Robbie Marshall v. Indiana Department of Correcti ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-3270
ROBBIE L. MARSHALL,
Plaintiff-Appellant,
v.
INDIANA DEPARTMENT OF
CORRECTION,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Terre Haute Division.
No. 2:18-CV-261 RLM-MJD — Robert L. Miller, Jr., Judge.1
____________________
ARGUED MAY 28, 2020 — DECIDED SEPTEMBER 4, 2020
____________________
Before MANION, KANNE, and WOOD, Circuit Judges.
MANION, Circuit Judge. Robbie Marshall claims his former
employer, the Indiana Department of Correction,
discriminated against him because of his sexual orientation
1 Sitting by designation.
2 No. 19-3270
and retaliated against him. The district court granted
summary judgment to the DOC. We affirm.
I.
Marshall worked at the DOC for over 20 years. He re-
ceived good reviews and promotions. He identified as ho-
mosexual. He reached the rank of Internal Affairs Investiga-
tor 2 at the Wabash Valley Correctional Facility.
In 2015, he was arrested for operating a vehicle while in-
toxicated. Warden Richard Brown disciplined him with a
written reprimand.
In September 2016, he attended a law enforcement con-
ference in Indianapolis. A sheriff from another county com-
plained that Marshall became intoxicated at the conference
and behaved inappropriately. Marshall denies intoxication
or inappropriate behavior at the conference.
Later that month, Marshall and others confronted Robert
Storm—a subordinate directly under Marshall’s supervi-
sion—about Storm’s unethical disclosure of confidential in-
vestigation materials.2
The next day, Storm accused Marshall of sexually harass-
ing him twice: once in January 2015 at an American Legion
club, and once in April 2015 at a casino in French Lick.
2 Here are the details. Storm was an investigator who usually sub-
mitted poorly written reports. But suddenly, his reports improved dra-
matically. Marshall suspected someone new wrote them. He checked
Storm’s emails and discovered Storm was drafting reports and sending
them to his wife in breach of confidentiality. She edited the drafts, signif-
icantly improving them, and returned them to him. Then Storm submit-
ted the sanitized reports.
No. 19-3270 3
Warden Brown called upon the State Personnel Depart-
ment to investigate Storm’s sexual-harassment allegations
against Marshall. Ultimately, Regional Director Michael Os-
burn decided to terminate Marshall. At a meeting of Osburn
and others one day before the termination, someone said the
DOC should be prepared for Marshall to file a complaint
with the EEOC that he was fired because of his sexual orien-
tation.
Osburn terminated Marshall and demoted Storm in Oc-
tober 2016. Marshall exhausted his administrative remedies.
He then brought many claims to the district court. The only
claims before us are the claims for sexual-orientation dis-
crimination and for retaliation. The district judge granted
summary judgment to the DOC on these claims, and Mar-
shall appeals.
II.
A. Law
We review de novo. A party is entitled to summary judg-
ment if there is no genuine issue of material fact and he is
entitled to judgment as a matter of law. We construe the facts
and draw all reasonable inferences in Marshall’s favor.
In Hively, the Seventh Circuit extended Title VII to in-
clude sexual-orientation discrimination. Hively v. Ivy Tech
Cmty. Coll. of Ind., 853 F.3d 339, 341 (7th Cir. 2017). Recently,
in Bostock, the Supreme Court did the same. Bostock v. Clay-
ton Cty., Ga., 140 S. Ct. 1731 (2020). According to the Su-
preme Court, Title VII prohibits employers from firing an
employee on the basis of sexual orientation. Id. at 1737.
Marshall brings two Title VII claims before us on appeal:
discrimination and retaliation.
4 No. 19-3270
B. Discrimination claim
For his discrimination claim to survive summary judg-
ment, Marshall must point to evidence sufficient to permit a
reasonable factfinder to conclude that his sexual orientation
caused the termination. The district judge addressed Mar-
shall’s assertion that he established a prima facie case under
the McDonnell Douglas burden-shifting framework. The
judge also kept in mind Ortiz’s admonition to consider all
evidence in one pile.
To show a prima facie case of discrimination under the
McDonnell Douglas format, Marshall had to show: 1) he be-
longs to a protected class; 2) he met the DOC’s legitimate
expectations; 3) he suffered an adverse employment action;
and 4) another similarly situated employee who wasn’t in
the protected class was treated better by the DOC.
Then the burden of production would shift to the DOC to
state a legitimate, non-discriminatory reason for the adverse
employment action.
After that the burden would shift back to Marshall to
present evidence that the stated reason is a pretext for dis-
crimination. A pretext is a lie.
As the district judge noted, the parties do not dispute
that Marshall belongs to a protected class because of his sex-
ual orientation, and they do not dispute that he faced an ad-
verse employment action: termination.
But the parties dispute whether Marshall was meeting
the DOC’s legitimate expectations. The district judge did not
resolve this issue, and instead concluded that even if Mar-
shall were meeting the DOC’s legitimate expectations, he has
No. 19-3270 5
not shown that similarly situated employees who did not
identify as homosexual were treated better than he was.
We agree with the district judge that Marshall’s case fal-
ters for lack of a similarly situated comparator. Storm is not
similarly situated because his alleged breach of confidentiali-
ty is not similar to Marshall’s alleged sexual harassment. For
several reasons, two other proposed comparators also are
not similarly situated to Marshall, even though they alleged-
ly committed sexual harassment.
First, the two other proposed comparators did not have
the same level and type of authority over their victims that
Marshall had over Storm. Marshall argues that at least one of
these proposed comparators did have supervisory authority
over his victims. He was training them. But the record shows
this authority was distinguishable from the level and type of
authority Marshall had over Storm.
Second, these proposed comparators were disciplined by
Brown and not by Osburn. Marshall argues Brown should
have been the decision-maker in Marshall’s case but was not
allowed to be because Brown also identifies as homosexual.
But the record contradicts this. There was at least a potential
conflict of interest precluding Brown from being the
decision-maker in Marshall’s case. Marshall and Brown were
old friends. Also, Brown witnessed Marshall’s efforts to
investigate Storm for breaching confidentiality. As Brown
explained in an affidavit: “I was not involved in the decision-
making process for Marshall’s dismissal. I was informed my
lack of involvement was due to my participation in the
investigation as a witness.”
6 No. 19-3270
And third, these proposed comparators do not have the
same sort of prior disciplinary record Marshall has. This is
the most definitive distinction between these proposed
comparators and Marshall. There is no record that they had
a disciplinary past similar to Marshall’s. Marshall had two
alcohol-involved incidents on his record: driving while
intoxicated and the ensuing arrest in 2015, and conduct
unbecoming staff at the law-enforcement conference in 2016.
So we agree with the district judge that Marshall failed to
show a similarly situated person outside the protected class
was treated better than he was. He therefore failed to estab-
lish a prima facie case of discrimination to shift the burden.
The district judge also concluded that even if Marshall
could establish a prima facie case, he could not show that the
DOC’s stated reasons for terminating him were pretextual.
The DOC said it terminated him for continually violating its
policies: 1) driving drunk and getting arrested in 2015;3 2)
engaging in conduct unbecoming staff at the law-
enforcement conference in 2016; and 3) sexually harassing
Storm. Marshall cannot show this explanation is a lie. At
most, he argued the investigations were sloppy. But that is
not enough. We have long noted that challenges to the man-
ners in which employees conduct these investigations are
generally misspent. See Kariotis v. Navistar Intern. Transp.
Corp., 131 F.3d 672, 677 (7th Cir. 1997) (“Therefore, Kariotis’
energy is misspent by attacking the company’s decisional
process, unless she could point to facts suggesting that the
3 Sometimes the DOC seems to explain the 2015 incident as part of
Marshall’s disciplinary past and not as one of the immediate reasons for
his termination. But any distinction on this point is immaterial here.
No. 19-3270 7
company investigated her differently because she was an
older employee … .”). We are not a super-human-resources
department, judging whether the investigation was exem-
plary.
Marshall does not dispute that he was disciplined for the
alcohol-related arrest or that his drunk driving violated the
standards of employee conduct. And he does not dispute
that violations of the standards of conduct justify termina-
tion. He does dispute the allegations about the 2016 incident
at the conference and Storm’s allegations of sexual harass-
ment. But the ultimate truth of those allegations is immateri-
al here because Marshall has pointed to no evidence that the
DOC is lying about them, only that the DOC is wrong about
them. That is not pretext.
Marshall must lose his discrimination claim because he
cannot show the DOC terminated him because of his sexual
orientation. He has no smoking gun.4 He has no mass of cir-
cumstantial evidence pointing to discrimination. He cannot
make out a prima facie case. And even if he could, he cannot
show pretext. Considering all the evidence in a single Ortiz
pile, we conclude Marshall cannot show sexual-orientation
discrimination.
C. Retaliation claim
The retaliation claim fares no better. To prevail, Marshall
had to show: 1) he engaged in statutorily protected activity;
4 He seems to think he might have a smoking gun because one of the
investigators said he was no different from any other predator. But Mar-
shall has advanced no reason to think this comment pertained to his sex-
ual orientation.
8 No. 19-3270
2) he suffered an adverse employment action; and 3) there is
a “but for” causal connection between 1 and 2.
His problem is he cannot show he engaged in statutorily
protected activity. He makes much of the timing of his expo-
sure of Storm’s breach of confidentiality relative to Storm’s
report the next day of Marshall’s sexual harassment a long
while before. But Storm’s “retaliation” against Marshall is
not the sort of retaliation actionable here. Marshall’s expo-
sure of Storm’s breach of confidentiality is not protected by
Title VII. So retaliation for the exposure cannot be Title VII
retaliation.
Marshall tries to argue that the termination was anticipa-
tory retaliation for the EEOC complaint for sexual-
orientation discrimination that the DOC suspected Marshall
might file after the termination. We have recognized the via-
bility of claims based on theories of anticipatory retaliation.
See Beckel v. Wal-Mart Associates, Inc., 301 F.3d 621, 624 (7th
Cir. 2002) (“Such a threat would be a form of anticipatory
retaliation, actionable as retaliation under Title VII.”). But in
this case, the claim borders on preposterous. Marshall would
have us believe the termination was retaliation for the antic-
ipated complaint about the termination, as though he were
trapped with the DOC in a time loop.
Marshall bases this argument on the comment during the
meeting that the DOC should be prepared for the possibility
that he would complain the termination was sexual-
orientation discrimination. But the record indicates the DOC
had already decided to terminate Marshall before this com-
ment was made. Someone in the room where it happened
testified that the comment came after the termination deci-
sion had already been made. And Marshall does not serious-
No. 19-3270 9
ly challenge that fact. He argues the actual termination oc-
curred after the comment. But this is neither controversial
nor germane. The point is the record indicates the DOC de-
cided to terminate Marshall, then someone made the com-
ment about preparing for a complaint, and then the DOC
terminated Marshall. So the comment does not help Mar-
shall’s case.5
And Marshall makes no allegation that Osburn planned
to give him lesser discipline but then, in anticipation of fu-
ture complaining to the EEOC, decided to terminate him.
Marshall makes no allegation that Osburn or anyone else
said anything like: “We should discipline him short of ter-
mination, but if we do he’ll probably claim we discriminated
against him, so we should just go ahead and fire him now.”
Nor does Marshall allege he received any adverse employ-
ment action short of termination. Moreover, as the district
judge noted, termination of Marshall would increase the
possibility he might file a charge against the DOC, so dis-
missal was not a logical strategy if the DOC wanted to avoid
a charge. See Beckel, 301 F.3d at 624 (“Rather than deterring a
reasonable person from suing, [a threat of termination]
would increase her incentive to sue by giving her a second
claim … .”).
Title VII generally does not hold an employer
accountable merely for discussing the potential ramifications
of the action it already decided to take. Such a discussion
generally does not transform a prior decision into
5 Marshall advances no argument, much less evidence, that the
comment about preparing reveals a mindset that influenced the preced-
ing termination decision.
10 No. 19-3270
anticipatory retaliation against future protected action, even
when the actual termination has not yet occurred. Marshall
has shown no reason to hold the DOC liable merely for
discussing the potential consequences of its decision to
terminate him.
As Marshall cannot show any statutorily protected
activity was the “but for” cause of the adverse employment
action, his retaliation claim must fail.
We affirm.