Salas, Francisco v. WI Dept Corrections ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2483
FRANCISCO SALAS,
Plaintiff-Appellant,
v.
WISCONSIN DEPARTMENT OF CORRECTIONS,
RICHARD F. RAEMISCH, WILLIAM A. GROSSHANS,
DENISE A. SYMDON, AND LEANN MOBERLY,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 05-C-0399-C—Barbara B. Crabb, Chief Judge.
____________
ARGUED MAY 3, 2007—DECIDED JULY 18, 2007
____________
Before EASTERBROOK, Chief Judge, and FLAUM and
RIPPLE, Circuit Judges.
FLAUM, Circuit Judge. On March 19, 2004, the Wiscon-
sin Department of Corrections (“DOC”) terminated Fran-
cisco Salas, an eighteen-year employee. Claiming that
his termination was motivated by discriminatory and
retaliatory motives, Salas filed suit against the DOC and
several individual defendants alleging violations of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 &
e-3, as well as 42 U.S.C. § 1983. On April 25, 2006, the
district court granted the defendants summary judgment,
holding that Salas could not bring his Title VII claims
2 No. 06-2483
because he did not timely file them with the EEOC and
that no reasonable jury could find that the DOC had
violated the Constitution by firing him. Salas appeals. For
the following reasons, we affirm.
I. BACKGROUND
Francisco Salas, a Hispanic male, began working at the
DOC on January 27, 1986. From 1995 until he was termi-
nated, Salas served as a senior probation and parole agent.
Prior to his discharge, he was never disciplined and
received various promotions. On March 19, 2004, the DOC
terminated Salas for allegedly falsifying documents and
failing to supervise an offender named Kevin Hageman.
At the time of his termination, Salas was the only His-
panic male working in the DOC’s Madison, Wisconsin
office.
A. The DOC’s Decision to Terminate Salas
In order to understand the events that led to Salas’
firing, some background on the operation of the depart-
ment’s probation program is necessary. Until the summer
of 2002, the DOC contracted with a Colorado-based
company called BI Corporation to supervise certain low-
risk, non-violent offenders, like Hageman, by telephone
(“the BI program”). The BI program required offenders to
make scheduled phone calls to an answering service and
respond to recorded questions. To participate in the BI
program, offenders had to be in compliance with the
terms of their probation or supervision. When an offender
failed to call in as required, the BI program notified the
DOC, and the DOC’s computer system automatically
generated a warning letter to the offender bearing the
name and telephone number of his assigned agent. Hage-
man was in the program to insure that he paid court-
No. 06-2483 3
ordered restitution. On February 22, 2001, Hageman
stopped making restitution payments.
In October 2001, Salas transferred to the Madison office
of the Division of Community Corrections and assumed
responsibility for a caseload that included approximately
350 BI program offenders, including Hageman. On June
30, 2002, the DOC’s contract with BI Corporation expired,
and the program ended. The DOC sent letters to the
program’s participants directing them to report to their
agents. Around that time, the DOC’s Madison office
divided local BI program participants among the agents
in Salas’ unit, with each agent receiving about ten cases.
Salas began entering the new cases into his computer and
tried to obtain some information from the BI program’s
electronic filing system. His efforts to obtain the informa-
tion were unsuccessful because the electronic files had
been destroyed when the contract expired. On October 28,
2002, someone completed a DOC-506 form (a form used to
reassess the risks associated with an offender), reclassify-
ing Hageman to medium-risk.1
Salas and other agents kept apprised of their caseload
using a computer program known as the Offender Activity
Tracking System (“OATS”). The program included a
“reminders list” that tracked reports and forms that either
were overdue or needed to be completed within the next
forty-five days, including DOC-506 forms. The OATS
program never prompted Salas to complete or submit
any forms related to Hageman, nor was he alerted to any
1
Salas cannot recall completing the form, and he emphasizes
that numerous persons had access to the system from which
it was created. However, at various stages of the DOC’s dis-
ciplinary investigation, Salas conceded that if Hageman was
in his caseload and a DOC-506 was completed, Salas would
have been the person who completed it.
4 No. 06-2483
incomplete work on Hageman’s case when he met with a
supervisor in April 2003 to review his caseload.
In September 2003, Hageman’s father called Wesley Ray,
Salas’ supervisor, and told him that Hageman was in the
hospital suffering from a serious medical problem. On
September 23, 2003, Ray questioned Salas about Hage-
man, and Salas told Ray that he had no knowledge of
Hageman.2 As a result, the DOC assigned Hageman’s file
to a new agent and began investigating whether Salas had
failed to supervise the offender. Defendant Denise Symdon
coordinated the investigation, and she assigned Leann
Moberly, another defendant, to interview Salas. On
November 17, 2003, Moberly interviewed Salas, who was
accompanied by a union representative. Salas acknowl-
edged that he had neither met with Hageman nor issued
an apprehension report for him. However, Salas said that
he could not have known that he was required to take
action with respect to Hageman because OATS never
displayed any notices about the offender. Based on the
interview, Moberly recommended Salas’ termination.
On December 4, 2003, Marie Finley, the Assistant
Regional Chief of the DOC, conducted a pre-disciplinary
meeting with Salas.3 She concluded that Salas was respon-
sible for supervising Hageman from Fall 2001 through
September 23, 2003 and that Salas had not completed
required offender report forms or chronological log entries
2
Salas said that Hageman “fell through the cracks,” and the
parties dispute what Salas meant. Salas claims that the state-
ment implied that the computer system lost track of Hageman,
not that he had missed required meetings with Hageman as
the defendants claim.
3
Finley was originally a defendant in this case, but the dis-
trict court dismissed her because it lacked personal jurisdiction.
No. 06-2483 5
during that time period.4 Finley also questioned Salas
about the DOC-506 form in Hageman’s file that reclassi-
fied him from minimum to medium risk.
On February 3, 2004, Symdon met with Salas to review
Hageman’s file. She asked Salas to show her what file
information he had used to complete the DOC-506 reclassi-
fication form. Salas asked to see the form, but Symdon told
him that the form was unavailable. Because she believed
that Salas had no way of knowing the information con-
tained in the DOC-506 form, she concluded that Salas had
used false information to complete it. Symdon also con-
cluded that Salas should have issued an apprehension
request for Hageman. Accordingly, Symdon recommended
Salas’ termination. Other DOC officials approved the
recommendation, including the Human Resources Coordi-
nator, the Division Administrator, the Office of Diversity,
and the Department Deputy Secretary.
On March 19, 2004, the DOC terminated Salas for
alleged violations of Work Rules 2, 4, and 6. Rule 2
requires employees to follow departmental policies and
procedures, and Rule 4 prohibits negligence in the perfor-
mance of assigned duties. Rule 6 prohibits falsifying
records or providing false information.
No department employee other than Salas has ever been
terminated for falsifying a DOC-506 form. Indeed, numer-
ous employees charged with similar or more egregious
4
Salas disputes the time period that he was responsible for
Hageman, but the parties agree that he was responsible for the
offender during most of the relevant time period. Additionally,
Salas disagrees with Finley’s conclusion that he failed to
complete required tasks, stating that any of his log entries or
other notes related to BI program offenders were entered into
the electronic BI files, which were destroyed when the BI
contract expired.
6 No. 06-2483
offenses received lesser punishments than Salas. The
following table documents the punishments of several
other DOC employees who committed similar infractions:
DATE AGENT RULES SUMMARY OF DISCIPLINE
VIO-
LATED ALLEGATIONS
July 9, William 1,4 failed to complete 30-day
2001 Sorenson assigned tasks or suspen-
contact offender sion
who killed someone
while under the
agent’s supervision
Febru- Stephen Larson 2,4 failed to take of- 20-day
ary 25, fender into custody suspen-
2003 after allegations sion
were made regard-
ing offenders’ in-
volvement in vio-
lent behavior; of-
fender subsequently
killed his girlfriend,
their daughter, and
himself
Septem- James Schacht- 1,2,4, failed to issue two 5-day
ber 5, schneider 6 apprehension re- suspen-
2003 quests after being sion
directed to do so;
lied to supervisor
about it; had previ-
ously been
suspended for 3-
days after violating
rules 2,4, and 6
No. 06-2483 7
Septem- Patti Dunn-Jones 2,4,6 lied to supervisor 10-day
ber 22, and took no action suspen-
2003 after learning that sion
an offender was
residing with a 16-
year-old girl; had
prior 3-day suspen-
sion for violating
rules 1,2,4, and 6
and 5-day suspen-
sion for violating
rules 2, 4, and 6
Novem- Joe Chiarello 1,2,4, failed to supervise 15-day
ber 4, 6 four offenders and suspen-
2003 lied to supervisor sion
B. Darren Rogers’ EEOC Charge
In July 2003, approximately eight months before Salas
was terminated, a corrections agent named Darren Rogers,
an African-American, filed a charge of discrimination
with the EEOC alleging that the DOC discriminated
against him because of his race. The charge noted, “Agent
Francisco Salas—Hispanic Male—Treated the same as me
and has also endured some of the same discriminatory
behaviors by management, supervisors, and coworkers.”
Before Rogers filed his charge, Salas agreed to testify on
his behalf, and Rogers considered Salas his most impor-
tant witness. Although Salas claims that the EEOC
notified the DOC of Rogers’ charge on December 4, 2003,
the notice of charge is not in the record. On March 11,
2004, an EEOC investigator contacted the DOC’s Office of
Legal Counsel, advising it that the EEOC planned to
interview several employees, including Salas.
The next day, a paralegal in the Office of Legal Counsel
sent an e-mail message to several department employees,
including defendants William Grosshans and Symdon, that
8 No. 06-2483
named the intended interviewees and identified the
interview site and date. Salas complained to the Office of
Legal Counsel that the interview site was not neutral and
requested that an alternate site be chosen. He also com-
plained that the interview notice was sent out in a general
e-mail, stating, “You have just isolated an individual and
made everyone aware of what is going on in a personnel
matter which should have been treated and handle[d] as
a private matter.” However, the Office of Legal Counsel did
not forward Salas’ complaint to any of the individual
defendants. Subsequently, the EEOC investigator decided
to have the interviewees individually schedule their
interviews. In affidavits, Symdon, Grosshans, and Moberly
all testified that, prior to March 12, 2004, they had no
personal knowledge of Salas’ involvement with the EEOC
investigation. Salas, on the other hand, claims that before
his termination, the complaint was being sent around as
office gossip.
C. Salas’ EEOC Charge and District Court Pro-
ceedings
On November 30, 2004, Salas filed his own EEOC
charge, alleging retaliation and race, age, and color based
discrimination. The EEOC received the charge on Decem-
ber 2, 2004 and assigned it Charge No. 260-2005-01740.
On January 7, 2005, an EEOC investigator informed Salas
that his status as a Hispanic did not support a charge of
race discrimination and that his charge would have to be
amended to allege national origin discrimination. Salas
amended his charge accordingly and filed the amended
charge on January 19, 2005. Salas then filed suit in the
district court, alleging violations of Title VII, the First
Amendment, the Due Process Clause, and the Equal
Protection Clause.
During discovery, in response to a request to admit,
Salas confirmed that the EEOC charge he signed on
No. 06-2483 9
January 19, 2005 “was the only charge of discrimination
that he or anyone else ever filed with the EEOC regard-
ing the termination of his employment with the DOC.”
Curiously, Salas denied a similar request to admit, which
stated, “No Charge of Discrimination was filed with either
the Equal Employment Opportunities Commission or the
Wisconsin Equal Rights Division before January 19, 2005,
by you or anyone else, regarding the termination of your
employment with the Wisconsin Department of Correc-
tions.” Salas explained to the district court that he
thought the November 30, 2004 and January 19, 2005
charges constituted one charge because they bore the
same charge number.
Based on Salas’ admission, the defendants argued that
Salas failed to exhaust his Title VII claims because he
was required to file an EEOC charge within 300 days of
his termination, i.e., on or before January 12, 2005. Salas
responded that he filed a charge with the same charge
number in November. Although he did not provide the
district court with the earlier filing, he produced a re-
ceipt showing that the EEOC received a mailing from
him on December 2, 2004. The district court emphasized
that it was Salas’ burden to establish the timeliness of his
filing and concluded that he had not met his burden
because he had not produced the earlier filing and the
court had no way of knowing what he mailed to the EEOC.
The district court then granted summary judgment in
favor of the DOC on all claims. Salas appeals.
II. DISCUSSION
This Court reviews a district court’s entry of summary
judgment de novo. Davis v. Con-Way Transp. Cent. Ex-
press, Inc., 368 F.3d 776, 782 (7th Cir. 2004). Summary
judgment is inappropriate if the plaintiff points to genuine
issues of material fact. See McCoy v. Harrison, 341 F.3d
600, 604 (7th Cir. 2003). To survive summary judgment,
10 No. 06-2483
the nonmoving party must make a sufficient showing of
evidence for each essential element of its case on which it
bears the burden at trial. Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986).
A. Timeliness of the EEOC Complaint
Salas argues that the district court erred by concluding
that his EEOC charge was not timely. Title VII provides
that a charge of discriminatory employment practices
shall be filed with the EEOC within 300 days “after the
alleged unlawful employment practice occurred.” 42 U.S.C.
§ 2000e-5(e)(1). Failure to file a timely charge with the
EEOC precludes a subsequent lawsuit under Title VII.
Beamon v. Marshall & Ilsley Trust Co., 411 F.3d 854, 860
(7th Cir. 2005). Filing a timely charge with the EEOC is
not a jurisdictional prerequisite to suit in federal court;
rather, it is an affirmative defense akin to administrative
exhaustion. Zipes v. Trans World Airlines, Inc., 455 U.S.
385, 393 (1982).
The district court considered the following evidence
regarding the timing of Salas’ EEOC charge: 1) Salas’
seemingly inconsistent admissions, one of which affirmed
that the January 19, 2005 charge was the only charge he
had filed, 2) a registered mail return receipt showing that
Salas had mailed something to the EEOC on December 2,
2004, 3) a January 7, 2005 form letter from the EEOC
acknowledging Salas’ contact with the office regarding
alleged employment discrimination, and 4) Salas’ testi-
mony that the January 19, 2005 charge was an amended
version of an earlier, timely filing, which charged discrimi-
nation based on race as well as retaliation.
Because the DOC denied receiving a charge other than
the untimely one, the district court reasoned that there
were two plausible explanations based on the evidence:
either the EEOC inadvertently neglected to deliver the
No. 06-2483 11
original charge or the December 2004 mailing did not meet
the standards for EEOC charges articulated in 29 C.F.R.
§ 1601.12(6).5 The district court recognized that the
evidence “raise[d] questions regarding whether [Salas’]
December mailing to the EEOC contained a ‘written
statement sufficiently precise to identify the parties, and
to describe generally the action or practice [of which
plaintiff] complained.’ ” However, the court granted
summary judgment in favor of the DOC, stating that Salas
bore the burden of proving a timely filing, and he should
have produced a copy of the document he mailed to the
EEOC in December.
We cannot accept the district court’s finding on this
issue, however, because it was premised on an error of law.
A plaintiff ’s failure to exhaust administrative remedies is
an affirmative defense, which is the defendant’s burden to
prove. See Dole v. Chandler, 438 F.3d 804, 809 (7th Cir.
2006); Massey v. Helman, 196 F.3d 727, 735 (7th Cir.
1999). Because we agree with the district court’s assess-
ment that the evidence was inconclusive at best, the tie
must go to the plaintiff. Consequently, we conclude that
Salas’ EEOC charge was timely.
B. Salas’ Title VII Claims
Because the timeliness issue is not dispositive of the
Title VII claims, we must determine whether Salas has
offered evidence sufficient to establish a prima facie case
of either national origin discrimination or retaliation.
5
The district court, understandably, did not consider a third
possibility, which turned out to be exactly what happened: the
DOC had received the earlier charge despite telling the court
that it had not.
12 No. 06-2483
1. National Origin Discrimination
To make a prima facie case of disparate treatment based
on national origin, a plaintiff must prove that 1) he was
a member of a protected class, 2) he was meeting his
employer’s legitimate business expectations, 3) he suf-
fered an adverse employment action, and 4) his employer
treated similarly situated employees outside of the class
more favorably. Ballance v. City of Springfield, 424 F.3d
614, 617 (7th Cir. 2005). Once a plaintiff has established
a prima facie case, the burden of production shifts to
the defendant to provide a legitimate, nondiscriminatory
reason for the decision. Id. If the defendant satisfies its
burden, then the burden shifts back to the plaintiff to
show that the defendant’s explanation was pretextual. Id.Salas claims that he offered evidence from which a jury
reasonably could find a prima facie case of discrimina-
tion. He alleges that 1) he is Hispanic, 2) he was not
disciplined during the first seventeen years of his career
and was promoted regularly, 3) he was terminated from
his position, and 4) similarly situated non-Hispanic
employees were not terminated for similar or more severe
disciplinary infractions.
The DOC contests the first and fourth prongs of the
prima facie case, and it asserts that Salas’ rule violations
constituted a legitimate, non-discriminatory basis for his
termination. As to the first prong, the DOC maintains
that Salas’ allegation that he is Hispanic is insufficient
to support a claim of national origin discrimination. In
Espinoza v. Farah Manufacturing Co., the Supreme Court
recognized that national origin “refers to the country
where a person was born, or, more broadly, the country
from which his or her ancestors came.” 414 U.S. 86, 88
(1973) (concluding that “national origin” does not refer to
citizenship). The DOC correctly notes that Salas did not
identify the “Hispanic” nation from which he hailed. It
analogizes this case to Lapine v. Edward Marshall Boehm,
No. 06-2483 13
Inc., No. 89 C 8420, 1990 WL 43572, at *5 (N.D. Ill. Mar.
28, 1990), in which a district court dismissed a plain-
tiff ’s national origin claim because being Jewish did not
indicate national origin. The district court stated that
“Jews, like Catholics and Protestants, hail from a variety
of different countries.” Id.In the federal courts, there is uncertainty about what
constitutes race versus national origin discrimination
under Title VII. See Torres v. City of Chicago, No. 99 C
6622, 2000 WL 549588, at *2 (N.D. Ill. May 1, 2000)
(recognizing that common use of the term Hispanic “has
blurred the line between race and national origin discrimi-
nation”); Ortiz v. Bank of Am., 547 F. Supp. 550, 560-62
(E.D. Cal. 1982) (recognizing that the line between racial
and national origin discrimination is difficult to draw and
adding that “the notion of ‘race’ as contrasted with na-
tional origin is highly dubious”).
The EEOC defines national origin discrimination
broadly to include the denial of employment opportunities
because of an individual’s, or his or her ancestor’s, place
of origin or because an individual has the physical, cul-
tural, or linguistic characteristics of a national origin
group. 29 C.F.R. § 1606.1 (emphasis supplied). Although
the EEOC does not define the term “national origin group,”
Hispanics would qualify as such a group. Indeed, an
employer that discriminates against Hispanics may do so
because of their appearance or accent, the very character-
istics described in the EEOC regulations. Moreover, Salas’
charge of discrimination did not deprive the DOC of notice
or otherwise hamper its ability to defend the claim. We
therefore conclude that a plaintiff alleging that he is
Hispanic sufficiently identifies his national origin to
survive summary judgment.
Next, we must determine whether Salas has identified
similarly situated, non-Hispanic employees who were
treated more favorably. A similarly situated employee is
14 No. 06-2483
one who is “directly comparable to the plaintiff in all
material aspects.” Patterson v. Avery Denison Corp., 281
F.3d 676, 680 (7th Cir. 2002). Factors to consider include
whether the employees 1) had the same job description, 2)
were subject to the same standards, 3) were subject to the
same supervisor, and 4) had comparable experience,
education, and other qualifications. Bio v. Fed. Express
Corp., 424 F.3d 593, 597 (7th Cir. 2005). Using DOC
disciplinary records, Salas has identified several employ-
ees who held the same position, were subject to the
same standards, and violated the same rules without be-
ing terminated. Indeed, he has identified several proba-
tion officers whose behavior arguably was more egregious,
as well as several with prior disciplinary problems, who
were treated far better than he was. However, this Court’s
role is not simply to assess whether an employee was
treated unfairly; we must determine whether he may have
been treated unfairly because he is Hispanic.
Salas contends that his national origin motivated the
DOC’s decision to terminate him, but he offers no evidence
of the race or national origin of the better-treated em-
ployees he identifies for comparison. Although Salas was
the only Hispanic male in the Madison office, that fact
does not help him—the DOC’s disciplinary records come
from offices across the state, and they do not differentiate
between offices. Rather than making an argument about
the likelihood that the similarly situated employees are
not members of the protected class, Salas ignores the
requirement altogether. See Witte v. Wis. Dep’t of Corrs.,
434 F.3d 1031, 1038 (7th Cir. 2006) (recognizing that
a party forfeits any argument it fails to raise in a brief
opposing summary judgment). Accordingly, he cannot
establish a prima facie case of national origin discrim-
No. 06-2483 15
ination.6
2. Retaliation
Next, we must consider whether Salas’ evidence pre-
cludes summary judgment on his retaliation claim. Under
Title VII’s anti-retaliation provision, it is unlawful for an
employer to “discriminate against” an employee “because
he has opposed any practice made an unlawful employ-
ment practice” by the statute or “because he has made
a charge, testified, assisted, or participated in” a Title VII
“investigation, proceeding, or hearing.” 42 U.S.C. § 2000e-
3(a). A plaintiff may prove retaliation by presenting direct
evidence of 1) a statutorily protected activity, 2) an
adverse action taken by the employer, and 3) a causal
connection between the two. Sitar v. Ind. Dep’t of Transp.,
344 F.3d 720, 728 (7th Cir. 2003). Under the direct
method, this Court has accepted circumstantial evidence
of intentional retaliation, including evidence of suspicious
timing, ambiguous statements, behavior toward or com-
ments directed at other employees in the protected group,
and other bits and pieces from which an inference of
discriminatory intent might be drawn. Troupe v. May Dep’t
Stores Co., 20 F.3d 734, 736 (7th Cir. 1994). An indirect
retaliation claim mirrors an indirect disparate treatment
claim, except that the first prong requires evidence of
6
Had Salas established the prima facie case, the record is
replete with evidence that other officers received less severe
punishments for similar (and worse) behavior. A jury might
well conclude from this evidence that the DOC’s asserted reasons
for terminating Salas were pretextual. See, e.g., Stalter v. Wal-
mart Stores, Inc., 195 F.3d 285, 289 (7th Cir. 1999) (recognizing
that pretext can be established by showing that employer’s
asserted reasons were insufficient to motivate the adverse
employment action).
16 No. 06-2483
protected activity under Title VII rather than proof of
membership in a protected group. See, e.g., Roney v. Ill.
Dep’t of Transp., 474 F.3d 455, 459 (7th Cir. 2007).
Although Salas argued that the DOC retaliated against
him in violation of Title VII, he does not outline how he
would establish his claim under either the direct or
indirect method. See Hojnacki v. Klein-Acosta, 285 F.3d
544, 549 (7th Cir. 2002) (recognizing that a party waives
any argument it fails to develop on appeal). Even if Salas
did not waive his retaliation claim, his direct method claim
fails because he lacks evidence of causation. Salas has not
produced evidence from which a jury could conclude that
the DOC had actual knowledge, prior to terminating Salas,
of his participation in an EEOC investigation. See
Tomanovich v. City of Indianapolis, 457 F.3d 656, 668 (7th
Cir. 2006) (recognizing that it is not sufficient to show that
an employer could or should have known about an em-
ployee’s complaint). Specifically, he has offered no evi-
dence, aside from bare assertions, that the DOC received
Rogers’ charge of discrimination prior to recommending
Salas’ termination.7 Finally, as discussed above, Salas’
indirect method retaliation claim fails because he has not
identified any similarly situated, non-Hispanic employees
who were treated more favorably.
C. §1983 First Amendment Retaliation Claim
To survive summary judgment on his First Amendment
retaliation claim, Salas must produce evidence from which
a jury could conclude that he engaged in constitutionally
protected speech and that the speech was a substantial or
7
The record contains only a single, undated paragraph from
Rogers’ EEOC narrative, which Salas attached to his affidavit
as Exhibit EE.
No. 06-2483 17
motivating factor in his termination. See Bd. of County
Comm’rs, Wabaunsee County, Kan. v. Umbehr, 518 U.S.
668, 675 (1996). Salas claims that the defendants termi-
nated him in retaliation for two instances of protected
speech: his testimony on behalf of Rogers and his com-
plaint to the Office of Legal Counsel about the manner
in which the DOC was handling the investigation of
Roger’s complaint.
We have recognized that participating in a lawsuit may
amount to protected speech, although a “public employee
has no First Amendment claim unless the lawsuit involves
a matter of public concern.” Zorzi v. County of Putnam, 30
F.3d 885, 896 (7th Cir. 1994); Yatvin v. Madison Metro.
Sch. Dist., 840 F.2d 412, 419-20 (7th Cir. 1988) (holding
that plaintiff ’s retaliation lawsuit was not protected by the
First Amendment where it addressed only a personal
grievance). In this case, Salas’ participation as a witness
to Rogers’ EEOC charge was not an internal workplace
grievance meant to advance his own career. He sought to
expose widespread discrimination against minorities
within the DOC, which is a matter of public concern. See,
e.g., Catletti v. Rampe, 334 F.3d 225, 230 (2d Cir. 2003)
(holding that a worker’s testimony on behalf of a wrongly
discharged co-worker is protected speech).8
8
Interestingly, the parties do not address the fact that Salas
had not yet testified in the EEOC investigation when he was
terminated, nor do they delineate what communications, if any,
Salas had with Rogers or the EEOC investigator before he
was fired. The parties also neglect to address the effect of
Garcetti v. Ceballos, 126 S. Ct. 1951 (2006), which significantly
limits First Amendment protection of public employees’ speech.
Nevertheless, for purposes of this appeal, we assume that
Salas’ involvement in the EEOC investigation was protected
speech.
18 No. 06-2483
Though Salas may have engaged in protected speech, he
offered insufficient evidence to prove a causal connection
between his speech and termination. Salas argues that
the timing of his termination was suspicious because it
occurred just two weeks before he was scheduled to testify
in Rogers’ case. See Adusumilli v. City of Chicago, 164 F.3d
353, 363 (7th Cir. 1998) (a plaintiff may establish a causal
link between protected expression and an adverse action
through evidence that the discharge took place on the
heels of protected activity). The timing of Salas’ termina-
tion was only suspicious, however, if the relevant decision-
makers knew about his involvement in the EEOC investi-
gation. Tomanovich, 457 F.3d at 668. The district court
concluded that there was no evidence that the individual
defendants were aware that Salas planned to speak with
the EEOC about Roger’s complaint, and we agree. Al-
though Salas contends that the notice of charge received by
the DOC mentioned him, he offers no evidence that the
individual defendants had access to the charge.9
Salas also relies on a March 20, 2004 e-mail in which
Rogers complained to an EEOC investigator that his
complaint “[wa]s being sent out and distributed through-
out Department of Corrections like a ‘Breaking News
Story.’ ” A jury could not conclude from this e-mail that the
9
Salas’ affidavit states that the individual defendants were
aware of his involvement in the EEOC investigation, but it
relies on a March 12, 2004 e-mail in which the DOC’s Office of
Legal Counsel notified two of the defendants that Salas was one
of several persons that the EEOC intended to interview. Al-
though that e-mail gave Symdon and Grosshans actual notice
that Salas was involved in the investigation, the DOC had
already decided to terminate Salas by the time the e-mail was
circulated. Consequently, the e-mail cannot be used to show
that Salas’ participation in the investigation influenced the
decision to terminate him.
No. 06-2483 19
relevant decision makers knew of Salas’ involvement in the
investigation. Aside from obvious hearsay problems that
could render the e-mail inadmissible, it does not state that
the individual defendants knew about Salas’ involve-
ment before they recommended terminating him.
Likewise, Salas has offered no evidence from which a
jury could conclude that his complaint about the handling
of the Rogers investigation motivated the termination.
Salas complained just days before the termination became
effective, and, by that point, the individual defendants
had already decided to fire him. Moreover, the Office of
Legal Counsel did not circulate Salas’ e-mail, and he has
offered no evidence that the defendants had any knowl-
edge of it. Accordingly, Salas cannot prevail on his First
Amendment claim.
D. §1983 Equal Protection Claim
An employee may prove a prima facie equal protection
violation using the same indirect, burden shifting method
used for Title VII claims. See Williams v. Seniff, 342 F.3d
774, 788 (7th Cir. 2003). The only difference is that a Title
VII claim is against an employer, while an equal protection
claim is against individual employees. See Hildebrandt v.
Ill. Dep’t of Natural Res., 347 F.3d 1014, 1036 (7th Cir.
2003). Although some cases from this Court have sug-
gested that a fifth, freestanding element—proof of discrim-
inatory intent—is necessary to establish a prima facie
equal protection violation, see, e.g., McPhaul v. Board of
Commissioners of Madison County, 226 F.3d 558, 564 (7th
Cir. 2000), we have clarified that those cases “are best
read as simply emphasizing the requirement that § 1983,
like disparate treatment cases under Title VII, require
ultimately proof of discriminatory intent.” Williams, 342
F.3d at 788 n.13.
20 No. 06-2483
In this case, the district court granted summary judg-
ment to the DOC based, in part, on its conclusion that
Salas had offered no evidence of discriminatory intent.10
By requiring Salas to prove this fifth element of a prima
facie case, the district court effectively transformed the
indirect method, thus heightening Salas’ burden of proof.
Despite the district court’s error, summary judgment
for the defendants was appropriate. Again, Salas has
failed to offer evidence that the similarly situated individ-
uals he identified were non-Hispanic. See Johnson v.
Gudmundsson, 35 F.3d 1104, 1115 (7th Cir. 1994) (recog-
nizing that summary judgment may be affirmed on any
ground supported by the record).
E. Procedural Due Process Claim
To prove a violation of his procedural due process rights,
Salas must show that the State deprived him of a pro-
tected liberty or property interest and that the deprivation
occurred without adequate due process. Bd. of Regents of
State Colls. v. Roth, 408 U.S. 564, 569 (1972). Whether
Salas has a property interest in continued employment
is governed by Wisconsin law. See Roth, 408 U.S. at 577.
Here, the parties agree that Salas’ union contract, which
stated that he could only be fired for just cause, created
a property interest in his continued employment that was
protected by the Due Process Clause. See, e.g., Cleveland
Bd. of Educ. v. Loudermill, 470 U.S. 532, 538-41 (1985);
Arneson v. Jezwinski, 592 N.W.2d 606, 616 (Wis. 1999). As
a Wisconsin state employee, Salas was entitled to the
full panoply of due process rights, including adequate
10
Although Salas offered a union report documenting discrim-
ination against minorities within the DOC, the district court
correctly ruled that the evidence was inadmissible due to hear-
say and foundation problems.
No. 06-2483 21
notice of the reasons for the discharge, an impartial
decision maker, and the opportunity to confront and cross-
examine adverse witnesses. Milwaukee Dist. Council 48 v.
Milwaukee County, 627 N.W.2d 866, 878 (Wis. 2001).
However, where adequate post-deprivation procedures are
available, an individual with a property interest in his
continued employment is entitled only to minimal
predeprivation process: “oral or written notice of the
charges against him, an explanation of the employer’s
evidence, and an opportunity to present his side of the
story.” Loudermill, 470 U.S. at 546.
Salas argues that Symdon violated his due process
rights by refusing to give him access to the DOC-506 form
that he allegedly falsified.11 He claims that his inability
to view the document deprived him of adequate notice
of the charges against him and impeded his ability to
explain his side of the story. Furthermore, he claims that
the DOC never told him what information he supposedly
falsified.
Salas relies on this Court’s decision in Swank v. Smart,
898 F.2d 1247, 1254-55 (7th Cir. 1990), to support his
claim. The plaintiff in Swank was a police officer who
was terminated from his employment for behavior unbe-
coming an officer. Id. at 1249-1250. During a disciplinary
hearing, the chief of police provided the decision makers
with a written statement evaluating the effect of the
plaintiff ’s conduct on the police department and on the
town, but the plaintiff was not allowed to view or challenge
the statement. Id. at 1253. We characterized the written
11
We note that although Salas characterizes Symdon’s actions
as an outright refusal to show him the DOC-506 form, he
admitted in response to Interrogatory No. 11 that Symdon
actually told him the form was unavailable because it was in
Finley’s locked desk.
22 No. 06-2483
statement as relevant and highly material evidence
and concluded that the ex parte presentation of that
evidence raised serious questions about the adequacy of
the hearing. Id.Salas contends that his case is analogous to Swank
because the DOC-506 form was material to the DOC’s
decision to terminate him, and he was not allowed to
view it. Although the record supports Salas’ contention
that the alleged falsification was a key factor in the
department’s decision to terminate him, undisputed rec-
ord evidence demonstrates that this case is distinguish-
able from Swank. Most importantly, Salas’ alleged lack of
access to the form did not prevent him from explaining
his side of the story. He maintained that he did not
falsify the form because he could have completed it using
information in Hageman’s file. He did not need the form to
make this argument. Moreover, the transcript from Salas’
arbitration hearing demonstrates that he was given access
to the form at some point during the DOC’s disciplinary
proceedings. Indeed, Salas went over the form (which was
marked as Joint Exhibit 21 during the arbitration) during
the hearing, explaining in detail how he would have
filled it out using information from Hageman’s file. See
Schacht v. Wis. Dep’t of Corrs., 175 F.3d 497, 503 (7th Cir.
1999) (recognizing that where post-termination adminis-
trative remedies are available, a pre-termination hearing
can be limited to determining the existence of reasonable
grounds for discharge). Accordingly, Salas’ claim that the
denial of access to the DOC-506 form during a pre-termi-
nation interview violated procedural due process cannot
succeed.
Salas also contends that his due process rights were
violated because the proceedings in which he participated,
although nominally adequate, were shams. See Ryan v. Ill.
Dept. of Children & Family Servs., 185 F.3d 751, 762 (7th
Cir. 1999). Although Salas has identified erroneous
No. 06-2483 23
factual findings in his hearings, such errors, by them-
selves, do not show that the hearings were shams. See,
e.g., Pugel v. Bd. of Trs. of the Univ. of Ill., 378 F.3d 659,
666 (7th Cir. 2004) (holding that a hearing is not sham just
because the plaintiff identifies errors and disagrees with
the result). Salas was given a chance to explain his side
of the story with a union representative present, the
DOC’s decision went through multiple levels of review, and
Salas has offered no evidence from which a jury reason-
ably could conclude that the DOC defendants had made
up their minds before the hearings occurred. In short,
Salas cannot prove that the procedures the DOC afforded
him were shams.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
entry of summary judgment.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-18-07