Grayson, Ralph L. v. O'Neill, Paul H.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-3160
RALPH L. GRAYSON,
Plaintiff-Appellant,
v.
PAUL O’NEILL, Secretary, United States
Department of the Treasury,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 7907—Elaine E. Bucklo, Judge.
____________
ARGUED APRIL 3, 2002—DECIDED OCTOBER 25, 2002
____________
Before COFFEY, DIANE P. WOOD, and WILLIAMS, Circuit
Judges.
COFFEY, Circuit Judge. The United States Secret Ser-
vice (referred to hereinafter as “Service”) received in excess
of 100 complaints (primarily concerning discrimination, so-
licitation of favors, and favoritism) about the Special Agent
in Charge of the Chicago Field Office, Ralph Grayson. Af-
ter it had received the complaints, the Service decided
to conduct a management review of his office. The inves-
tigation revealed that Grayson not only intimidated and
harassed his own employees, but also solicited favors
from the public that he was charged to protect. After the
2 No. 01-3160
investigation, the Department asked for Grayson’s resig-
nation. After resigning, Grayson sued the Service, alleg-
ing that the Service initiated its investigation into his
wrongdoing because of his race. The trial court granted
summary judgment in favor of the Service and we affirm.
I. Factual Background
Ralph Grayson (African American) joined the United
States Secret Service in 1974. From 1974 until 1993,
Grayson was promoted through the ranks of the Secret
Service, reaching the position of Special Agent in Charge
(SAIC) of the Chicago Field Office. Grayson was the first
African American appointed to be the SAIC of the Chicago
Field Office, and one of only a handful of African American
SAICs in the Service. As the SAIC of the Service’s fifth
largest field office, Grayson was in charge of 135 agents
and Service employees. He was responsible for planning,
directing and coordinating all law enforcement, protective,
and administrative activities throughout the four-state
area covered by the Chicago Field Office, including Illinois,
Indiana, Iowa and Wisconsin. In his first evaluation as
the SAIC of the Chicago Field Office in 1995, Grayson
received an outstanding performance evaluation and a
Senior Executive Service bonus award. Grayson continued
to receive outstanding performance reviews throughout
1995 and 1996.
In January 1997, one of the two Assistant Special Agents
in Charge (ASAIC) in the Chicago Field Office retired,
thereby creating a vacancy. After reviewing a list of 15
agents eligible for the promotion based on their promo-
tion scores, Grayson recommended that Isaiah Mapp, an
African American male, be promoted to the vacant Chi-
cago ASAIC position. Despite Grayson’s recommendation,
Richard Griffin, the Deputy Director of the Secret Service,
informed Grayson that he preferred Tom Frost or William
No. 01-3160 3
Cotter, both white males, for the promotion. Ultimately
Cotter was named to the position. Believing that the Ser-
vice’s decision to promote Cotter rather than Mapp was
the product of race discrimination, Grayson informed his
superiors of his concerns, though he never expressly men-
tions whom he contacted or the manner in which he re-
layed his concerns.1
In an unrelated event a few weeks after Cotter’s promo-
tion, Karen Whalen, a female Special Agent, complained
that Grayson had sexually harassed her and given her
“[i]nappropriate and inaccurate criticism in the presence
of a non-supervisory employee.” Bruce Bowen, the Ser-
vice’s Deputy Director of Investigations, spoke with Gray-
son via telephone regarding Whalen’s complaint and, after
completing his investigation, determined that relief was
not warranted. But in early March, shortly after Whalen’s
initial complaint, she received a transfer to an undesir-
able detail in Gary, Indiana. On March 3, 1997, Whalen
lodged a second complaint against Grayson, alleging that
he had detailed her to an inconvenient office in retalia-
tion for complaining about him. In response to Whalen’s
second complaint, Ralph Basham, the Service’s Assistant
Director of Administration and Grayson’s immediate su-
pervisor, authorized an investigation, also known as a
“fact finding.” Basham assigned Senior Special Agent
Karen Barry, a female SAIC from Tennessee, and Norbert
Vint, the Executive Assistant to the Secret Service Direc-
tor for Workforce Diversity, to investigate Whalen’s com-
plaint. Because Vint was the Director of the Workforce
Diversity Office, Eljay Bowron, the Director of the Secret
Service at the time in question, directed him to describe
the purpose and function of his office to the Chicago
1
Grayson’s beliefs appear to be unfounded, as Mapp shortly
thereafter received a promotion to the SAIC of the Atlanta, Geor-
gia Field Office.
4 No. 01-3160
agents by holding an open-office meeting during the time-
frame for which he was in Chicago to investigate Whalen’s
complaint.
From March 24, 1997 to March 28, 1997, Barry and Vint
conducted ten interviews during their fact-finding inves-
tigation into Whalen’s complaint, including interviews of
Whalen, her supervisors, her group leaders, and a peer.
Barry and Vint also held an open meeting with the
agents where Vint presented information regarding his
office. After their investigation, Barry and Vint deter-
mined that Agent Whalen’s second complaint should be
dismissed. In the process of investigating Whalen’s com-
plaint, Barry and Vint uncovered a shocking pattern of
improper behavior on the part of Grayson. In the few short
days that Barry and Vint conducted their investigation,
more than ten agents independently approached them
desiring to voice complaints about Grayson. The com-
plaints were less than innocuous and included allega-
tions that: 1) Grayson received numerous gratuities and
other favors for his personal use from private organiza-
tions; 2) Grayson retaliated against employees for speak-
ing out against him or his policies; 3) Grayson sexually
harassed and discriminated against female employees;
4) Grayson treated African American employees more fa-
vorably than other employees; and 5) the Chicago Field
Office had low employee morale.
Barry and Vint reported the allegations to Bowen, who
instructed the Office of Inspection to conduct a Manage-
ment Review of the Chicago Field Office. Upon Bowen’s
request, a Management Review team, comprised of 16 in-
spectors conducted a two-month long investigation of the
Chicago Field Office commencing on April 3, 1997. During
the management review, the inspectors received over
100 complaints about Grayson that corroborated the com-
plaints uncovered by Barry and Vint. The inspectors re-
ceived complaints from such diverse sources as: 1) employ-
No. 01-3160 5
ees in the Chicago Field Office, 2) the Chicago Police De-
partment, 3) Chicago area businesses, and 4) former sub-
ordinates during Grayson’s tenure in other Service offices.
The extent of Grayson’s improprieties cannot be fully
appreciated without a sampling of his numerous condem-
nable behaviors. Beginning with the least troubling al-
legations, the investigative team discovered that morale
in the Chicago Field Office was abominably low. Out of
82 Service employees, 36 described their morale as low to
non-existent, including but not limited to fourteen of the
eighteen women in the office. The employees ascribed a
constellation of reasons for the morale failure within the
office, complaining that: 1) Grayson cared more about
the office’s arrest statistics than the working conditions;
2) Grayson did not effectively plan assignment and squad
rotations; 3) Grayson favored African American agents
and gave them preferable training courses and assign-
ments; and 4) Grayson refused to accept managerial input
and suggestions from his supervisory agents.
But Grayson did more than depress the morale of his
employees. In addition, many employees believed that
Grayson actively intimidated and harassed employees as
well as retaliated against those who complained about his
heavy-handed managerial style. For example, Special Agent
John Orloff complained that when he sought to discuss
his annual review with Grayson, the ASAIC informed him
that: “[t]his is a quote from the boss [Grayson], ‘tell Orloff
I think he’s doing an outstanding job, but if he chooses
to come in and discuss his evaluation with me his points
may go down.’ ” Similarly, Special Agent Peter Paradis
stated that Grayson attempted to influence his testimony
regarding Agent Whalen’s discrimination claim by telling
him that he knew who “butters his bread.” More than a
dozen other agents shared similar complaints, expressing
the belief that Grayson intimidated his employees and
created a culture in which the agents feared reprisals
should they cross him.
6 No. 01-3160
Grayson’s more appalling behavior concerned his nega-
tive attitude towards women and wanton and unchecked
sexual harassment of female employees. Special Agent
Mary Drury was a repeated target of Grayson’s unwel-
come sexual advances. He told her that her “legs seem to
be just fine,” commented on her clothing, and told her that
“she should look around at the women who have been on
this job for a long time . . . [because] they didn’t look so
good . . . [but that] maybe she was the exception to the
rule.” Numerous employees complained that Grayson
repeatedly ogled and fondled female agents and other
employees. His vulgar remarks to female agents include
referring to himself as “big dick daddy from Cincinnati,”
commenting to female agents that if they had not had
sexual intercourse with a black man that they were
racists and bigots, and advising them that if they tried
“a black man sexually . . . [they] would never want to
be with anyone else.” The investigation even revealed
that Grayson had harassed an Assistant United States
Attorney by repeatedly telephoning her at home to re-
quest dates.
The most serious allegations were that Grayson improp-
erly, if not illegally, required his agents to solicit free
services for his personal use from area businesses. Sev-
eral area business and security personnel (including the
director of operations for the United Center, the director
of security for Harpo Studios, and the director of security
for the Sheraton Hotels) commented upon Grayson’s
reputation in the community as an official who was al-
ways looking for something for free. Indeed, not only did
Grayson solicit improper personal favors, but also re-
quired that his agents collect the perks squeezed from the
local businesses. As with all of his other disturbing be-
haviors, Grayson offers no excuses or apologies for his
seeking of personal favors from the public he protected—
instead characterizing his solicitations as “small perks” and
“insignificant.”
No. 01-3160 7
Following the managerial review, Grayson not surpris-
ingly received an “unsatisfactory” rating during his an-
nual performance review for the July 1996-June 1997
review cycle. Moreover, because many of the complain-
ants voiced a fear of retaliation, the Service also detailed
Grayson to Washington, D.C., in August 1997, concluding
that Grayson could not continue to manage the Chicago
Field Office effectively and that he might retaliate against
those who voiced complaints about him. While detailed to
Washington, the Service provided Grayson with an office
and a government car, as well as allowed for travel to
Chicago to see his family. At all times, Grayson main-
tained his same rank, grade and salary as he had as the
SAIC in Chicago. After it transferred him, the Service
informed Grayson that he would be disciplined, but of-
fered him the opportunity to retire before any discipline
was taken. Grayson chose the retirement route and he left
the Service as of March 28, 1998.
Grayson alleged that the Service’s actions were the
product of race discrimination and filed multiple com-
plaints with the Equal Employment Opportunity Com-
mission (EEOC). In Grayson’s first complaint, filed with
the EEOC on June 3, 1997, he stated that the investiga-
tion triggered by Agent Whalen’s complaints was in retalia-
tion for Grayson’s support of Isaiah Mapp, an African
American male, rather than Tom Frost or William Cotter,
white males, for promotion to a vacant ASAIC position.
The EEOC denied this claim on June 27, 1997, and he
appealed. The EEOC denied his appeal on August 28, 1998
and issued Grayson a right-to-sue letter, which his coun-
sel received on August 31, 1998 and which Grayson him-
self received on September 8, 1998.
Grayson filed additional discrimination claims on De-
cember 3, 1997 and March 31, 1998, alleging that his
detail to Washington, D.C., his unsatisfactory perform-
8 No. 01-3160
ance review, and the Service’s request that he retire were
due to race discrimination and retaliation for his June 3
claim. The EEOC denied these claims as well and issued
a second right-to-sue letter on November 2, 1998.
On December 9, 1998, Grayson filed a complaint of
employment discrimination and retaliation in the North-
ern District of Illinois. Grayson alleged that the Service
discriminated and retaliated against him when it inves-
tigated him, removed him from the Chicago office and
assigned him to the Washington, D.C. office, gave him
a poor performance review, and constructively discharged
him by forcefully suggesting that he accept early re-
tirement or face disciplinary proceedings. According to
Grayson, a climate of racism permeated the Service and
targeted minorities, including himself. Grayson further
claimed that the Service’s actions were in retaliation for
his unsuccessful support of Mapp for promotion to the
ASAIC position in Chicago.
In August 1999, the trial court granted partial summary
judgment in favor of the Service. Grayson’s attorney had
received the right-to-sue letter on August 31, 1998, and
Grayson had not filed suit until December 9, 1998, 101
days later—eleven days after the 90-day period for filing
such claims had passed. See 42 U.S.C. § 2000e-5(f)(1). The
trial court thus dismissed as time-barred Grayson’s
claims raised in his June 1997 EEOC complaint, including
his claims that: 1) he was retaliated against in response
to his support for Mapp; 2) he was retaliated against
in response to his complaints of discrimination; and 3)
he was retaliated against when the Service conducted the
management review of Agent Whalen’s complaints.
Discovery proceeded on Grayson’s remaining claims
and was extended a total of four times—three times at
Grayson’s request and once at the Service’s request. In
September 2000, the Service moved for summary judg-
No. 01-3160 9
ment on Grayson’s remaining claims, arguing that he
had not established a prima facie case of discrimination
and, even if he had, he could not demonstrate that the
Service’s reasons for its actions were pretextual. Grayson
filed a Rule 56(f) motion to strike the motion for sum-
mary judgment or alternatively to allow him to reopen
discovery to uncover new evidence. According to Grayson,
a “sinister, clandestine climate of racism” existed within
the Secret Service. Grayson’s theory was based on evidence
of a 1990-1992 “Good Ol’ Boy Round-up,” involving un-
known law enforcement participants in racist conduct in
the southern United States. Grayson alleged that Ser-
vice personnel who participated in the “roundups” were
not disciplined, thus establishing that the Service gave
more lenient treatment of similarly situated white em-
ployees. The trial court refused to allow Grayson to re-
open discovery because the alleged evidence sought by
Grayson was not new and had been available to him
throughout the discovery period. The trial court later
issued a thorough opinion granting summary judgment
in favor of the Service on Grayson’s race discrimination
claim. In that opinion, the trial court proceeded directly
to the pretext analysis and ruled that Grayson had failed
to establish that the Service’s reasons for its employment
actions—mainly the overwhelming documentation that
Grayson destroyed the morale of his subordinates through
intimidation and harassment as well as improperly so-
licited personal favors throughout his tenure as the SAIC
of the Chicago Field Office—were pretextual.
II. Issues
Grayson raises three issues on appeal. Initially, Grayson
argues that the trial judge committed error in denying
his Rule 56(f) motion. Second, Grayson contends that the
trial judge erred in dismissing all of his retaliation claims
10 No. 01-3160
as time-barred. Finally, Grayson contends that the trial
judge erred in granting summary judgment in favor of the
Service on his discrimination and constructive discharge
claims.
III. Analysis
A. Grayson’s Rule 56(f) Motion
Initially, Grayson complains on appeal that the trial
judge committed error when she refused to allow him to re-
depose his supervisors regarding any involvement they
allegedly had with the “Good Ol’ Boy Round-up.”2 Summary
judgment should not be entered “until the party opposing
the motion has had a fair opportunity to conduct such
discovery as may be necessary to meet the factual basis
for the motion.” Celotex Corp. v. Catrett, 477 U.S. 317, 326
(1986). Accordingly, Federal Rule of Civil Procedure 56(f)
provides that where a “party opposing the [summary judg-
ment] motion cannot for reasons stated present by affidavit
facts essential to justify the party’s opposition, the court
may . . . order a continuance to permit affidavits to be
obtained or depositions to be taken or discovery to be
had . . . .” Fed R. Civ. P. 56(f).
A trial judge’s decision to consider a defendant’s motion
for summary judgment before allowing the plaintiff to
2
According to a March 1996 Department of Justice Report by
the Office of the Inspector General entitled “Allegation of Racial
and Criminal Misconduct at the Good Ol’ Boy Roundup,” some of
the Roundup events involved highly racist conduct. Racist ac-
tivities documented by the Report included “checking cars” of
those entering the event to prevent African-Americans from
attending, posting signs with racist messages including “no
niggers” and “nigger checkpoint,” and performing racist skits,
including one in 1990 involving a “slave” in blackface perform-
ing oral sex on a “Klansman.”
No. 01-3160 11
depose certain witnesses is a discovery matter, which we
review under the abuse of discretion standard. Woods v.
City of Chicago, 234 F.3d 979, 990 (7th Cir. 2001); Pfeil v.
Rogers, 757 F.2d 850, 856 (7th Cir. 1985). Under Rule
56(f), a party must file an affidavit stating the reasons why
he cannot respond to a summary judgment movant’s
affidavits. Kalis v. Colgate-Palmolive Co., 231 F.3d 1049,
1058 n.5 (7th Cir. 2000).
Grayson desired to re-open discovery, after it had been
extended four times, in order that he might re-depose
certain Service personnel regarding the “Good Ol’ Boys
Roundup.” Grayson speculated that he might uncover
evidence that other SAICs participated in the Roundups,
but were not disciplined by the Service and thus that the
Service discriminated against him by disciplining him
for his improper conduct. Grayson’s argument is without
merit for two reasons.
First, as the trial court commented, evidence of the
Roundups certainly was not “new knowledge” warranting
the re-opening of discovery and Grayson offered no expla-
nation for his failure to uncover the evidence of the
Roundup until September 2000, long after discovery had
concluded and when the defendant had a summary judg-
ment motion pending before the trial court. Indeed the
evidence in the record before us demonstrates that the
Roundups were common knowledge long before Grayson
brought this suit. In Grayson’s brief to this court, he claims
that the Roundups “unleashed a firestorm” on national
television in 1995. Further, in 1996, the Office of the In-
spector General released an extensive public report detail-
ing the allegations regarding the Roundups. Grayson
contends that his lack of diligence should be excused be-
cause the Service “concealed its knowledge of the Round-
ups” by failing to disclose a class action lawsuit containing
allegations that the Service engaged in a pattern of discrim-
inatory practices, including retaliation against African
12 No. 01-3160
American agents that spoke out against discrimination. See
Moore v. Summers, 113 F. Supp. 2d 5, 11 (D.D.C. 2000). In
that suit, several African American agents from the Atlanta
office alleged that Service personnel had participated in
the Roundups. But the Service had no obligation to dis-
close the Moore suit because Grayson never requested
such information—his interrogatory specifically requested
only that the Service identify “all charges of racial employ-
ment discrimination filed against the Secret Service with
any federal, state or local agency concerning conduct of
individuals in the districts overseen by the Chicago Field
office since 1993.” (emphasis added). Where a party’s own
lack of diligence is to blame for that party’s failure to se-
cure discoverable information, it is not an abuse of dis-
cretion to deny a Rule 56(f) motion. Id.; Farmer v. Brennan,
81 F.3d 1444, 1449 (7th Cir. 1996). In this case, Grayson
had more than ample opportunity to discover and present
evidence of the Roundups and the trial judge was well
within her discretion to limit and refuse to prolong dis-
covery for a fifth time so that Grayson could gather more
evidence.
Grayson’s Rule 56(f) motion was flawed for another
reason: the evidence he sought is not relevant to his case.
While evidence that Service personnel participated in the
Roundups certainly could be characterized as an unsightly
blemish upon the Service’s reputation, it is not germane
to the question of whether the Service launched a discrim-
inatorily motivated investigation into Grayson’s manage-
ment of the Chicago Field Office. Evidence of generalized
racism directed at others is not relevant unless it has some
relationship with the employment decision in question.
Venters v. City of Delphi, 123 F.3d 956, 973 (7th Cir. 1997).
Grayson points to no evidence to suggest that any of the
decision-makers in this case somehow participated in or
condoned the Roundups, and thus cannot establish that
evidence of the Roundups has any connection to his dis-
crimination claims in this case.
No. 01-3160 13
Federal trial judges are called upon to manage notori-
ously crowded dockets. “Necessarily, they must have sub-
stantial discretion as they manage their dockets.” Reales v.
Consolidated Rail Corp., 84 F.3d 993, 996 (7th Cir. 1996).
Without any evidentiary support, his request amounts
to nothing more than a fishing expedition and we decline
to rule that the trial judge abused her discretion in deny-
ing Grayson the opportunity to extend discovery a fifth
time.
B. Grayson’s Retaliation Claim
Grayson next argues that the trial judge erred in ruling
that his retaliation claim was time-barred. The trial judge
correctly observed that Grayson’s attorney received the
right-to-sue letter on these claims on August 31, 1998, and
that Grayson failed to file his complaint until December 9,
1998, a period in excess of the statutorily proscribed 90-
day filing period. 42 U.S.C. § 2000e-5(f)(1); Threadgill v.
Moore U.S.A., Inc., 269 F.3d 848, 849, 850 (7th Cir. 2001)
(90-day statute of limitations begins to run on the date
claimant or attorney representing him received the let-
ter). Accordingly, the trial judge’s dismissal of Grayson’s
retaliation claim was proper.
Grayson seeks to breathe life into this claim by arguing
for the first time on appeal that the Service retali-
ated against him not only because he protested the al-
legedly discriminatory treatment of Mapp, but also be-
cause he filed a discrimination claim with the EEOC on
June 3, 1997. But this retaliation claim appears nowhere
in Grayson’s complaint: Count I of his complaint alleges
that the Service retaliated against him after he opposed
“unlawful discrimination against Mapp and file[d] a charge
with the EEOC on April 2, 1997.” It is well-established that
a party waives the right to argue an issue on appeal if
he fails to raise that issue before the trial court. Moulton v.
14 No. 01-3160
Vigo County, 150 F.3d 801, 803 (7th Cir. 1998); Stevens v.
Umsted, 131 F.3d 697, 705 (7th Cir. 1997) (“It is axiomatic
that arguments not raised below are waived on appeal.”).
Although it is true that Grayson argued in opposition to
summary judgment that the Service retaliated against
him for filing EEOC complaints, “a plaintiff may not
amend his complaint through arguments in his brief in
opposition to a motion for summary judgment.” Shanahan
v. City of Chicago, 82 F.3d 776, 781 (7th Cir. 1996). Because
Grayson failed to present to the trial judge any claim
that the Service retaliated against him because of his
June 3, 1997 EEOC complaint, we shall not consider the
merits of that claim on appeal.
C. Grayson’s Discrimination Claim
Finally, Grayson argues that the trial judge committed
error by granting the Service summary judgment on his
discrimination and constructive discharge claims. Grayson
offered no direct evidence that the Service discrim-
inated against him because of his race and so proceeded
under the familiar burden-shifting test set forth initially
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Under this test, Grayson was required to carry the bur-
den of establishing a prima facie case of discrimination
and demonstrate that: 1) he was a member of a protected
class; 2) he was meeting his employer’s legitimate expec-
tations; 3) he suffered an adverse employment action; and
4) other, similarly situated employees who were not mem-
bers of the protected class were treated more favorably.
Paluck v. Gooding Rubber Co., 221 F.3d 1003, 1012 (7th
Cir. 2000). After Grayson establishes a prima facie case
of racial discrimination, the burden of production shifts
to the Service to demonstrate a legitimate, non-discrim-
inatory reason for its employment action. Id. Once the
Service has proffered a legitimate non-discriminatory
No. 01-3160 15
reason for its employment action, the burden returns to
Grayson to demonstrate that the Service’s proffered rea-
son was pretextual. Id. In order to establish pretext a
plaintiff must demonstrate that an employer’s proffered
explanation for an employment decision is a dishonest
explanation, rather than merely an error. Kulumani v.
Blue Cross Blue Shield Ass’n, 224 F.3d 681, 685 (7th Cir.
2000).
We have frequently warned litigants that the prima
facie case must be established and not merely incanted.
Wells v. Unisource Worldwide, Inc., 289 F.3d 1001, 1006
(7th Cir. 2002); Coco v. Elmwood Care, Inc., 128 F.3d 1177,
1179 (7th Cir. 1997). Given this admonition, it is interest-
ing to note that nowhere in his brief does Grayson dis-
pute the Service’s claim that well over 100 agents in the
Chicago Field Office lodged complaints with the manage-
ment review team about Grayson’s heavy-handed, morale-
reducing, managerial style. Likewise, Grayson fails to
dispute the Service’s claim that it received numerous
complaints about Grayson’s solicitation of personal favors
from those whom he was charged with the duty to protect.
Given the magnitude and severity of the complaints,
Grayson has failed to establish that he was meeting his
employer’s legitimate expectations. Although Grayson
attempts to argue that his prior record demonstrates that
he was meeting the Service’s legitimate expectations, the
issue is simply whether he was meeting the Service’s
expectations at the time of the discharge. Brummett v. Lee
Enterprises, Inc., 284 F.3d 742, 745 (7th Cir. 2002). Grayson
also protests that the Service overreacted to the numer-
ous complaints regarding his behavior. But a public offi-
cial who solicits bribes and sexually harasses his sub-
ordinates cannot, by any stretch of the imagination, be
considered to be meeting his employer’s legitimate expec-
tations.
16 No. 01-3160
We disagree with Grayson’s contention that he can
establish a prima facie case of race discrimination be-
cause the Service applied its employment expectations
against him in a discriminatory manner. According to
Grayson’s theory, three white SAICs who had similar
sexual harassment complaints lodged against them by a
female subordinate were not subjected to an investigation
into matters beyond the sexual harassment complaint.
Thus, Grayson believes he was singled out for a racially
discriminatory investigation and argues that the em-
ployee complaints and other evidence uncovered by the
management review team are the fruits of a poisonous tree
and cannot be used as the basis for an adverse employ-
ment action. When a plaintiff produces evidence sufficient
to raise an inference that the employer applied its legiti-
mate expectations in a disparate manner, the second and
fourth prongs of McDonnell Douglas merge, allowing the
plaintiff to establish a prima facie case by establishing
that similarly situated employees were treated more fa-
vorably. See, e.g., Peele v. Country Mutual Ins. Co., 288
F.3d 319, 329-30 (7th Cir. 2002); Curry v. Menard, 270 F.3d
473, 478 (7th Cir. 2001); Johnson v. West, 218 F.3d 723, 733
(7th Cir. 2000); Flores v. Preferred Tech. Group, 182 F.3d
512, 515 (7th Cir. 1999).
To meet his burden of demonstrating that another em-
ployee is “similarly situated,” a plaintiff must demon-
strate that there is someone who is directly comparable
to him in all material respects. Patterson v. Avery Dennison
Corp., 281 F.3d 676, 680 (7th Cir. 2002); Greer v. Board of
Educ., 267 F.3d 723, 726 (7th Cir. 2001); Radue v.
Kimberly-Clark Corp., 219 F.3d 612, 618 (7th Cir. 2000).
In this inquiry, a “court must look at all relevant factors,
the number of which depends on the context of the case.”
Radue, 219 F.3d at 617.
In his attempt to find other SAICs who were similarly
situated, Grayson argues that three white male SAICs were
No. 01-3160 17
accused of sexual harassment or depressing morale.
According to Grayson, none of the three white SAICs was
the subject of an extensive management review, which he
believes demonstrates the Service treated him differently
because of his race. Grayson’s theory hinges upon his belief
that if the Service had only investigated Special Agent
Whalen’s complaint via telephone, rather than by sending
two fact-finders and conducting an open meeting in the
Chicago Field Office, that none of his nefarious and inap-
propriate actions would have surfaced. Grayson’s specula-
tion is completely without merit. When the fact-finders
came to Chicago, they were approached independently by
several agents who sought to voice complaints about
Grayson. No other SAIC, regardless of race, had been the
subject of so many embarrassing and offensive complaints
as Grayson, and Grayson identifies absolutely no evidence
in the record to suggest that it was the way in which the
fact finding was conducted, as opposed to his own shame-
ful conduct, that generated so many complaints.
In a last-ditch effort to preserve his appeal, Grayson
reaches out to find a similarly situated employee by again
raising the specter of the “Good Ol’ Boy Round-up” as
evidence that the Service condoned racism and singled out
African American SAICs for discriminatory treatment.
Grayson theorizes that an Assistant SAIC in another
office may have at some time participated in the Roundups
and that Director Bowron, who was the SAIC in Atlanta
at the time when the Roundups were in their heyday,
should have investigated and disciplined this unnamed
Assistant SAIC. Grayson’s speculation has no evidentiary
support. Contrary to Grayson’s claim that agents who
participated in the Roundups were never disciplined or
investigated, the record demonstrates that participation
by Service agents in the Roundups was thoroughly inves-
tigated by the Department of Justice and Department of
Treasury Inspector General’s Office and Congress. Gray-
18 No. 01-3160
son presented not a shred of evidence to suggest that
Director Bowron left any ASAIC who allegedly participated
in the Roundups undisciplined.
Grayson has failed to point out any other SAIC who was
the subject of more than 100 complaints ranging from
depressing morale to sexual harassment to soliciting
personal favors, and thus his attempt to locate a simi-
larly situated employee is futile. Because pointing to a
similarly situated employee who was treated more favor-
ably is an essential element of his prima facie case,
Grayson’s discrimination and constructive discharge claims
must fail.
Even if Grayson could establish a prima facie case, he
could not raise a genuine issue of material fact as to
whether his transfer and detail (and eventually the re-
quest for resignation) were pretextual. “A pretext for
discrimination means more than an unusual act; it means
something worse than a business error; pretext means
deceit used to cover one’s tracks.” Grube v. Lau Indus., Inc.,
257 F.3d 723, 730 (7th Cir. 2001) (internal quotations
omitted). To demonstrate pretext, Grayson must demon-
strate that the Service’s articulated reason for its actions
either: 1) had no basis in fact; 2) did not actually motivate
its decision; or 3) was insufficient to motivate its decision.
Velasco v. Illinois Dept. of Human Serv., 246 F.3d 1010,
1017 (7th Cir. 2001).
Grayson engages in mental gymnastics in an attempt
to convince us that the Service did not honestly believe,
based on the results of the investigation, that he was not
suited to manage the Chicago Field Office. For instance,
he quibbles that the Service’s assessment of his office’s
morale was erroneous because only 36 of 82 employees
complained of low morale, meaning that 56 did not. He
also suggests that several agents stated that they were
not intimidated by him, and thus the Service’s assess-
No. 01-3160 19
ment was erroneous. Lastly, Grayson characterizes his
solicitation of personal favors as a “petty reason.” But
in determining whether an employer’s proffered reason
for an employment action was pretextual, we are not
concerned with the correctness or desirability of reasons
offered for employment decisions, but rather the issue of
whether the employer honestly believes in the reasons
it offers. Wade v. Lerner New York, Inc., 243 F.3d 319,
323 (7th Cir. 2001). As we often comment, “the federal
anti-discrimination laws do not authorize judges to sit as
a kind of ‘super-personnel department’ weighing the
prudence of employment decisions,” and Grayson’s self-
serving quarrels with the legitimacy of the Service’s in-
vestigation cannot establish pretext. Gleason v. Mesirow
Financial, Inc., 118 F.3d 1134, 1139 (7th Cir. 1997).
Grayson fails to direct us to anywhere in the record to
suggest that the Service did not honestly believe, based
on more than 100 complaints from employees, former
employees, and citizens of the community Grayson pro-
tected, that Grayson engaged in behavior that war-
ranted removing him from his position as the SAIC of the
Chicago Field Office.
IV. Conclusion
Grayson engaged in a pattern of behavior that was
inappropriate, not to mention deplorable, for a Special
Agent in charge of a large field office. Well over 100 com-
plaints were lodged against him detailing his behavior, for
which he offers no excuses. In this appeal, Grayson again
shamelessly refuses to accept responsibility for his own
misguided activity and instead points the finger at those
who investigated him. As he has failed to present suf-
ficient evidence to demonstrate that he was meeting his
employer’s legitimate expectations, we AFFIRM the deci-
sion of the trial court.
20 No. 01-3160
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-25-02