Sisawat Singmuongthong v. Edwin Bowen

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-3021
SISAWAT SINGMUONGTHONG,
Plaintiff-Appellant,
v.
EDWIN R. BOWEN and JOHN BALDWIN,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 4:18-cv-04196-SLD-JEH — Sara Darrow, Chief Judge.
____________________
SUBMITTED NOVEMBER 1, 2022 — DECIDED AUGUST 8, 2023
____________________
Before ROVNER, BRENNAN, and SCUDDER, Circuit Judges.
ROVNER, Circuit Judge. Sisawat Singmuongthong was em-
ployed by the Illinois Department of Corrections (the “De-
partment”) as a correctional officer from 1998 through 2016,
and an assistant warden from 2016 until his termination in
2018. He filed suit under 42 U.S.C. § 1983 alleging, among
other claims, that the defendants, Edwin Bowen and John
Baldwin, had discriminated against him based on his race,
2 No. 21-3021
color, and national origin, and retaliated against him for com-
plaining about discrimination, in violation of his rights under
42 U.S.C. § 1981. Bowen was the Department’s chief of staff
and Baldwin was the Department’s acting director during the
time of the alleged discrimination.
The plaintiff describes himself as a tan-colored, Asian man
of Laotian national origin. He worked as a correctional officer
at the Sheridan Correctional Center from 1998 through 2013,
at which time he became a lieutenant at Sheridan. In Decem-
ber 2016, the plaintiff was promoted to the position of assis-
tant warden of operations at a new Department facility,
Kewanee Life Skills Re-Entry Center. He received a five per-
cent increase in his salary in conjunction with that promotion.
The warden at that facility, Anthony Williams, was investi-
gated in early 2018 for inappropriate conduct of a sexual na-
ture with subordinate staff, and was terminated. That investi-
gation also concluded that the plaintiff had difficulty making
good administrative decisions, and specifically that he had
failed to report inappropriate conduct of a sexual nature, and
that he spent too much time at bars with subordinate staff.
Upon Williams’s termination, the plaintiff informed the re-
gional deputy chief, Sandy Funk, that he was interested in the
warden position. He was not chosen for the position, how-
ever, because of his relationship with Williams and the con-
cerns about his judgment that surfaced in the Williams inves-
tigation. Following a subsequent investigation of a separate
allegation of sexual harassment, the plaintiff was terminated
from employment.
He alleged discrimination in a purportedly disparate pay
raise given to him upon his promotion to assistant warden, in
No. 21-3021 3
the failure to promote him to a warden position when it be-
came available, and in his ultimate termination from his em-
ployment with the Department. The district court granted
summary judgment to the defendants as to all of those chal-
lenges. On appeal, he has abandoned his claims as to the ter-
mination from his position as well as his retaliation claim, ap-
pealing only the grant of summary judgment as to the pay
disparity and failure to promote claims.
We review the grant of summary judgment by a district
court de novo, affirming if there is no genuine dispute of ma-
terial fact and the movant is entitled to judgment as a matter
of law. Lewis v. Indiana Wesleyan Univ., 36 F.4th 755, 759 (7th
Cir. 2022). Section 1981 protects the right of citizens regardless
of race in the context of employment to have the same right to
enforce and make contracts. Comcast Corp v. National Assoc. of
African American-Owned Media, __ U.S. __, 140 S. Ct. 1009, 1015
(2020). In order to succeed on a § 1981 claim, as opposed to a
claim under Title VII, a plaintiff has the burden of showing
that race was a but-for cause of the injury. Id. at 1014; Lewis,
36 F.4th at 759. In assessing whether the evidence would per-
mit a reasonable factfinder to conclude that race caused the
adverse employment action, courts must evaluate all evi-
dence as a whole, regardless of whether such evidence is char-
acterized as direct or circumstantial. Igasaki v. Ill. Dept. of Fin.
& Pro. Regul., 988 F.3d 948, 957 (7th Cir. 2021); Ortiz v. Werner
Enterprises, Inc., 834 F.3d 760, 766 (7th Cir. 2016).
One means for a plaintiff to prove employment discrimi-
nation is through the burden-shifting framework of McDon-
nell Douglas Corp. v. Green, 411 U.S. 792 (1973), under which a
plaintiff must show evidence that he is a member of a pro-
4 No. 21-3021
tected class, who was meeting the defendant’s legitimate ex-
pectations, that he suffered an adverse employment action,
and that similarly situated employees who were not members
of his protected class were treated more favorably. Tyburski v.
City of Chicago, 964 F.3d 590, 598 (7th Cir. 2020). Once those
elements are met, the burden shifts to the defendant to set
forth a legitimate, nondiscriminatory reason for the adverse
employment action. Id. If the defendant does so, then the bur-
den shifts back to the plaintiff to submit evidence that the em-
ployer’s explanation is pretextual. Id. Although the McDon-
nell-Douglas test is one means of proving discrimination, it is
not the only means of doing so. In all cases, at the summary
judgment stage, courts consider all evidence and determine
whether a reasonable jury could find that the plaintiff suf-
fered an adverse action because of his protected characteris-
tics. Id.We turn first to Singmuongthong’s discrimination claim
alleging disparate pay. The plaintiff worked as a correctional
officer for many years, during which time he was a union em-
ployee and therefore his pay was set by union contract. As a
result of his promotion to assistant warden in December 2016,
he was no longer under the union pay structure. In conjunc-
tion with that promotion he received a five percent increase
in his salary. He argues that Baldwin and Bowen discrimi-
nated against him on the basis of race, color, and/or national
origin by paying him a lower salary than other non-Asian, tan
or Laotian employees. The district court granted summary
judgment in favor of the defendants, holding that the plaintiff
had failed to demonstrate that the reason offered for giving
him only the five percent raise was pretextual, and that no
reasonable jury could conclude that the plaintiff was paid less
than other employees due to his race, color or national origin.
No. 21-3021 5
The plaintiff argues on appeal that under the McDonnell-
Douglas framework, the evidence was sufficient to establish
an issue of fact as to whether he received disparate pay based
on a discriminatory basis. When the plaintiff was promoted
to the position of assistant warden, he received a pay raise
that increased his prior salary by five percent. He argues that
other similarly-situated employees were treated more favora-
bly, in that they received higher salaries, identifying four in-
dividuals. As the district court recognized, “[b]ecause the
prima facie and pretext inquiry often overlap, if a defendant
offers a nondiscriminatory reason for its actions, we can pro-
ceed directly to the pretext inquiry.” Barnes v. Bd. of Trustees of
Univ. of Ill., 946 F.3d 384, 389 (7th Cir. 2020).
Here, Bowen testified in his deposition that salaries for
such promotions varied in amount because they were calcu-
lated based on the salary in the prior position, but that the
standard raise was an increase of five percent from that prior
salary. Bowen testified that he was responsible for imple-
menting the mathematical equation that determined the sal-
ary, and that such promotions were based on a standard in-
crease of five percent. He identified situations in which the
salary would deviate from that standard five percent. When
an employee was coming from a position outside the agency
or the pay was low, a more substantial raise might be pro-
vided. Moreover, for senior administrators who were near the
top of the pay range allowed for the new position, the raise
might be less than five percent. He testified that when he was
chief of staff, the cap for salaries was around $125,000, and the
floor for such salaries was around $45,000, and that those lim-
its were based on guidelines issued by Illinois’ Central Man-
agement Services. He further testified that the establishment
of the standard salary increase of five percent was based on
6 No. 21-3021
budgetary constraints and direction from the Governor’s of-
fice in regard to pay increases.
Although the plaintiff argues on appeal that the evidence
did not support the contention that there was a standard raise
of five percent for such promotions, he raised no such argu-
ment below. In fact, in his response to the motion for sum-
mary judgment below, the plaintiff explicitly set forth as “Ad-
ditional Material Facts” for consideration that “[a] Senior
Public Services Administrator pay could be set anywhere in
the range of $45,000 to $125,000” and that “[p]romotions to
Senior Public Administrator pay, which are Assistant War-
dens and above, were based on a pretty much standard in-
crease of 5%.” Doc. 44 at 25–26. He cannot disavow those facts
now.
The plaintiff thus did not rebut that testimony that the five
percent raise was the standard salary raise provided, nor does
the plaintiff dispute that the raise provided to him was a five
percent increase over his prior salary. He merely identifies
comparators that received raises that deviated from the five
percent, and argues that the deviation in their salaries is suf-
ficient to demonstrate that his salary calculation was discrim-
inatory. That argument is insufficient to allow an inference of
discriminatory conduct. The McDonnell-Douglas framework
supports an inference of discrimination where similarly-situ-
ated individuals of a different protected characteristic are
treated differently, and the employer’s alleged reason for the
differential treatment is pretextual. Here, the comparators set
forth by the plaintiff do not advance his claim. First, he iden-
tifies only a few non-Asian employees who received a pay
raise of more than five percent, but does not contest that he
was the only Asian assistant warden or warden during the
No. 21-3021 7
relevant time period and that the standard raise of five per-
cent was applied in the normal course to the numerous other
non-Asian assistant wardens and wardens. The undisputed
evidence, then, remained that the same pay determination
was applied to similarly-situated non-Asian employees as a
matter of standard practice. Therefore, he lacks evidence that
the distinction in pay for those few comparators is related to
the race of the recipient.
Moreover, his four comparators are factually dissimilar.
For instance, two of them, Jennifer Parrack and Darwin Wil-
liams (referred to as “Darwin” to differentiate from the war-
den Anthony Williams), fell within the exceptions to the five
percent policy identified by Bowen in setting forth the pay
policies. Parrack worked for a contractor prior to becoming
assistant warden, and therefore came to the position from out-
side the agency and her pay was calculated differently from
those in the internal pay structure. And Darwin was making
$35,000–36,000 salary when promoted, and therefore would
have been under the lowest range of $45,000 if limited to a five
percent range. Those comparators therefore fell within the
pay structure identified by Bowen and not challenged by the
plaintiff, and did not reflect a deviation from it.
Two other persons identified by Singmuongthong, Daniel
Sullivan and John Burle, were not proper comparators. As to
Sullivan, the plaintiff never presented any evidence as to his
race, and therefore he was not identified as a non-Asian for
comparison. Burle was placed in the role of assistant warden
in an “acting” capacity and therefore retained his position in
the union bargaining unit and received a supplemental pay
increase in addition to that union salary. The plaintiff
acknowledged in his deposition that he was aware that the
8 No. 21-3021
assistant warden promotion was not in an “acting” capacity
and that it would take him out of the union, and therefore the
two were not similarly-situated because different pay struc-
tures applied to them. The plaintiff failed to identify simi-
larly-situated non-Asians treated differently, but more signif-
icantly, has conceded that the standard practice was to pro-
vide a five percent raise and that the others who also received
such a raise were all non-Asians. The failure to deviate from
the standard practice applied to Asians and non-Asians alike
cannot supply a basis for a jury to find that the raise was based
on race.
The final claim raised by the plaintiff on appeal is a claim
that the failure to promote him to the position of warden was
discriminatory. For such a claim, the focus on summary judg-
ment is “’whether the evidence would permit a reasonable
fact-finder to conclude that [the plaintiff] was subjected to an
adverse employment action based on a statutorily prohibited
factor—here, race.’” Logan v. City of Chicago, 4 F.4th 529, 536
(7th Cir. 2021), quoting McCurry v. Kenco Logistics Servs., LLC,
942 F.3d 783, 788 (7th Cir. 2019); see also Smiley v. Columbia
College Chicago, 714 F.3d 998, 1002 (7th Cir. 2013) (noting that
“[w]e generally apply the same standards to Title VII and sec-
tion 1981 race discrimination claims at the summary judg-
ment stage”).
As always on summary judgment, we consider all evi-
dence in the light most favorable to the non-moving party,
drawing all reasonable inferences in favor of that party. Logan,
4 F.4th at 536. As we have repeatedly noted, whether a plain-
tiff relies upon circumstantial or direct evidence of discrimi-
nation, “all evidence belongs in a single pile and must be eval-
uated as a whole.” Id. (internal quotation marks omitted). The
No. 21-3021 9
plaintiff argues that he was qualified for the promotion, that
he followed the proper procedures to request the promotion,
and that the standard procedure was to promote assistant
wardens to warden as evidenced by five persons who re-
ceived such promotions.
The five comparators identified by the plaintiff provide
evidence that a number of assistant wardens received promo-
tions to the position of warden. But they do not establish the
fact for which the plaintiff presents them—which is that it is
the “standard practice” to promote the assistant warden to the
warden position, and that the failure to promote the plaintiff
was therefore a deviation from that standard practice that
would allow an inference of discrimination. More signifi-
cantly, none of those five persons are proper comparators at
all, because the plaintiff does not assert that any of those per-
sons had been found to have been implicated in misconduct.
Here, the defendants sought to fill the position of warden
that was vacated when the warden was terminated following
an investigation. That investigation revealed that the warden
committed misconduct, and the same investigation also
caused the employer to conclude that the plaintiff had poor
judgment. Bowen testified that the investigation revealed that
the plaintiff failed to report inappropriate conduct of a sexual
nature and spent too much time at bars with subordinate staff.
The plaintiff does not contest on appeal that those conclusions
were reached following the investigation into the warden. Be-
cause the plaintiff has not argued that any of the assistant
warden comparators had been implicated in misconduct
prior to their promotion to the warden position, the plaintiff
has not identified similarly-situated individuals treated dif-
10 No. 21-3021
ferently. In fact, the other assistant warden at Kewanee, Jen-
nifer Parrack, a Caucasian, was also not considered for the
warden position because the Williams investigation had led
to concerns with her judgment as well.
In response, the plaintiff argues only that even after the
information from that investigation was known to the em-
ployer, the employer appointed him as acting warden, and
therefore the employer’s reliance on the investigation to deny
the promotion was pretextual. That argument is without sup-
port. First, as the plaintiff concedes, he was not in fact ap-
pointed to a position of acting warden. Instead, as the assis-
tant warden, he was asked to take over the job responsibilities
of the warden while a replacement warden was sought. Noth-
ing in that practical allocation of job duties during an interim
period implies that the investigation results were therefore
not relevant to the employer in determining who would be
promoted to the position of warden. The evidence is insuffi-
cient to support a finding of pretext.
The plaintiff’s remaining argument is also meritless. He
argues that the defendants claimed in the alternative that
Baldwin and Bowen were unaware of his interest in the posi-
tion, and that their claim was inconsistent with the argument
that he was not promoted to the position based on the conclu-
sion from the investigation that he exercised poor judgment.
But he has failed to demonstrate that those two arguments are
factually inconsistent. The undisputed testimony from Bowen
was that the Department regularly identified candidates for
open positions and proactively reached out to them to offer
the position. Doc. 42-3 at 21–23. Therefore, an employee’s ex-
pression of interest in a position was not a necessary trigger
for them to be considered for the position. Accordingly, there
No. 21-3021 11
is no inconsistency. Because the Department self-identified
candidates, they could have refused to offer him the promo-
tion based on his poor judgment without ever discovering
whether he would even be interested in the position. Because
the statements are not inherently inconsistent, the plaintiff
cannot succeed on his argument that the inconsistency ren-
ders the explanation pretextual.
The decision of the district court is AFFIRMED.