Swearnigen-El v. Cook County Sheriff's Department

In the

United States Court of Appeals

For the Seventh Circuit

No. 09-2709

K ENNETH SWEARNIGEN-E L,

Plaintiff-Appellant,

v.

C OOK C OUNTY SHERIFF’S D EPARTMENT, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 1:05-cv-01493—Elaine E. Bucklo, Judge.

A RGUED JANUARY 15, 2010—D ECIDED A PRIL 22, 2010

Before W OOD , E VANS, and SYKES, Circuit Judges.

E VANS, Circuit Judge. Kenneth Swearnigen-El was

charged with custodial sexual misconduct while em-

ployed as a correctional officer in the Cook County jail’s

women’s division and subsequently resigned.1 After

1

Today, we also decide the case of Egonmwan v. Cook County

Sheriff’s Department, No. 09-2764, which arises from the same

(continued...)

2 No. 09-2709

being acquitted of the charge in state court, Swearnigen

brought this lawsuit against the Cook County Sheriff’s

Department, which operates the Cook County Depart-

ment of Corrections (CCDOC) and Sheriff’s Police

(CCSP); the County of Cook; the sheriff, Michael

Sheahan; two CCDOC directors, Callie Baird and Scott

Kurtovich; and the superintendent of the women’s divi-

sion, Katie Harrison. Swearnigen alleges that the defen-

dants constructively discharged him because of his

gender, race, and protected speech and initiated a mali-

cious prosecution that caused him extreme emotional

distress. The defendants, on the other hand, contend that

they took no adverse action against Swearnigen, and

even if they did, it was because of his sexual misconduct.

The district judge sided with the defendants, dismissing

one claim, see Swearingen-El v. Cook County Sheriff’s Dep’t,

416 F. Supp. 2d 612, 616-17 (N.D. Ill. 2006), and granting

summary judgment on the rest. See Swearnigen-El v.

Cook County Sheriff’s Dep’t, No. 05 C 1493, 2009 WL

1849809 (N.D. Ill. June 26, 2009). Swearnigen now appeals.

1

(...continued)

investigation of custodial sexual misconduct in the women’s

division. Like Swearnigen, Egonmwan was charged but acquit-

ted after a bench trial, by the same state court judge. He then

brought a lawsuit, by the same counsel, against the defendants,

alleging gender and race discrimination (among other things),

which was dismissed on summary judgment. See Egonmwan

v. Cook County Sheriff’s Dep’t, No. 06 C 4764, 2009 WL 1139150

(N.D. Ill. Apr. 27, 2009).

No. 09-2709 3

At this stage in the proceedings we must construe all

facts and reasonable inferences in favor of Swearnigen.2 As

so viewed, the facts are that CCDOC General Order 3.8

forbids employees from engaging in (1) “activities unbe-

coming of county employees, or conduct that reflects

unfavorably to the Office of the Sheriff of Cook County”

and (2) “sexual conduct or sexual relationships, physical

in nature, with a person in the custody and care of the

CCDOC.” It also directs employees to report code viola-

tions as follows:

It shall be the responsibility of every employee to

immediately report to their divisional Superinten-

dent/Unit Head and the department Internal Inves-

tigations Unit verbally and in writing, any fact or

situation which may give rise to or be construed

as corrupt, illegal or unethical behavior and/or a

possible conflict of interest. This shall include, but

not be limited to, reporting anything which could

impair the employee’s performance of their duties

in a fair and impartial manner.

Swearnigen, a black 3 male, began working as a correc-

tional officer at the jail in 1986. He held various positions

2

The defendants criticize the statement of facts section of

Swearnigen’s appellate brief as argumentative. As Swearnigen

concedes, his statement may not have been “the most artfully

stated,” but we decline the defendants’ request to impose

sanctions.

3

Swearnigen refers to his race as “Black” so we will do the

same. Egonmwan, in the companion case, refers to himself

as “African-American” so in his case we will do the same.

4 No. 09-2709

with the labor union that represented correctional officers

from 1990 to 2001. Swearnigen also attempted to bring a

new union into the CCDOC in February 2002. During his

time in the women’s division, Swearnigen voiced concerns

about jail policies and helped other officers with their

complaints against management—activities of which

Harrison was aware.

According to Swearnigen, Harrison and he bumped

heads in January 2003,4 when Harrison told him that her

“first goal as Superintendent was to remove all the men

out of the [women’s] division” and therefore Swearnigen

“must go.” During this same conversation, Harrison

also criticized Swearnigen’s efforts to help another officer

file a harassment complaint against her. Swearnigen re-

sponded that he would “fight” Harrison on her at-

tempt to remove men from the division because it “was

discriminatory and retaliatory.” He also reported his

concerns to other supervisors.

In March or April 2003, Nicole Burns, a female detainee,

gave Harrison a letter alleging that male correctional

officers were engaging in sexual intercourse with her

and other detainees in the women’s division. The letter

4

Swearnigen now argues, without citing to the record, that this

conversation took place “[s]ometime after May 2003 but

before July 3, 2003.” The defendants, on the other hand, point

to three places in the record where Swearnigen admitted that

the conversation took place in January 2003. It therefore

would be unreasonable to accept Swearnigen’s contention as

to when the conversation occurred.

No. 09-2709 5

did not specifically name Swearnigen. Harrison sent the

letter to Kurtovich and the CCDOC’s Internal Affairs

Department (IAD), which then forwarded the allegations

to the CCSP. There is some evidence that Harrison made

a phone call to the IAD that brought Swearnigen’s name

into the investigation, although Harrison disputes this

contention. Detectives from the CCSP conducted inter-

views of female detainees, including Latoya Williams,

who later claimed that detectives threatened her and

offered her bribes to implicate Swearnigen. Approxi-

mately 20 male officers, about half of them black, were

“suspects of interest” in the sweeping investigation. The

detectives reported their findings to the Cook County

State’s Attorney.

In June 2003, two assistant state’s attorneys (ASAs)

began interviewing detainees. They did not interview

Williams or the defendants. Harrison attended some of

the detainees’ interviews and purportedly questioned

them, but the defendants otherwise were not involved.

During the investigation, detainees said that Swearnigen

was having inappropriate relations with detainee Portia

Warrington. Warrington was interviewed by the ASAs

and admitted that she had sex with Swearnigen. Tele-

phone records also showed that between March 1 and

May 31, 2003, Warrington made about 100 collect calls

from the jail to Swearnigen’s personal cell phone and that

he accepted about 25 of those calls. Swearnigen now

contends that he gave Warrington his phone number

because she said that supervisors were threatening her

and “messing with [her] case.”

6 No. 09-2709

On July 3, 2003, the IAD de-deputized Swearnigen for

“conduct unbecoming” and transferred him to an

external operations post. A month later, Swearnigen

began a scheduled vacation outside the country. While

he was away, on August 13, 2003, a warrant for his

arrest was issued and he was charged with custodial

sexual misconduct. Two of the other 20 or so officers

who were the subjects of the investigation, James

Anthony and Iyare Egonmwan, were also charged. Like

Swearnigen, Anthony and Egonmwan are black.

The ASAs testified that they did not consult with the

defendants on their charging decisions and that the three

officers were tagged due to consistent witnesses’ state-

ments and corroborative evidence. Sheahan held a press

conference after the charges were issued, stating, “This

is something where individuals made bad choices and

put themselves in a position where they abused their

power and they’ll pay the consequences.” Swearnigen

also claims that another person heard Sheahan call

him a “fugitive.”

On August 26, 2003, Swearnigen was suspended with

pay pending a hearing pursuant to Cleveland Board of

Education v. Loudermill, 470 U.S. 532 (1985), as only the

merit board could terminate his employment. See 55 ILCS

5/3-7012. One white officer, Paul Usyak, was also de-

deputized and suspended with pay pending a Loudermill

hearing for living with a former inmate. (Usyak was not,

however, criminally charged.) Upon returning from

vacation, Swearnigen surrendered to the CCSP. He

later testified that someone told him that Kurtovich

No. 09-2709 7

wanted him to be placed in a maximum security area,

which caused him great distress. Swearnigen actually

was placed in a one-person, unlocked cell in a psycho-

logical evaluation area. He bonded out a few hours

later. As a result of these incidents, he now suffers from

posttraumatic stress disorder.

On August 28, 2003, Swearnigen resigned, noting in

his paperwork that he was leaving to attend school.

He later testified that he really resigned because of the

administrative proceedings but did not want to explain

that to a future employer. The women’s division was

subsequently converted into a unit monitored almost

exclusively by female officers. The female-only policy

was deemed a bona fide occupational qualification.

Male officers in that division were transferred, not termi-

nated.

At Swearnigen’s state court bench trial, in June 2004,

neither the defendants nor Swearnigen testified. Warring-

ton, however, did testify and repeated her earlier state-

ments that, while she was a detainee, she had sex

with Swearnigen. The ASAs agreed to recommend a

reduction in Warrington’s sentence in exchange for her

testimony. The parties stipulated that Warrington made

100 calls from the jail to Swearnigen’s phone and

that he accepted 25 of them. Despite this evidence,

Swearnigen was acquitted.5

5

The trial judge found no corroboration for Warrington’s

testimony, which he discounted because, while on the stand,

Warrington told the prosecutor that she did not like her,

(continued...)

8 No. 09-2709

After the trial, Swearnigen filed an EEOC charge, alleg-

ing that he had been “discriminated against on the basis

of my race, Black, and sex, male, in violation of Title VII

of the Civil Rights Act of 1964, as amended.” The charge

did not mention retaliation. According to Swearnigen,

however, the EEOC investigator refused to allow him

to add this claim. Swearnigen received a “right to

sue” letter and thereafter filed a six-count complaint

alleging (1) gender and race discrimination and retalia-

tion under Title VII of the Civil Rights Act of 1964;

(2) gender and race discrimination under 42 U.S.C. § 1983;

(3) race discrimination under 42 U.S.C. § 1981; (4) First

Amendment retaliation under 42 U.S.C. § 1983; (5) mali-

cious prosecution under Illinois law; and (6) intentional

infliction of emotional distress under Illinois law.

The district court dismissed Swearnigen’s Title VII re-

taliation claim and later granted the defendants’ motion

for summary judgment on the remaining claims.

We review the grant of summary judgment de novo. Nagle

v. Vill. of Calumet Park, 554 F.3d 1106, 1114 (7th Cir. 2009).

Summary judgment is appropriate where the admissible

evidence shows that “there is no genuine issue as to

5

(...continued)

which, according to the judge, “show[ed] utter contempt and

disrespect for members of law enforcement.” The judge also

suggested that, by “willingly” having sex with Swearnigen,

Warrington was “aiding and abetting in the commission of a

felony.” That remark is rather curious when one considers

that the custodial sexual misconduct statute clearly states that

an inmate is incapable of consent. See 720 ILCS 5/11-9.2(e).

No. 09-2709 9

any material fact and that the movant is entitled to judg-

ment as a matter of law.” Fed. R. Civ. P. 56(c)(2). “A

genuine issue of material fact arises only if sufficient

evidence favoring the nonmoving party exists to permit

a jury to return a verdict for that party.” Faas v. Sears,

Roebuck & Co., 532 F.3d 633, 640-41 (7th Cir. 2008) (internal

quotation marks omitted).

The first issue is whether summary judgment was

appropriate on Swearnigen’s gender and race discrim-

ination claims. The district judge found that Swearnigen

had not shown an adverse employment action (he

argued only constructive discharge), a required element

of those claims. See Lucero v. Nettle Creek Sch. Corp., 566

F.3d 720, 730 (7th Cir. 2009); Phelan v. Cook County, 463

F.3d 773, 780 (7th Cir. 2006); O’Neal v. City of Chi., 392 F.3d

909, 911 (7th Cir. 2004); see also Fischer v. Avanade, Inc., 519

F.3d 393, 408-09 (7th Cir. 2008) (“Constructive discharge

does constitute an adverse employment action . . . .”).

We agree.

The Supreme Court has held that, to establish construc-

tive discharge, a plaintiff must show that her working

conditions, from an objective standpoint, “became so

intolerable that her resignation qualified as a fitting

response.” Pa. State Police v. Suders, 542 U.S. 129,

133-34, 141 (2004). We have found constructive discharge

where “an employer acts in a manner so as to have com-

municated to a reasonable employee that she will be

terminated, and the plaintiff employee resigns . . . .”

E.E.O.C. v. Univ. of Chi. Hosps., 276 F.3d 326, 332 (7th Cir.

2002). But we have subsequently clarified that “the pros-

10 No. 09-2709

pect of being fired at the conclusion of an extended pro-

cess,” without more, does not meet this standard. Cigan

v. Chippewa Falls Sch. Dist., 388 F.3d 331, 333-34 (7th

Cir. 2004).

In addition to Cigan, the defendants rely on Levenstein

v. Salafsky, 414 F.3d 767 (7th Cir. 2005), in arguing

that Swearnigen was not constructively discharged.

There, the plaintiff, a professor on the faculty of the

medical school at the University of Illinois in Rockford,

was suspended with pay pending a sexual harassment

investigation, temporarily assigned off campus for

almost a year, removed as department head, and given

“demeaning” tasks before finally resigning. We distin-

guished Parrett v. City of Connersville, Indiana, 737 F.2d

690 (7th Cir. 1984), because there the plaintiff was forced

to sit in a windowless broom closet and spend his

entire shift with nothing to do, and the reassignment

was not explicitly temporary. Levenstein, 414 F.3d at 774-

75. Ultimately, we held that “a person who is on leave

with pay, with a temporary (though unsatisfying) reas-

signment pending an investigation of serious job mis-

conduct, who resigns rather than waits for the conclu-

sion of reasonable prescribed due process procedures

of the institution, has not from an objective standpoint

been constructively discharged.” Id. at 775.

In response, Swearnigen primarily points to the conse-

quences of his criminal proceedings—being charged,

arrested, and (briefly) jailed—as evidence that he

endured “much more” than the plaintiff in Levenstein. But

none of these actions involved Swearnigen’s working

No. 09-2709 11

conditions or the defendants. Swearnigen was de-depu-

tized and transferred to an external operations post by

the defendants. But this came after a comprehensive

investigation revealed evidence of misconduct and

did not impact his pay. Moreover, there is no evidence

that conditions at the operations post came close to those

in Parrett. This leaves Swearnigen with the argument

that his suspension, with pay and pending his

Loudermill hearing, constituted constructive discharge.

As Swearnigen lasted only two days on paid leave

before resigning and never participated in administra-

tive proceedings, he has an even weaker argument than

the plaintiff in Levenstein. Because no reasonable jury

could find that Swearnigen was constructively dis-

charged, summary judgment was proper on his discrim-

ination claims.

Even assuming that Swearnigen could prove an adverse

employment action, to avoid summary judgment he

would still have to either point to enough evidence,

whether direct or circumstantial, of discriminatory moti-

vation to create a triable issue (the “direct” method), or

establish a prima facie case under the McDonnell Douglas

formula (the “indirect” method).6 Paz v. Wauconda

Healthcare & Rehab. Ctr., 464 F.3d 659, 665 (7th Cir. 2006). A

prima facie case under the indirect method requires

6

The same requirements for proving discrimination apply

to claims under Title VII, § 1981, and § 1983. See Humphries

v. CBOCS West, Inc., 474 F.3d 387, 403-04 (7th Cir. 2007); Davis

v. Wis. Dep’t of Corrections, 445 F.3d 971, 976 (7th Cir. 2006).

12 No. 09-2709

Swearnigen to prove that (1) he is a member of a pro-

tected class; (2) his job performance met the CCDOC’s

legitimate expectations; (3) he suffered an adverse em-

ployment action; and (4) another similarly situated indi-

vidual outside his protected class was treated more

favorably. Burks v. Wis. Dep’t of Transp., 464 F.3d 744, 750-

51 (7th Cir. 2006). After making this showing, if the defen-

dants counter with legitimate, nondiscriminatory rea-

sons for their actions, Swearnigen would also have to

show that those reasons were pretextual. Id. at 751.

Swearnigen purports to establish gender discrimina-

tion via the direct method, pointing to Harrison’s

January 2003 statement as evidence of discriminatory

motivation and analogizing to Lewis v. City of Chicago,

496 F.3d 645 (7th Cir. 2007).7 In Lewis, we found that a

supervisor’s remark “that he prevented [the plaintiff]

from participating on [a job] because she was a female

and that ‘it was going to be a working trip, and he

thought it would be dangerous and that [she] would

thank him for it later’ ” presented an issue of fact for trial.

Id. at 651. Here, however, Harrison’s January 2003 state-

ment that she wanted to remove men from the women’s

division did not concern the employment action in ques-

tion, as the female-only policy was not implemented

until after Swearnigen resigned. Moreover, the time

lapse between this statement and the July and August

actions against Swearnigen is too long to support an

7

It is understandable that Swearnigen would rely on Lewis,

as his counsel also represented the plaintiff in that case.

No. 09-2709 13

inference of discrimination. See Nichols v. S. Ill. Univ.-

Edwardsville, 510 F.3d 772, 781-82 (7th Cir. 2007) (“[S]tray

remarks that are neither proximate nor related to the

employment decision are insufficient to defeat summary

judgment.”). Swearnigen cannot avoid summary judg-

ment on his gender discrimination claim.

Swearnigen attempts to show race discrimination via

both methods of proof. Under the direct method, he

points to circumstantial evidence, arguing that similarly

situated nonblack officers were treated more favorably

and that the defendants’ proffered reasons for taking

action against him were pretextual. Because these are

also required elements of his case under the indirect

method, our analyses overlap. See Hemsworth v.

Quotesmith.Com, Inc., 476 F.3d 487, 490-91 (7th Cir. 2007)

(explaining that the indirect method “involves a subset

of circumstantial evidence (including the disparate treat-

ment of similarly situated employees) that conforms to

the prescription of [McDonnell Douglas]”); Venturelli v.

ARC Cmty. Servs., Inc., 350 F.3d 592, 601 (7th Cir. 2003)

(explaining that the “pretext” category of circumstantial

evidence under the direct method is substantially the

same as the evidence required under the indirect method).

The evidence shows that around 20 officers of various

races were “suspects of interest” during the investigation,

including many black officers who were not ultimately

disciplined by the defendants. If the defendants had

racial animus, we would have expected them to take

action against more than three of the black suspects.

Swearnigen contends, however, that one similarly situated

14 No. 09-2709

white officer, Usyak, was treated more favorably. But the

defendants took action against Usyak: like Swearnigen,

he was de-deputized and suspended with pay pending

a Loudermill hearing before he resigned. The fact that

Usyak was not criminally charged is irrelevant

because that decision was made by the ASAs. Further-

more, Usyak is not similarly situated because he was

suspended for living with a former detainee, while

Swearnigen was suspended for having sex with a

current detainee.

Meanwhile, the defendants offer legitimate, nondiscrimi-

natory reasons for their actions: (1) Burns’s letter stated

that officers in Swearnigen’s division were having sex

with detainees; (2) detainees told investigators and the

ASAs that Swearnigen was having sex with Warrington;

(3) Warrington admitted having sexual contact with

Swearnigen in the jail; and (4) phone records indicated

that Swearnigen accepted collect calls from Warrington

to his personal cell phone. General Order 3.8 prohibits

these acts; thus, Swearnigen was not meeting his

legitimate job expectations. And the fact that Swearnigen

was subsequently acquitted does not demonstrate

pretext because the government bore a high burden of

proof at trial. See Faas, 532 F.3d at 642 (“Pretext means a

dishonest explanation, a lie rather than an oddity or an

error.”) (internal quotation marks omitted). Because

Swearnigen has not shown discriminatory motivation

under the direct method or carried his burden under

the indirect method, he cannot avoid summary judg-

ment on his race discrimination claim.

No. 09-2709 15

The second issue is whether summary judgment was

appropriate on Swearnigen’s First Amendment retalia-

tion claim. To establish a prima facie case, Swearnigen

had to present evidence that (1) his speech was constitu-

tionally protected; (2) he suffered a deprivation that

would likely deter protected speech; and (3) the

protected speech was at least a motivating factor in the

defendants’ actions. Nagle, 554 F.3d at 1123. After

making this threshold showing, if the defendants

produce evidence that they would have taken action

against Swearnigen even in the absence of his speech,

Swearnigen would also have to show that those reasons

were pretextual. Massey v. Johnson, 457 F.3d 711, 717 (7th

Cir. 2006). The district judge found that Swearnigen

had not established a prima facie case. We agree.

Speech is constitutionally protected if (1) the employee

spoke “as a citizen on matters of public concern” and

(2) his interest in commenting upon those matters out-

weighs the employer’s interest in promoting the

efficiency of its services. Nagle, 554 F.3d at 1123. When

employees make statements “pursuant to their official

duties,” they are not speaking “as citizens” for First

Amendment purposes. Garcetti v. Ceballos, 547 U.S. 410,

421 (2006). 8 Whether speech addresses a matter of public

8

Swearnigen criticizes the district judge’s invocation of

Garcetti, which was not cited by the defendants until their

reply brief on summary judgment. We find the issue suf-

ficiently raised to be preserved on appeal. See Houskins v.

Sheahan, 549 F.3d 480, 490 (7th Cir. 2008).

16 No. 09-2709

concern must be determined by its “content, form, and

context,” Connick v. Myers, 461 U.S. 138, 147-48 (1983),

with content being the most important. Nagle, 554 F.3d

at 1123.

The most content-rich speech Swearnigen offers is his

January 2003 statement to Harrison, while on duty, that

he would “fight” her efforts to remove all male

officers from the women’s division because it “was dis-

criminatory and retaliatory.” In Mills v. City of Evansville,

Indiana, 452 F.3d 646, 647-48 (7th Cir. 2006), however, we

held that the plaintiff spoke as a public employee

when, while on duty and in uniform, she objected to a

proposed policy change, leaving the impression that

she would enlist community organizations against it.

Swearnigen likewise was speaking in his capacity as a

public employee “contributing to the formation and

execution of official policy” when he disagreed with

Harrison’s plan. Id. at 648.

Also working against Swearnigen is General Order 3.8,

which created a duty to report “any fact or situation

which may give rise to or be construed as corrupt, illegal

or unethical behavior and/or a possible conflict of inter-

est.” Swearnigen criticizes this order as an effort to foil

First Amendment attacks but fails to acknowledge that

we have already considered it. In Houskins, 549 F.3d at

491, we held that, when the plaintiff officer in the case

filed a complaint with the IAD, she was “fulfilling her

responsibility as a CCDOC employee to report incidents

of misconduct . . . pursuant to the General Orders” and

therefore not speaking as a citizen. See also Spiegla v. Hull,

No. 09-2709 17

481 F.3d 961, 967 (7th Cir. 2007) (finding that the

plaintiff “ ‘acted as a government employee’ when she

reported the possible misconduct to her superior and

sought clarification of a security policy she felt may

have been breached”). Similarly, Swearnigen’s com-

plaints to his superiors about Harrison’s proposed

policy were made pursuant to his duties.

Swearnigen also fails to show that his other speech

was constitutionally protected. As the district judge

pointed out, at this stage Swearnigen must do more than

generally aver that he “spoke out” on various issues

without providing evidence that the content, form, and

context of those disputes relate to public concerns rather

than personal grievances. See, e.g., Nagle, 554 F.3d at 1124

(affirming summary judgment where “the content or

form of the statement . . . is unclear from the record, nor

is it apparent how these statements, whatever they

may be, relate either to [the plaintiff’s] job as a police

officer, his status as a citizen, or his capacity as a union

representative”). And, as for his speech as a union

steward from 1990-2001 and efforts to bring in a new

union in February 2002, they are too far removed to

support an inference of retaliatory motive. See, e.g.,

Wallscetti v. Fox, 258 F.3d 662, 669 (7th Cir. 2001) (finding

that a lag time of four months, without more, is too long

to support a reasonable inference of causation).

Finally, even if Swearnigen could establish a prima facie

case of retaliation, no rational juror could find that

the defendants’ reasons for taking action against him

were pretextual. As we discussed in conjunction with

18 No. 09-2709

Swearnigen’s discrimination claims, the defendants had

substantial evidence that Swearnigen violated general

orders, and even a criminal law, by engaging in sexual

relations with a female detainee. Moreover, the defen-

dants proceeded against other officers—who are not

alleged to have engaged in protected speech—for

similar alleged wrongdoing. Summary judgment was

proper on Swearnigen’s First Amendment retaliation claim.

The next issue is whether summary judgment was

appropriate on Swearnigen’s malicious prosecution

claim. To establish this claim under Illinois law,

Swearnigen must show (1) the commencement or con-

tinuation of an original criminal or civil proceeding by

the defendants; (2) termination of the proceeding in his

favor; (3) the absence of probable cause; (4) the presence

of malice on the defendants’ part; and (5) damages. Ross

v. Mauro Chevrolet, 861 N.E.2d 313, 319 (Ill. App. Ct.

2006). The district judge found that Swearnigen could

not satisfy the third element. Again, we agree.

Probable cause is “a state of facts that would lead a

person of ordinary caution and prudence to believe, or

entertain an honest and strong suspicion, that the

person arrested committed the offense charged.” Id. “[I]t

requires more than bare suspicion but need not be based

on evidence sufficient to support a conviction, nor even

a showing that the officer’s belief is more likely true

than false.” Woods v. City of Chicago, 234 F.3d 979, 996 (7th

Cir. 2000) (internal quotation marks omitted). Under

Illinois law, a grand jury indictment is prima facie

evidence of probable cause. Bontkowski v. United States,

28 F.3d 36, 37 (7th Cir. 1994).

No. 09-2709 19

As we previously discussed, the proceedings against

Swearnigen were initiated because (1) a detainee’s letter

stated that officers in Swearnigen’s division were

having sex with detainees; (2) detainees, including

Warrington herself, said that Swearnigen was having

sex with Warrington; and (3) phone records indicated

that Swearnigen accepted collect calls from Warrington

to his personal cell phone. Swearnigen attempts to ne-

gate this showing by accusing the defendants (Harrison,

primarily) of misconduct during the investigation. In

particular, Swearnigen focuses on evidence that

Harrison “triggered” the investigation against him. But,

as we pointed out at oral argument, how the investiga-

tion was triggered is not the point. Rather, the point is

that, after the investigation was triggered, evidence of

misconduct was uncovered, the ASAs independently

decided to bring charges, and a grand jury issued an

indictment—all without any input from Harrison or

the other defendants. The fact that Swearnigen was

eventually acquitted and now offers an innocuous ex-

planation for the phone calls does not negate the

existence of probable cause at the relevant time. See Kelley

v. Myler, 149 F.3d 641, 647 (7th Cir. 1998) (“[P]robable

cause does not depend on the witness turning out to

have been right; it’s what the police know, not whether

they know the truth, that matters.”); see also Mustafa v.

City of Chi., 442 F.3d 544, 548 (7th Cir. 2006) (finding

that there is “no duty to investigate extenuating circum-

stances or search for exculpatory evidence once probable

cause has been established . . .”). Summary judgment was

proper on Swearnigen’s malicious prosecution claim.

20 No. 09-2709

Moving on, we next consider whether summary judg-

ment was appropriate on Swearnigen’s intentional inflic-

tion of emotional distress claim. To prove this claim

under Illinois law, Swearnigen must show that (1) the

defendants’ conduct was extreme and outrageous; (2) the

defendants knew that there was a high probability that

their conduct would cause severe emotional distress;

and (3) the conduct in fact caused severe emotional dis-

tress. Kolegas v. Heftel Broad. Corp., 607 N.E. 2d 201, 211

(Ill. 1992). The district judge found that Swearnigen

failed to satisfy the first element. Once again, we agree

with the district judge.

To meet the “extreme and outrageous” standard, the

defendants’ conduct “must be so extreme as to go beyond

all possible bounds of decency, and to be regarded

as intolerable in a civilized community.” Id. The

evidence shows that the defendants’ only actions were

de-deputizing Swearnigen, transferring him to an-

other post, and suspending him with pay pending a

Loudermill hearing. Even when we add Harrison’s alleged

“triggering” of the investigation against Swearnigen, the

conduct does not rise to “extreme” levels because, after

the investigation was triggered, the CCSP and ASAs

uncovered evidence that supported the actions taken

against him.

Swearnigen also claims that other people heard

Sheahan call him a “fugitive” and heard Kurtovich order

him placed in a maximum security area. But, when

offered to prove their truth, Swearnigen’s statements are

double hearsay, and no exception is offered for the “outer

layer” of the hearsay. See, e.g., Halloway v. Milwaukee

No. 09-2709 21

County, 180 F.3d 820, 824-25 (7th Cir. 1999) (holding

that the plaintiff’s testimony that other people told him

that they had heard the defendants discussing how

they could “get rid of” him and force him to retire was

inadmissible double hearsay). Moreover, Swearnigen

was never placed in a maximum security area but rather

in a one-person, unlocked cell for a few hours before

bonding out. Summary judgment was proper on

Swearnigen’s intentional infliction of emotional

distress claim.

The final issue is whether the district court properly

dismissed Swearnigen’s Title VII retaliation claim be-

cause he failed to bring it in his earlier EEOC proceeding.9

We review the decision de novo, accepting all well-pled

allegations as true and drawing all favorable inferences

in Swearnigen’s favor. Hukic v. Aurora Loan Servs., 588

F.3d 420, 434 (7th Cir. 2009). A Title VII plaintiff may

bring only those claims that were included in his

EEOC charge or that are “like or reasonably related to

the allegations of the charge and growing out of such

allegations.” McKenzie v. Ill. Dep’t of Transp., 92 F.3d 473,

481 (7th Cir. 1996); see also Gibson v. West, 201 F.3d 990,

994 (7th Cir. 2000) (finding that failure to exhaust is not

a jurisdictional requirement, albeit a reason for dismissal).

To be “like or reasonably related,” the claims must, at

9

Swearnigen does not contend that the alleged retaliation

arose after his EEOC charge had been filed, which would not

require exhaustion. See Steffen v. Meridian Life Ins. Co., 859

F.2d 534, 545 n.2 (7th Cir. 1988).

22 No. 09-2709

minimum, describe the same conduct and implicate the

same individuals. Cheek v. W. & S. Life Ins. Co., 31 F.3d

497, 501 (7th Cir. 1994).

Swearnigen’s charge only alleges that he had been

“discriminated against on the basis of my race, Black, and

sex, male, in violation of Title VII of the Civil Rights

Action of 1964, as amended.” As the district judge

pointed out, Swearnigen did not check the box for re-

taliation or otherwise indicate that action had been taken

against him for reasons other than his race and gender.

Normally, retaliation and discrimination charges are not

considered “like or reasonably related” to one another.

Sitar v. Ind. Dep’t of Transp., 344 F.3d 720, 726 (7th Cir.

2003); Steffen, 859 F.2d at 545. Instead of distinguishing

this case law, Swearnigen now blames the EEOC, arguing

that the investigator refused to let him add a retaliation

claim and citing Federal Express Corp. v. Holowecki, 552

U.S. 389 (2008), in support of his argument that the

district judge should have looked beyond the formal

charge.

Holowecki is inapposite. The issue there was whether

an intake questionnaire supplemented by a six-page

affidavit constitutes a “charge” for purposes of timeliness

of an ADEA lawsuit. The Court held that “[i]n addition

to the information required by the regulations, . . . if a

filing is to be deemed a charge it must be reasonably

construed as a request for the agency to take remedial

action to protect the employee’s rights or otherwise settle

a dispute between the employer and the employee.” Id. at

402. Here, the issue is not whether a charge was timely

No. 09-2709 23

filed (it was) but rather whether it included an allegation

of retaliation. See Morrow v. Metro. Transit Auth., No.

08 CIV.6123 (DLC), 2009 WL 1286208, at *6 (S.D.N.Y.

May 8, 2009) (discussing reasons to restrict Holowecki

to timeliness issues).

We have suggested that written “[a]llegations outside

the body of the charge may be considered when it is

clear that the charging party intended the agency to

investigate the allegations.” Vela v. Vill. of Sauk Vill., 218

F.3d 661, 664 (7th Cir. 2000); cf. Novitsky v. Am. Consulting

Eng’rs, L.L.C., 196 F.3d 699, 702 (7th Cir. 1999) (rejecting

reliance on questionnaire where the plaintiff read the

formal charge and obtained legal advice before signing

it). But here, even if we examine Swearnigen’s intake

questionnaire, we find that it does not state a charge

of retaliation. Dismissal of Swearnigen’s Title VII retalia-

tion claim was proper.

In sum, Swearnigen was one of many suspects in a wide-

ranging investigation of custodial sexual misconduct. He

has not shown that improper motivations—as opposed

to corroborated evidence of wrongdoing—caused the

defendants to take action against him. This ultimately

dooms his claims. The judgments of the district court

are A FFIRMED.

4-22-10