Nichols, Derrick v. Southern IL Univ Ed

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2688
DERRICK NICHOLS, BABATUNDE OWOSENI,
DANIEL SMITH, et al.,
Plaintiffs-Appellants,
v.
SOUTHERN ILLINOIS UNIVERSITY-EDWARDSVILLE,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 04 C 555—G. Patrick Murphy, Judge.
____________
ARGUED JANUARY 5, 2007—DECIDED DECEMBER 28, 2007
____________
Before FLAUM, MANION, and SYKES, Circuit Judges.
MANION, Circuit Judge. Derrick Nichols, Babatunde
Owoseni, Daniel Smith, and Aaron Watson, current and
former officers of the Southern Illinois University Police
Department, sued Southern Illinois University (the
“University”) alleging that it discriminated against them
because of their race by disproportionally assigning
them to work at its East St. Louis campus. Owoseni, Smith,
and Nichols also alleged that the University denied them
temporary upgrades to sergeant because of their race and
2 No. 06-2688
retaliated against them for making complaints of racial
discrimination. The University moved for summary
judgment on all of the plaintiffs’ claims, and the district
court granted the University’s motion. The plaintiffs
appeal. We affirm.
I.
Derrick Nichols, Babatunde Owoseni, Daniel Smith, and
Aaron Watson (collectively the “plaintiffs”) are current
and former officers of the University’s police department
(the “Department”). Nichols and Watson currently are
employed by the University, while the State Universities
Civil Service Merit Board (the “Merit Board”) terminated
Owoseni’s and Smith’s employment in September 2003.
Each of the plaintiffs is black.
The University is a multi-campus public university
with facilities in East St. Louis, Alton, and Edwardsville,
Illinois. The Department is responsible for patrolling the
University’s East St. Louis and Edwardsville campuses.
The smaller East St. Louis campus is located in a predomi-
nantly black residential area, while the larger Edwards-
ville campus is located in a predominantly white residen-
tial area. Because the East St. Louis campus is smaller,
officers’ duties at that campus tend to be less strenuous.
According to the Department’s policy, officers must be
willing to work at either campus, and officers are stationed
at a campus for a semester-long assignment. Regardless
of an officer’s campus assignment, all officers received
the same pay, benefits, and opportunities for advancement.
The Department’s command staff makes assignments to
the two campuses with input from its sergeants, lieuten-
ants, captains, and chief. First, the lieutenant in charge of
No. 06-2688 3
the patrol division prepares the schedules. The captain
supervising the division then must approve the schedules.
The Department’s chief is responsible for giving the
final approval to the assignments.
Officers may request assignment to a particular campus,
and all but one of the plaintiffs directly or indirectly
requested assignments to the East St. Louis campus.1 For
example, from August 2002 through May 2003, Watson
requested an assignment to the East St. Louis campus so
that he could be closer to another college where he was
finishing a degree. When there was a temporary manpower
shortage, Watson agreed to work at the East St. Louis
campus on July 16 and July 17, 2003, and on August 27,
2003, he authored a memorandum to his sergeant stating
that he did not have a preference regarding his campus
assignment. In late 2001, Smith also requested assignment
to the East St. Louis campus from December 2001 through
December 2002, and he was assigned to that campus from
August through December 2002. Further, Owoseni re-
quested to work with a sergeant who was primarily
assigned to the East St. Louis campus. In addition to the
plaintiffs, a number of white officers requested assignment
to the East St. Louis campus and were assigned to that
campus. The plaintiffs nonetheless allege that the Depart-
ment disproportionally assigned them to the East St. Louis
campus based on their race.
The plaintiffs also make allegations regarding the
Department’s promotion and upgrade practices. The
University’s collective bargaining act (“CBA”) distin-
1
Only Nichols did not submit an assignment request for the
East St. Louis campus.
4 No. 06-2688
guishes between promotions and temporary upgrades.
Promotions are permanent appointments to a higher
position (e.g., officer to sergeant), which are governed
by the State Universities Civil Service Act (“Civil Service
Act”), 110 ILCS 70/0.01 et seq., and the CBA. Officers may
only be promoted to sergeant if they pass qualifying
examinations administered pursuant to the Civil Service
Act and the CBA and are placed on a “register.” None of
the plaintiffs had passed all portions of the qualifying
exam, and thus they were ineligible to be placed on the
“register” for promotions. On the other hand, upgrades
are not permanent and function to fill vacancies on an as-
needed basis. Upgrades may last for one shift, or, under
unusual circumstances, they may last as long as several
months. Unlike promotions, the Department’s manage-
ment team determines which officers receive upgrades.
All officers are eligible to receive upgrades, and at least
Owoseni and Smith periodically received them.
In late 2002, two sergeant positions opened when one
sergeant left the Department and another was called
to active military duty. At that time, there were no
sergeant candidates on the promotion register, i.e., none
had passed both the written and oral examinations.2 The
Department thus looked for candidates for temporary
upgrades. In October 2002, the Department upgraded
Rich Delmore, who is white, to temporarily fill a sergeant
vacancy at the Edwardsville campus. The Department’s
management team stated its belief that Delmore was the
most qualified individual for the job due to his prior
performance as an officer. During a Department meeting
2
Owoseni and Nichols had passed the written examination and
were awaiting an opportunity to sit for the oral examination.
No. 06-2688 5
at which the upgrade decision was considered, the at-
tendees lauded Delmore’s method of report writing, his
ability to interview, his punctuality, and his ability to
represent the University. One month later, in November
2002, the Department temporarily upgraded Jim Royston,
who also is white, to temporarily fill a sergeant vacancy at
the East St. Louis campus. Prior to upgrading Royston,
the Department held a meeting regarding potential candi-
dates, and the attendees discussed Royston’s commun-
ication skills, ability to supervise, decision-making and
problem-solving skills, and his relationships with other
members of the Department and the University, in particu-
lar those within the East St. Louis community. Captain
Tony Bennett also testified that the management team
believed that Delmore and Royston were the most quali-
fied individuals for the job based on the skill they demon-
strated as police officers, and that the decision was not
based on race. Nichols, Owoseni, and Smith, all of whom
were eligible for the upgrade but were not selected for
it, responded by claiming that the University denied them
the temporary upgrades to sergeant because of their race.
Later that month, on November 26, 2002, Owoseni,
Smith, and Nichols met with Chief Richard Harrison and
Captain John Oltmann to discuss their complaints re-
garding the Department’s alleged discriminatory em-
ployment practices. During the meeting, Owoseni spoke
on behalf of Smith, Nichols, and himself, and he made a
number of unsubstantiated allegations against Chief
Harrison and against the Department’s command staff.3 A
3
The Merit Board later determined that Owoseni knowingly
made numerous untruthful statements about Chief Harrison and
other command staff during the November 26, 2002, meeting.
(continued...)
6 No. 06-2688
few weeks later, in mid-December 2002, Smith, Owoseni,
and Nichols each wrote letters to the University’s presi-
dent, repeating the allegations that Owoseni made dur-
ing the November 26, 2002, meeting, as well as adding
other allegations. In particular, Owoseni alleged in his
letter that Chief Harrison engaged in a cover-up to pro-
tect a University parking service agent who was his friend,
an allegation later found to be meritless. In his letter,
Owoseni further alleged that he was the only officer
instructed to desist from making traffic stops on the
streets of East St. Louis and that the instruction was
racially motivated, despite the fact that he knew that all
officers were orally instructed not to make such traffic
stops. Smith alleged in his letter that one of the Depart-
ment’s sergeants had been indicted for criminal sexual
assault and should have been dismissed by Chief Harri-
son, even though Smith knew when he wrote the letter
that the sergeant had been acquitted of all state charges.
Smith further alleged that “Chief Harrison promoted/
upgraded only his white long time friends,” and that he
“treated his white police friends favorably and rewarded
them with promotions.”
Around that same time, the University’s director of its
Office of Equal Employment Opportunity and the Univer-
sity’s assistant director of its Department of Human
3
(...continued)
Specifically, the Board concluded that Owoseni falsely accused
Chief Harrison of manipulating civil service test scores so that
no black officers could be placed on the “registry” for promo-
tions, and he falsely claimed that Chief Harrison “would go to
any length to promote his life-long cohorts whether they
were qualified or not.”
No. 06-2688 7
Resources undertook an extensive investigation into the
allegations against the Department. The University’s
general counsel responded to Owoseni’s and Smith’s letters
to the University’s president, advising them that they
should submit all complaints to the University’s director
of its Department of Human Resources or its Office of
Equal Employment Opportunity. All four of the plaintiffs
subsequently submitted their complaints. The Univer-
sity’s investigation culminated in a determination that
Smith and Owoseni had committed misconduct warrant-
ing the filing of formal charges for discharge with the
Merit Board.4
A Merit Board hearing officer held evidentiary hearings
for Smith’s discharge proceedings on June 13 and July 9,
2003, and a different Merit Board hearing officer held
hearings for Owoseni’s discharge proceedings on June 17
and July 23, 2003. The Merit Board, after rendering its
findings of fact, issued its decision and order concluding
that there was “just cause for discharge” for both Smith
and Owoseni. The Merit Board’s decision and order
regarding Smith listed the following reasons for his
discharge: (1) Smith’s recurring gross insubordination
4
Section 36o of the State Universities Civil Service Act states
that “no employee shall be demoted, removed or discharged
except for just cause, upon written charges, and after an oppor-
tunity to be heard in his own defense if he makes a written
request for a hearing to the Merit Board.” 110 ILCS 70/36o. If
the Merit Board finds “cause” for discharge, then “the em-
ployee shall be immediately separated from service.” Id. The
Merit Board’s discharge decisions are subject to review by
Illinois circuit and appellate courts pursuant to the Illinois
Administrative Review Act, 735 ILCS 5/3-101 et seq.
8 No. 06-2688
and disobedience to management directives, including
personal use of a police squad car; (2) his making and
spreading of false statements concerning fellow officers
and the chief of police; (3) his writing of an improper
letter to the University’s president in December 2002;
and (4) his failure to cooperate reasonably with a police
investigation regarding a newspaper article. The Merit
Board’s decision and order regarding Owoseni listed the
following reasons for his discharge: (1) his recurring
gross insubordination and disobedience to management
directives and his disrupting the efficient operations of
the Department during November and December 2002,
and January and February 2003; (2) his making and spread-
ing of false statements concerning fellow officers and
superior officers; (3) his writing of an improper letter to
the University’s president containing false information in
December 2002; and (4) his failure to reasonably cooper-
ate with a police investigation and attempts by the De-
partment to help him resolve his employment problems
and complaints. Following their discharge, Smith and
Owoseni elected not to challenge the Merit Board’s deci-
sion by filing suit in the Illinois state courts pursuant to
the Illinois Administrative Review Act.
While Smith’s and Owoseni’s proceedings were pending
before the Merit Board, Nichols was involved in an inci-
dent with a mentally unstable female while on duty
following a May 10, 2003, commencement ceremony. The
woman attempted to enter a street with busy traffic, and
Nichols used force to restrain her, ultimately forcing her
to the ground, handcuffing her, and placing her in his
police car. Following the incident, the Department placed
Nichols on paid administrative leave pending the results
of two fitness-for-duty psychological examinations. Once
No. 06-2688 9
Nichols completed the examinations, the Department
returned him to active, full-time duty. In total, Nichols was
on paid administrative leave for approximately three
months. Nichols, however, claims that the Department
subjected him to the examinations and forced him to go
on a paid leave of absence in retaliation for his complaints
regarding the Department’s alleged race discrimination.
The plaintiffs filed this action against the University in
the district court, alleging three claims under Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
Specifically, the plaintiffs alleged: (1) that all of them were
disproportionally assigned to the University’s East St.
Louis campus because of their race; (2) that Owoseni,
Smith, and Nichols were denied temporary upgrades to
sergeant because of their race; and (3) that Owoseni, Smith,
and Nichols were retaliated against for making complaints
of racial discrimination. The University moved for sum-
mary judgment on all of the plaintiffs’ claims, and the
district court granted summary judgment to the University.
The plaintiffs appeal.
II.
On appeal, the plaintiffs argue that the district court
erred in granting summary judgment to the University
on their race discrimination and retaliation claims. This
court reviews a district court’s grant of summary judg-
ment de novo. Perez v. Illinois, 488 F.3d 773, 776 (7th Cir.
2007). In doing so, we construe all facts and reasonable
inferences in the light most favorable to the non-moving
party. Healy v. City of Chicago, 450 F.3d 732, 738 (7th Cir.
2006). “Summary judgment is proper if ‘the pleadings,
depositions, answers to interrogatories, and admissions
10 No. 06-2688
on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of
law.’ ” Id. (quoting Fed. R. Civ. P. 56(c)).
A. Plaintiffs’ Disproportionate Assignment Claims
All four of the plaintiffs allege that they were
disproportionally assigned to what they refer to as an
inferior job at the University’s East St. Louis campus
because of their race. An employee can support a Title
VII claim for disparate treatment based on race using
either the direct method to show that racial discrimina-
tion motivated the employment decision, or by relying
on the indirect, burden-shifting method set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See
Sun v. Bd. of Trs. of Univ. of Ill., 473 F.3d 799, 812-14 (7th
Cir. 2007). The plaintiffs attempt to proceed under both
methods. Regardless of which method they attempt to
proceed under, they must show that they suffered a
materially adverse employment action. See Lewis v. City
of Chicago, 469 F.3d 645, 652-53 (7th Cir. 2007) (citing
Rhodes v. Ill. Dep’t of Transp., 359 F.3d 498, 504 (7th Cir.
2004)).
1. No materially adverse employment action under either
direct or indirect method.
As we have stated previously, “A materially adverse
employment action is something ‘more disruptive than
a mere inconvenience or an alteration of job responsibili-
ties.’ ” Rhodes, 359 F.3d at 504 (quoting Crady v. Liberty
Nat’l Bank & Trust Co. of Ind., 993 F.2d 132, 136 (7th Cir.
No. 06-2688 11
1993)). “While adverse employment actions extend beyond
readily quantifiable losses, not everything that makes an
employee unhappy is an actionable adverse action.” O’Neal
v. City of Chicago, 392 F.3d 909, 911 (7th Cir. 2004). “Other-
wise, minor and even trivial employment actions that an
irritable, chip-on-the-shoulder employee did not like
would form the basis of a discrimination suit.” Id. Thus,
for purposes of Title VII, we have articulated three gen-
eral categories of actionable, materially adverse employ-
ment actions:
(1) cases in which the employee’s compensation,
fringe benefits, or other financial terms of employment
are diminished, including termination; (2) cases in
which a nominally lateral transfer with no change in
financial terms significantly reduces the employee’s
career prospects by preventing her from using her
skills and experience, so that the skills are likely to
atrophy and her career is likely to be stunted; and
(3) cases in which the employee is not moved to a
different job or the skill requirements of her present job
altered, but the conditions in which she works are
changed in a way that subjects her to a humiliating,
degrading, unsafe, unhealthful, or otherwise signifi-
cantly negative alteration in her workplace environ-
ment.
Id. (citing Herrnreiter v. Chicago Hous. Auth., 315 F.3d 742,
744-45 (7th Cir. 2002) (citations omitted)). We have cau-
tioned, however, that cases in the second category “are to
be distinguished from cases involving a purely lateral
transfer, that is, a transfer that does not involve a demo-
tion in form or substance.” Id. Further, “ ‘[a] transfer
involving no reduction in pay and no more than a minor
change in working conditions will not do, either.’ ” Id. at
12 No. 06-2688
911-12 (quoting Williams v. Bristol-Myers Squibb Co., 85
F.3d 270, 274 (7th Cir. 1996)).
The plaintiffs assert that their assignment to the East St.
Louis campus constitutes a materially adverse employ-
ment action because the policing requirements at the
larger Edwardsville campus are more interesting and
intensive. For instance, the plaintiffs claim that officers
working on the Edwardsville campus “perform the inter-
esting, varied and challenging work of real police offi-
cers . . . which include[s] enforcing traffic laws, making
arrests and investigating crimes.” The plaintiffs con-
versely assert that officers working on the East St. Louis
campus perform “the boring repetitive and semiskilled
work of mere security guards, which involve[s] monitor-
ing hallways and patrolling buildings.” The University
counters that three of the four plaintiffs directly or indi-
rectly requested assignment to the East St. Louis campus,
and that the University does not distinguish between an
officer’s service at a particular campus in making salary
or promotion decisions.
This case is analogous to O’Neal v. City of Chicago, 392
F.3d 909 (7th Cir. 2004), so we turn to that decision for
guidance. In O’Neal, a police officer was transferred from
the narcotics unit to a beat sergeant position. Id. at 910. The
officer complained that while both positions carried the
same rank, her former position gave her increased oppor-
tunities for overtime pay, more supervisory responsibili-
ties, and additional perks, such as the use of a work-
provided cellular telephone, pager, vehicle, and parking
space, as well as having most weekends and holidays off.
Id. at 912. We affirmed the district court’s grant of sum-
mary judgment, holding that the officer’s “complaints
about the transfer reveal only a ‘purely subjective prefer-
No. 06-2688 13
ence for one position over another,’ which does not ‘justify
trundling out the heavy artillery of federal antidiscrim-
ination law.’ ” Id. at 913 (quoting Herrnreiter, 315 F.3d
at 745).
In this case, the plaintiffs’ claim is even weaker than
the officer’s in O’Neal. The plaintiffs here argued only
that they preferred the work at the Edwardsville campus,
and that claim is contradicted by three of the four plain-
tiffs’ specific or contingent requests to work at the very
location they purport to disdain. Further, in this case
there is no evidence that their assignment to the East St.
Louis campus impacted the plaintiffs’ salary, perks, or
opportunities for future advancement. This indicates that
the plaintiffs’ complaints involved purely subjective
preference for one assignment over another. The plaintiffs
thus failed to allege a materially adverse employment
action. Accordingly, the district court did not err in find-
ing that, under either the direct or indirect method, the
plaintiffs failed to proffer sufficient evidence to support
their claim that the Department disproportionally assigned
its officers based on race, or in granting summary judg-
ment in favor of the University on that claim.
2. Additionally, no direct or circumstantial evidence of
discriminatory motive.
Moreover, even if the plaintiffs had alleged a materially
adverse employment action, they did not proffer suffi-
cient evidence of the University’s discriminatory motive
in disproportionally assigning them to work at the East
St. Louis campus to create a triable issue under the direct
method. See Rudin v. Lincoln Land Cmty. Coll., 420 F.3d 712,
721 (7th Cir. 2005) (stating that a plaintiff proceeding
14 No. 06-2688
according to the direct method “can avoid summary
judgment for the other party by ‘creat[ing] a triable issue
of whether the adverse employment action of which
[s]he complains had a discriminatory motivation.’ ”
(quoting Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394,
1397 (7th Cir. 1997)) (alteration in original)). “A plaintiff
proceeding according to the direct method may rely on
either direct or circumstantial evidence.” Sun, 473 F.3d at
812. “Direct evidence is evidence which, if believed by the
trier of fact, will prove the particular fact in question
without reliance upon inference or presumption.” Rudin,
420 F.3d at 720. “Circumstantial evidence of discrimina-
tion is evidence which allows the trier of fact to infer
intentional discrimination by the decisionmaker.” Sun,
473 F.3d at 812. In this case, under the direct method, the
plaintiffs claim that they have both direct and circum-
stantial evidence of discrimination.
The plaintiffs claim that Chief Harrison’s alleged state-
ment “that the administration at East St. Louis wanted to
see more ‘black faces’ among [its] police force” constitutes
direct evidence of the Department’s discriminatory motive.
We have previously stated that an employer’s state-
ment that he made an employment decision based upon
racial animus qualifies as direct evidence of discrimina-
tory motive. See, e.g., Rudin, 420 F.3d at 720 (“ ‘[D]irect
evidence would be what [the employer] said or did in the
specific employment decision in question.’ For example,
evidence that an employer ‘said he discharged [the plain-
tiff] because he is black’ constitutes direct evidence.”
(quoting Plair v. E.J. Brach & Sons, Inc., 105 F.3d 343, 347
(7th Cir. 1997)) (alterations in original)). We have held,
however, that “stray remarks that are neither proximate
nor related to the employment decision are insufficient
No. 06-2688 15
to defeat summary judgment.” Sun, 473 F.3d at 813.
Further, the “statements of a person who lacks the final
decision-making authority may be probative of intentional
discrimination,” but only “if that individual exercised a
significant degree of influence over the contested decision.”
Id. Here, the statement at issue purports to be a sugges-
tion from someone in the East St. Louis campus admin-
istration to Chief Harrison to assign more black officers to
that predominantly black campus. This statement fails
to constitute direct evidence of the Department’s alleged
discriminatory motive because the Department’s com-
mand staff, and ultimately Chief Harrison, are solely
responsible for assigning Department officers to the two
campuses. There is no evidence in the record to indicate
that Chief Harrison was in any way influenced by or acted
upon any such suggestion by one or more members of the
East St. Louis administration. Chief Harrison, who was the
final decisionmaker regarding campus assignments,
testified that he explicitly rejected any such suggestion,
and he stated that his assignment decisions were not
based upon the plaintiffs’ or any other officer’s race.5
Additionally, notes taken at a meeting between Chief
Harrison and other officers indicate that the suggestion to
assign officers based on race was discussed and Chief
Harrison rejected it. Finally, there also is no evidence in
the record from which to conclude which individual or
individuals from the East St. Louis campus made the
5
Chief Harrison testified he initially rejected the suggestion to
assign black officers to the East St. Louis campus because the
contract in place at the time dictated that officers were assigned
based on seniority. He further testified that once the seniority-
based assignment system ended, he continued to reject the
idea of assigning officers based on their race.
16 No. 06-2688
suggestions to Chief Harrison, nor is there any evidence
indicating that the individual or individuals had any
authority whatsoever over Chief Harrison or any other
officer in the Department.
The plaintiffs also attempt to proffer circumstantial
evidence to prove the University’s discriminatory motive
under the direct method. Specifically, the plaintiffs offer
what they assert is statistical evidence that the Department
disproportionally assigned them to the East St. Louis
campus because of their race. We have recognized three
types of circumstantial evidence of intentional discrim-
ination:
(1) suspicious timing, ambiguous oral or written
statements, or behavior toward or comments directed
at other employees in the protected group; (2) evi-
dence, whether or not rigorously statistical, that
similarly situated employees outside the protected
class received systematically better treatment; and
(3) evidence that the employee was qualified for the
job in question but was passed over in favor of a
person outside the protected class and the em-
ployer’s reason is a pretext for discrimination.
Id. at 812 (citing Rudin, 420 F.3d at 720-21). The plaintiffs’
evidence falls into the second category. As we have
stated previously, a plaintiff may use pattern evidence
of disparate treatment even if that evidence is not rigor-
ously statistical, although, standing alone, it is insuffi-
cient evidence to withstand summary judgment. Id. at
813 (stating that “[a]lthough the [plaintiff’s] sample size
is insufficient to provide statistically reliable evidence,
the [university’s promotion and tenure committee’s] vot-
ing pattern has some probative value regarding discrim-
inatory employment practices”; however, “a questionable
No. 06-2688 17
pattern of promotion, standing alone” is insufficient
evidence to withstand summary judgment). In this case,
the plaintiffs’ statistics show that, from the 2001 summer
semester through the 2002 fall semester, the four plaintiffs
collectively received seventeen semester assignments,
which were broken down between eleven assignments to
the East St. Louis campus (61%), and six assignments to
the Edwardsville campus (39%). In contrast, during that
same time period, the Department’s eighteen white offi-
cers collectively received fifty-nine semester assignments,
which were broken down between fifteen assignments to
the East St. Louis campus (25.4%), and forty-four assign-
ments to the Edwardsville campus (74.6%). Individually,
the four plaintiffs were assigned to the East St. Louis
campus for the following percentage of their semester
assignments during that time period: Owoseni 80%;
Watson 66.6%; Smith 60%; and Nichols 40%. With the
exception of Nichols, the plaintiffs’ statistics do show
that the Department assigned them to work at the East St.
Louis campus more frequently than the Edwardsville
campus. The plaintiffs’ statistics, however, omit a critical
variable in the Department’s assignment process: the
plaintiffs’ own requests to work at the East St. Louis
campus. The record shows that both Watson and Smith
specifically requested to work at the St. Louis campus,
and Owoseni indirectly requested to work at that campus
when he requested to work with a sergeant who was
primarily assigned there. The plaintiffs’ own statistics
evince that the only one of them who did not request to
work at the East St. Louis campus, Nichols, was assigned
to the Edwardsville campus the majority of the time.
Accordingly, the mere fact that the Department assigned
three of the plaintiffs to work at the East St. Louis campus
for the majority of their semester assignments, when each
18 No. 06-2688
of those plaintiffs either specifically or contingently
requested to work there, is not sufficient circumstantial
evidence to proceed under the direct method.
B. Owoseni’s, Smith’s, and Nichols’s Failure to Upgrade
Claims
Owoseni, Smith, and Nichols also assert that the dis-
trict court erred in granting summary judgment in favor
of the University on their claim that the Department
denied them two temporary upgrades from officer to
sergeant because of their race, when the Department
selected two white officers to fill those positions. An
employee can support a Title VII claim for failure to
promote in one of two ways, either by “directly show[ing]
that racial discrimination motivated the employment
decision, or, as is more common, [by relying] on the
indirect, burden-shifting method.” Sublett v. John Wiley &
Sons, 463 F.3d 731, 736-37 (7th Cir. 2006). Owoseni, Smith,
and Nichols have not offered any evidence of discrimina-
tory upgrades under the direct method, and thus they
proceed under the burden-shifting method. Under the
indirect method, Owoseni, Smith, and Nichols bear the
initial burden of establishing a prima facie case of race
discrimination by showing that: (1) they are members of
a protected group; (2) they were qualified for the posi-
tion sought; (3) they were rejected for the position; and
(4) the employee who was promoted was a member of a
different race and was not better qualified than they. Id. at
737 (citing Johnson v. Nordstrom, Inc., 260 F.3d 727, 732 (7th
Cir. 2001)). If Owoseni, Smith, and Nichols carry their
burden, then the University must set forth a legitimate,
nondiscriminatory reason for its decision to upgrade the
white officers, “ which if believed by the trier of fact,
No. 06-2688 19
would support a finding that unlawful discrimination
was not the cause of the employment action.” Id. (quoting
St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993)).
Finally, if the University succeeds in articulating a non-
discriminatory reason for its upgrade decisions, then
Owoseni, Smith, and Nichols resume their original bur-
den of proof and must establish by a preponderance of the
evidence that the University’s proffered reason is
pretextual. Id.
Owoseni, Smith, and Nichols potentially satisfy the
first three elements of their prima facie case, in that
they are black, they were arguably qualified for the up-
grade to sergeant, and the Department rejected them for
the upgrade. Their claim fails, however, because they
did not offer sufficient evidence that they were equally or
more qualified than the two white officers whom the
Department upgraded to sergeant, Delmore and Royston.
The only evidence Owoseni, Smith, and Nichols point to
in the record regarding Delmore’s and Royston’s quali-
fications is found in their deposition testimony, which fails
to set forth any details of the upgraded officers’ qualifica-
tions. During his deposition, Nichols stated that he did
not know Delmore’s educational background, the amount
of hands-on experience Delmore possessed, or the type
of training Delmore had undergone. Nichols also testified
that while he was aware that Royston had twenty years’
experience with the University, he was not aware of
Royston’s educational background. Likewise, Smith
stated during his deposition that “I had no information on
Officer Delmore.” Smith further testified that he did not
know Royston’s qualifications and background other
than what he learned during prior depositions, and he
stated that he did not know the Department’s criteria
20 No. 06-2688
for determining upgrades. Owoseni also testified during
his deposition that he could not recall anything regard-
ing Delmore’s qualifications or background, and he
stated that the only thing he knew about Royston’s back-
ground was that Royston had worked for the University
for approximately twenty years before he was upgraded.
We are unable to glean anything regarding Delmore’s and
Royston’s qualifications from these statements, and
Owoseni, Smith, and Nichols do not offer any additional
evidence. Instead, they rely on their own subjective be-
liefs that they were as qualified or even more qualified for
the upgrade than Delmore and Royston. We have repeat-
edly stated, however, that plaintiffs must offer more than
mere self-serving appraisals. See, e.g., Dunn v. Nordstrom,
Inc., 260 F.3d 778, 787 (7th Cir. 2001) (stating that the
plaintiff “must present more than his own, subjective self-
appraisal to create a genuine issue of fact”); Fortier v.
Ameritech Mobile Commc’ns, Inc., 161 F.3d 1106, 1114 (7th
Cir. 1998) (same); Gustovich v. AT&T Commc’ns, Inc., 972
F.2d 845, 848 (7th Cir. 1992) (same). Owoseni, Smith, and
Nichols thus failed to establish a prima facie case that the
University discriminated against them based on their
race when it denied them temporary upgrades to sergeant.
Accordingly, the district court did not err in granting
summary judgment to the University on this claim.
C. Owoseni’s, Smith’s, and Nichols’s Retaliation Claims
Owoseni, Smith, and Nichols also assert that the dis-
trict court erred in granting summary judgment in favor
of the University on their claims that the University
retaliated against them for speaking out against the racial
discrimination. Specifically, they allege that the University
retaliated against them by terminating Owoseni’s and
No. 06-2688 21
Smith’s employment, and by subjecting Nichols to unwar-
ranted disciplinary proceedings and placing him on paid
administrative leave pending the results of his fitness-for-
duty psychological examinations. Like the plaintiffs’ other
Title VII claims, Owoseni, Smith, and Nichols may
prove retaliation by using either the direct method or the
indirect, burden-shifting method. Tomanovich v. City of
Indianapolis, 457 F.3d 656, 662 (7th Cir. 2006). Under the
direct method, Owoseni, Smith, and Nichols must show
that (1) they engaged in statutorily protected activity;
(2) they suffered an adverse action taken by the Univer-
sity; and (3) there was a causal connection between the
two. Id. at 663. Under the indirect method, Owoseni,
Smith, and Nichols must establish a prima facie case of
retaliation by showing that: (1) they engaged in a statuto-
rily protected activity; (2) they met the University’s legiti-
mate expectations; (3) they suffered an adverse employ-
ment action; and (4) they were treated less favorably
than similarly situated employees who did not engage
in statutorily protected activity. Id. If they succeed in
establishing a prima facie case, then the burden shifts to
the University to produce a non-discriminatory reason
for its employment action. Id. If the University meets its
burden of production, then the burden of proof remains
with Owoseni, Smith, and Nichols to demonstrate that the
University’s proffered reason is pretextual. Id. Owoseni,
Smith, and Nichols assert on appeal that they presented
sufficient evidence to avoid summary judgment under
both the direct and indirect methods. We again examine
each in turn.
1. Direct method.
Owoseni and Smith first argue that they presented
sufficient evidence under the direct method that the
22 No. 06-2688
University retaliated against them by terminating their
employment. We note, however, that the Merit Board,
rather than the University or the Department, actually
terminated Owoseni’s and Smith’s employment pursu-
ant to the Civil Service Act. Following hearings before
Merit Board hearing officers, during which both Owoseni
and Smith had the opportunity to be represented by
counsel, introduce evidence, call their own witnesses, and
question the University’s witnesses, the Merit Board
terminated their employment upon finding, inter alia, that
Owoseni and Smith made numerous false accusations
against their fellow officers. Specifically, the Merit Board
discharged Smith based on: (1) his recurring gross insub-
ordination and disobedience to management directives,
including personal use of a police squad car; (2) his making
and spreading of false statements concerning fellow
officers and the chief of police; (3) his writing of an im-
proper letter to the University’s president in December
2002; and (4) his failure to cooperate reasonably with a
police investigation regarding a newspaper article. The
Merit Board stated that it discharged Owoseni based on:
(1) his recurring gross insubordination and disobedience
to management directives and his disrupting the efficient
operations of the Department during November and
December 2002, and January and February 2003; (2) his
making and spreading of false statements concerning
fellow officers and superior officers; (3) his writing of an
improper letter to the University’s president containing
false information in December 2002; and (4) his failure to
reasonably cooperate with a police investigation and
attempts by the Department to help him resolve his
employment problems and complaints. Thus, the Merit
Board’s discharge decisions were based on, among
other things, Owoseni’s and Smith’s baseless allegations
No. 06-2688 23
against fellow officers. Significantly, those allegations
were separate and distinct from Owoseni’s and Smith’s
potentially actionable allegations that the Department
discriminated against them in its assignment and upgrade
practices. The latter discrimination allegations played no
role in the Merit Board’s decisions. “[T]his Court has
consistently stated that utterly baseless claims do not
receive protection under Title VII.” Mattson v. Caterpillar,
Inc., 359 F.3d 885, 890 (7th Cir. 2004) (citing cases). Further,
neither Owoseni nor Smith has presented any evidence to
impugn the Merit Board’s credibility or motivation, and
thus they cannot establish a nexus between their discrimi-
nation complaints and the Merit Board’s decision to
terminate their employment. In short, the Merit Board
decided to terminate Owoseni’s and Smith’s employ-
ment upon finding that they made numerous objectively
baseless allegations against their colleagues, in addition
to other offenses, and not because they made allegations
that the Department discriminated against them.
2. Indirect method.
Owoseni and Smith also argue that they established
that the Merit Board terminated their employment be-
cause they complained about discriminatory practices
under the indirect McDonnell Douglas burden-shifting
method. While Owoseni and Smith may be able to satisfy
the first three elements of their prima facie case, they are
unable to show, however, that any similarly situated
employee made numerous baseless allegations against
fellow Department employees and was not terminated
by the Merit Board. See Little v. Ill. Dep’t of Revenue, 369
F.3d 1007, 1012 (7th Cir. 2004) (“A similarly-situated
employee must have been disciplined, or not, by the
24 No. 06-2688
same decisionmaker who imposed an adverse employ-
ment action on the plaintiff.” (citing Patton v. Indianapolis
Pub. Sch. Bd., 276 F.3d 334, 338 (7th Cir. 2002); Radue v.
Kimberly-Clark Corp., 219 F.3d 612, 617-18 (7th Cir. 2000))).
Even if Owoseni and Smith had succeeded in identifying
such an employee, they also would have to show that the
employee engaged in other misconduct similar to that in
which the Merit Board found that Owoseni and Smith
had engaged, such as gross insubordination and disobedi-
ence to management directives and failing to cooperate
with a police investigation. Because Owoseni and Smith
have not put forth competent evidence that they were
treated differently than a similarly situated employee
outside of their protected class, they failed to establish a
prima facie case for their retaliation claim. Accordingly,
the district court did not err in granting summary judg-
ment in favor of the University on this claim.
Next, Nichols argues that the district court erred in
granting summary judgment in favor of the University
on his claim that the University retaliated against him for
complaining about discriminatory practices by placing
him on paid administrative leave pending the results of
his fitness-for-duty psychological examinations. As dis-
cussed above, the Department put Nichols on paid admin-
istrative leave after he used force to restrain a mentally
unstable woman and placed her on the ground and
handcuffed her following a commencement ceremony.
Regardless of whether Nichols attempts to proceed under
the direct method or indirect method, he must show that
he suffered a materially adverse action. Pantoja v. Am.
NTN Bearing Mfg. Corp., 495 F.3d 840, 848-49 (7th Cir.
2007). The alleged adverse action at issue here is the
Department’s placement of Nichols on paid administra-
No. 06-2688 25
tive leave. Nichols does not claim that his position,
salary, or benefits were impacted by the paid admin-
istrative leave, and he concedes that the Department
reinstated him to active duty upon receiving the results
of his fitness-for-duty psychological examinations. While
this circuit has not had an opportunity to address whether
an employer’s placement of an employee on paid adminis-
trative leave pending the conclusion of an investigation
constitutes a materially adverse action, our sister cir-
cuits have concluded that it does not. See Breaux v. City
of Garland, 205 F.3d 150, 157-58 (5th Cir. 2000) (finding
that a police officer did not suffer any adverse action by
being required to undergo a psychological examination
following an altercation with a colleague or by being
placed on paid administrative leave when he retained
his job and had not been demoted or transferred to a less
desirable position); see also Singletary v. Mo. Dep’t of Corrs.,
423 F.3d 886, 891-92 (8th Cir. 2005) (finding that correc-
tions officer did not suffer a materially adverse action
when his employer placed him on administrative leave
pending a departmental investigation); Von Gunten v. Md.,
243 F.3d 858, 869 (4th Cir. 2001) (finding that an em-
ployer’s placement of an employee on short administra-
tive leave with pay to allow time for internal investiga-
tion of complaint in accordance with procedures was not
an adverse action), abrogated on other grounds by Burlington
N. & Santa Fe Ry. Co. v. White, 126 S. Ct. 2405 (2006). We
agree with our sister circuits, and find that the Depart-
ment’s placement of Nichols on paid administrative
leave pending the results of his fitness-for-duty psycho-
logical examinations did not constitute a materially adverse
action. Nichols’s retaliation claim thus fails under either
the direct method or indirect method. Accordingly, the
26 No. 06-2688
district court did not err in granting summary judgment
in favor of the University on this claim.
Finally, Nichols asserts a retaliation claim based on the
written notice he received requiring him to appear at
disciplinary hearings held in response to the letter he had
sent to the University’s president. That claim was not
addressed in the district court’s opinion, and the Univer-
sity did not address it in its brief and argument before this
Court. Nevertheless, the district court did not err in
granting summary judgment on it for the same reason as
it granted summary judgment on Nichols’s other retalia-
tion claim, namely that Nichols has failed to demonstrate
how the notice was materially adverse, especially in light
of the fact that the disciplinary proceedings were instituted
in response to the plaintiffs’ unsubstantiated allegations
against other officers. Cf. Roney v. Ill. Dep’t of Transp., 474
F.3d 455, 462 (7th Cir. 2007) (“An employer’s truthful re-
port to the police about an employee is not an adverse
action.” (citing Aviles v. Cornell Forge Co., 241 F.3d 589,
593 (7th Cir. 2001)) (emphasis in original)).
III.
The plaintiffs failed to show that they suffered an
adverse employment action to support their Title VII
claims that the Department disproportionally assigned
them to inferior jobs at the University’s East St. Louis
campus because of their race. Proceeding only under the
indirect method, Owoseni, Smith, and Nichols also failed
to establish a prima facie case that they were denied
temporary upgrades to sergeant based on their race,
because they did not show that they were as qualified or
more qualified than the two white officers who received
the upgrades. Additionally, Owoseni’s and Smith’s retalia-
No. 06-2688 27
tion claims failed under the direct method because they
did not show that the Merit Board’s decision to terminate
their employment, which was based, inter alia, on their
making objectively groundless claims about their col-
leagues, was causally connected to their complaints
regarding the Department’s alleged discriminatory prac-
tices. Owoseni and Smith also failed to establish a prima
facie case for their retaliation claims because they did not
put forth any evidence that they were treated differently
than a similarly situated employee outside of their pro-
tected class. Finally, Nichols’s retaliation claims failed
under either the direct method or the indirect method,
because the Department’s placement of him on paid
administrative leave pending the results of his fitness-for-
duty psychological examinations after he used force to
restrain a mentally unstable woman, like the initiation
of disciplinary proceedings against Nichols in response
to the plaintiffs’ unsubstantiated allegations in letters to the
University’s president, did not constitute materially
adverse actions. Accordingly, the district court’s grant of
summary judgment in favor of the University is AFFIRMED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-28-07