Perez v. Illinois

• Decision Date: 08 June 2007
• Docket Number: No. 05-4591.,05-4591.
• Citation: 488 F.3d 773
• Parties: Marcos PEREZ, Plaintiff-Appellant, v. State of ILLINOIS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

488 F.3d 773

Marcos PEREZ, Plaintiff-Appellant, v. State of ILLINOIS, Defendant-Appellee.

No. 05-4591.

United States Court of Appeals, Seventh Circuit.

Argued January 10, 2007.

Decided June 8, 2007.

Stephen T. Fieweger (argued), Katz, Huntoon & Fieweger, Moline, IL, for Plaintiff-Appellant.

Diane M. Potts (argued), Office of the Attorney General, Civil Appeals Division, Chicago, IL, for Defendant-Appellee.

Before POSNER, MANION, and SYKES, Circuit Judges.

MANION, Circuit Judge.

Marcos Perez sued the State of Illinois, Department of Corrections, alleging that he was terminated and later, after reinstatement, denied a promotion because of his national origin in violation of Title VII. The district court granted summary judgment in favor of the defendant. Perez appeals, and we affirm.

I.

Marcos Perez, an American of Hispanic ancestry, has been employed by the Department of Corrections ("Department") since January 1988, and began serving as a Captain in 1998. In 2002, Correctional Officer Debra Riley filed an incident report with the Department alleging that Perez had sexually harassed her, listing numerous instances of unwanted touching and comments of a sexual nature. After the Department conducted an investigation on Riley's report, Correctional Captain Frank Shaw held a hearing and submitted a memorandum to the warden recommending that Perez receive a thirty-day suspension pending discharge. Shaw premised his recommendation upon the testimony and evidence presented at the hearing, including the investigative report which concluded that Perez committed sexual harassment when he "touched Officer Debra Riley on her back, touched Riley's hair, commented about Riley's husband, commented about Riley's buttocks, breasts and menstrual period, commented about Riley's relationships or alleged sexual relationships with other employees, and hugged Riley and permitted Riley to sit on his lap." The warden concurred with the recommendation, and the Department Director approved the discipline. Accordingly, on May 3, 2002, Perez was discharged. Perez appealed to the Civil Service Commission. After a de novo hearing, the Commission reversed the warden's decision and imposed a thirty-day suspension in addition to Perez's previously imposed suspension, but without discharge. The Commission's Administrative Law Judge ("ALJ") noted that he questioned Riley's credibility and that Perez presented witnesses who testified that Riley and Perez were friendly. The ALJ, however, concluded that while the Department could not prove sexual harassment, it did prove significant conduct and comments that violated Department rules of conduct, thus warranting a sixty-day suspension.¹

Following the ALJ's decision, the Department reinstated Perez at the rank of captain. In 2003, due to budget cutbacks, the position of captain within the Department was eliminated statewide. Part of the captain elimination plan was for present captains to assume vacant lieutenant, correctional officer, or youth supervisor positions at the same facility or in the same county or to apply for a new shift commander position. There were four open lieutenant slots and the new shift commander position at the facility where Perez was stationed. Perez applied for a shift commander position, but garnered the lowest score out of the twelve applicants for the three available slots. Then, Perez voluntarily assumed a correctional officer position and has since been promoted to shift commander, where he serves to date.

Perez filed suit alleging that the Department violated Title VII, 42 U.S.C. § 2000e-2(a)(1), et seq., by firing him because of his national origin and similarly not promoting him to shift commander because of his national origin. The Department filed a motion for summary judgment which the district court granted, concluding that Perez failed to establish that others who were similarly situated were treated more favorably with regard to his termination claim and that the Department's non-discriminatory rationale for not promoting him was not pretextual. Perez appeals.²

II.

We review a district court's grant of summary judgment de novo. Vallone v. CNA Fin. Corp., 375 F.3d 623, 631 (7th Cir.2004). All reasonable inferences from the evidence are drawn in the light most favorable to the non-moving party. Id.

A plaintiff can prove national origin discrimination under either the direct or indirect method. See Sun v. Bd. of Tr. of Univ. of Ill., 473 F.3d 799, 812 (7th Cir.2007). In this case, Perez proceeds solely under the indirect method governed by McDonnell Douglas. Paul v. Theda Med. Ctr., Inc., 465 F.3d 790, 794 (7th Cir.2006) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). Under McDonnell Douglas, the plaintiff must establish a prima facie case of discrimination by showing that: "(1) he was a member of a protected class; (2) he was qualified for the job in question; (3) he suffered an adverse employment action; and (4) the defendant treated other similarly situated employees who were not members of the class more favorably." Id. (citations omitted). A similarly situated employee is one who is "comparable to plaintiff in all material respects," Crawford v. Ind. Harbor Belt RR. Co., 461 F.3d 844, 846 (7th Cir.2006). If the plaintiff establishes a prima facie case, then the burden shifts to the defendant to present evidence of a legitimate, non-discriminatory reason for its actions. Paul, 465 F.3d at 794. If the defendant makes that showing, then the burden shifts back to the plaintiff to show that the defendant's reason is pretextual, i.e., a "lie" or a "phony reason" for the action. Id. (citation omitted).

On his first claim, that the Department fired him because of his national origin, Perez's membership in a protected class, qualification for the captain position, and receipt of an adverse employment action are not at issue regarding the Department's firing of Perez. The sole question is whether Perez presented evidence that the Department treated similarly situated employees more favorably. While in the district court, Perez argued that there were three individuals who he claimed to be similarly situated to himself. On appeal, Perez sufficiently presents an argument for only one of the three, Lieutenant Brad Livingston.³ As perfunctory and undeveloped arguments are deemed waived, see Estate of Moreland v. Dieter, 395 F.3d 747, 759 (7th Cir.2005), we will only consider whether Livingston is substantially similar to Perez.

Like Perez, Livingston was charged with violating Sections 13 and 23 of the Employee Responsibilities and Rules of Conduct. Livingston was disciplined for a single instance of consensual kissing and embracing a subordinate employee while on duty. For this "unprofessional conduct and inappropriate behavior while on duty," Livingston was suspended for five days.

Livingston is not similarly situated to Perez in either position or conduct. Unlike Perez, Livingston was not a captain, but a lower ranked lieutenant. Further, Livingston was punished for a single instance, not activity that spanned a two-year period.

Perez, however, focuses on the fact that Livingston was charged with violating the same Department directives as he was, but received lesser punishments, namely suspension rather than termination. While identical rule violations may be helpful in determining whether there has been discrimination, it is not dispositive of similarity. See Johnson v. Artim Transp. Sys., Inc., 826 F.2d 538, 543 (7th Cir.1987) ("Even if a plaintiff shows different treatment after violations of the same rule, he or she might not succeed in establishing a prima facie case."). Perez responds by citing Davis v. Wisconsin Department of Corrections, 445 F.3d 971, 979 (7th Cir. 2006), claiming that his case should nonetheless have been presented to the jury because he and Livingston were charged with violating the same rules. However, this case is distinct from Davis. In Davis, the individuals at issue not only violated the "same work rule, [but][m]ore importantly, the [Department] evaluated the severity of each man's violation and placed all three violations in category B. . . ." Id. Conversely, here, while there is an identical rule violation, there was no severity classification amongst the rule violations. Rather, although in this case the same rules were implicated, the offenses, one being a consensual, single instance and the other being unwelcomed and sustained conduct, are of significantly different severity such that they are not comparable. Therefore, Livingston is not similarly situated to Perez. Because Perez does not present a similarly situated individual, we affirm the district court's grant of summary judgment in favor of the defendant on Perez's claim of national origin discrimination stemming from his initial discipline of termination in connection with the Riley complaint.

In his remaining claim, Perez asserts that the Department denied him a promotion to shift commander because of his national origin. In response, the Department states that Perez did not receive one of the three shift commander positions because Perez scored the lowest on the examination given to the twelve applicants for the job. Perez argues in response that the Department's purported reason for his denial, namely his test score, was pretextual.

To show pretext, "a plaintiff must show that (a) the employer's nondiscriminatory reason was dishonest; and (b) the employer's true reason was based on a discriminatory intent." E.E.O.C. v. Target Corp., 460 F.3d 946, 960 (7th Cir.2006) (citations omitted). In the absence of direct evidence of pretext, the plaintiff must "prove pretext indirectly." Johnson v. Nordstrom, Inc., 260 F.3d 727, 732 (7th Cir.2001). With indirect evidence, the plaintiff must show that the employer's reason is not credible or that the reason is factually baseless. See Guerrero v. Ashcroft, 253...