Brewer, Lonnell v. Bd Trustees Univ IL

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1259
LONNELL BREWER,
Plaintiff-Appellant,
v.
BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 02-CV-2204—David G. Bernthal, Magistrate Judge.
____________
ARGUED SEPTEMBER 21, 2006—DECIDED MARCH 21, 2007
____________
Before BAUER, CUDAHY, and WOOD, Circuit Judges.
CUDAHY, Circuit Judge. This case concerns the cor-
rupt, Machiavellian world of permit parking at the Uni-
versity of Illinois’s Urbana-Champaign campus, and the
ill fortune of a student who became involved in it.
Lonnell Brewer claims that he was fired from his student
job at a University personnel office and subsequently
booted from a master’s degree program because one of his
supervisors at the personnel office, Kerrin Thompson,
failed to tell her supervisor that she had given Brewer
permission to park his car in a certain University parking
lot. Thompson kept silent about this, says Brewer, because
Brewer is black and she wanted him fired, putting the
University in violation of Titles VI and VII of the Civil
2 No. 06-1259
Rights Act of 1964. The University admits that Brewer
was fired for modifying a University parking tag, but
claims that his termination from the master’s program
was only for his poor academic performance and denies
that any decision attributable to it was motivated by race.
The district court granted the University summary judg-
ment on Brewer’s claims. Brewer appeals. We affirm.
I. Background
We begin by recounting Lonnell Brewer’s strange tale
of intrigue; because he appeals from a grant of summary
judgment we resolve all conflicts in the evidence and
draw all permissible inferences in his favor. Berger v.
AXA Network LLC, 459 F.3d 804, 806 (7th Cir. 2006).
Brewer’s career at the University of Illinois at Urbana-
Champaign started well enough. Already armed with a
bachelor’s degree in psychology, he enrolled in the Univer-
sity’s psychology Ph. D. program in the fall of 1995. After
completing two years of study he decided not to pursue the
Ph. D. and instead to transfer to the master’s degree
program at the University’s Institute of Labor and Indus-
trial Relations (ILIR). Upon transferring he received
merit-based financial aid and also an ILIR research
assistantship under which he would receive a stipend for
working ten hours each week at the University Personnel
Services Office (PSO).
Brewer alleges a complicated trail of causation that
leads back and forth between actors and events at these
two institutions. Consequently, our tale must jump back
and forth between the PSO and the ILIR to follow his
story.
A. Brewer’s Work at the PSO in Early Fall 1997
Brewer claims that his troubles began at the PSO with
one of his supervisors, Kerrin Thompson, assistant to PSO
No. 06-1259 3
Director Denise Hendricks (both of whom are white). In
early September, on the first day of his research assist-
antship, Brewer met with Thompson and learned that
he would be working on part of a large survey. They
discussed the requirements of the assistantship, among
them the time and dress expected (flexible hours to allow
Brewer to schedule interviews with prospective employers;
casual dress, with jeans specifically acceptable). Thompson
also explained where Brewer could park when working at
the PSO, a topic of eventual great importance. Brewer
says that Thompson gave him a temporary University
parking tag and
kind of gestured you can park here (indicating), park
there (indicating), and, you know, I was in her office so
I wasn’t really oriented as to where that meant, but
basically she pointed to all the different spots in the
building, so it was almost a 360 degree kind of gesture,
indicating to me that I could pretty much park any-
where at the PSO as long as I had my tag on my
mirror. (Brewer Dep. at 66.)
Trouble began to develop between Thompson and Brewer
on October 8 or 9, 1997, ostensibly when Thompson
learned that Brewer’s fiancee was white. From that point
on, Thompson’s “posture became noticeably and increas-
ingly hostile” (Brewer Dep. Ex. 14 at 5), and she did
things to embarrass Brewer and make working at the
PSO difficult for him. For instance, she would sometimes
go around the office asking if anyone knew where
Brewer was, even on days when he was not supposed to
be in the office, and she refused to let Brewer work off-site
to take advantage of software for the blind and dyslexic
that reads words aloud.1
1
Brewer suffers from a learning disability, but the record does
not contain evidence of its nature. The complaint states that
(continued...)
4 No. 06-1259
On October 13 or 14, Brewer received a warning from
Elyne Cole, the PSO’s Director of Employment Services
(who is black),2 about a “person who you think is your
friend” who was in fact an enemy. (Brewer Dep. Ex. 14 at
5.) Brewer pressed for more information. While she was
reluctant to talk at first, Cole eventually revealed that
Thompson was a racist and that Cole had overheard
Thompson saying disparaging things about Brewer, such
as that he lacked urgency about his work. Cole warned
Brewer that Thompson had a lot of influence with
Hendricks and urged Brewer to start recording the
times he was present and working at the PSO, even
though there was no formal requirement that he do so.
Brewer followed her advice, having a secretary verify and
sign his record.3
1
(...continued)
“[p]sychologists have concluded that Plaintiff ’s symptoms are
consistent with DSMIII-R diagnosis of Specific Developmental
Disorder—Not Otherwise Specified.” (Compl. ¶ 36.) Given the
nature of the accommodations Brewer sometimes sought, we
suspect that it may be similar to dyslexia, but we are not sure.
2
While Brewer was the only black student to ever hold the ILIR
research assistantship at the PSO, the PSO did, at the time, have
numerous other black employees.
3
In fact, Brewer did far more: he began to compose a lengthy
journal detailing events at the PSO and ILIR that he thought
indicative of racial animus against him. (Brewer Dep. at 91.) The
narrative was reconstructed after the fact using notes and
emails, and entries were not necessarily written contemporane-
ously with the events they reported. (Brewer Dep. at 93-94.)
Brewer offered this journal into the record and frequently cites
to it. (See Brewer Dep. Ex. 14.) Brewer affirmed that the
journal is a “true and accurate account of the events that
occurred at or near the times referenced therein,” but given the
irregular mode of its composition there might be an embedded
(continued...)
No. 06-1259 5
B. Brewer’s Studies at the ILIR in Early Fall 1999
Meanwhile, Brewer was beginning a very ambitious
program of study at the ILIR. Normally, students would
complete the ILIR program in three semesters; Brewer
hoped to complete the program more quickly through a
combination of an unusually demanding schedule, a waiver
of one requirement and summer courses. A student could
not enroll in more than four courses per semester with-
out an advisor’s permission, but Brewer persuaded his
advisor, Prof. Michael LeRoy, to permit him to enroll in
five courses for the Fall 1997 semester. Another one of
Brewer’s professors, Wallace Hendricks (husband to PSO
Director Denise Hendricks), urged Brewer not to do this,
saying that such a hectic schedule would not allow Brewer
to take full advantage of the program, especially in light of
the time he was scheduled to work at the PSO.
Brewer’s research assistantship at the PSO was awarded
and sponsored by the ILIR, and throughout the fall
semester there were signs that the ILIR faculty was aware
of Brewer’s performance in the assistantship, and more
specifically Thompson’s opinion of it. For instance, Profes-
sor Wallace Hendricks once told Brewer that Thompson
thought Brewer had missed a day of work and that he
should stop wearing jeans at work.
3
(...continued)
hearsay problem. See Fed. R. Evid. 803(5) (permitting into
evidence a written record “made or adopted by the witness
when the matter was fresh in the witness’s memory”). At any
rate, the University does not object to Brewer’s use of the
document and we therefore consider it as though it were testi-
mony.
6 No. 06-1259
C. Blown PSO Deadline in Late Fall 1997
Prof. Wallace Hendricks’s warning against the five-
course schedule turned out to be well-grounded. When the
Fall 1997 semester neared its end, the combination of five
classes, the PSO assistantship and additional extracur-
ricular activity worked Brewer to the bone, and the time
constraints he faced proved too demanding. When asked
early in the semester to pick a deadline for his portion of
the survey at the PSO, Brewer had chosen the final Friday
before finals week. He had thought that by completing
the project on that day he would be free to devote himself
to studying before and during his finals. But the deadline
came and his project was not quite ready. After speaking
with his project supervisor, Judy Baker, he agreed to
complete the project over the weekend and submit it on
Monday.
That same Friday, Thompson and Hendricks separately
spoke to Brewer about the missed deadline and what they
believed were other performance problems. Thompson
told Brewer that he lacked “initiative and motivation” and
had not been working enough; Brewer argued with her,
showing her his unofficial timesheet and saying he missed
the deadline because she did not let him use the off-site
dyslexia software. (Brewer Dep. Ex 14 at 6-7.) Later,
Brewer met with Hendricks, who said that she had talked
with ILIR Director Peter Feuille and was considering
terminating Brewer’s assistantship with Feuille’s sup-
port. She considered the blown deadline serious and
further reported that Thompson thought Brewer wasn’t
working his ten hours a week. Brewer offered to show
Hendricks his unofficial timesheet but she declined to
view it. She stated that she had been excited to have a
minority working at the PSO, but was “disappointed [by
the blown deadline] because the first thing I thought when
Kerrin [Thompson] told me was what a waste.” (Brewer
Dep. Ex. 14 at 7.)
No. 06-1259 7
On Monday, Brewer submitted his portion of the sur-
vey to Baker as arranged. When Hendricks saw the project
she was pleased with it and decided to keep Brewer on,
saying that she had suspected the project was in worse
shape than it was and acted hastily.
D. ILIR Finals in Late Fall 1997
Brewer’s end-of-semester time crunch was not yet over;
indeed, Brewer had been forced to split his focus between
studying and the PSO situation in the days before finals.
He had to ask Prof. LeRoy for extensions on take-home
papers in two different classes; LeRoy assigned penalties
on each paper. Brewer also received an extension without
penalty in a class under Professor Joseph Martoccio. All
of Brewer’s final exam grades were quite poor (for in-
stance, he wrote the lowest-graded exam in Prof. Wallace
Hendricks’s Quantitative Methods course). His overall
semester grades took a nosedive.
But inadequate preparation time wasn’t Brewer’s only
problem; he received word that his professors graded him
down because of his troubles at the PSO. One of Prof.
Wallace Hendricks’s TA’s informed Brewer that Hendricks
had “insisted on giving [Brewer] a C+ because of what
happened” there (Brewer Dep. Ex. 14 at 11), and Prof.
LeRoy told Brewer that his late-penalty was more severe
than normal in part because “your performance at the
PSO has somewhat called into question your credibility”
(Brewer Dep. Ex. 14 at 9).
Brewer finished the Fall 1997 semester with a GPA of
2.866. The minimum cumulative GPA expected of ILIR
students is 3.0. If a person goes two semesters with a
cumulative GPA of less than 3.0, they are generally
dropped from the master’s program. In January, Prof.
LeRoy, acting in his capacity as head of the On-Campus
8 No. 06-1259
Committee, wrote to inform Brewer of this danger and
recommend that he take a light, three-course schedule
next semester to improve his GPA. On January 23, 1998,
Feuille wrote Brewer to express his disappointment at
Brewer’s failure to complete the PSO project on time and
warn him that his work and academic trouble were both
caused by his excessive class load.
D. Parking Scandal and Firing from the PSO in Spring
1998
Brewer took only three classes in Spring 1998. He
still suffered at the PSO under Thompson, but he ex-
perienced no major work-quality crises like the blown
deadline at the end of the Fall 1997 semester.
Nonetheless, Brewer’s job was jeopardized by a strange
parking scandal. One day in early April, possibly April 13,
Brewer’s car was ticketed because the temporary park-
ing tag Thompson had given him at the start of the Fall
semester broke and fell off his rearview mirror. The tag
was hand-written and purported to grant permission to
park in either the E7 (PSO) or the C8 (ILIR) lots. Brewer
basically admits that he wrote the C8 lot permission on
the tag himself, without anyone’s explicit permission to
do so.4 Brewer took the tag to University parking services
to have it replaced, but a clerk looked up the PSO’s
application for the tag and discovered that it contained
inaccurate information. Parking services suspected that
Brewer was not entitled to park anywhere at all, and
4
To be more hair-splitting, Brewer admits that he “may” have
written “C8” on the tag and that the tag did not say “C8” when
Thompson gave it to him. (Brewer Dep. at 66-67.) In his journal,
Brewer stated that he wrote “C8”on the tag because Thompson
“neglected” to do so. (Brewer Dep. Ex. 14 at 15.)
No. 06-1259 9
issued him another temporary parking tag pending fur-
ther investigation.
When Brewer arrived at work the next day, he went
to speak with Thompson about the parking tag. As soon as
he entered her office she announced: “I know what you
did.” (Brewer Dep. Ex. 14 at 15.) Irate, Thompson ex-
plained that Brewer was indeed not supposed to have a
parking tag and that he should not have gone to parking
services. She said that the PSO “trust[s] me to give
parking tags to the type of people that can be trusted”
(Brewer Dep. Ex. 14 at 16), and that she had lied on the
application to get Brewer a tag. Brewer’s indiscretion
could cost him his job, as Hendricks had already talked
to the ILIR about the incident.
Brewer reminded Thompson that she had told him to
park anywhere and a heated argument erupted, during
which Thompson became quite upset. She stated that she
was “through with you people” and that Brewer was “a
smart one.” (Brewer Dep. Ex. 14 at 16.) She ordered
Brewer to retrieve the troublesome parking tag; when he
turned to leave her office she yelled, “I have had it with
you nigger, get my tag!” (Brewer Dep. Ex. 14 at 17.)
Some time later, Brewer went to speak with Hendricks.
She told him that “I and I alone have decided to terminate
your assistantship.” (Brewer Dep. Ex. 14 at 18.) Although
the parking tag issue did not merit termination in the
abstract, Hendricks said the PSO had a “special relation-
ship” with parking services and feared that she would
lose “parking flexibility” unless she fired someone. If the
“special relationship” fell apart, the PSO would have to
pay an additional one thousand dollars a year for the
parking it was currently using. (Brewer Dep. at 77; id. Ex.
14 at 18.)
Brewer told Hendricks that Thompson gave him permis-
sion to park in the C8 lot. He also said that Thompson
10 No. 06-1259
could not be trusted to confirm this because she was a
racist and wanted him fired, relating the things Thompson
had said in their meeting. Hendricks replied that she
didn’t know whether Thompson had said such things to
Brewer, but that at any rate it was an issue solely between
Thompson and Brewer. Because Brewer admitted to tak-
ing the altered tag to parking services, he should be fired.
Because it will prove important, we also set out
Hendricks’s testimony concerning the parking scandal.
Hendricks claimed she fired Brewer for “adulterating” the
parking tag. (Hendricks Dep. at 35.) Thompson told her
parking services was upset because Brewer wrote “C8” on
the tag, and she decided to fire Brewer after inspecting
the tag and verifying the addition for herself. She did not
talk to Brewer before reaching her decision and in fact
never talked to him about the parking fiasco at all. She
testified that if Brewer had told her that Thompson told
him to add “C8” to the tag, that “would have led to further
conversation.” (Id. at 49.) If Brewer had told her about
Thompson’s racist language, she would have taken that
very seriously. When asked whether such language would
give her reason to distrust Thompson with regard to
Brewer, she replied, “I think I would have very great
difficulty in answering that question. It has too many
components to it, and that would be one that I would have
to deal with the facts of the situation.” (Id. at 66.)
Brewer was fired from the PSO effective April 21, 1998.
The ILIR terminated his research assistantship and the
financial aid that went with it that same day.
E. Termination from the ILIR Program in Spring 1998
Although Brewer limited himself to three classes in the
Spring semester, his cumulative GPA at the end of the
semester was 2.959, still short of the required 3.0. ILIR
No. 06-1259 11
policy dictates that students with a cumulative GPA of
less than 3.0 after two semesters should be dropped from
the program absent “extraordinarily compelling circum-
stances.” (Brewer Dep. Ex. 13 at 1.) ILIR Director Feuille
applied the rule and gave Brewer the boot. Prof. LeRoy
later told Brewer that the On-Campus committee recom-
mended to Feuille that Brewer be retained because his
poor grades were the result of his heavy workload rather
than a reflection of poor ability; however, Director Feuille
rejected its recommendation “based on the incident at the
PSO.” (Brewer Dep. Ex. 14 at 23.)
F. Legal Action
Brewer then brought the present action against the
University, arguing, among other things, that he was fired
from the PSO because of his race, in violation of Title VII
of the Civil Rights Act of 1964, that he was dropped from
the ILIR program because of his race, in violation of Title
VI, and that PSO employees said unfavorable things about
him to ILIR faculty in retaliation for his complaints about
Thompson’s racism, in violation of Title VII. The Univer-
sity moved for summary judgment. In response, Brewer
argued both that the evidence established a prima facie
case for all three of his claims under the burden-shifting
McDonnell-Douglas framework, and that even without
the benefit of McDonnell-Douglas a jury could still rea-
sonably believe that his firing and termination from the
master’s program had been racially motivated. He noted
that Hendricks, Fueille and others frequently made
reference to his race, which he claimed showed that the
University held black students and employees to higher
standards than others. Alternately, he argued, a jury
could conclude that Thompson’s failure to reveal that she
told Brewer to park anywhere was responsible for every-
thing; her silence got Brewer fired and the firing got
12 No. 06-1259
Brewer dropped from the master’s program. The district
court granted summary judgment to the University.
Brewer now appeals.
II. Discussion
We review the district court’s grant of summary judg-
ment de novo. Kampmier v. Emeritus Corp., 472 F.3d 930,
936 (7th Cir. 2007). Summary judgment is appropriate
where the evidence “show[s] that there is no genuine
issue as to any material fact and that the moving party
is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c); Kampmier, 472 F.3d at 936. There is no genuine
issue of material fact when no reasonable jury could find
in favor of the nonmoving party. Paz v. Wauconda
Healthcare & Rehab. Ctr., LLC, 464 F.3d 659, 664 (7th Cir.
2006), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986); Yindee v. CCH Inc., 458 F.3d 599, 601 (7th Cir.
2006).
A. Title VII: Firing from the Personnel Services Office
First, Brewer claims that his firing from the PSO
violated Title VII of the Civil Rights Act of 1964. Among
other things, Title VII makes it unlawful for “an
employer . . . to discharge any individual, or otherwise to
discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employ-
ment, because of such individual’s race.” 42 U.S.C.
§ 2000e-2(a)(1). Acting “because of race” means acting with
a racially discriminatory reason in mind. Jordan v. City
of Gary, 396 F.3d 825, 832 (7th Cir. 2005); Hildebrandt
v. Ill. Dept. of Natural Resources, 347 F.3d 1014, 1029
(7th Cir. 2003).
A plaintiff can avoid summary judgment in two ways:
the burden-shifting method first established in McDonnell-
No. 06-1259 13
Douglas Corp. v. Green, 441 U.S. 792, 802 (1973), often
called the “indirect” method of proof, or the conventional
method of presenting a “convincing mosaic” of direct or
circumstantial evidence that could permit a reasonable
jury to conclude that the employer acted with discrimina-
tory intent, often called the “direct” method of proof.5
Jordan, 396 F.3d at 831-33. Brewer seeks to proceed using
both methods of proof.
1. Indirect Method of Proof
Under the indirect method of proof, the defendant
seeking summary judgment must offer a legitimate,
nondiscriminatory reason for its actions once the plaintiff
makes out a prima facie case of discrimination. Burks v.
Wis. Dept. of Transp., 464 F.3d 744, 750-51 (7th Cir. 2006).
To make out a prima facie case, Brewer must show that (1)
he was a member of a protected class, (2) he was qualified
for his position at the PSO and met the PSO’s legitimate
expectations, (3) he suffered an adverse employment action
(that is, an unfavorable material change in the terms,
conditions, or privileges of his employment), and (4)
similarly-situated non-class members were treated more
favorably than he. Id. If a prima facie case has been shown
and the defendant offers a nondiscriminatory reason for
its actions, the burden shifts back to the plaintiff to
demonstrate that the suggested reason is mere pretext
for discrimination. Id.
5
While the terms “direct” and “indirect” are often used without
trouble, they sometimes cause confusion when litigants believe
that the “direct” method of proof permits consideration only of
direct evidence—that is, testimony concerning an employer’s
open admission of discriminatory intent—and not circum-
stantial evidence. See, e.g., Rogers v. City of Chicago, 320 F.3d
748, 754 (7th Cir. 2003).
14 No. 06-1259
In the present case, it doesn’t matter whether Brewer
has presented a prima facie case; the University has
offered a legitimate, nondiscriminatory reason for his
firing (the parking scandal), and Brewer’s argument that
this reason was not in fact nondiscriminatory will be
addressed below in connection with the direct method of
proof. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502,
510-11 (1993) (holding that once a defendant comes
forward with a nondiscriminatory reason for its actions,
the McDonnell-Douglas framework “simply drops out of
the picture”); Nawrot v. CPC Intern., 277 F.3d 896, 906
(7th Cir. 2002); King v. Preferred Technical Group, 166
F.3d 887, 893 (7th Cir. 1999). Even if the prima facie case
were important, Brewer makes no effort to show that
any other employee stood accused of anything similar to
missing an important deadline or committing a parking
indiscretion, and consequently has failed to show that
he was treated worse than a similarly situated employee
who was not black. Humphries v. CBOCS West, Inc., 474
F.3d 387, 404-07 (7th Cir. 2007); Hull v. Stoughton Trail-
ers, LLC, 445 F.3d 949, 952 (7th Cir. 2006).6
6
Brewer also argues for the first time on appeal that he was
treated worse than a similarly situated non-black person because
he was “replaced” by a non-black person. See Steinhauer v.
DeGolier, 359 F.3d 481, 484 (7th Cir. 2004), citing Mills v. Health
Care Serv. Corp., 171 F.3d 450, 454 (7th Cir. 1999); Leffel v.
Valley Fin. Servs., 113 F.3d 787, 793 (7th Cir. 1997). The
argument is forfeited. Jarrard v. CDI Telecommunications, Inc.,
408 F.3d 905, 916 (7th Cir. 2005). Even if it were not, it is
doubtful that Brewer was “replaced” for purposes of a prima
facie case, since no one took over Brewer’s job before his
assistantship would have expired anyway in the normal course
of events.
No. 06-1259 15
2. Direct Method of Proof
Because Brewer does not succeed under the indirect
method of proof, we move on to the direct. Brewer’s first
argument here is that Hendricks subjected him to height-
ened scrutiny because he was black, observing that
Hendricks frequently mentioned Brewer’s race and in
particular often noted that he was the first African-
American male to hold the ILIR research assistantship at
the PSO. But while superficially neutral comments about
an employee’s race might suggest racial animus in an
incriminating context, see, e.g., Phaup v. Pepsi-Cola Gen.
Bottlers, Inc., 761 F. Supp. 555, 564 (N.D. Ill. 1991),
Brewer offers no reason to think Hendricks’s comments
were anything but positive. To the contrary, Hendricks
said she “was excited to have a minority” in the
assistantship (Brewer Dep. Ex. 14 at 2) and wanted to see
minorities succeed (Id. at 7, 10). Brewer also claims
that a later remark by Feuille that Brewer’s poor perfor-
mance had “ruined it for everyone else” indicates that
Hendricks had decided to never again hire a black research
assistant, but it would be pure speculation to conclude that
the comment refers to race. (Brewer Dep. at 89.) Feuille
was concerned that poor student performance might lead
the PSO to discontinue the research assistantship program
(as it eventually did, though apparently not because of
Brewer). No jury could conclude that Hendricks was
herself biased against Brewer because of his race.
This leaves Brewer’s argument that the University
violated Title VII because Thompson, acting for racial
reasons, got Brewer fired by failing to reveal to Hendricks
that she told Brewer he could park anywhere. Thompson’s
remarks to Brewer would clearly permit a jury to con-
clude that she acted as she did for racial reasons. See, e.g.,
Hemsworth v. Quotesmith.Com, Inc., 476 F.3d 487, 491
(7th Cir. 2007) (distinguishing “stray remarks” from
relevant racial comments). Thompson did not “discharge”
16 No. 06-1259
Brewer, so no liability could arise on that score. 42 U.S.C.
§ 2000e-2(a)(1). But Title VII also prohibits “discrim-
inat[ing] against any individual with respect to his terms,
conditions, or privileges of employment.” Id. Courts limit
that language to reach only material, sufficiently im-
portant alterations of the employment relationship (often
referred to as “adverse employment actions”). Minor v.
Centocor, Inc., 457 F.3d 632, 634 (7th Cir. 2006); see also
O’Neal v. City of Chicago, 392 F.3d 909, 911 (7th Cir.
2004) (listing types of “adverse employment actions” that
can give rise to a Title VII violation).
In and of itself, whether other employees speak ill or
spread rumor about one is not a very important aspect of
one’s employment, so long as such behavior is not severe or
pervasive. Lucas v. Chicago Transit Authority, 367 F.3d
714, 731 (7th Cir. 2004); Hilt-Dyson v. City of Chicago, 282
F.3d 456, 466 (7th Cir. 2002); Smart v. Ball State Univ., 89
F.3d 437, 442 (7th Cir. 1996). But in the right
context—a performance review, for instance—what one
employee says or doesn’t say about another will control an
employee’s wages and chances for promotion, or may
even get an employee fired. Consequently, we have held
that where an employee without formal authority to
materially alter the terms and conditions of a plaintiff ’s
employment nonetheless uses her “singular influence” over
an employee who does have such power to harm the
plaintiff for racial reasons, the actions of the employee
without formal authority are imputed to the employer
and the employer is in violation of Title VII. Rozskowiak
v. Village of Arlington Heights, 415 F.3d 608, 613 (7th Cir.
2005), citing Hunt v. City of Markham, Ill., 219 F.3d 649,
653 (7th Cir. 2000). In some situations, the influence can
be exercised by supplying misinformation or failing to
provide relevant information to the person making the
employment decision. See, e.g., David v. Caterpillar, Inc.,
No. 06-1259 17
324 F.3d 851, 861 (7th Cir. 2003); Wallace v. SMC Pneu-
matics, Inc., 103 F.3d 1394, 1400 (7th Cir. 1997).
In the present case, a jury could conclude that Thompson
withheld relevant information from Hendricks, and as
a result had some influence over Hendricks’s decision to
fire Brewer. A jury would have trouble doing so if it chose
to believe Brewer’s account of the parking scandal. Thomp-
son could have told Hendricks that Brewer’s modification
of the parking tag was an honest mistake, but according
to Brewer Hendricks did not fire him because he was
dishonest or broke the parking rules. Indeed, the PSO
itself was cheating University parking services out of a
thousand dollars a year. Hendricks fired Brewer simply
because someone had to be fired to keep parking services
from looking too closely at the PSO’s tag applications.
Brewer was the natural choice: the incriminating parking
tag was his, and as a student research assistant the
PSO would have to replace him in a few months anyway.
Given the cynical but non-racial motive Brewer ascribes
to Hendricks it was irrelevant where Thompson told
Brewer to park, and Thompson’s failure to reveal the facts
did not affect Hendricks’s decision.
Ironically, the jury could find Thompson affected the
decision if it believed Hendricks’s version of events.
Hendricks claims she fired Brewer for dishonestly alter-
ing his parking tag and suggested that she might have
changed her mind if the alteration were an honest mis-
take. The jury could believe that the alteration was an
honest mistake, that Thompson knew it and that she failed
to tell Hendricks. If that is the case, Thompson had
influence over Brewer’s firing; if she had talked, it might
not have happened.
But it is not enough just to have some minimal amount
of influence; did Thompson have the “singular influence”
required by Rozskowiak? For a nominal non-decision-
18 No. 06-1259
maker’s influence to put an employer in violation of Title
VII, the employee must possess so much influence as to
basically be herself the true “functional[ ] . . . decision-
maker.” Little v. Ill. Dept. of Revenue, 369 F.3d 1007, 1015
(7th Cir. 2004). The nominal decision-maker must be
nothing more than the functional decision-maker’s “cat’s
paw.” Shager v. Upjohn Co., 913 F.2d 398, 403 (7th Cir.
1990). A good example of such a degree of influence (and
one which will offer a revealing comparison to the present
case) is where the party nominally responsible for a
decision is, by virtue of her role in the company, totally
dependent on another employee to supply the informa-
tion on which to base that decision. In such a case the
employee that selects, colors and supplies the informa-
tion has such power over the nominal decision maker
that she is in fact the true, functional decision maker.
Mere “paper review” of the informer’s recommendation will
not shield the employer from liability if her recommenda-
tion is racially motivated. Gusman v. Unisys Corp., 986
F.2d 1146, 1147 (7th Cir. 1993); see also David, 324 F.3d
at 861 (holding that liability can be based on the bias of
employees who have the duty to recommend other employ-
ees for promotion, where the decision maker said he
“received the necessary information” for decisions from
those recommending employees); Thorn v. Sundstrand
Aerospace Corp., 207 F.3d 383, 387 (7th Cir. 2000) (describ-
ing “perfunctory” review by an internal committee that
asked limited questions of the recommender and suggest-
ing that the committee was “a liability shield invented by
lawyers”); Shager, 913 F.2d at 403 (describing “brief,
perfunctory” deliberations of a committee “apt to defer to
the judgment” of an employee’s immediate supervisor in
making employment decisions).
By contrast, where a decision maker is not wholly
dependent on a single source of information, but instead
conducts its own investigation into the facts relevant to the
No. 06-1259 19
decision, the employer is not liable for an employee’s
submission of misinformation to the decision maker. Byrd
v. Ill. Dept. of Public Health, 423 F.3d 696, 708 (7th Cir.
2005); Willis v. Marion County Auditor’s Office, 118 F.3d
542, 547 (1997). It does not matter that in a particular
situation much of the information has come from a single,
potentially biased source, so long as the decision maker
does not artificially or by virtue of her role in the company
limit her investigation to information from that source. For
instance, we have frequently dealt with employees that
claim they were framed for misconduct by a racist co-
worker or superior, which caused the employee in question
to be fired. Even though the employer in such situations
must often decide what to do based on nothing more than
the conflicting stories of two different employees, the
employer will not be liable for the racism of the alleged
frame-up artist so long as it independently considers both
stories. Lucas v. Chicago Transit Authority, 367 F.3d 714,
730 (7th Cir. 2004); Alexander v. Wis. Dept. of Health and
Family Servs., 263 F.3d 673, 685-86 (7th Cir. 2001); Eiland
v. Trinity Hosp., 150 F.3d 747, 753 (7th Cir. 1998); Willis,
118 F.3d at 547-48.
In Eiland, for instance, the plaintiff nurse was fired
after a staff physician reported that she injected a preg-
nant woman with a measles-mumps-rubella vaccine
without following proper procedure. The plaintiff sued,
claiming that the staff physician had racial animus against
her and had made the report to get her fired. We held that
even assuming the staff physician had made the story up,
there had still been no violation of Title VII. The supervi-
sor who fired her acted only after reading the staff physi-
cian’s incident report, speaking with another supervisor
and confronting the plaintiff herself with the allegations.
The supervisor had thus “acted independently and only
after she evaluated the circumstances, including [the
plaintiff ’s] version.” Id. at 753.
20 No. 06-1259
We confronted a similar situation in Willis, where the
plaintiff Willis was fired after tardily processed invoices
were repeatedly found in her files. 118 F.3d at 544-45.
Willis claimed that her supervisor, Conklin, bore racial
animus against her and had planted the invoices to get her
fired. Conklin’s supervisor, Mizen, sent Willis a memoran-
dum requesting more detail or other information support-
ing her claims against Conklin. Willis did not provide any.
She was reprimanded and eventually fired. Id. Willis
sued, claiming that Conklin had violated Title VII by
planting the files. We held that no rational jury could have
found that Mizen acted as Conklin’s “cat’s paw” or “rubber
stamp.” Mizen’s “proactive involvement” in investigating
the circumstances surrounding the invoices, including
a “serious[ ]” investigation of Willis’s allegations, were
sufficient to absolve the employer of liability for Conklin’s
frame-up. Id. at 547-48.
Brewer’s case is not distinguishable from these cases
in which an independent investigation absolves the
employer of liability. Though Thompson, as Hendricks’s
assistant, might have effective control over some of
Hendricks’s decisions, the decision to fire Brewer was not
one of them. Hendricks listened to the information Thomp-
son relayed to her but did not simply rely on it. Instead,
she examined the parking tag herself and confirmed that
it had been altered. True, Hendricks did not investigate
the possibility that Thompson was holding back relevant
information, but according to Hendricks, and unlike in
Willis, Brewer never claimed that Thompson was hold-
ing anything back. No one has suggested that Brewer
was unable to bring such a claim to Hendricks’s attention,
and until he did so Hendricks had no reason to suspect
that there were additional relevant facts that she had not
investigated. Cf. Farragher v. City of Boca Raton, 524 U.S.
775, 807 (1998) (holding that an employer is not liable
for an employee’s sexual harassment where the plaintiff
No. 06-1259 21
failed to take advantage of corrective opportunities, such
as a complaint procedure); Jackson v. County of Racine,
474 F.3d 493, 502 (7th Cir. 2007); Erickson v. Wis. Dept. of
Corr., 469 F.3d 600, 604-09 (7th Cir. 2006). Hendricks
therefore conducted an independent investigation that
absolved the University of liability for any deception on
Thompson’s part.
Although Brewer has not brought the relevant cases to
our attention, our approach to Title VII cases involving an
employee’s influence over a decision maker has not always
been completely clear. Our opinions have sometimes
suggested that not only significant influence, but any
influence over an employment decision is sufficient to
impose Title VII liability on an employer. Many such
instances simply involve imprecise language. See, e.g., Sun
v. Bd. of Trustees of Univ. of Ill., 473 F.3d 799, 813-14 (7th
Cir. 2007) (holding that a recommendation can “taint”
multiple levels of administrative review); Dey v. Colt
Constr. & Dev. Co., 28 F.3d 1446, 1459 (7th Cir. 1994)
(holding that a subordinate’s discriminatory animus
must “affect[ ]” the decision). But a few instances clearly
involve more than loose language. For instance, Lust v.
Sealy openly rejected the view that an employee’s limited
“influence” is “not enough to impute the discriminatory
motives of the subordinate to the supervisor.” 383 F.3d
580, 584 (7th Cir. 2004). “If [the decision-maker] would not
have turned down [the plaintiff] for the promotion had
it not been for [a nominal subordinate’s] recommenda-
tion . . . then [the nominal subordinate’s] sexism was a
cause of [the plaintiff ’s] injury, whether or not [the
decision-maker] could reasonably be thought a mere
cat’s paw.” Id.
These dicta are doubtful. They are at odds with numer-
ous cases in which we have upheld summary judgment
despite a racist employee’s potential but slight influence
22 No. 06-1259
over an employment decision. See, e.g., Rozskowiak, 415
F.3d at 613 (upholding summary judgment where an
allegedly biased employee was on a seven-member commit-
tee that recommended the plaintiff ’s firing); Cerutti v.
BASF Corp., 349 F.3d 1055, 1063 (7th Cir. 2003) (uphold-
ing summary judgment where two allegedly biased em-
ployees were members of an employee selection commit-
tee); Maarouf v. Walker Mfg. Co., 210 F.3d 750, 754-55
(7th Cir. 2000) (upholding summary judgment where a
biased manager was one of several managers reporting
unfavorably on the plaintiff ’s work).
Even if we were to assume that a lesser degree of
influence over an employment decision might trigger Title
VII liability in other contexts, such as the context of a
regularized, formal performance evaluation, we do not
think that such an approach can affect the outcome in a
case like this that concerns an employee’s discipline for
particular misconduct. The line of cases addressing this
particular situation is univocal, and indicates that even
where a biased employee may have leveled false charges
of misconduct against the plaintiff, the employer does not
face Title VII liability so long as the decision maker
independently investigates the claims before acting.
Requiring only an independent investigation of miscon-
duct charges makes good sense in light of the practical
realities that an employer often faces when addressing
such charges. Title VII is informed by traditional princi-
ples of agency law, see 42 U.S.C. § 2000e-2(a)(1),
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 754-55
(1998); Faragher v. City of Boca Raton, 524 U.S. 775, 791-
92 (1998), but those principles should be applied in light
of the practical reasons for imposing liability on em-
ployers. Faragher, 524 U.S. at 797; see also Burlington
Indus., 524 U.S. at 755 (holding that “common-law princi-
ples may not be transferable in all their particulars to
Title VII”). Title VII’s primary objective is “not to provide
No. 06-1259 23
redress but [to] avoid harm” by giving employers an
incentive to control their employees. Erickson v. Wis. Dept.
of Corr., 469 F.3d 600, 605-06 (7th Cir. 2006); see also
Burlington Indus., 524 U.S. at 764 (“Title VII is designed
to encourage the creation of antiharassment policies and
effective grievance mechanisms.”). Consequently, employ-
ers should be liable for their employees’ racism only in “the
general class of cases in which [an employer] has the
practical ability to head off injury to [its] employee’s . . .
victim.” Shager, 913 F.2d at 405. Imposing liability for
employee wrongs that an employer could not practically
prevent (that is, could prevent only with prohibitive
expense or through unreasonable efforts) would not
induce employers to impose additional controls on its
employees and would therefore not be effective to avoid
any harm.
In cases like the present one, there is probably no
practical step an employer can take beyond independently
investigating the misconduct charges that will reduce the
chances of an employee’s racism influencing its behavior.
When an employee is accused of wrongdoing by another,
the key evidence for an employer (and the courts) to
consider will often be the mere say-so of two employees,
one of whom claims the other is a lying racist. Such a
case is a model “swearing contest.” The best way the
courts can find to deal with such puzzles is to empanel a
jury and hope for the best; it might be too demanding to
expect an employer to do more than have an employee
conduct a fair-minded, independent investigation into
the available evidence and then make a decision in good
faith.
Title VII’s agency principles do not counsel in favor of
imputing Thompson’s acts to the University where the
University has investigated the claim that Brewer dishon-
estly modified the parking tag, including all arguments
24 No. 06-1259
Brewer made to the University that his mistake was
innocent (according to Hendricks’s account, he made none),
and has otherwise taken all reasonable steps to prevent
Thompson’s actions from affecting Brewer’s employment.
A reasonable jury could not find that the University
intentionally discriminated against Brewer in firing him
from the PSO, and summary judgment on this claim
was appropriate.
B. Title VI: Termination from the ILIR Master’s Degree
Program
Second, Brewer claims that he was dropped from the
ILIR master’s program because of his race, in violation of
Title VI of the Civil Rights Act of 1964. Title VI provides
that “[n]o person in the United States shall, on the ground
of race, color, or national origin, be excluded from partici-
pation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving
Federal financial assistance.” 42 U.S.C. § 2000d. The
master’s program was receiving federal money, so to
avoid summary judgment Brewer must present evidence
sufficient to permit a reasonable jury to conclude that the
University dropped him for a racial reason. Alexander v.
Sandoval, 532 U.S. 275, 280 (2001) (holding that Title VI
prohibits only intentional discrimination); City of Chicago
v. Lindley, 66 F.3d 819, 828 (7th Cir. 1995) (same). Brewer
seeks to use both the indirect and direct methods of proof.
1. Indirect Method of Proof
Under the indirect method, Brewer contends that the
circumstances surrounding his termination constitute a
prima facie case that Director Feuille acted for racial
reasons. The elements of a prima facie case are the same
under both Title VI and VII. Paul v. Theda Medical Ctr.,
No. 06-1259 25
Inc., 465 F.3d 790, 794 (7th Cir. 2006); Fuller v. Rayburn,
161 F.3d 516, 518 (8th Cir. 1998). Adjusting terms for the
educational context, that means membership in a protected
class, meeting the school’s legitimate educational expecta-
tions, an adverse educational action and worse treatment
than that of similarly situated students not in the pro-
tected class. Byrant v. Independent Sch. Dist. No. I-38 of
Garvin County, OK, 334 F.3d 928, 930 (10th Cir. 2003);
Hankins v. Temple Univ. (Health Sciences Ctr.), 829 F.2d
437, 440-43 (3d Cir. 1987).
Brewer’s case again falls apart because of a failure to
locate a similarly situated individual. Brewer had a
cumulative GPA of 2.959 after two semesters, meaning
that he had to be dropped from the program absent
extraordinarily compelling circumstances. Most of the
faculty could not remember any time when a student with
numbers like Brewer’s was retained in the program.
Director Feuille vaguely remembered a time that an Asian-
American student with a below-3.0 GPA was retained
because of extraordinarily compelling circumstances,
namely that her GPA was caused by her reliance on the
“advice of a faculty member about, all right, if you do A
and B, then you’ll be okay. Well, she did A and B. I don’t
remember what A and B were.” (Feuille Dep. at 33.)
Brewer claims that he is similarly situated to this student
because his GPA was caused by Professor LeRoy’s permis-
sion to take five courses. But although LeRoy was Brewer’s
“advisor,” he did not advise Brewer to take five courses. No
one did; on the contrary, everyone warned him that taking
five courses was unusual and dangerous. The distinction
is obviously relevant to the decision whether to permit
Brewer to remain in the program. Hull, 445 F.3d at 952. In
one case, the student is misled and unfairly deprived of an
informed chance to complete the program; in Brewer’s
case, the student is adequately warned of the risks of his
course of action (inadequate time to study the material),
26 No. 06-1259
and then seeks to be excused from the consequences
(ignorance of the material and bad grades) when the risk
comes to pass.
Brewer also contends he is similarly situated to the
Asian-American student in that her GPA was the result of
mistaken advice and his termination was the result of
Hendricks’s mistaken belief that Brewer’s alteration of the
parking tag was not innocent (remember, Brewer claims
that Feuille would not have dropped him were it not for
the parking fiasco at the PSO). The two “mistakes” are
obviously nothing like one another, and the mere fact that
one can use the highly flexible, amorphous term “mistake”
to refer to both does not make the role they would play
in a termination decision any more alike. Brewer has not
made out a prima facie case.
2. Direct Method of Proof
Brewer also contends that he has met his burden of
production without the aid of the burden-shifting analysis.
His chief argument is parasitic on his Title VII firing
claim: Feuille terminated him because of what Hendricks
told him about the PSO firing, and that as Thompson’s
racism infected Hendricks’s decision, so it infected
Feuille’s. But the argument fails for the reasons already
noted in connection with the Title VII claim based on the
PSO firing: Hendricks’s independent investigation of the
parking scandal absolved the University of any liability
for Thompson’s misleadingly incomplete information. It
may have been against University policy for Feuille to
consider Brewer’s PSO work in deciding whether or not to
retain him in the program, but Title VI does not create
liability for any decision that violates a University policy,
only for decisions that violate Title VII’s policy against
racism. We have frequently remarked that we are not a
super-personnel board charged with evaluating the general
No. 06-1259 27
quality of employment decisions, see Ptasznik v. St. Joseph
Hosp., 464 F.3d 691, 697 (7th Cir. 2006), and we are
equally not a super-enrollment committee. A jury could
find no racism here.
Brewer has another argument, not parasitic on his
Title VII claim but similar to it, that Thompson’s mislead-
ing portrayal of and attempts to sabotage his PSO work
drove down his Fall 1997 grades and rendered him eligible
to be dropped by Feuille a semester later. Brewer received
word that two of his Fall grades were adversely affected
by the events at the PSO, and claims that a reasonable
jury could conclude that if it weren’t for Thompson’s racist
desire to ruin him his cumulative GPA by the end of the
Spring 1998 semester would have been above 3.0, the
program’s minimal requirement.
As this argument is similar to his Title VII argument,
however, it again fails for the same reason: while Thomp-
son may have had some influence over Brewer’s Fall 1997
grades, she did not have the singular degree of influence
required to make her functionally responsible for Brewer’s
grades. Rozskowiak, 415 F.3d at 613; Little, 369 F.3d
at 1015. Her meddling at the PSO was at best only a slight
input into Brewer’s Fall 1997 grades (among other im-
portant factors would be the professors’ evaluation of the
quality of Brewer’s work throughout the semester), and
Thompson’s influence over events at the PSO itself was
only partial. This limited influence is not enough to subject
the University to liability for Thompson’s actions.
Rozskowiak, 415 F.3d at 613; Cerutti, 349 F.3d at 1063.
Finally, Brewer again argues that neutral or positive
references to Brewer’s race, as well as Feuille’s comment
about how Brewer had “ruined it for everyone else,” show
that black students were held to a higher standard than
other students, but again the argument fails because
Brewer provides no suspicious context from which a
28 No. 06-1259
reasonable jury could conclude that the neutral or posi-
tive references to race in fact masked negative racial
attitudes. He also points to some non-rigorous statistical
evidence that he suggests shows a history of racist enroll-
ment decisions at the ILIR, but it does not without more
add up to a picture that could convince a reasonable jury
of racism. Adreani v. First Colonial Bankshares Corp., 154
F.3d 398, 399-400 (7th Cir. 1998). The district court
was correct to grant summary judgment on Brewer’s Title
VI claim.
C. Title VII Retaliation: Communications From the
PSO to the ILIR
Brewer’s final claim is that Hendricks and others at the
PSO violated Title VII by making “vague, inaccurate and
unfavorable communications” to ILIR faculty in retaliation
for his complaints about Thompson’s racism. Title VII
makes it unlawful for an “employer to discriminate against
any of his employees . . . because he has opposed any
practice made an unlawful employment practice by this
subchapter.” 42 U.S.C. § 2000e-3(a). Brewer seeks to
proceed only under the indirect method of proof. To do so,
Brewer must first make out a prima facie case of retalia-
tion by showing that (1) he complained about Thompson’s
racism, (2) he was subjected to an adverse employment
action, (3) he was meeting the PSO’s legitimate perfor-
mance expectations, and (4) he was treated worse than a
similarly situated employee that did not complain of
discrimination. Little, 369 F.3d at 1011; Rogers v. City
of Chicago, 320 F.3d 748, 754-55 (7th Cir. 2003).
Brewer’s claim is a little mysterious. According to what
Brewer claims both Thompson and Hendricks told him,
Brewer only complained to Hendricks about Thompson’s
racism after Hendricks had already told the ILIR about the
parking scandal and her decision to fire Brewer. It seems
No. 06-1259 29
doubtful, therefore, that any later “vague, inaccurate and
unfavorable communications” could have critically affected
Brewer’s reputation. (He apparently also earlier com-
plained to another employee, Ron Bacevich, about Thomp-
son, but he has not briefed this possible complication. At
any rate Bacevich appears to have been on good terms with
Brewer and may not have told others about his complaints,
making it again unclear how Brewer’s complaints could
have given rise to critically damaging communications to
the ILIR).
But at any rate, we need not worry about the strange
details of Brewer’s claim because he has again failed to
show he was treated worse than a similarly situated em-
ployee. Here, Brewer does not even contend that he was
treated worse than a similarly situated employee, but
argues that he does not have to do so to make out a prima
facie case, observing that the Rogers court stated that a
plaintiff must show that “only he, and not any similarly
situated employee who did not file a charge, was subjected
to an adverse employment action.” Rogers, 320 F.3d at 754.
While that sentence might plausibly be read to favor
Brewer’s position, the court went on to make it clear that
it is the plaintiff ’s duty to identify a similarly situated
employee who was better treated. See id. at 755-56 (“When
plaintiffs proceeding under the burden-shifting formula
of McDonnell Douglas cannot produce competent evidence
that they were treated differently than similarly situated
employees, we must affirm the granting of summary
judgment on that basis.”); see also Little, 369 F.3d at 1012
(“As noted above, to put forth a prima facie case of either
racial discrimination or retaliation, Little must show,
among other things, that he was treated differently than
a similarly situated employee who was not in the pro-
tected class.”). Brewer has not identified any similarly
situated employee, and his final claim must fall.
30 No. 06-1259
III. Conclusion
Brewer has presented evidence that could permit a
reasonable jury to conclude that his academic career at
the University of Illinois failed for reasons other than his
academic merit, indeed that it failed in part because of
the racism of an employee of the Personnel Services Office.
But he has not presented evidence that the University
did not take reasonable steps to avoid the effect of that
racism or otherwise violated federal civil rights law. Con-
sequently, we affirm the judgment of the district court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-21-07