persuaded by Missouri Red’s argument that Jefferson Chemical and the other, even less-analogous, cases it cites control our decision here. Rather we find substantial evidence Oglesby did not conduct any sort of independent investigation of Moses or Horn, and instead played a passive role in the hiring process as compared to Johnston’s active and meaningful role. This is enough to constitute an effective recommendation under § 152(11), and cases like Donaldson Bros., Venture Industries, and Your Public Radio Employer support this conclusion.

Our focus then turns to whether Johnston’s involvement in the hiring process was “more than routine or clerical” and “involve[d] the use of independent judgment.” Multimedia KSDK, 303 F.3d at 899. Independent judgment is often found lacking when actions are “dictated or controlled by detailed instructions” or “there is only one obvious and self-evident choice.” Oakwood Healthcare, Inc., 348 N.L.R.B. 686, 693 (2006). Conversely, independent judgment exists when an individual acts largely “free of the control of others” and weighs factors relevant to the action involved. Id. In perhaps its seminal decision on what constitutes independent judgment, the Board explained: “[An individual], when exercising his/her authority to recommend a person for hire, may be called upon to assess the applicants’ experience, ability, attitude, and character references, among other factors. If so, the [individual’s] hiring recommendations likely involve the exercise of independent judgment.” Id.; see also Fred Meyer, 335 N.L.R.B. at 649 (finding independent judgment where supervisors made recommendations “based on their own assessments of what skills are needed”).

We find sufficient evidence supports the conclusion Johnston exercised independent judgment in effectively recommending Moses and Horn for hire. To begin, we reject Missouri Red’s assertion that “[t]here are no qualifications for an applicant to work on the ledge of the quarry.” That a job involves little more than manual labor does not mean anyone can do it or that certain traits are not required or at least desired. As the Board noted, “Johnston had an independent basis for assessing” Moses and Horn and their “readiness to work” given that he knew both candidates. Such familiarity allowed Johnston to assess their “experience, ability, attitude, and character references, among other factors,” and so the Board did not act capriciously in finding he exercised independent judgment. Oakwood, 348 N.L.R.B. at 693; see Ky. River, 532 U.S. at 713, 121 S.Ct. 1861 (“It falls clearly within the Board’s discretion to determine, within reason, what scope of discretion qualifies.”).

B. Secondary Indicia

Finding Johnston effectively recommended Moses and Horn for hire does not end our analysis. “ ‘One who engages in an isolated incident of supervision is not necessarily a supervisor under the [NLRA], If this were the criterion and the hallmark of supervision then practically all employees would be supervisors.’ ” Jefferson Chem., 237 N.L.R.B. at 1102 (quoting NLRB v. Sec. Guard Serv., Inc., 384 F.2d 143, 149 (5th Cir. 1967)). In cases such as this— where there is substantial evidence the individual has authority to exercise independent judgment in performing at least one supervisory function, but the question is a close one — “courts often look to secondary factors.” Schnuck Mkts., 961 F.2d at 706.

A number of secondary indicia support the Board’s determination that Johnston is a supervisor. Most persuasive to us are the real-world implications if Oglesby was truly Missouri Red’s only supervisor. That is, if Johnston was not a supervisor, then the quarry was left without an on-site supervisor for many weeks at a time. It is not “a reasonable conclusion” to think Missouri Red would run its quarry — which is spread across 400 acres and operates around the clock — “without on-site supervision.” Id.; see also Empress Casino Joliet Corp. v. NLRB, 204 F.3d 719, 722 (7th Cir. 2000) (“A business cannot operate efficiently unless the employer has a team of employees he controls to whom he can delegate the essential supervisory functions that he cannot exercise personally.”); NLRB v. Beacon Light Christian Nursing Home, 825 F.2d 1076, 1080 (6th Cir. 1987). Oglesby contended he alone supervised the ten Missouri Red Ironton employees in addition to the 100-plus employees he directly supervised at his Georgia plant. We find this strains credulity. See Schnuck Mkts., 961 F.2d at 706 (“[C]ourts are often aided by calculating the resulting mix of supervisors to non-supervisory workers.”); Iron Mtn. Forge Corp., 278 N.L.R.B. 255, 262 (1986) (finding a ratio of 60:1 to be “an inordinately high ratio”).

Other secondary indicia support the Board’s decision. Warranted or not, employees perceived Johnston to possess some-extra degree of supervisory authority. See, e.g., Schnuck Mkts., 961 F.2d at 706; NLRB v. Chi. Metallic Corp., 794 F.2d 527, 531 (9th Cir. 1986). Johnston was one of only two employees to have keys to the quarry office. See, e.g., Donaldson Bros., 341 N.L.R.B. at 962. He also received a pay raise upon becoming a foreman so that he is now tied with one other individual for highest pay rate at Ironton. See, e.g., id. Also relevant, though not controlling, is the fact Johnston was referred to as “Quarry Supervisor” on the election voter job description list. See, e.g., Schnuck Mkts., 961 F.2d at 706.

In deferring to the Board’s determination, “[w]e acknowledge that there is some evidence in the record supporting the employer’s view” that Johnston was an employee, not a supervisor. Pac Tell Grp., Inc. v. NLRB, 817 F.3d 85, 95 (4th Cir. 2016). “Nevertheless, we are not charged with evaluating the evidence de novo.” Id. Instead, we probe the record to determine whether there is substantial evidence to support the Board’s decision, and in this case we conclude there is. Although our independent judgment could be different than the Board’s, we defer to the Board and conclude it did not act arbitrarily or capriciously by upholding the union’s challenge to Johnston’s ballot, certifying the union, and finding Missouri Red committed an unfair labor practice.

III. CONCLUSION

For the foregoing reasons, we deny Missouri Red’s petition for review and grant the Board’s cross-petition for enforcement.

SMITH, Circuit Judge,

dissenting.

The majority holds that an individual becomes a supervisor under the NLRA by merely recommending a family friend for hire. Because this construes supervisory authority too broadly and will unnecessarily strip individuals of their organizational rights, I respectfully dissent. Specifically, I disagree with the majority’s determination that Johnston possessed delegated authority to participate in the hiring process. Further, insufficient evidence exists to support the conclusion that Johnston exercised independent judgment in effectively recommending Moses and Horn for hire.

Under the NLRA, an individual is a “supervisor” if (1) the individual “ha[s] authority ... effectively to recommend” hiring, and (2) “the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.” 29 U.S.C. § 152(11); see also Multimedia KSDK, 303 F.3d at 899 (8th Cir. 2002).

1. Authority to Effectively Recommend Hiring

Whether an individual has supervisory authority to recommend hiring depends upon whether the individual’s hiring recommendations are in fact effective. Your Public Radio Corp., 2014 WL 3613193, at *8. To determine this,

the Board examines the amount of weight the employer affords the recommendation. Specifically, the Board has found recommendations effective when “management is prepared to implement the recommendation without an independent investigation of the relevant circumstances.” In the absence of such a requirement, an employer’s reliance on word-of-mouth referrals could confer supervisory status on the entire staff, since it is not uncommon for employers to expect their more experienced employees to recommend someone for hire. Finally, an individual does not “effectively recommend hiring” unless there was “delegated authority to participate in the hiring process” and not merely an employer’s respect for an individual’s opinion on an applicant.

Id. at *8 (emphasis added) (citations omitted) (first quoting Chevron USA, 309 N.L.R.B. 61, 65 (1992); then quoting Jefferson Chem., 237 N.L.R.B. at 1102).

Although the inquiry focuses on the weight an employer gives a recommendation, the Board has consistently applied the rule that an individual does not effectively recommend hiring unless the individual has delegated authority to participate in the hiring process and the recommendation for hire is not approved merely out of respect for the judgment of the individual. See Cook Inlet Tug & Barge, Inc., 362 N.L.R.B. No. 111, 2015 WL 4101331, at *27 (June 30, 2015); Your Public Radio Corp., 2014 WL 3613193, at *8; Jefferson Chem., 237 N.L.R.B. at 1102 (“The fact that a recommendation for the employment of an applicant is approved out of respect for the judgment of another, rather than because of his delegated authority to participate in the hiring process, is also not an indicium of supervisory authority.”).

The majority places great weight on Oglesby not conducting any independent investigation. This fact alone, however, is insufficient to confer supervisory status upon Johnston — there must be “delegated authority to participate in the hiring process,” Your Public Radio Corp., 2014 WL 3613193, at *8 (quoting Jefferson Chem., 237 N.L.R.B. at 1102), and the hiring recommendation must not be followed “merely [out of] an employer’s respect for an individual’s opinion on an applicant,” id.

The majority points out that the Board “has not required the delegation of such authority to be explicit” and has found delegated authority when an individual “handled virtually every aspect of the hiring process.” Part II.A. supra. The majority notes that this includes when “the supervisors screened applicants or took it upon themselves to recruit co-workers they thought would be a good fit for the job; they met with applicants; and they made recommendations to management, who ‘relied exclusively on their recommendations when making job offers.’ ” Id. (quoting Your Public Radio Corp., 2014 WL 3613193, at *9).

However, an individual who screens, recruits, and meets with applicants' before making a recommendation to management does not necessarily have delegated authority to participate in the hiring process. See, e.g., NLRB v. Harmon Indus., Inc., 565 F.2d 1047, 1050 (8th Cir. 1977) (“Sufficient evidence supports the conclusion that Cox did not effectively recommend that other employees be hired, fired or disciplined. Though Cox recommended that a replacement be hired in the repair department when Sullivan left, and participated in interviews of applicants, ... [and] gave his opinion on the best applicant... ,”). In Jefferson Chemical, management asked an employed welder to recruit additional welders, the welder made recommendations for the hiring of other welders by vouching for their character and qualifications, and the recommended welders were subsequently hired. 237 N.L.R.B. at 1102. Yet the Board determined that the welder’s participation in the hiring process was insufficient to confer supervisory status because “[a]ny attention paid to [the welder’s] opinions or recommendations was based upon deference to his expertise, not to his delegated power.” Id. And “[t]he fact that a recommendation for the employment of an applicant is approved out of respect for the judgment of another, rather than because of his delegated authority to participate in the hiring process, is also not an indicium of supervisory authority.” Id.

Johnston guiding Moses and Horn through their hiring paperwork and personally vouching for their character does not constitute sufficient proof that he possessed delegated authority to participate in the hiring process. Johnston is not meaningfully distinguishable from the welder in Jefferson Chemical. Here, Johnston’s recommendations were limited to personal references — nothing more. And it is unclear how Oglesby’s approval of hiring Moses and Horn amounts to anything more than approval out of respect for Johnston’s judgment. Thus, I do not agree that Johnston possesses sufficient authority to effectively recommend hiring.

2. Independent Judgment

The presence of supervisory authority also depends upon whether the individual exercised independent judgment in making hiring recommendations. The use of independent judgment “contemplates more than the mere screening of applications or other ministerial participation in the interview and hiring process.” Your Public Radio Corp., 2014 WL 3613193, at *8 (quoting J.C. Penney Corp., 347 N.L.R.B. at 129). The Board has explained that its independent-judgment analysis turns on the freedom of the individual to evaluate data, formulate an opinion, and recommend accordingly. As the Board explained in Oakwood:

To ascertain the contours of “independent judgment,” we turn first to the ordinary meaning of the term. “Independent” means “not subject to control by others.” Webster’s Third New International Dictionary 1148 (1981). “Judgment” means “the action of judging; the mental or intellectual process of forming an opinion or evaluation by discerning and comparing.” Webster’s Third New International Dictionary 1223 (1981). Thus, as a starting point, to exercise “independent judgment” an individual must at a minimum act, or effectively recommend action, free of the control of others and form an opinion or evaluation by discerning and comparing data.... [Tjhese requisites are necessary, but not in all instances sufficient, to constitute “independent judgment” within the meaning of the Act.

348 N.L.R.B. at 692-93 (footnote omitted). Importantly, the Board “must interpret ‘independent judgment’ in light of the contrasting státutory language, ‘not of a merely routine or clerical nature.’ ” Id. at 693 (quoting 29 U.S.C. § 152(11)). Thus, “[i]t may happen that an individual’s [effective recommendation of action] will be based on independent judgment within the dictionary definitions of those terms, but still not rise above the merely routine or clerical.” Id. If so, the exercise of such authority is insufficient to confer supervisory status. Thus, it is important to “assess the degree of discretion exercised by the putative supervisor.” Id.

The exercise of independent judgment is considered more than merely routine or clerical when an individual actively exercises some form of discretionary scrutiny in assessing an applicant. Examples of independent judgment that is more than merely routine or clerical include when employees complete evaluation forms that “provide! ] for the acceptance or rejection of the [applicant],” NLRB v. Chardon Rubber Co., 90 Fed.Appx. 84, 91 (6th Cir. 2003); “make their hiring decisions and recommendations based on their own assessments of what skills are needed and whether the [applicants] ... have the appropriate skills or qualifications,” In re Fred Meyer Alaska, Inc., 334 N.L.R.B. 646, 649 (2001); and are “called upon to assess [an] applicants] experience, ability, attitude, and character references, among other factors,” Oakwood, 348 N.L.R.B. at 693.

However, the exercise of independent judgment is considered merely routine or clerical when an individual does not actively evaluate an applicant or only does so in an isolated instance. Examples of independent judgment that is merely routine or clerical include when employees have only “informal ‘discussions’ with and [give] ‘suggestions’ to th[eir] superiors” about hiring and transfers, George C. Foss Co. v. NLRB, 752 F.2d 1407, 1411 (9th Cir. 1985); “simply steer[ ] applicants through the system and complete!] their hiring paperwork,” J.C. Penney Corp., 347 N.L.R.B. at 129; and are “dictated or controlled by detailed instructions, whether set forth in company policies or rules, the verbal instructions of a higher authority, or in the provisions of a collective bargaining agreement,” Oakwood, 348 N.L.R.B. at 693.

The majority holds that sufficient evidence supports the conclusion that Johnston exercised independent judgment in effectively recommending Moses and Horn for hire because “ ‘Johnston had an independent basis for assessing’ Moses and Horn and their ‘readiness to work’ given that he knew both candidates.” Part II.A. supra. “Such familiarity allowed Johnston to assess their ‘experience, ability, attitude, and character references, among other factors,’ and so the Board did not act capriciously in finding he exercised independent judgment.” Id. (quoting Oakwood, 348 N.L.R.B. at 693).

However, having personal familiarity with an applicant’s family is not the same as- forming “an opinion or evaluation by discerning and comparing data.” See Oak-wood, 348 N.L.R.B. at 692-93. And the majority cites no authority for the proposition that merely knowing an applicant’s family automatically qualifies as a sufficient basis upon which an individual may exercise independent judgment in recommending for hire. Instead, it seems that this is precisely the type of recommendation that the Board avoids elevating to supervisory status. See, e.g., Jefferson Chem., 237 N.L.R.B. at 1102.

Further, even if recommending a family friend for hire evidences independent judgment within the dictionary definitions of those terms, it does not rise above the merely routine or clerical. See Oakwood, 348 N.L.R.B. at 693. In fact, it is no more than what employers expect of experienced employees — referring acquaintances to their employer for possible hire. See Your Public Radio Corp., 2014 WL 3613193, at *8; NLRB v. ADCO Elec. Inc., 6 F.3d 1110, 1117-18 (5th Cir. 1993); George C. Foss Co., 752 F.2d at 1411.

Thus, I disagree with the majority’s classification of Johnston’s personal familiarity with Moses and Horn as an independent basis for assessing their employa-bility, and I would hold that insufficient evidence exists to support the conclusion that Johnston exercised independent judgment in effectively recommending Moses and Horn for hire.

I therefore respectfully dissent.

      . Oglesby testified he still has a supervisor at each of his other quarries, yet manages the Georgia granite-processing plant and its 100-plus employees himself.

      . Missouri Red hired a third employee around this time, though Oglesby handled that hiring process himself. One employee advised against hiring this candidate.

      . The Regional Director rejected the union's other exceptions and those issues are not before us now.

      .We treat the Regional Director’s decision as final given that the Board affirmed the reasoning and findings set forth there.

      . Missouri Red contends the issue before us is a legal one that warrants de novo review. Our precedent makes clear fact-driven supervisory determinations warrant deference provided the Board recited the correct legal standard. See, e.g., Securitas, 817 F.3d at 1078-80. Missouri Red concedes the Board "cited the appropriate legal standards.”

      . This standard does not change when the Regional Director reverses the decision of the Hearing Officer. See Millard Processing Servs., Inc. v. NLRB, 2 F.3d 258, 262 (8th Cir. 1993). Because the Hearing Officer’s factual findings are part of the record, we critically consider the evidence that led the Hearing Officer to a conclusion opposite that of the Regional Director and Board. See id.

      . Missouri Red makes no argument as to the third requirement, and we think it clear whatever authority Johnston did possess was held in the interest of Missouri Red.

      . We do not consider the drug test on these facts to constitute an independent investigation — the Board regularly looks past such minor managerial involvement to find effective recommendation. See, e.g., Donaldson Bros., 341 N.L.R.B. at 962; Mountaineer Park, Inc., 343 N.L.R.B. 1473, 1474-76 (2004) (finding effective recommendation even though management " 'review[ed]’ ” disciplinary recommendations to make sure they were " 'justifiable' ”). While the record is not clear, the evidence supports the reasonable inference that the drug test was a routine hiring practice.

      . Whenever a manager or an owner approves a hire without any independent investigation — which may be a requirement for effective recommendation — it is a rubber stamp based in large part on respect for the supervisor's judgment.

      . Missouri Red makes much of the Board’s general policy of narrowly construing supervisor status. If Johnston were not a supervisor “then the union rather than the company [would] control the [quarry],” and the NLRA "rejects a syndicalist (that is, worker-controlled) conception of business.” Empress Casino, 204 F.3d at 722. Congress left it primarily to the Board to weigh these conflicting policy interests, hence our limited scope of review. See, e.g., Ky. River, 532 U.S. at 725 n.5, 121 S.Ct. 1861 (Stevens, J., concurring in part and dissenting in part).

      . For example, Johnston spends 90% of his time performing bargaining-unit work, while only 10% of his time is dedicated to administrative duties. This weighs in favor of employee status, but does not necessitate such a finding. See Schnuck Mkts., 961 F.2d at 706 (“The fact that [a supervisor] spent a portion of his time on manual labor is not controlling.”); NLRB v. Joe B. Foods, Inc., 953 F.2d 287, 296 (7th Cir. 1992) ("The fact that [a supervisor] spent a great portion of his time in hands-on work does not undercut his supervisory status.”).

      .We wish to make the limited reach of our holding clear. Contrary to the .dissent’s opening assertion, the fact an individual recommends a family friend for hire does not make him or her a per se supervisor under the NLRA. We merely acknowledge it is within the Board’s discretion to reach that conclusion where: (1) the individual played an active, ongoing, and essentially determinative role in the hiring process, (2) higher management played virtually no role other than giving endorsement to the individual’s recommendation, and (3) strong secondary indicia exist to support the Board's conclusion that the individual is a supervisor.

      . See also J.C. Penney Corp., 347 N.L.R.B. at 129 (rejecting supervisory authority of an individual who "simply steered applicants through the system and completed their hiring paperwork”); The Door, 297 N.L.R.B. 601, 601-02 (1990) (finding that an employee lacked authority to effectively recommend for hire when his role in the hiring process was limited to screening resumes, making recommendations regarding technical qualifications, and participating in interviews).