Little v. Illinois Dept. of Revenue

Decision Date27 May 2004
Docket NumberNo. 02-2507.,02-2507.
Citation369 F.3d 1007
PartiesGreg LITTLE, Plaintiff-Appellant, v. ILLINOIS DEPARTMENT OF REVENUE, Illinois Gaming Board, Glen Bower, individually and as Director of the Illinois Department of Revenue, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Arthur R. Ehrlich (argued), Goldman & Ehrlich, Chicago, IL, for Plaintiff-Appellant.

Nadine J. Wichern (argued), Office of the Attorney General, Chicago, IL, for Defendants-Appellees.

Before POSNER, RIPPLE, and MANION, Circuit Judges.

MANION, Circuit Judge.

Greg Little was (and once again is) a Revenue Special Agent for the Illinois Department of Revenue ("the Department"). He filed a complaint alleging that the Department fired him because of his race and because he spoke out against racial discrimination. Little appeals from the entry of summary judgment regarding his claims for racial discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and First Amendment retaliation. We affirm.

I.

Because this case comes to us after summary judgment, we review the record in the light most favorable to Little, the nonmoving party. E.g., Rogers v. City of Chicago, 320 F.3d 748, 750 (7th Cir.2003). The Department first hired Little as a Revenue Special Agent in 1985. It fired him in 1994 for violating its rules of conduct, but an arbitrator's decision reinstated him in 1996. In 1999, the Department transferred Little to the Illinois Gaming Board ("the Board"), which assigned him to work on the Empress, a floating casino. There, Little's job was to enforce the Riverboat Gaming Act, 230 ILCS 10/1, et seq. Although Little's place of employment was aboard the Empress, he nonetheless remained an employee of the Department and subject to the Department's rules of conduct.

Little had an encounter with Kevin Kickels, the Empress's "Player Development Manager," on July 1, 2000. On July 5, Kickels complained to Little's immediate supervisor, Mark Finn, that Little tried to intimidate him and used profanity during the conversation of July 1. Finn forwarded Kickels' complaint to Sergio Acosta, the Board administrator. Acosta gave the complaint to Joseph Haughey, the Board's deputy administrator, and instructed him to gather preliminary information and refer the matter to the Department's Internal Affairs Division ("IAD") for an investigation.

Chief Inspector Douglas Howard supervised the IAD's investigation of the July 1 incident, which was carried out by Inspectors James Oliver and Carlos Aulet. The inspectors interviewed Kickels and Little twice each, interviewed several other employees, and examined the security videotape of the area outside of Little's office that was recorded on July 1. According to the IAD's report, Kickels and Little had conflicting versions of their conversation of July 1.

Kickels maintained that Little had invited him into his office and then confronted Kickels about a personal disagreement that had occurred between Kickels and one of Kickels' employees, Janice Sheard. According to Kickels, Little stated that he was related to Sheard; used profanity; asked if anything was going on between Kickels and Sheard; and accused Kickels of "riding" Sheard. Further, as Kickels related, Little, using foul metaphoric terms,1 suggested that Sheard had attempted to go behind Kickels' back by complaining to his superior, Chris Corrado, that Kickels had asked if she were submitting her resignation. Kickels stated that Little then asked him whether he had "anything against black people," at which point Kickels decided that he had had enough of the conversation and left Little's office. The report further indicates that Kickels denied ever having made any racist remarks in Little's presence.

Little, according to the IAD's report, recounted a very different conversation. As the report characterizes Little's version of events, he and Kickels spoke for "just about 14 seconds," after Kickels had approached him to apologize for a racist remark that Little had overheard Kickels make about one-and-a-half months earlier. As the report relates Little's version of events, Little told Kickels that his racial proclivities were not Little's concern and abruptly terminated the conversation.

The IAD's report also related that the surveillance video of the area outside of Little's office showed Kickels and Little entering the office at 10:22 p.m. and leaving at 10:36. According to the report, Sheard and Empress employees Allison Dwyer, Norma Danner, and Chris Corrado also provided ancillary information related to the incident on July 1. Sheard stated that she had no problem with Kickels, and that she never spoke to Little about any problem with Kickels. Dwyer stated that Little had told her that he had confronted Kickels about problems with Sheard. Danner said that Little had expressed an interest in Sheard and other female employees of the Empress. Corrado told investigators that Kickels had approached him shortly after July 1 and asked how to handle his discussion with Little.

The conclusion of the IAD's report, which was signed by Aulet and Howard, was that Kickels was telling the truth, and Little was lying, about the conversation on July 1. The report also concluded that Little did not fully cooperate with the investigation, because he had declined to sign a waiver form and because he refused to answer questions about the discrepancy between the surveillance tape showing that Kickels was in his office with Little for 14 minutes and his recollection that the conversation only lasted several seconds. The report also concluded that Little put forth no evidence in support of his story. After reviewing the IAD's report, Robert Tapscott, the Department's program administrator for administrative services, conferred with various supervisors and then recommended to Glen Bower, the Department's director, that Little be fired. After reviewing the report and consulting with various subordinates, Bower then made the decision to discharge Little, effective December 21.2

Little, whose contract was covered by a collective bargaining agreement, almost immediately brought a grievance against his discharge and wrote letters to Bower and to an assistant to Illinois' governor, complaining of racial discrimination in the Department. The arbitrator concluded that Little had improperly interjected himself into the Empress's personnel matters, had used improper language in his conversation with Kickels, and was untruthful during the IAD's investigation. The arbitrator also decided, however, that Little was not as uncooperative as the report indicated and that, in light of his fifteen years of service to the Department, Little should not have been fired. The arbitrator ordered Little reinstated, effective November 18, 2001. Given Little's degree of culpability, however, the arbitrator declined to award back pay or benefits.

Little then sued the Department, the Board, Bower, Haughey, and Tapscott in the district court. Little complained that his discharge was because of his race, which would have violated Title VII, and because he had spoken out against discrimination, which would have constituted retaliation in violation of both Title VII and the First Amendment. The district court granted summary judgment to the defendants in all respects.

II.

We review the district court's grant of summary judgment de novo, construing all facts in favor of Little, the nonmoving party. Rogers, 320 F.3d at 752. Summary judgment is appropriate when the "pleadings, depositions, answers to interrogatories, and admissions 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." Fed.R.Civ.P. 56(c). In short, summary judgment is warranted where "a rational trier of fact could not find for the non-moving party." Rogers, 320 F.3d at 752.

Title VII forbids certain employers "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of" his race. 42 U.S.C. § 2000e-2(a)(1) (2000). Its anti-retaliation provision also forbids those same employers from taking an adverse employment action against an employee for opposing impermissible discrimination. 42 U.S.C. § 2000e-3(a). There is no dispute that the Department is an employer subject to Title VII. The other defendants did not employ Little and cannot, of course, be liable under that statute. Drake v. Minnesota Min. & Mfg. Co., 134 F.3d 878, 885 n. 4 (7th Cir.1998).

Little may prove intentional discrimination in violation of Title VII under the direct or indirect method. Rhodes v. Illinois Dep't of Transp., 359 F.3d 498, 504 (7th Cir.2004). Before the district court, Little attempted to prove both racial discrimination and retaliation in violation of Title VII solely under the indirect method, arguing that he stated a prima facie case of both claims and that he had shown that the nondiscriminatory justification put forth by the Department was pretextual. He is thus foreclosed from invoking the direct method on appeal. Buie v. Quad/Graphics, Inc., 366 F.3d 496, 2004 WL 885726, at *6 (7th Cir. Apr.27, 2004).

Under the indirect method of proving racial discrimination, Little must first establish a prima facie case. Rhodes, 359 F.3d at 504. He must show that (1) he was a member of a protected class; (2) he was performing his job satisfactorily; (3) the employer took an adverse employment action against him; and (4) the employer treated at least one similarly situated individual outside of his protected class more favorably. Id. If Little were to clear that hurdle, the Department would have to articulate a nondiscriminatory reason for firing him, and in response Little would have to put forth...

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