652 F.3d 726 (7th Cir. 2011), 09-4066, Luster v. Illinois Dept. of Corrections

Docket Nº:09-4066.
Citation:652 F.3d 726
Opinion Judge:HAMILTON, Circuit Judge.
Party Name:Milton LUSTER, Plaintiff-Appellant, v. ILLINOIS DEPARTMENT OF CORRECTIONS, Defendant-Appellee.
Attorney: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.
Judge Panel:Before POSNER, TINDER, and HAMILTON, Circuit Judges.
Case Date:July 19, 2011
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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652 F.3d 726 (7th Cir. 2011)

Milton LUSTER, Plaintiff-Appellant,



No. 09-4066.

United States Court of Appeals, Seventh Circuit.

July 19, 2011

Argued Nov. 9, 2010.

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[Copyrighted Material Omitted]

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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 pre-textual. 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

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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...

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