Graham v. Illinois Department of Children & Family Services , 522 F. App'x 350 ( 2013 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 25, 2013*
Decided July 12, 2013
Before
RICHARD D. CUDAHY, Circuit Judge
KENNETH F. RIPPLE, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
Nos. 12-3626 & 12-3813
VALENTINO GRAHAM, Appeals from the United States District
Plaintiff-Appellant, Court for the Central District of Illinois.
v. No. 11-CV-1101
ILLINOIS DEPARTMENT OF James E. Shadid,
CHILDREN AND FAMILY SERVICES, Chief Judge.
Defendant-Appellee.
ORDER
Valentino Graham had been a child welfare specialist with the Illinois Department of
Children and Family Services (DCFS) for three years when he was fired in 2009 for falsely
testifying at a child welfare hearing and mishandling confidential client materials. Graham
then sued his former employer under Title VII of the Civil Rights Act of 1964 and 42 U.S.C.
§ 1981, contending that the real reason he was fired is that he is black. The district court
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2)(C).
Nos. 12-3626 & 12-3813 Page 2
entered summary judgment for DCFS after concluding that Graham had provided neither
direct nor indirect evidence of race discrimination. We agree with the district court’s
assessment and affirm its judgment.
One of Graham’s job duties as a child welfare specialist was to testify at child welfare
hearings. In March 2009 he testified twice about his role in permitting a father to have an
unsupervised visit with his daughter in violation of an order of protection. As the hearing
transcripts establish, Graham testified at the first hearing that he had given permission for the
visit, while at the second, after some equivocating, he denied giving this permission.
Cathy Smith, one of Graham’s supervisors, heard about his inconsistent statements and
contacted the assistant state’s attorney who had examined him at the hearings to ask what had
happened. The assistant state’s attorney responded with a letter accusing Graham of testifying
falsely and evasively. She wrote that she had “observed Mr. Graham lying in a court
proceeding” and that he was “completely lacking in courtroom decorum.” She added that she
would “never call Mr. Graham as a witness again” and in fact had already canceled his
scheduled testimony in another case.
The receipt of the attorney’s letter prompted Smith to investigate whether Graham was
performing his other job responsibilities satisfactorily. A search of his office uncovered
unsecured confidential client materials and release forms that were blank except for client
signatures that apparently had been copied from other forms. Graham was accused of
breaching confidentiality and giving false testimony, and though he denied intentionally doing
either, DCFS’s director ultimately decided to fire him on those grounds. Graham explains that
his firing was not the first time he was treated poorly at work: During an argument between
him and a former supervisor in 2007, the supervisor threatened to call the police if Graham did
not “back off,” and afterward another supervisor explained to Graham that his large size and
shaved head could be intimidating.
In response to his firing Graham sued DCFS under Title VII and § 1981, contending that
his race motivated the agency’s action. He argued that circumstantial evidence supports his
claim of race discrimination, pointing specifically to the incident in 2007 when he was warned
to “back off.” Graham also sought to make out a prima facie case of race discrimination using
the indirect, burden-shifting method established in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). To that end, he contended that similarly situated, white employees had made
“mistakes” while testifying but had not been fired. Additionally, Graham claimed that his
firing was retaliation for an earlier lawsuit.
The district court granted DCFS’s motion for summary judgment after concluding that
Graham had failed to present evidence from which a jury could find that he was fired because
Nos. 12-3626 & 12-3813 Page 3
of his race. The court explained that nothing indicated that the 2007 incident Graham
described had anything to do with his race or any bearing on the decision in 2009 to fire him.
The court also concluded that none of the employees Graham put forward as comparators had
been accused of lying in court, breaking confidentiality rules, or doing anything comparable,
meaning that they were not situated similarly to him. (The court entered summary judgment
for DCFS on the retaliation claim as well, and Graham does not challenge that ruling on
appeal.)
Graham concedes that he is unable to present direct evidence of race discrimination,
but he argues that he offered evidence to support a prima facie case under McDonnell Douglas.
Again he contends that white employees working for DCFS made unspecified “mistakes”
while testifying at child welfare hearings but were not fired.
The McDonnell Douglas approach ordinarily requires the plaintiff to present evidence
that (1) he is a member of a protected class, (2) he met his employer’s legitimate job
expectations, (3) he suffered an adverse employment action, and (4) a similarly situated
employee outside of the protected class was treated more favorably. Keeton v. Morningstar, Inc.,
667 F.3d 877, 884 (7th Cir. 2012); Everroad v. Scott Truck Systems, Inc., 604 F.3d 471, 477 (7th Cir.
2010). If those elements are shown, the burden shifts to the defendant to provide a non-
discriminatory reason for the adverse employment action. If the employer does so, the burden
of proof shifts back to the plaintiff to show that the stated reason is pretextual. See Everroad,
604 F.3d at 477. But when, as in Graham’s case, the plaintiff satisfies the first and third
McDonnell Douglas elements, and the employer argues that the plaintiff was fired because he
did not meet legitimate expectations, “the credibility of the employer's assertion is at issue for
both the second element of the plaintiff's prima facie case and the pretext analysis.” Id. at
477–78; Elkhatib v. Dunkin Donuts, 493 F.3d 827, 831 (7th Cir. 2007); Curry v. Menard, 270 F.3d
473, 477–78 (7th Cir. 2001).
One way for Graham to show pretext and thus defeat a motion for summary judgment
was to present evidence of similarly situated employees who were treated more favorably than
he. Everroad, 604 F.3d at 477–78. A plaintiff need not “present a doppelganger who differs
only by having remained in the employer's good graces,” but a comparator, to be suitable,
must resemble the plaintiff enough to allow for a meaningful comparison. Filar v. Board of
Educ. of City of Chicago, 526 F.3d 1054, 1061 (7th Cir. 2008). The seriousness of the proposed
comparator’s misconduct is of course relevant. See Coleman v. Donahoe, 667 F.3d 835, 847 (7th
Cir. 2012); Gates v. Caterpillar, Inc., 513 F.3d 680, 690 (7th Cir. 2008).
Graham’s evidence of similarly situated employees who were treated more favorably
falls far short of supporting a reasonable inference that DCFS’s stated reasons for firing him
Nos. 12-3626 & 12-3813 Page 4
were pretextual. He has offered nothing more than his statement that these employees made
“mistakes” while testifying yet were not fired. This vague and unsupported assertion is not
evidence that any of his proposed comparators engaged in misconduct comparably serious to
his. And although Graham repeatedly points to the assistant state’s attorney’s letter about his
false testimony, apparently believing that the letter somehow satisfies his burden under
McDonnell Douglas, his understanding of its significance is mistaken. The attorney’s letter did
not identify any other DCFS employee who falsely testified and could serve as a comparator.
To the contrary, the letter — which assessed Graham as unfit for his duty of testifying at child
welfare hearings — is further justification for DCFS’s decision to treat him differently than
employees about whom no such letter was written.
Because Graham has presented no evidence from which a rational jury could find that
his firing was racially motivated, we conclude that the district court’s entry of summary
judgment was proper.
AFFIRMED.