William Nagle v. Village of Calumet Park

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-1157
W ILLIAM N AGLE,
Plaintiff-Appellant,
v.
V ILLAGE OF C ALUMET P ARK ,
M ARK D AVIS, S USAN I. R OCKETT,
B USTER B. P ORCH, M ELVIN D AVIS,
and JOHN R IGONI,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 C 7039—Matthew F. Kennelly, Judge.
A RGUED D ECEMBER 5, 2007—D ECIDED F EBRUARY 4, 2009
Before F LAUM, E VANS, and W ILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. William Nagle is a police
officer with the Village of Calumet Park, Illinois Police
Department. He is suing the Village and certain individ-
ual defendants, claiming he has been discriminated
against because of his race and age. Nagle maintains that
after he complained about his treatment and filed charges
2 No. 07-1157
with the Equal Employment Opportunity Commission
(“EEOC”), the defendants retaliated against him. Nagle
also brings a claim under 42 U.S.C. § 1983, alleging that
the individual defendants violated his First and
Fourteenth Amendment rights. He contends that he was
retaliated against through unwarranted written repri-
mands and a suspension after he made statements at a
union meeting regarding manpower reductions of police
officers within the community.
We find that Nagle has not sufficiently shown that he
was discriminated against on the basis of age and race
or that he suffered retaliation because of his complaints.
Furthermore, Nagle cannot show that he engaged in
protected speech at the union meeting. Therefore, we
affirm the district court’s grant of summary judgment in
its entirety.
I. BACKGROUND
William Nagle, a white male who was fifty-four at the
time of the filing of this suit, is an officer with the
Calumet Park Police Department. Nagle, who has served
for twenty-eight years, is the officer with the most
seniority in the department. In the early 1980s, Nagle
helped form a local union to represent Calumet Park
police officers. He has served as the union’s vice-president
and, most recently, as its safety and grievance officer.
Between 2002 and the filing of this suit, he filed over
100 grievances on behalf of himself and the union’s mem-
bership. The majority of the grievances were filed on
behalf of the union.
No. 07-1157 3
In August 2002, Buster Porch, the black mayor of Calu-
met Park, appointed Mark Davis, a 59-year-old black male,
as Chief of Police. Chief Davis then appointed Susan
Rockett, a 48-year-old white female, to be Assistant Chief.
Nagle maintains that after Davis’s appointment, he sub-
jected Nagle to age and race discrimination through
unwarranted discipline and reassignment to undesirable
duties on various occasions. This behavior allegedly
started shortly after Davis’s appointment where, during
a conversation at another officer’s retirement party, Chief
Davis asked Nagle when he planned to retire.
Following this incident, Nagle contends that Chief Davis
made other disparaging remarks regarding Nagle’s age
and race, and systematically treated younger, non-white
officers better than older, white officers. Chief Davis
allegedly referred to Nagle and his peers as “these old
white mother f—-ers” approximately fifteen times over
a three-year period. Nagle also maintains that Chief
Davis made disparaging remarks based on age when
reprimanding Nagle for his “failures” on the job. For
example, on May 24, 2004, Nagle received a written
reprimand for allowing a prisoner to escape with
handcuffs on while Nagle was walking him to the car.
According to Nagle, Chief Davis later commented that
Nagle might be getting too old for the job and needed
additional training in apprehending suspects, but did not
similarly discipline Mario Smith, a “younger” officer, who
allowed a prisoner to escape in June 2005. Furthermore,
Nagle maintains that in February 2006, Mark Smith, a non-
white, lateral officer under forty who was still on proba-
4 No. 07-1157
tion, shot an unarmed suspect but was not placed on
administrative leave during the investigation as
protocol would normally require.
On August 15, 2004, Nagle received a three-day suspen-
sion for failing to assist another officer during a domestic
disturbance call. Nagle and Officer Willie Vaughn, a black
male whose age is unspecified in the record, were dis-
patched to respond to a 911 call that a teenage girl was
threatening her mother and grandmother with a knife.
While both Nagle and Vaughn stood outside speaking
with the mother, Sergeant Rigoni, a 49-year-old white
male and also a defendant here, arrived and went inside
where he was injured while handcuffing the girl. Sergeant
John Rigoni recommended to Chief Davis that Nagle be
terminated for failing to assist in the arrest, but instead,
Chief Davis suspended Nagle for three days. Nagle
maintains that his suspension was discriminatory
because Officer Vaughn also failed to act while on this
call, but was not similarly disciplined.
Nagle also claims he was reassigned to undesirable
duties because of his age and race. In October 2003, Nagle
was reassigned from patrol duty to the evidence locker. In
March 2005, Chief Davis and Assistant Chief Rockett
assigned Nagle to the newly created position of senior
liaison after no other officers volunteered. In September
2005, Chief Davis created a new strip mall detail at the
Raceway Shopping Plaza, and Nagle’s job assignment
was changed from street patrol to a fixed post at the
shopping plaza. Nagle kept his same rate of pay; however,
Nagle claims that only white officers were permanently
No. 07-1157 5
assigned to strip mall detail while younger, non-white
officers were assigned to the detail by sergeants at roll call.
Nagle also maintains that comments made by others
within the department support his race and age discrimi-
nation claims and show that there was a general bias
against older, white officers. Sometime around January
2005, the department engaged in an effort to bring in
lateral transfers. According to Nagle, Commander
Melvin Davis (a black male, age unknown, who is also a
defendant here, to be distinguished from Chief Mark
Davis) was placed in charge of choosing the new hires,
and he chose primarily non-white officers under
forty.1 Nagle contends that Commander Davis exhibited
age-based bias when he told some new hirees during
their orientation period that they did not have to show
respect to Sergeant Mark Groszek, a white male over forty.
Nagle points to one other incident involving Commander
Davis, where two out of five lateral transfers failed the
shooting qualification course, and Commander Davis
removed the instructor and hired another individual to
teach the course. In his letter removing the instructor,
Commander Davis wrote, “[t]his administration must
start investing in our officers, who believe in the current
1
Nagle claims that, during the interviews, Commander Davis
noted “?Age” as a question in deciding whether to interview an
applicant because he wondered if the Police Board would be
interested in an applicant in his late fifties. However, we
could not find the portion of the record that Nagle cites to
support this proposition.
6 No. 07-1157
leadership, and that can give this department another (20-
30) years of positive service.”
In December 2002, Chief Davis issued an order prohibit-
ing officers from calling in sick on the day before or the
day after their off-day. This was followed by a
February 2003 order calling for progressive discipline
concerning violations of the new sick leave policy. Nagle
contends that Chief Davis used this policy to discrim-
inate against Nagle because of speech that he engaged
in pursuant to his union duties. On May 12, 2004, Nagle
attended a Labor-Management meeting and expressed
concerns about Chief Davis’s proposed manpower reduc-
tions. On May 17, 2004, Nagle’s first working day after the
meeting, Chief Davis told Nagle that if he ever spoke to
Chief Davis in the same manner as Nagle had in the
meeting, Nagle would be disciplined. Chief Davis felt
Nagle disrespected him in front of other officers. On
May 19, 2004, Nagle received a two-day suspension for
violating the sick leave policy. Nagle believes that this
suspension was in retaliation for his comments at the
Labor-Management meeting. Nagle was previously
suspended for violating the sick leave policy in Septem-
ber 2003. In fact, half of the department had been sus-
pended since the new policy was implemented. In April
2005, Nagle was again suspended for violating the sick
leave policy, but he filed a grievance and the suspension
was never served.
On January 19, 2005, Nagle filed a charge with the EEOC,
alleging age discrimination. This charge came on the heels
of Chief Davis’s comments to Nagle that he was “tired of
No. 07-1157 7
[Nagle’s] bullsh—grievances” and his reminder to Nagle
that “discipline is progressive.” The EEOC charge was
mailed to the police department to the attention of the
personnel manager on January 27, 2005.
Nagle’s second EEOC charge soon followed. On
January 23, 2005, Chief Davis saw Nagle preparing a
grievance form during lunch, which is considered on
duty time at the department. On February 11, 2005, Chief
Davis suspended Nagle for three days for this incident.
Nagle filed a union grievance, and the Illinois Labor
Relations Board overturned the suspension and ordered
the department to reimburse Nagle for his losses. On
February 23, 2005, Nagle filed a second EEOC charge
alleging he had been suspended due to his age and race
and in retaliation for his January EEOC filing.
On May 9, 2005, Nagle filed a third EEOC complaint
alleging that his March 2005 assignment to senior
liaison and his April 2005 suspension were due to his
age and race and were in retaliation for his earlier EEOC
complaints. On May 10, 2005, Assistant Chief Rockett
rescheduled Nagle’s “court key date,” or the date in
which he attends court proceedings. Nagle has had the
same date for nearly twenty-seven years and argues that
the change was made because of his age, race, and in
retaliation for his complaints of discrimination.
Finally, Nagle was assigned to strip mall detail in
September 2005, an assignment which he believes was
discriminatory. Nagle filed a complaint in the district
court on December 14, 2005 and an amended complaint
on February 8, 2006, alleging age discrimination under
8 No. 07-1157
the ADEA, 29 U.S.C. § 621 et seq., and race discrimination
and retaliation under Title VII, 42 U.S.C. § 2000e et seq.,
against the Village of Calumet Park. Nagle also alleges
violations of the First and Fourteenth Amendments
through § 1983 against Mark Davis, Susan Rockett, Buster
Porch, Melvin Davis and John Rigoni.
The defendants moved for summary judgment, and the
district court granted the motion in part and denied it
in part. Specifically, the district court denied the defen-
dants’ motion with respect to the retaliation claim for the
February and April 2005 suspensions. The defendants
moved for reconsideration of the court’s decision, on
the grounds that Chief Davis was not aware of the Febru-
ary EEOC charge at the time that he suspended Nagle,
and Nagle never served the April 2005 suspension. Based
on this information, the court granted the defendants’
motion for reconsideration. Nagle appeals.
II. ANALYSIS
We review a district court’s decision granting sum-
mary judgment de novo. Foskett v. Great Wolf Resorts, Inc.,
518 F.3d 518, 522 (7th Cir. 2008). Summary judgment is
appropriate where the evidence demonstrates that “there
is no genuine issue as to any material fact and that the
movant is entitled to a judgment as a matter of law.” Fed.
R. Civ. P. 56(c). All facts are construed and all inferences
are drawn in favor of Nagle, who is the non-moving party.
See Foskett, 518 F.3d at 522.
No. 07-1157 9
A. Summary judgment was appropriate on Nagle’s race
and age discrimination claims.
1. Nagle cannot establish a prima facie case under
the direct method.
Nagle claims that the defendants discriminated against
him on the basis of his race and age by suspending him
without pay in August 2004 and assigning him to less
desirable job duties than younger, non-white employees
at the same job level.2 Nagle proceeds on his Title VII
and ADEA claims under both the direct and indirect
methods of proof.3
A plaintiff proceeding under the direct method survives
summary judgment by creating triable issues as to
whether discrimination motivated the adverse employ-
ment action of which he complains. Lewis v. Sch. Dist. #70,
523 F.3d 730, 741 (7th Cir. 2008). Under the direct method,
a plaintiff can establish discriminatory intent by relying
on direct or circumstantial evidence. Id. “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 v. Lincoln Land
Cmty. College, 420 F.3d 712, 720 (7th Cir. 2005) (citing Eiland
v. Trinity Hosp., 150 F.3d 747, 750 (7th Cir. 1998)).
2
Many of the same adverse actions are relevant to both Nagle’s
discrimination and retaliation claims and are analyzed
under both sections where appropriate.
3
We apply the same analytical framework to employment
discrimination cases whether they are brought under the ADEA
or Title VII. Cerutti v. BASF Corp., 349 F.3d 1055, 1061 n.4
(7th Cir. 2003).
10 No. 07-1157
This evidence usually requires an admission from the
decisionmaker about his discriminatory animus, which
is rare indeed, but a plaintiff can also establish an
inference of discrimination under the direct method by
relying on circumstantial evidence such as:
(1) suspicious timing, ambiguous oral or written
statements, or behavior toward or comments
directed at other employees in the protected group;
(2) evidence, 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 employer’s reason is a pretext for
discrimination.
Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487, 491 (7th
Cir. 2007); see also Atanus v. Perry, 520 F.3d 662, 671 (7th
Cir. 2008) (stating that under the direct method, a plaintiff
can establish discrimination under Title VII and the
ADEA through circumstantial evidence “which suggests
discrimination through a longer chain of inferences”)
(internal citation omitted). “Whether the plaintiff pro-
ceeding according to the direct method relies on direct
evidence or circumstantial evidence, [he] can avoid sum-
mary judgment for the other party by ‘creating a triable
issue of whether the adverse employment action of
which [he] complains had a discriminatory motivation.’ ”
Rudin, 420 F.3d at 721 (citation omitted).
There is no admission from Chief Davis that he sus-
pended Nagle or assigned Nagle to less desirable job
No. 07-1157 11
duties because of his race or his age. The defendants
also point out that the discriminatory remarks upon which
Nagle relies lack temporal proximity to the adverse
employment actions of which Nagle complains. Nagle
argues, however, that he is not relying exclusively on
evidence of suspicious timing to establish discrimination
under the direct method. Instead, he points to our
decision in Paz v. Wauconda Healthcare & Rehab. Ctr., LLC,
464 F.3d 659, 666 (7th Cir. 2006), where we held that a
district court “cannot view the record in small pieces that
are mutually exclusive of each other,” but must consider
evidence of discriminatory remarks, despite being attenu-
ated from the adverse employment action, in conjunction
with all of the other evidence of discrimination to deter-
mine whether the plaintiff’s claim can survive sum-
mary judgment. See also Sylvester v. SOS Children’s Vills.
Ill., Inc., 453 F.3d 900, 903 (7th Cir. 2006) (“A case of
discrimination can likewise be made by assembling a
number of pieces of evidence none meaningful in itself,
consistent with the proposition of statistical theory that a
number of observations each of which supports a proposi-
tion only weakly can, when taken as a whole, provide
strong support if all point in the same direction.”).
Therefore, Chief Davis’s age and race-based comments,
in some cases occurring months before or after the alleged
discriminatory act and in others at unspecified times, can
still be considered under the direct method. See Paz, 464
F.3d at 666 (“It is worth mentioning that the district court
and [the defendant] were under the mistaken belief that
[the plaintiff] cannot proceed under the direct method
because some of [the defendant’s] comments were made
12 No. 07-1157
two months prior to [the plaintiff’s] firing. Yet, how recent
the comments were, how extreme, and who made the
remarks are pieces of evidence that inform whether
there was a ‘mosaic of discrimination.’ ”).
Comments can still be made at a time that is too
distant from when the adverse action occurred to
suggest that discrimination motivated the action. See
Conley v. Vill. of Bedford Park, 215 F.3d 703, 711 (7th Cir.
2000) (finding that a comment made more than two years
before the adverse employment action is too far removed
to constitute evidence of discriminatory animus);
Hemsworth, 476 F.3d at 491 (one year). Determinations
must be made by considering all the facts, rather than by
relying on a specific cut-off date by which comments
must be made in order to support a finding of discrim-
inatory intent. Paz, 464 F.3d at 666.
Here, we have Chief Davis’s reference to Nagle and his
peers as “those old white motherf—-ers” approximately
fifteen times over a three-year period; his inquiry at an
officer’s August 2002 retirement party about Nagle’s
retirement plans; and his suggestion that Nagle was getting
too old for the job when he allowed a prisoner to escape.
Nagle argues that these comments have to be considered in
conjunction with his arguments that: (1) Chief Davis has
hired primarily younger, non-white officers since his
tenure began, and (2) Chief Davis treats younger, non-
white officers more favorably than older, white officers.
Nagle’s conclusory statement that Chief Davis hired
younger, non-white officers since his tenure began, without
more, is insufficient to establish discriminatory intent
No. 07-1157 13
under the direct method. See Yong-Qian Sun v. Bd. of Tr’s.,
473 F.3d 799, 813 (7th Cir. 2007) (“After all, [we have
recognized] pattern evidence of disparate treatment
‘whether or not rigorously statistical.’ We do not hold,
however, that a questionable pattern of promotion, stand-
ing alone, is sufficient evidence to withstand summary
judgment.”) (citation omitted). He provides no evidence,
statistical or otherwise, to corroborate his belief that
Chief Davis has hired primarily from these two demo-
graphics. In fact, in December 2002, Chief Davis appointed
Susan Rockett, a 48-year-old white woman, as Assistant
Chief of Police. Additionally, Chief Davis continued to
hire older, white officers over the course of his tenure.
Nagle also points to various instances of differential
treatment between older white officers and young, non-
white officers. Nagle argues that white officers were
assigned to strip mall detail at the Raceway Shopping
Plaza and non-white officers were not assigned to this less-
than-desirable job duty. Nagle also maintains that in
October 2003, he was reassigned from patrol duty to
the evidence locker. Nagle claims that this is an undesir-
able position because no one applied for it. Nagle also
points to his assignment in March 2005 to be the depart-
ment’s senior liaison and his September 2005 assignment
to strip mall detail as other incidents in which he was
given less-than-desirable job duties.
Nagle has not shown that any of these assignments were
adverse employment actions. “While adverse employ-
ment actions extend beyond readily quantifiable losses,
not everything that makes an employee unhappy is an
actionable adverse action.” Nichols v. S. Ill. Univ.
14 No. 07-1157
-Edwardsville, 510 F.3d 772, 780 (7th Cir. 2007) (citing
O’Neal v. City of Chicago, 392 F.3d 909, 911 (7th Cir. 2004)).
As we have previously noted,
for purposes of Title VII, there are three general
categories of actionable, materially adverse em-
ployment actions: (1) cases in which the em-
ployee’s compensation, fringe benefits, or other
financial terms of employment are diminished,
including termination; (2) cases in which a nomi-
nally 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 pres-
ent 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 significantly negative alteration in her
workplace environment.
Id. Neither the evidence locker, senior liaison, or strip
mall duties involved a change in the terms or conditions
of employment nor has Nagle shown that any of these
positions significantly reduced his career prospects. See
Atanus, 520 F.3d at 675 (“although the ‘definition of an
adverse employment action is generous,’ an employee
‘must show some quantitative or qualitative change in
the terms or conditions of his employment’ or some sort
of ‘real harm’ ”) (citation omitted). In fact, Nagle admitted
No. 07-1157 15
that the senior liaison was a good program, that he
enjoyed the position, and that he had received an earlier
commendation for assisting an elderly Calumet Park
resident.
The only indication that any of these positions are
undesirable, other than a lack of applicants, is Nagle’s
contention that he didn’t like “being stuck at the mall.” But
someone has to do it, and others have done it. Further-
more, Nagle has not shown that younger, non-white
officers were assigned more “desirable” duties. His
subjective impression about the desirability of these
positions, without more, is insufficient to show discrim-
inatory intent under the direct method. See Johnson v.
Nordstrom, Inc., 260 F.3d 727, 733 (7th Cir. 2001) (noting
that the plaintiff’s personal belief carries no weight in
summary judgment analysis).
Nagle also claims that younger, non-white officers are
systematically treated better than white officers. He
points to a February 2006 incident in which Mark Smith,
a non-white officer under 40, shot an unarmed suspect
while Smith was still on probationary status, but he was
not placed on administrative leave. This evidence falls
short of establishing discriminatory intent. Nagle does not
point to any similar incidents involving white, older
officers; he is not arguing that white officers who com-
mitted less severe actions were more severely disciplined;
nor does he explain how Smith’s situation compares to
his own. See Hemsworth, 476 F.3d at 491-92 (finding no
direct evidence of discrimination where 84% of the em-
ployees laid off by the defendant in 2001 were over the
16 No. 07-1157
age of forty because the plaintiff failed to show how
these other employees compared to his situation).
Nagle also points to the removal of a white instructor by
Commander Davis after two laterals, presumably young
and/or non-white, failed the shooting qualification course.
However, there is no comparative evidence that Nagle
or any other white officer was disciplined for failing to
pass the shooting qualification course, or that a non-white
officer or one under 40 was not similarly removed from
a supervisory position. See id.The remaining incidents on which Nagle relies to try to
show that younger, non-white officers were treated
better are similar to the incidents in which he was disci-
plined and punished. In August 2004, Nagle was issued
a three-day suspension for failing to assist Sergeant
Rigoni with an arrest. Nagle maintains that Officer
Vaughn, a non-white, “younger” officer who was also
present, also failed to assist in the arrest, but unlike
Nagle, he was not disciplined. There are, however, several
issues that doom Nagle’s claim.
Sergeant Rigoni, who recommended that Nagle be
terminated and Vaughn not be disciplined for the
incident, was not the final decision-maker. Chief Davis
suspended Nagle based on a recommendation by
Assistant Chief Rockett, who was also not a final
decisionmaker but conducted an investigation into the
incident. Although Assistant Chief Rockett and Sergeant
Rigoni are both white and older, Nagle is arguing that
both Rigoni or Rockett are conduits for Chief Davis’s
discriminatory animus because they “[do] anything and
everything that the Chief tells [them] to do.”
No. 07-1157 17
Nagle has not presented any evidence, direct or other-
wise, that Assistant Chief Rockett has any bias against
him directly, or that she was furthering Chief Davis’s
discriminatory animus by suspending him. See Kormoczy
v. Sec’y, United States Dep’t of Hous. & Urban Dev. ex rel.
Briggs, 53 F.3d 821, 824 (7th Cir. 1995) (“Direct evidence
is that which can be interpreted as an acknowledgment
of the defendant’s discriminatory intent.”). After her
investigation, Rockett determined that Nagle’s behavior
warranted suspension. Nagle questions the investigation,
contending that it was a sham because Vaughn was not
interviewed; however, Vaughn later filled out a report at
Nagle’s request indicating that Vaughn had taken part
in the arrest, and that Nagle did not assist during the
incident. Vaughn wrote in his report that Nagle said that
he “did not want to have anything to do with this one” and
did not enter the house. Nagle stood outside of the
front screen door, and later called for an ambulance at
Sergeant Rigoni’s request, but that was the extent of his
involvement. It is difficult to view Assistant Chief
Rockett’s investigation as being a “sham” when there is
some validity to the allegations for which Nagle was
ultimately suspended.
With regard to Sergeant Rigoni, Nagle testified in his
deposition that Chief Davis’s secretary, Linda Krezwicki,
told Nagle that Chief Davis instructed Sergeant Rigoni
to write Nagle up for “any and everything.” However,
Nagle has presented no evidence that Chief Davis’s
decision to suspend Nagle was in any way influenced by
Sergeant Rigoni. Cf. Ezell v. Potter, 400 F.3d 1041, 1051 (7th
Cir. 2005) (where employer relied on the advice of a
18 No. 07-1157
supervisor who was arguably motivated by race and
gender bias, plaintiff survived summary judgment). In
fact, Chief Davis refused to follow Sergeant Rigoni’s recom-
mendation to terminate Nagle for the incident, opting
to suspend Nagle instead. Furthermore, the statement
attributed to the Chief’s secretary contains no reference
to Nagle’s race or age.
The August 2004 suspension also does not constitute
direct evidence of discrimination under the ADEA because
Nagle does not specify Officer Vaughn’s age. He refers to
him as a “younger, non-white officer,” but it is clear from
the record that Officer Vaughn has been a police officer
with Calumet Park since 1982 so it is likely that his age
is comparable to Nagle’s age. In any event, it is Nagle’s
burden to establish that his comparator is “substantially
younger” than he for purposes of the ADEA. See Balderston
v. Fairbanks Morse Engine Div. of Coltec Indus., 328 F.3d
309, 321 (7th Cir. 2003). We have described “ ‘substantially
younger’ as generally ten years younger,” id. at 322, and
this threshold is not met here by simply referring to the
comparator as being “younger” than the plaintiff.
Next, Nagle maintains that his May 24, 2004, reprimand
for allowing a prisoner to escape with handcuffs on is
comparable to the situation of Officer Mario Smith (to be
distinguished from Officer Mark Smith discussed above),
who was not disciplined after he allowed a prisoner
he arrested to escape from the back of the car. This argu-
ment must also fail. Similar to Officer Vaughn, Nagle
refers to Mario Smith as “younger,” and this comparison
fails for the same reason. Under the direct method, the
inference that the employer acted based on the prohibited
No. 07-1157 19
animus has to be substantially strong. Rudin, 420 F.3d
at 721. The fact that the incident involved differential
treatment between two older officers would certainly
require a much longer chain of inferences in order to
conclude that discrimination was the reason for this
action. Here, the chain is too long, and we find that Nagle
cannot prevail on his claims based on the direct method.
Given Nagle’s uncompelling comparative evidence, all
that we are left with are Chief Davis’s discriminatory
remarks which, given that these comments were not
made in the same temporal proximity as the allegedly
discriminatory acts, are insufficient to establish discrim-
ination under the direct method. Accordingly, Nagle
has not established a prima facie case of discrimination
under the direct method.
2. Nagle cannot survive summary judgment under
the indirect method.
Under the indirect method, a plaintiff must show that
he is a member of a protected class; he was meeting his
employer’s legitimate performance expectations; he
suffered an adverse employment action; and he was
treated less favorably than similarly situated individuals
who are not white or over 40. Ineichen v. Ameritech, 410
F.3d 956, 959 (7th Cir. 2005). With regard to Nagle’s race
discrimination claim, where members of the majority
group believe that they have been subjected to discrim-
ination, rather than showing that they are members of a
protected class, they must show “ ‘background circum-
stances’ that demonstrate that a particular employer
has ‘reason or inclination to discriminate invidiously
20 No. 07-1157
against whites’ or evidence that ‘there is something ‘fishy’
about the facts at hand.’ ” Phelan v. City of Chicago, 347
F.3d 679, 684 (7th Cir. 2003) (quoting Mills v. Health Care
Serv. Corp., 171 F.3d 450, 455 (7th Cir. 1999)).
While Chief Davis and Commander Davis’s discrim-
inatory comments might be sufficient to establish the
requisite background circumstances, Nagle cannot estab-
lish a prima facie case of discrimination because, as
discussed above, he cannot show that similarly situated
individuals were treated better. Furthermore, the reassign-
ments do not constitute adverse actions. Accordingly,
we find that summary judgment was appropriate on
Nagle’s age and race discrimination claims.
B. Summary judgment was appropriate on Nagle’s
retaliation claim.
Nagle filed EEOC charges on January 19, 2005, February
23, 2005, and May 9, 2005. He contends that the defendants
retaliated against him for filing these charges by: suspend-
ing him for three days on February 11, 2005; assigning
him to the senior liaison position in March 2005; suspend-
ing him for five days on April 23, 2005; changing his
court key date on May 10, 2005; and assigning him to strip
mall detail on September 9, 2005. Nagle proceeds under
both the direct and the indirect methods to establish his
retaliation claim. Although Title VII’s antiretaliation
provisions are not limited to “ultimate employment
decisions,” Burlington N. & Santa Fe R.R. Co. v. White, 548
U.S. 53, 67 (2006), Nagle must show that the actions of
which he complains were “materially adverse” and
No. 07-1157 21
produced “an injury or harm” that would have “ ‘dis-
suaded a reasonable worker from making or supporting
a charge of discrimination.’ ” Id. at 67-68. Some of the
actions which Nagle claims were retaliatory do not
meet this threshold. Moreover, Nagle cannot establish
that Chief Davis knew about his January 2005 EEOC
charge prior to suspending him in February 2005, so his
retaliation claim fails.
1. Nagle’s assignments to various positions do not
constitute materially adverse actions.
Nagle maintains that his assignments to the senior liai-
son position and to strip mall detail were both adverse
actions in retaliation for his complaints of discrimination.
While Nagle’s assignment to the senior liaison position
or strip mall detail did not involve any change in his pay,
hours, or prospects for advancement within the depart-
ment, the test is an objective one that considers “[w]hether
a particular reassignment is materially adverse depends
upon the circumstances of the particular case, and ‘should
be judged from the perspective of a reasonable person
in the plaintiff’s position, considering ‘all the circum-
stances.’ ’ ” Id. at 71 (citation omitted).
While one can imagine situations in which reassign-
ment to less desirable details or positions would dissuade
a reasonable worker from making a charge of discrimina-
tion, here the senior liaison position was posted for other
officers to apply, and after no one applied, Nagle was
assigned to the position. This fact arguably cuts both
ways: the senior liaison position had to be filled by some-
22 No. 07-1157
one and an employer is entitled to fill the position. In
the alternative, an employer is not entitled to be punitive
in his assignments—he cannot assign an employee to a
less favored position because that employee has exercised
his statutory rights. Nagle has offered no evidence that his
assignment to the senior liaison position was punitive—the
senior liaison position continued to exist after Nagle was
reassigned, and another officer was assigned to take his
place after his tenure ended. The same is true of strip mall
detail—both white and non-white officers worked this
duty. Nagle claims that he faced discipline if he refused
to work the strip mall detail whereas other officers “are
ordered to work it, and they don’t and nothing happens
to them,” but this statement is wholly unsupported by
the record. Nagle has not pointed to any evidence to
support his claim that others were not punished for
refusing to work strip mall detail.
The change in Nagle’s court key date is also not materi-
ally adverse. Nagle maintains that this disruption rises
to the level of an adverse action because he has had the
same court key date for 27 years and an officer’s schedule
is adjusted around this date. As we have cautioned in
the past, a materially adverse change must be “more
disruptive than a mere inconvenience or an alteration
of job responsibilities.” Crady v. Liberty Nat’l Bank & Trust
Co., 993 F.2d 132, 136 (7th Cir. 1993). While disruptive
in that the change altered the date on which Nagle had
to attend court, the change did not have a tangible
impact on his job responsibilities or benefits, nor did it
require that he attend court any more than usual.
No. 07-1157 23
In April 2005, Nagle was suspended for violating the
department’s sick time policy, and he alleges that this
suspension was in retaliation for both his January 19, 2005,
and February 23, 2005, EEOC charges. It is undisputed
that a suspension can constitute an adverse action.
Whittaker v. N. Ill. Univ., 424 F.3d 640, 647 (7th Cir. 2005).
Although Nagle filed a grievance regarding this suspen-
sion, he never served the suspension because the
grievance was resolved in his favor.
We have explicitly held that “a suspension without
pay that is never served does not constitute an adverse
employment action.” Id at 647. While Nagle admits that
he never served the suspension, he argues that the
April 2005 suspension should constitute an adverse
action because he was faced with the prospect that the
suspension would be upheld upon resolution of his
grievance. Cf. Burlington Northern, 548 U.S. at 72 (finding
retaliation even where the plaintiff received back pay
because the plaintiff and her family “had to live for 37
days without income. They did not know during that
time whether or when [the plaintiff] could return to work.
Many reasonable employees would find a month
without a paycheck to be a serious hardship. And [the
plaintiff] described to the jury the physical and emotional
hardship that 37 days of having ‘no income, no money’ in
fact caused.”). Unlike the plaintiff in Burlington
Northern, however, Nagle did not suffer any hardship
connected with the suspension because he never
actually served it. Uncertainty as to whether the suspen-
sion will be upheld is not equivalent to actually serving
the suspension because the plaintiff does not have to
24 No. 07-1157
endure the same economic harm. See Whittaker, 424 F.3d
at 647 (“Typically, adverse employment actions are eco-
nomic injuries.”); see also Ajayi v. Aramark Bus. Servs., 336
F.3d 520, 531 (7th Cir. 2003) (“An unfulfilled threat, which
results in no material harm, is not materially adverse.”).
Therefore, we find that the April 2005 suspension which
Nagle never served does not constitute an adverse action.
Accordingly, none of these actions would deter a reason-
able employee from filing a complaint of discrimination.4
2. Nagle’s retaliation claim also fails.
4
There is also an issue whether Nagle’s allegations regarding his
court key date and his reassignment to strip mall duty are time-
barred. Nagle filed his last EEOC charge on May 9, 2005, and he
did not file a subsequent charge regarding the May 10, 2005
change in his court key date or his September 5, 2005 reassign-
ment. “In Illinois, a complainant must file a charge with the
EEOC within 300 days of the alleged discriminatory act and
failure to do so renders the charge untimely.” Filipovic v. K & R
Express Sys., Inc., 176 F.3d 390, 395 (7th Cir. 1999). One exception
to this rule, the continuing violation doctrine, would allow a
court to consider acts that occurred outside of the limitations
period if “ ‘related closely enough’ to the acts occurring within
the established time frame ‘to be considered one ongoing viola-
tion.’ ” Id. at 396. It is not clear if the doctrine would extend to
cover incidents that occurred after the complainant has filed an
EEOC charge. See Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct.
2162 (2007) (holding that the time for filing an EEOC charge
alleging a discriminatory act begins when that act occurs and the
clock restarts for each discrete act of discrimination). In any
event, because these allegations do not amount to an adverse
action, we need not resolve this issue.
No. 07-1157 25
We are left with Nagle’s February 2005 suspension for
conducting union business while on duty. Nagle filed a
grievance regarding this suspension, and the Illinois
Labor Relations Board reversed the suspension and
ordered the police department to reimburse Nagle for
his losses. The February 2005 suspension presents a
different issue because unlike the April 2005 suspension,
Nagle served the suspension and lost pay. Although
Nagle’s suspension was ultimately found to be improper,
a reasonable jury still could find that having to serve
the suspension would dissuade a reasonable employee
from making or supporting a charge of discrimination. See
Burlington Northern, 548 U.S. at 73. After all, no one
knew whether the suspension would be reversed or
upheld, and reimbursement of lost pay is not sufficient to
defeat Nagle’s Title VII retaliation claim. See Phelan v.
Cook County, 463 F.3d 773, 780 (7th Cir. 2006) (“Consistent
with Title VII’s goal of deterring discrimination, we
decline to endorse a rule that would allow employers to
escape liability by merely reinstating the aggrieved em-
ployee months after termination, whenever it becomes
clear that the employee intends to pursue her claims in
court. Such a rule could create an unintended economic
incentive for employers to reinstate an employee who
files a discrimination suit as means to avoid Title VII
penalties whenever the costs of reinstating the employee
are lower than the employer’s exposure in a Title VII
suit.”).
Nonetheless, Nagle has failed to show that there is
a causal connection between the suspension and his
26 No. 07-1157
statutorily protected activity sufficient to defeat summary
judgment. Lewis v. City of Chicago, 496 F.3d 645, 655 (7th
Cir. 2007). Nagle filed EEOC charges on January 19, 2005,
but Nagle has not shown that Chief Davis was aware
that he filed a grievance in February 2005. This dooms
his claim not only under the direct method, but also
under the indirect method. See Mattson v. Caterpillar, Inc.,
359 F.3d 885, 888 (7th Cir. 2004) (“Under the direct
method, the plaintiff must provide either direct evidence
or circumstantial evidence that shows that the employer
acted based on prohibited animus.”); Tomanovich v. City
of Indianapolis, 457 F.3d 656, 668-69 (7th Cir. 2006)
(“[P]roof of retaliation under the indirect method presup-
poses that the decision-maker knew that the plaintiff
engaged in a statutorily protected activity, because if an
employer did not know the plaintiff made any complaints,
it ‘cannot be trying to penalize him for making them.’ ”)
(citation omitted).
The EEOC charge was mailed to the department on
January 27, 2005, and the correspondence indicated that
it should be given to ”Chief David” rather than Chief
Davis. Additionally, the envelope was addressed to
“Personnel Manager, Human Resources Department,
Village of Calumet Park.” The district court surmised
from this evidence that no jury could reasonably con-
clude that Chief Davis was aware of the EEOC charge at
the time of the February 2005 suspension. We agree.
In order to establish retaliation pursuant to Title VII,
the employer must have had actual knowledge of the
protected activity in order for its decisions to be
No. 07-1157 27
retaliatory; it is not sufficient that “[an employer] could or
even should have known about [an employee’s] com-
plaint.” Tomanovich, 457 F.3d at 668. While the EEOC notice
conceivably could have sat in the personnel department
for two weeks, it is also possible that the personnel man-
ager surmised that “Chief David” was in fact “Chief Davis”
and passed on the notice to him in a timely fashion, but
Nagle has presented no evidence showing this to be the
case. Moreover, on January 25, 2005, Chief Davis ordered
Nagle to prepare a memo regarding his actions in con-
ducting union business while on duty, sent Nagle a memo
indicating Davis’s belief that Nagle had violated depart-
ment rules, and requested Nagle’s explanation before
issuing discipline. All of this occurred prior to when the
EEOC sent Nagle’s charge to the department, which
occurred on January 27, 2005. We find that Nagle has
presented no evidence to show that Chief Davis was
aware of the EEOC charge at the time of the February
2005 suspension.5 Accordingly, Nagle has not established
that the defendants retaliated against him in violation
of Title VII.
C. Nagle’s First Amendment retaliation claim fails.
Nagle contends that the defendants retaliated against
him for comments that he made at a May 12, 2004, Labor
5
Even if Nagle could establish a prima facie case of retaliation
for the February 2005 suspension, he concedes that he was in
fact conducting union business during his lunch, which is
considered on-duty time and a violation of department policy.
28 No. 07-1157
Management Meeting that he attended in his capacity as
the union safety and grievance officer. This meeting
consisted of a small group of union and management
representatives including Chief Davis and other
Calumet Park police officers. The focus of this meeting
was the reduction of the number of officers during certain
shifts, and concerns were raised by attendees that man-
power reductions would impact police safety. Nagle
claims that, the day after the meeting, Chief Davis warned
Nagle that if he ever spoke to Chief Davis in the manner
in which Nagle did at the Labor Management Meeting,
he would be disciplined. Following this warning, Chief
Davis suspended Nagle for two days for violating the sick-
day policy. Nagle alleges that the suspension was in
retaliation for statements he made at the Labor Manage-
ment Meeting. Nagle also maintains that his May 24,
2004, reprimand for allowing a prisoner to escape with
handcuffs on and his August 2004 suspension for failing
to assist another officer were in retaliation for his earlier
statements at the Labor Management meeting.
“To make out a prima facie case of first amendment
retaliation, a public employee must present evidence
that: (1) his speech was constitutionally protected, (2) he
has suffered a deprivation likely to deter free speech, and
(3) his speech was at least a motivating factor in the em-
ployer’s action.” Massey v. Johnson, 457 F.3d 711, 716
(7th Cir. 2006) (citations omitted). Under the first prong,
speech is constitutionally protected if “(1) the employee
spoke as a citizen on matters of public concern, and (2) the
interest of the employee as a citizen in commenting upon
matters of public concern outweighs the interest of the
No. 07-1157 29
State as an employer in promoting the efficiency of the
public services it performs through its employees.”
Sigsworth v. City of Aurora, 487 F.3d 506, 509 (7th Cir. 2007).
In Garcetti v. Ceballos, 547 U.S. 410, 421 (2006), the Su-
preme Court held that speech made pursuant to a
person’s official responsibilities does not receive First
Amendment protection. See also Spiegla, 481 F.3d at 965
(“Garcetti made clear that public employees speaking
‘pursuant to their official duties’ are speaking as em-
ployees, not citizens, and thus are not protected by the
First Amendment regardless of the content of their
speech.”); Vose v. Kliment, 506 F.3d 565, 570 (7th Cir. 2007).
Nagle argues that because he was speaking in his
capacity as a union official, his comments were made as
a citizen rather than as a public employee. In Fuerst v.
Clarke, 454 F.3d 770, 774 (7th Cir. 2006), we held that
Garcetti did not control where a deputy sheriff made
constitutionally protected statements in his capacity as a
union representative. Similarly, Nagle was speaking in
his capacity as a union representative and Garcetti does
not deprive his comments of First Amendment protection.
Nonetheless, Nagle’s claim fails because he has not
shown that he engaged in constitutionally protected
speech. “Whether an employee’s speech addresses a
matter of public concern must be determined by the
content, form, and context of a given statement, as revealed
by the whole record.” Connick v. Myers, 461 U.S. 138, 147-48
(1983). In analyzing the “content, form, and context of a
given statement” to determine if the statements are con-
stitutionally protected, “we have stressed that content is
30 No. 07-1157
the most important.” Kokkinis v. Ivkovich, 185 F.3d 840, 848
(7th Cir. 1999). According to Nagle, his statements ad-
dressed “the manpower and the police safety on the street
as far as the community and as far as the officers” and “the
reduction of cops on the street, as far as safety for the
residents and businesses.”
Nagle does not identify any specific statements that were
made at the meeting. While his statements regarding
police manpower could, as a general matter, be of public
concern, the subject matter alone does not convey con-
stitutional protection to his statements. See Cliff v. Bd. of
Sch. Comm’rs, 42 F.3d 403, 410 (7th Cir. 1994) (“the fact that
an employee speaks up on a topic that may be deemed one
of public import does not automatically render [his]
remarks on that subject protected”) (quotation omitted);
Hartman v. Bd. of Trs. of Cmty. Coll. Dist. No. 508, 4 F.3d 465,
471 (7th Cir. 1993) (finding that whether speech is of
public concern does not turn on the general subject
matter of the employee’s speech); Colburn v. Trs. of Indiana
Univ., 973 F.2d 581, 586 (7th Cir. 1992) (“the fact that the
issue could be ‘interesting’ to the community does not
make it an issue of public concern”). “We must instead
delve deeper into the precise content, form, and context of
speech that admittedly may be of some interest to
the public.” Cliff, 42 F.3d at 410 (citing Connick, 461 U.S.
at 147-48).
Here, the content or form of the statements made by
Nagle at the Labor Management meeting is unclear from
the record, nor is it apparent how these statements,
whatever they may be, relate either to his job as a police
No. 07-1157 31
officer, his status as a citizen, or his capacity as a union
representative. At his deposition, when asked by his
attorney “what was said by whom” at the Labor Manage-
ment meeting, Nagle testified that: “It was a discussion
amongst everybody in regards to different things and
how manpower was reduced and was going to be reduced
at different times of the year.” Nagle did not provide any
details about the statements he made at the meeting,
stating only that “It’s just that I remember that’s what
the meeting was about.” See Brooks, 406 F.3d 476, 479-80.
Not only is it unclear which of Nagle’s statements could
constitute protected speech, the context in which the
comments were made is also unclear. Accordingly, sum-
mary judgment was appropriate on Nagle’s First Amend-
ment Retaliation claim.6
III. CONCLUSION
The judgment of the district court is AFFIRMED.
6
In his brief, Nagle also asserts that the individual defendants
violated his Fourteenth Amendment rights, but there is no
discussion of this claim in the district court’s decision nor does
Nagle discuss it in his brief. Therefore, Nagle has waived
this argument. See Salas v. Wis. Dep’t of Corr., 493 F.3d 913, 924
(7th Cir. 2007).
2-4-09