Oakley, James v. Cowan, Roger

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 13, 2006
Decided June 29, 2006
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. KENNETH F. RIPPLE, Circuit Judge
No. 05-1925
Appeal from the United States District
JAMES OAKLEY, Court for the Southern District of Illinois.
Plaintiff-Appellant,
No. 03 C 225
v.
G. Patrick Murphy,
ROGER D. COWAN, STANLEY Chief Judge.
BUCHEIT and GARY KNOP,
Defendants-Appellees.
ORDER
James Oakley was fired from his job with the Illinois Department of
Corrections (“IDOC” or “Department”) for violating the Department’s sexual
harassment policy and standards of conduct. He brought this action against the
warden and two of his other superiors under 42 U.S.C. § 1983, claiming that they
had denied him equal protection by firing him, but not female officers, who had
engaged in like conduct. The district court granted summary judgment for the
defendants. We affirm the judgment.
No. 05-1925 Page 2
I
Because this is an appeal from summary judgment, we must view the facts in
the light most favorable to Mr. Oakley, the non-moving party. Scaife v. Cook
County, 446 F.3d 735, 738-39 (7th Cir. 2006). Mr. Oakley began working for IDOC
in 1985. At the time of his discharge in April 2001, he held the rank of lieutenant at
Menard Correctional Center. In that position he supervised sergeants, correctional
officers and inmates. Mr. Oakley, in turn, was supervised by defendant Stanley
Bucheit, a major and the chief of security at Menard. Bucheit reported to defendant
Gary Knop, the assistant warden in charge of overall operations. Knop in turn
reported to defendant Roger Cowan, the warden at Menard. Warden Cowan
reported to the Deputy Director or Director of the IDOC.
In early 2001, correctional officer Rachel Nutter notified Captain Anthony
Ramos that Mr. Oakley had grabbed, or attempted to touch, her breasts and
buttocks. Ramos directed Nutter to complete a written complaint and then
informed Knop of the allegation. Ramos normally would have informed his
supervisor, Major Bucheit, but Bucheit was unavailable. Ramos therefore reported
the incident directly to Assistant Warden Knop.
Knop followed established departmental procedure and reported the
allegations to Warden Cowan. Bucheit was present in Warden Cowan’s office at the
time. Warden Cowan then notified the Deputy Director, per IDOC policy, and
referred the matter to the Office of Affirmative Action. After Warden Cowan and the
Deputy Director received the results of an internal investigation, Warden Cowan
arranged for a hearing before an employee review board. Due to the nature of the
allegations and Mr. Oakley’s position as a member of the supervisory staff, an officer
from another IDOC facility was brought in to hold the hearing.
Based on the testimony of ten female staff members who either had witnessed
or had been victims of Mr. Oakley’s sexual harassment, the hearing officer
recommended that he be suspended pending discharge for violation of the directives
regarding sexual harassment and standards of conduct. Warden Cowan concurred,
and the Director approved the suspension pending discharge. The Department of
Central Management Services approved the discharge on April 27, 2001.
In his complaint, Mr. Oakley claimed that Warden Cowan, Knop and Bucheit
violated his right to equal protection because the defendants knew of female
correctional officers who had engaged in sexual harassment, but they had did not
disciplined them. He contends that this lack of discipline demonstrates the
defendants’ intentional discrimination against him because he is male. In granting
summary judgment for the defendants, however, the district court determined that
No. 05-1925 Page 3
Mr. Oakley presented no evidence that Bucheit and Knop were involved personally
in the discharge decision. Warden Cowan was involved in the decision, but the court
concluded that Mr. Oakley had presented no evidence that Warden Cowan was
motivated by a desire to discriminate. Mr. Oakley has abandoned his claim against
Warden Cowan on appeal.
II
Mr. Oakley’s sole argument on appeal is that the evidence establishes
personal involvement by Bucheit and Knop. In Mr. Oakley’s view, these defendants
acquiesced in the chain of events that led to his termination, but failed to act when
female employees engaged in equally serious transgressions. Bucheit and Knop
respond, as they did in the district court, that (1) they cannot be liable under § 1983
because they were not personally involved in the decision to fire Mr. Oakley, and (2)
Mr. Oakley neither established a prima facie case of discrimination, nor rebutted the
nondiscriminatory reason for terminating his employment. Mr. Oakley does not
respond to the latter argument. We review a grant of summary judgment de novo,
Scaife, 446 F.3d at 738, and may affirm on any ground supported by the record,
Cygan v. Wisconsin Dep’t of Corr., 388 F.3d 1092, 1098 (7th Cir. 2004).
The premise of Mr. Oakley’s argument suffers from a fatal flaw. In his
complaint Mr. Oakley alleged that both Bucheit and Knop violated his right to equal
protection by terminating him even though they were aware of “far more significant”
acts of sexual harassment by female employees and did not terminate them. Compl.
¶ 10. However, Mr. Oakley presented no admissible evidence that any female
employees actually had engaged in sexual harassment or, if they had, that their
behavior was reported up the chain of command. In responding to Bucheit and
Knop’s motion for summary judgment, Mr. Oakley did assert that five female
correctional officers violated the sexual harassment policy but were never
disciplined. According to Mr. Oakley, Officer Wendy Holton sold sex toys at work
from a catalog, ate popsicles in a “sexually suggestive manner” and left
“inappropriate” messages when she paged other employees. Plaintiff’s Memorandum
of Law in Opp’n to Summary Judgment at 13. In addition, Mr. Oakley continued,
the other four women, including Rachel Nutter, his principal accuser, made sexually
suggestive comments and possessed pornography and other material of a sexual
nature while at Menard. However, Mr. Oakley’s only supporting evidence was his
own deposition testimony, and, except as to Holton, his knowledge was admittedly
limited to second-hand accounts and unsubstantiated rumors. He did assert first-
hand knowledge of Holton’s sales of sex toys because he had purchased merchandise
from her, but that merchandise had been delivered to him off-site. He witnessed
Holton bring merchandise into Menard on one occasion but never reported this
activity as misconduct. Therefore, even if Holton’s side business could be seen as
No. 05-1925 Page 4
violating IDOC’s sexual harassment policy, Mr. Oakley hardly could complain about
uneven enforcement. Mr. Oakley presented no evidence that a written complaint
was ever filed against any of the female officers he named. Moreover, both Bucheit
and Knop testified in their depositions that they never received a written sexual
harassment complaint concerning anyone but Mr. Oakley.
Having no admissible evidence to support his premise--that female harassers
were ignored while he was fired--Mr. Oakley’s equal protection claim is wholly
meritless with respect to all defendants. With respect to Bucheit and Knop,
however, his claim suffers an additional problem. Neither defendant was involved
personally in the decision to fire him. To survive summary judgment, a plaintiff
claiming a violation of § 1983 must produce evidence that the defendant knew of a
deprivation and “‘approved it, turned a blind eye to it, failed to remedy it, or in some
way personally participated.’” Johnson v. Snyder, 444 F.3d 579, 584 (7th Cir. 2006)
(quoting Vance v. Peters, 97 F.3d 987, 994 (7th Cir. 1996)). Absent direct
participation, there must at least be a showing that the defendants “acquiesced in
some demonstrable way” in the alleged violation. Palmer v. Marion County, 327
F.3d 588, 594 (7th Cir. 2003).
Mr. Oakley contends that Bucheit and Knop were present at the meeting
where Warden Cowan decided to inform the Deputy Director of the allegations and
that, therefore, they “acquiesced in the chain of events that led to Oakley’s
termination.” Appellant’s Br. at 8. However, Knop was following established
department policy when he passed the allegations along to Warden Cowan, and
Bucheit just happened to be in the room at the time. Cf. Conner v. Reinhard, 847
F.2d 384, 396-97 (7th Cir. 1988) (holding that defendant who “sets in motion” series
of events that he knew or should have known would cause others to deprive plaintiff
of rights may be liable under § 1983). Warden Cowan explained that department
policy required him to report allegations of this nature to his superiors and that he
always initiates an investigation when he receives a report of sexual harassment.
Furthermore, even if Warden Cowan’s action had been discretionary, Bucheit and
Knop were not “involved” in that action by virtue of their presence. See Hildebrandt
v. Illinois Dep’t of Natural Res., 347 F.3d 1014, 1040 (7th Cir. 2003) (holding that
evidence of defendant’s attendance and active participation in meeting where § 1983
violation allegedly occurred did not create triable issue of fact as to personal
involvement). After the meeting at which Knop had informed Warden Cowan of the
allegations against Mr. Oakley, Bucheit and Knop had no other involvement in the
termination decision.
In any event, Mr. Oakley failed to make out a prima facie case of
discrimination. Mr. Oakley’s equal protection claim is analyzed under the same
standards as a Title VII claim. See Hildebrandt, 347 F.3d at 1036; Williams v.
Seniff, 342 F.3d 774, 788 n.13 (7th Cir. 2003). He relied on the indirect method of
No. 05-1925 Page 5
proof, see McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and, under that
method, the plaintiff typically must establish a prima facie case of discrimination by
producing evidence that he (1) is a member of a protected class, (2) was meeting his
employer’s legitimate performance expectations, (3) suffered an adverse employment
action, and (4) was treated less favorably than similarly situated individuals outside
his class, Ballance v. City of Springfield, 424 F.3d 614, 617 (7th Cir. 2005). This
formulation is even more difficult to satisfy in a case involving a member of a non-
protected class because, instead of the first prong, the plaintiff must identify
background circumstances--something “fishy”--demonstrating that the defendant
was motivated to discriminate against employees in his class. See Mlynczak v.
Bodman, 442 F.3d 1050, 1057 (7th Cir. 2006); Gore, 416 F.3d at 592; Ballance, 424
F.3d at 617; Phelan v. City of Chicago, 347 F.3d 679, 684 (7th Cir. 2003). Mr. Oakley
could not establish these background circumstances. Moreover, as we have
discussed earlier, his claim is doomed by his lack of evidence that any accused
harasser outside his class received more favorable treatment.
AFFIRMED