Luster v. Ill. Dep't of Corr.

• Citation: 112 Fair Empl.Prac.Cas. (BNA) 1321,652 F.3d 726
• Decision Date: 19 July 2011
• Docket Number: No. 09–4066.,09–4066.
• Parties: Milton LUSTER, Plaintiff–Appellant,v.ILLINOIS DEPARTMENT OF CORRECTIONS, Defendant–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

652 F.3d 726

112 Fair Empl.Prac.Cas. (BNA) 1321

Milton LUSTER, Plaintiff–Appellant,

v.ILLINOIS DEPARTMENT OF CORRECTIONS, Defendant–Appellee.

No. 09–4066.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 9, 2010.Decided July 19, 2011.

Christopher C. Cooper, Ph. D. (argued), Attorney, Merrillville, IN, for Plaintiff–Appellant.Evan Siegel (argued), Attorney, Office of the Attorney General, Civil Appeals Division, Chicago, IL, for Defendant–Appellee.Before POSNER, TINDER, and HAMILTON, Circuit Judges.HAMILTON, Circuit Judge.

Milton Luster claims that the Illinois Department of Corrections violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e–2(a)(1), by firing him from his job as a correctional lieutenant because he is black. The warden at the prison where Luster worked had suspended him “pending discharge” and recommended his termination after concluding that Luster had sexually harassed a female subordinate. An independent state agency responsible for hiring and firing unionized employees then had 30 days to act on the recommendation to terminate. During that 30–day window, Luster could have objected to the proposed termination. Instead he resigned and then filed suit.

Luster has no direct evidence of race discrimination and relies instead on the indirect method of proving unlawful discrimination. The district court granted summary judgment for the IDOC, finding that Luster had established a prima facie case of discrimination but had not shown that the IDOC's stated reasons for its decision—the harassment, which included a battery, and lying about the misconduct to IDOC officials—were pretextual. On appeal Luster challenges the latter conclusion. The IDOC renews its contention that Luster's evidence was not actually sufficient to establish a prima facie case of discrimination, and it defends the district court's conclusion on lack of pretext. We agree with the IDOC on both points and affirm the judgment in favor of the IDOC.

I. Facts for Summary Judgment

Because the district court granted summary judgment, we consider the following facts as either undisputed or reflecting the evidence in the light reasonably most favorable to Luster, the non-moving party. See Berry v. Chicago Transit Auth., 618 F.3d 688, 690–91 (7th Cir.2010). Luster began working for the IDOC as a guard in 1988. He was promoted several times and in 2001 was assigned to the Dwight Correctional Center as a lieutenant.

The dispute stems from seemingly trivial events on June 6, 2006, when Luster and a few of his co-workers were discussing the origin of prunes. The conversation became heated when Luster contended that prunes are dried grapes while Christine Cole, a white guard, insisted that dried grapes are raisins, not prunes. Luster (foolishly) proposed that they “wager on this one,” prompting Cole to reply, “Then get your check out bitch cuz you lost.”

Later that day, Luster submitted an incident report accusing Cole of being insubordinate for calling him a “bitch.” Two days later Cole reported to her superiors that on June 1, 2006, Luster had forcibly pinned her against a wall in the control room while both were on duty and put his mouth on her neck forcefully enough to leave red marks. Luster had done the same thing a week earlier, she reported, and also had touched her buttocks a few days after the June 1st incident. Cole, who acknowledged having had an affair with Luster four years earlier, also reported that he had made suggestive remarks to her in person at work, on the telephone in unsolicited calls to her home, and in person at her home when he showed up uninvited. She had told him to stop, she said, but he had persisted.

Cole's allegations triggered an investigation within the IDOC. Warden Mary Sigler placed Luster on paid administrative leave on June 11th. During the remainder of June the matter was investigated by Larry Sims, who worked in the IDOC investigations unit. Sims reviewed incident reports and interviewed Luster, Cole, and two other guards, one male and one female, who said they had witnessed at least one incident like the one Cole said occurred on June 1st. Luster was interviewed twice. He denied all of Cole's allegations.

In his final report to IDOC management, investigator Sims criticized Cole for calling Luster a “bitch” and for waiting to report his harassment, but he credited her account of the June 1st encounter and disbelieved Luster's denials. Sims' investigation prompted a criminal referral to the State's Attorney for battery, as well as disciplinary proceedings. Luster and his union representative appeared before an IDOC hearing officer on August 1st. On August 15th, the hearing officer recommended to Warden Sigler that Luster be fired.

Warden Sigler agreed. She suspended Luster without pay beginning August 31st and recommended to the Illinois Department of Central Management Services that he be fired. That department must approve the termination of unionized prison employees, see 80 Ill. Admin. Code §§ 302.710, 302.720; Jennings v. Illinois Dep't of Corrections, 496 F.3d 764, 768 (7th Cir.2007). Central Management Services acted on the warden's recommendation by issuing an “action form” dated September 7, 2006 informing Luster that he was suspended effective August 31st “pending discharge.” Luster was given a provisional termination date of September 30th, but he could have tried to save his job by filing a grievance before then. If those avenues failed, he could have filed an administrative appeal to the state Civil Service Commission. See 80 Ill. Admin. Code § 302.750. Instead, on September 8, 2006, he delivered a resignation letter to the warden.¹

II. The Prima Facie Case of Discrimination

We consider first whether Luster offered evidence of a prima facie case of discrimination. The IDOC moved for summary judgment, arguing that Luster had no evidence that would allow a reasonable jury to find that he was disciplined because of his race. In opposing the motion, Luster relied on the indirect method of proof pursuant to McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). It was his initial burden to establish a prima facie case of discrimination by offering evidence tending to show that (1) he is a member of a protected class, (2) he was meeting the IDOC's performance expectations, (3) he suffered an adverse employment action, and (4) a similarly situated co-worker who is not a member of the protected class was treated more favorably. See Winsley v. Cook County, 563 F.3d 598, 604 (7th Cir.2009); Ballance v. City of Springfield, 424 F.3d 614, 617 (7th Cir.2005).

The first element is satisfied, and although the IDOC maintains that Luster was never fired because he resigned, the IDOC concedes that Luster's suspension without pay before he resigned was an adverse employment action sufficient to satisfy the third element for purposes of summary judgment.

With respect to the remaining elements of the prima facie case, the district court correctly reasoned in this case of allegedly discriminatory discipline that the second element, whether the employee was performing satisfactorily, merged into the fourth element, whether the employer treated plaintiff worse than a similarly situated co-worker. See Caskey v. Colgate–Palmolive Co., 535 F.3d 585, 592 (7th Cir.2008); Flores v. Preferred Technical Group, 182 F.3d 512, 515 (7th Cir.1999). Federal employment discrimination laws do not limit their protection to perfect or even good employees. They also protect employees who misbehave or perform poorly. E.g., Schandelmeier–Bartels v. Chicago Park Dist., 634 F.3d 372, 376 (7th Cir.2011) (“perfection is not a requirement for protection under Title VII”). Under Title VII of the Civil Rights Act of 1964, an employer cannot intentionally discipline poor employees more severely on the basis of race, sex, religion, or national origin.

A plaintiff trying to meet this element by showing that comparators outside the protected group were “similarly situated” need not demonstrate complete identity. What is required is “substantial similarity” given all relevant factors in the case. See Humphries v. CBOCS West, Inc., 474 F.3d 387, 405 (7th Cir.2007). Courts should apply a flexible and factual, common-sense approach. Id. The question is whether the other employees' situations were similar enough to the plaintiff's that it is reasonable to infer, in the absence of some other explanation, that the different treatment was a result of race or some other unlawful basis. For claims of discriminatory discipline, courts compare the similarity of misconduct, performance standards, qualifications, and disciplining supervisor. See Radue v. Kimberly–Clark Corp., 219 F.3d 612, 617–18 (7th Cir.2000).

As the case is framed for us on appeal, Luster's prima facie case turns on whether he established that one or more co-workers of other races who engaged in physical misconduct of a sexual nature were given lighter punishment than the 30–day suspension pending discharge that he received from the IDOC. On appeal, Luster relies on two comparators: Kinsella and Kozlowski, both white guards.

The district court concluded that there is a disputed issue of material fact in the comparison to Kinsella. In answering an interrogatory, Luster said that Kinsella had been “accused” of having sex with an inmate but was punished with only a brief suspension. Warden Sigler countered in an affidavit that Kinsella had never been accused of having sex with an inmate, that the accusation had been “socializing” with an inmate, and that she had concluded that even the “socializing” accusation was unsubstantiated. The district court reasoned that these differing accounts created a material factual dispute that had to be resolved by a jury.

We disagree. A district court should deny a motion for summary judgment only when the non-moving party presents admissible evidence that creates a...