Argyropoulos v. City of Alton

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-1903

C HRISTINA A. A RGYROPOULOS,

Plaintiff-Appellant,

v.

C ITY OF A LTON, AN ILLINOIS M UNICIPAL C ORPORATION,

S TEVEN D UTY, C HRIS S ULLIVAN AND T IM B OTTERBUSH,

Defendants-Appellees.

____________

A ppeal from the United States District Court

for the Southern District of Illinois.

N o. 03 C 810— D avid R. Herndon, Chief Judge.

____________

A RGUED JANUARY 17, 2008—D ECIDED A UGUST 26, 2008

____________

Before R IPPLE, R OVNER, and T INDER, Circuit Judges.

T INDER, Circuit Judge. Christina Argyropoulos’s turbu-

lent tenure as a jailor for the City of Alton Police Depart-

ment (the APD) lasted just ten months, from July 2002

until she was dismissed in late April 2003. Approximately

seven weeks before she was fired, Argyropoulos com-

plained that she had been sexually harassed by a fellow

2 No. 07-1903

jailor. The APD promptly took steps to prevent further

unsupervised contact between the two jailors and began

an investigation. Before that investigation ran its course,

however, the APD learned that Argyropoulos had sur-

reptitiously tape-recorded a closed-door workplace

meeting with two of her superiors, triggering her arrest

on a felony eavesdropping charge and her near-immediate

dismissal. Contending that she was arrested and fired

solely because she complained of sexual harassment,

Argyropoulos filed suit against the City and several APD

employees, alleging Title VII sexual harassment and

retaliation. She later added a claim under 42 U.S.C. § 1983,

alleging that the City’s failure to provide a pretermination

hearing denied her due process. The district court granted

summary judgment for the Defendants on all counts and

denied Argyropoulos’s motion seeking to set aside the

judgment. Argyropoulos timely appealed. For the rea-

sons set forth in this opinion, we affirm.

I. Background

On our review of the district court’s grant of summary

judgment, we recount the facts in the light most favorable

to the nonmoving party, Argyropoulos. Timmons v. Gen.

Motors Corp., 469 F.3d 1122, 1125 (7th Cir. 2006).

Argyropoulos began work as a jailor for the APD on

July 1, 2002. She was hired by Alton’s Civil Service Com-

mission, and by virtue of her employment with the City,

she was a member of the American Federation of

State, County, and Municipal Employees (AFSCME).

Argyropoulos was supervised by a rotation of sergeants, at

No. 07-1903 3

least one of whom was on duty during her shift on any

given day. Those sergeants reported to then-Lieutenant

(later Captain) Terry Lane, who had general oversight

responsibility for jail operations. Argyropoulos’s responsi-

bilities included booking prisoners and performing tasks

incidental to the booking process, such as prisoner pat-

downs and handling prisoner property.

Argyropoulos received her first formal performance

evaluation, which painted a decidedly mixed portrait of

her work performance, in late November 2002. The evalua-

tion commended Argyropoulos for her punctuality and

positive attitude, and she “met standards” in a number

of categories, including: attendance, compliance with

rules, safety practices, suspect contacts, work knowledge,

work judgments, work quality, accepting responsibility,

accepting change, appearance of work area, equipment

operation/care, reports, and initiative. In addition, she

“exceeded standards” in observance of work hours and

accepting direction, and her performance was not deemed

“unsatisfactory” in any category. However, the evalua-

tion was not uniformly positive. Argyropoulos “needed

some improvement” in a number of areas, including:

grooming and dress, employee contacts, planning and

organization, job skill level, volume/acceptable work,

meeting deadlines, and effectiveness under stress. The

evaluation noted Argyropoulos’s deficiencies in organizing

her duties and working at an acceptable pace during

hectic periods—for example, during the simultaneous

processing of multiple arrestees—and suggested that

she should “strive for speed and organization when

completing her work” and become “more attentive to

detail.”

4 No. 07-1903

In her first few months on the job, Argyropoulos worked

the same shift as, and received training from, fellow jailor

Steven Duty. In light of Argyropoulos’s decision not to

pursue her sexual harassment claim on appeal, we need

not dwell on the historical details of their workplace

relationship. For present purposes, it suffices to note that

Argyropoulos and Duty had a contentious relation-

ship—featuring complaints from Argyropoulos to her

superiors concerning Duty’s job performance and of-

fensive remarks by Duty to Argyropoulos1 —from the

start. In December 2002, Cpt. Lane, who was cognizant of

the two jailors’ difficulties in getting along, decided to

minimize their interactions by placing them on separate

shifts. Unfortunately, this preventive measure did not

bring their troubles to an end. Argyropoulos and Duty

still sometimes crossed paths, perhaps unavoidably, at

shift changes. One such encounter occurred in the early

evening of March 9, 2003, when Duty arrived to relieve

Argyropoulos and begin the night shift.

The March 9 encounter began unremarkably. Pursuant

to routine shift change procedure, Argyropoulos began to

provide Duty with information concerning prisoners

then in custody. The trouble began when, at some point

in the conversation, Duty interrupted Argyropoulos and

asked something to the effect of, “What’s that on your tit?”

1

For example, in August 2002, Duty commented to two

coworkers, in Argyropoulos’s presence, “I don’t know man. You

better stick around. She’s not going to make it. She’s too

fucking stupid.”

No. 07-1903 5

As she looked down, Duty reached out and moved her

jacket back, revealing a wet spot on the area of her shirt

covering her right breast. Angry and embarrassed,

Argyropoulos punched Duty in the arm and explained

that she must have spilled something on herself. In re-

sponse, Duty laughed and made a comment about

Argyropoulos “not getting [her] freak on.” After the

shift change was complete, Argyropoulos left the jail

without reporting this incident to anyone.

When Argyropoulos returned to work a few days later,

however, she reported the “wet shirt” incident to Sgt. Carla

Pruitt, setting in motion a chain of events that eventually

gave rise to the present lawsuit. News of the incident

quickly reached Chris Sullivan, Chief of the APD. The

following day, Argyropoulos was summoned to a

meeting with Cpt. Lane and several other APD officials.

Lane directed Argyropoulos to provide written docu-

mentation of the March 9 incident, as well as any other

alleged incidents of harassment involving Duty.

Argyropoulos prepared a written memorandum the

same day—March 13, 2003—documenting both the March

9 incident and another incident from November 2002

in which Duty had called Argyropoulos a “fucking

moron” and suggested that she would be better able to

concentrate if she would “find somebody to get [her] freak

on with.”

Chief Sullivan promptly took steps to address the

harassment complaint. First, in order to prevent further

unsupervised contact between the two jailors, an escort

was assigned to Duty each time that he relieved

6 No. 07-1903

Argyropoulos at a shift change. Second, Sullivan began

an investigation by questioning Duty’s supervisors and

other APD employees, including Sergeants Botterbush,

Pruitt, Hayes, Brakeville, and Adams. Sullivan also inter-

viewed Duty, who denied Argyropoulos’s allegations

and informed Sullivan that he disliked Argyropoulos

because her slowness and mistakes burdened him with

additional work. Finally, Sullivan notified David Miles—

the City’s Director of Personnel and Executive Director

of the City’s Civil Service Commission—of the harassment

complaint. Miles, in turn, notified the Mayor, indicating

his agreement with Sullivan that an investigation was

warranted and his intention to allow Sullivan to conduct

the investigation.

Meanwhile, Argyropoulos’s troubles with Duty con-

tinued, albeit outside the workplace. For example, on

March 21, she reported that, as she was walking down a

public street, a male in a blue pickup truck—whom she

believed to be Duty—had driven past and shouted a lewd

comment in her direction. Apparently frustrated with

such incidents and what she perceived to be a lack of

progress in the APD’s investigation, Argyropoulos met

with an attorney on March 28, 2003, to discuss the possibil-

ity of filing a lawsuit.

Shortly thereafter, Argyropoulos’s job performance

became the subject of considerable criticism. On April 5,

Lt. Adams reprimanded Argyropoulos for mistakenly

delivering other prisoners’ property to a juvenile prisoner

when releasing him from custody. Adams noted that each

item was clearly marked with the correct prisoner-

No. 07-1903 7

owner’s name, and advised Argyropoulos to double-check

property during the release of prisoners. On April 11,

Lt. Hayes sent a memo to Cpt. Lane documenting a

list of prisoners that Argyropoulos had failed to finish

processing during her shift. And on April 19, Adams

sent a memorandum to Lane generally excoriating

Argyropoulos’s job performance. He noted her deficiencies

in fulfilling basic responsibilities, indicating that she

failed to properly perform prisoner searches and often

failed to complete booking of prisoners who arrived during

her shift. Adams indicated that “[w]ithout constant

supervision, Jailer Argyropoulos fails to accomplish

minimal job tasks,” and “[she] cannot handle more than

one task at a time.” He concluded pessimistically, ex-

pressing doubt that more time and/or training would

lead to improvement.

Nine days later, on April 28, Argyropoulos was sum-

moned to a meeting with Cpt. Lane and Lt. Adams.

Argyropoulos assumed, incorrectly as it turned out, that

the meeting was called to address the progress of the

sexual harassment investigation. Instead, when

Argyropoulos arrived at the “extremely small room” that

served as the meeting location, Lane and Adams wished to

discuss recent complaints concerning her job performance.2

At the outset, Argyropoulos was unsettled by Lane’s

2

We again note that, for purposes of reviewing the district

court’s grant of summary judgment, we must construe the facts

in Argyropoulos’s favor. Therefore, although her version of

events is dramatically at odds with that of Lane and Adams,

we adopt her version of events as the true version for purposes

of this appeal.

8 No. 07-1903

apparent agitated state; his face had taken on a “blood

red” complexion. The meeting quickly took on a con-

frontational tone, as Lane repeatedly asked Argyropoulos,

raising his voice with each repetition, whether she knew

the purpose of the meeting. After initially answering that

she did not, Argyropoulos yielded to Lane’s persistent

incredulity—e.g., “You have no idea why you’re here?”—

by speculating that Lane had called the meeting to dis-

cuss the progress of the sexual harassment investigation.

Lane reacted angrily to this answer, slamming his hands

on the table that separated him from Argyropoulos and

directing her to sit down and “shut the goddamn door.”

Unbeknownst to Lane and Adams, Argyropoulos had

concealed a tape recorder in her clothing. At this point

in the meeting, because she felt physically threatened 3

and “terrified,” Argyropoulos secretly activated the

recorder.

The remaining details of the April 28 meeting are not

essential for purposes of Argyropoulos’s claims on

appeal; nevertheless, we briefly summarize the high-

lights here. Lane asked Argyropoulos about other employ-

ees’ negative reports concerning her job performance.

Argyropoulos took issue with Lane’s account of some

incidents, and Lane expressed disbelief that she would

“defy” his authority. When Lane referred to other

3

In her deposition testimony, Argyropoulos indicated that she

felt “very threatened” at this point in the meeting and that she

“wasn’t sure” that her two superiors were not about to com-

mit an act of physical violence against her.

No. 07-1903 9

mistakes by Argyropoulos, she requested specific details

concerning those incidents. Lane again reacted angrily,

threatening to fire Argyropoulos. The tone of the meeting

then softened somewhat, as Lane asked whether

Argyropoulos could identify any way in which he could

assist her to improve her job performance. She noted her

earlier difficulties receiving training from Duty and her

more recent difficulty receiving training from another

coworker who had been on vacation. Finally, Lane asked

Argyropoulos to sign a form stating that: (1) Lane and

Adams had discussed Argyropoulos’s past and present

discipline issues and performance inadequacies with her;

and (2) she had been given the opportunity to ask ques-

tions and seek clarification regarding any topic.

Argyropoulos initially declined to sign due to her dis-

comfort with this rather benign description of the meet-

ing. However, believing that she had no realistic alterna-

tive, she eventually relented and signed the form.

Later the same day, Julie Anderson, a counselor with

the Alton Community Counseling Program, informed

another jailor, Jennifer Penney, that Argyropoulos had

secretly recorded the meeting with Lane and Adams.4

Penney, concerned that the secret recording may have

4

Although Argyropoulos denies that she ever told Anderson

that she had recorded the conversation with Lane and Ad-

ams—she hypothesizes that Anderson must have removed

the tape recorder from her jacket and inspected it when

Argyropoulos left her jacket on the back of a chair later that

day—it is undisputed that Anderson alerted Penney to

Argyropoulos’s secret recording activities.

10 No. 07-1903

been a criminal act, relayed this information to her super-

visor, Sgt. Tim Botterbush. Botterbush then met with

Anderson, prepared a general case report, and escorted

her to meet with Jason Simmons, a detective in the in-

vestigation division. Simmons interviewed Anderson, who

provided him with a written statement. The next day,

Simmons obtained a search warrant for Argyropolous’s

residence.

The following day—April 30, 2003—Simmons, accompa-

nied by Chief Sullivan and Lt. Taul, executed the search

warrant at Argyropoulos’s residence. Argyropoulos was

home when the officers arrived, and she initially denied

possessing any tape recorder or audiotapes in her resi-

dence. After the officers began to search the premises,

however, she retrieved a tape recorder, delivered it to the

officers, and apologized for lying. At that point, she

maintained that she had not recorded any workplace

conversations, and she did not disclose the existence of

any other recorders or audiotapes. Unsatisfied, the

officers continued their search and discovered a second

tape recorder with an audiotape inside. Finally, when

Argyropoulos learned that the warrant authorized the

search of her car, she confessed to Simmons that she had

recorded the meeting with Lane and Adams. After

Simmons retrieved another audiotape from her car, the

officers arrested her. Later that day, Simmons met with

a Madison County State’s Attorney, who reviewed the

facts of the case and authorized the issuance of a crim-

inal information charging Argyropoulos with felony

No. 07-1903 11

eavesdropping, in violation of 720 Ill. Comp. Stat. 5/14-2.5

Chief Sullivan fired Argyropoulos later the same day. In

a letter dated April 30, 2003, Sullivan provided

three reasons for her dismissal: (1) poor job performance;

(2) her allegedly criminal conduct (eavesdropping) while

on duty as an employee of the City; and (3) untruthful

statements given to Sullivan and other APD representa-

tives during the search of her residence. Sullivan encour-

aged Argyropoulos to contact Miles, the City’s Personnel

Director, to discuss her rights with respect to any accrued

vacation or sick days and insurance coverage issues.

However, Sullivan did not provide any information

concerning post-termination avenues to challenge the

City’s action.

Although Argyropoulos could have challenged her

dismissal by requesting a hearing before the Civil Service

Commission or by filing a union grievance, she instead

opted for the present lawsuit. She received notice of her

right to sue from the EEOC on September 2, 2003, and

timely filed her initial complaint on December 1, 2003. That

complaint alleged sexual harassment and retaliation

claims under Title VII of the Civil Rights Act of 1964, 42

5

720 Ill. Comp. Stat. 5/14-2(a)(1)(A) provides, in relevant part,

that a person commits eavesdropping when he “[k]nowingly

and intentionally uses an eavesdropping device for the pur-

pose of hearing or recording all or any part of any

conversation . . . unless he does so . . . with the consent of all of

the parties to such conversation.” 720 Ill. Comp. Stat. 5/14-4(a)

provides that eavesdropping is a felony.

12 No. 07-1903

U.S.C. §§ 2000e to 2000e-17, and state law claims for

wrongful termination and defamation. Argyropoulos’s

first amended complaint, filed on May 20, 2004, abandoned

the wrongful termination claim and added a claim for

denial of due process under 42 U.S.C. § 1983, as well as a

state law claim for intentional infliction of emotional

distress. After the district court granted in part and

denied in part the defendants’ motion to dismiss,

Argyropoulos filed her second amended complaint on

February 15, 2005, pursuing the following claims: (1) Title

VII sexual harassment and retaliation claims against the

City; (2) § 1983 claims against the City, Sullivan, and

Botterbush; and (3) an intentional infliction of emotional

distress claim against Duty and Botterbush.

On September 28, 2006, the district court granted the

defendants’ summary judgment motion and dismissed all

of Argyropoulos’s claims with prejudice. On March 22,

2007, the court denied Argyropoulos’s motion to set

aside the judgment, and she timely appealed. On appeal,

Argyropoulos has abandoned her sexual harassment

and intentional infliction of emotional distress claims;

she now challenges the district court’s grant of summary

judgment only as to her Title VII retaliation and perhaps

belatedly, the § 1983 claims, but more about that later.

In addition, Argyropoulos appeals the district court’s

denial of her motion to set aside the judgment. Thus, the

scope of our review is confined to those matters.

No. 07-1903 13

II. Discussion

A. Title VII Retaliation Claim

On appeal, Argyropoulos focuses almost exclusively on

her Title VII retaliation claim; the district court granted

summary judgment for the City on this claim. Summary

judgment is appropriate where “the pleadings, the dis-

covery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact

and that the movant is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(c). We review the district court’s

grant of summary judgment de novo, construing all facts

and reasonable inferences in favor of the nonmoving

party, Argyropoulos. Timmons, 469 F.3d at 1125. However,

our favor toward the nonmoving party does not extend

to drawing “[i]nferences that are supported by only

speculation or conjecture.” See Fischer v. Avanade, Inc., 519

F.3d 393, 401 (7th Cir. 2008) (citation omitted). Thus, we

have explained that the nonmoving party “must do more

than raise some metaphysical doubt as to the material

facts; [she] must come forward with specific facts

showing that there is a genuine issue for trial.” Keri v. Bd.

of Trs. of Purdue Univ., 458 F.3d 620, 628 (7th Cir. 2006)

(citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 586 (1986)). We will conclude that a genuine

issue of material fact exists, precluding summary judg-

ment, “only if sufficient evidence favoring the nonmoving

party exists to permit a jury to return a verdict for that

party.” Sides v. City of Champaign, 496 F.3d 820, 826 (7th

Cir. 2007) (citation omitted).

14 No. 07-1903

Title VII forbids employer retaliation where an employee

“has opposed any practice made an unlawful employ-

ment practice” by Title VII or “has made a charge,

testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing under” Title VII. 42

U.S.C. § 2000e-3(a). The anti-retaliation provision operates

to “prevent employer interference with ‘unfettered access’

to Title VII’s remedial mechanisms . . . by prohibiting

employer actions that are likely ‘to deter victims of dis-

crimination from complaining to the EEOC,’ the courts, or

their employers.” Burlington N. & Santa Fe Ry. Co. v. White,

548 U.S. 53, 68 (2006) (quoting Robinson v. Shell Oil Co., 519

U.S. 337, 346 (1997)).

Argyropoulos can prove retaliation under either the

direct or indirect method. Metzger v. Ill. State Police, 519

F.3d 677, 681 (7th Cir. 2008). Under the direct method,

Argyropoulos must present evidence, direct or circum-

stantial, showing that: (1) she engaged in statutorily

protected activity; (2) she suffered a materially adverse

action; and (3) a causal connection exists between the

two. Id. Alternatively, Argyropoulos may establish a

prima facie case of retaliation under the indirect method

by showing that: (1) she engaged in statutorily protected

activity; (2) she suffered a materially adverse action; (3) she

met her employer’s legitimate expectations, i.e., she was

performing her job satisfactorily; and (4) she was treated

less favorably than some similarly situated employee

who did not engage in statutorily protected activity.

Nichols v. S. Ill. Univ.-Edwardsville, 510 F.3d 772, 785 (7th

Cir. 2007); see also Burks v. Wis. Dep’t of Transp., 464 F.3d

No. 07-1903 15

744, 759 (7th Cir. 2006) (citing Stone v. City of Indianapolis

Pub. Utils. Div., 281 F.3d 640, 644 (7th Cir. 2002)).

The first two elements of proof are the same under either

the direct or indirect method, and they are not in dispute.

Argyropoulos’s sexual harassment complaint clearly

constitutes a statutorily protected activity, and her termi-

nation qualifies as a materially adverse action. See Burks,

464 F.3d at 758 (noting that “termination is certainly an

adverse action”). Further, because the prospect of an arrest

on a felony charge “could well dissuade a reasonable

worker from making or supporting a charge of discrimina-

tion,” Burlington N., 548 U.S. at 57, the eavesdropping

arrest also qualifies as a materially adverse action. There-

fore, we need only determine whether Argyropoulos

has presented evidence to create a triable issue with

respect to the remaining elements under either the direct

or indirect method.

Argyropoulos first proceeds under the direct method,

which requires her to show a causal connection between

her statutorily protected activity and the City’s subse-

quent adverse employment action. See Burks, 464 F.3d

at 758. Argyropoulos contends that she has direct evi-

dence of such a causal connection, pointing to the City’s

admission that her surreptitious recording of the meeting

with Lane and Adams was one of the primary reasons for

her dismissal. “Evidence of retaliation is ‘direct’ when, if

believed, it would prove the fact in question without

reliance on inference or presumption.” Mannie v. Potter, 394

F.3d 977, 983 (7th Cir. 2005). Because direct evidence

“essentially requires an admission by the employer,” such

16 No. 07-1903

evidence “is rare.” Benders v. Bellows & Bellows, 515 F.3d

757, 764 (7th Cir. 2008) (citing Mannie, 394 F.3d at 983).

Argyropoulos reasons that, because her aim was to

obtain evidence of discrimination, she operated under the

protective umbrella of Title VII—i.e., she engaged in

statutorily protected activity—when she secretly recorded

the meeting with her superiors. Thus, she argues, the

City’s admission that the recording triggered her arrest

and termination is direct evidence of the requisite

causal connection.

This argument fails because it rests upon a transparently

overbroad view of the scope of the statute’s protection.

Although Title VII indubitably protects an employee

who complains of discrimination, Burlington N., 548 U.S. at

68, the statute does not grant the aggrieved employee a

license to engage in dubious self-help tactics or workplace

espionage in order to gather evidence of discrimination.

As we have previously explained, inappropriate work-

place activities are not legitimized by an earlier-filed

complaint of discrimination. Hall v. Bodine Elec. Co., 276

F.3d 345, 359 (7th Cir. 2002) (“[A]n employee’s complaint

of harassment does not immunize her from being subse-

quently disciplined or terminated for inappropriate

workplace behavior.”). Thus, the City’s admission that

the surreptitious recording was a significant factor in

Argyropoulos’s dismissal does not amount to direct

evidence of retaliation.

Without direct evidence of retaliation, Argyropoulos

may nevertheless succeed under the direct method if she

can muster circumstantial evidence showing the

No. 07-1903 17

requisite causal link between her sexual harassment

complaint and her subsequent arrest and dismissal; she

attempts to do so by pointing to evidence of suspicious

timing. She submits that, because her sexual harassment

complaint preceded her arrest and termination by only

seven weeks, we should infer—in keeping with our

obligation to draw reasonable inferences in her favor—a

causal link between the two events. The question is

whether such an inference is a reasonable one, notwith-

standing our previous admonition that suspicious timing,

standing alone, “will ‘rarely be sufficient . . . to create a

triable issue.’ ” Culver v. Gorman, 416 F.3d 540, 546 (7th Cir.

2005) (quoting Stone, 281 F.3d at 644); see also Burks, 464

F.3d at 758-59 (explaining that “suspicious timing alone . . .

does not support a reasonable inference of retaliation”

because the “mere fact that one event preceded another

does nothing to prove that the first event caused the

second” (citation omitted)).

The approximate seven-week interval between

Argyropoulos’s sexual harassment complaint and her

subsequent arrest/termination does not represent that

rare case where suspicious timing, without more, will

carry the day. Nor do criticisms of Argyropoulos’s job

performance that followed her sexual harassment com-

plaint materially strengthen her case. See Burks, 464 F.3d

at 758-59 (finding that plaintiff’s negative performance

reviews and termination, both of which came after she

complained of discrimination, were insufficient to sup-

port inference of causation). First, those negative reports

identified performance deficiencies—e.g., failure to book

multiple prisoners in a timely fashion—that were con-

18 No. 07-1903

sistent with Argyropoulos’s first performance evaluation,

which preceded her sexual harassment complaint by

more than three months. This alone undermines the

reasonableness of any inference that Argyropoulos’s

sexual harassment complaint triggered criticism of her job

performance. Cf. Lang v. Ill. Dep’t of Children & Family

Servs., 361 F.3d 416, 420 (7th Cir. 2004) (noting that timing

of employer’s discipline of plaintiff was “extremely

suspicious” where employer had never criticized his

performance during previous five years of employment

but began to issue frequent written criticisms within a

month of the time that plaintiff complained of discrimina-

tion). Moreover, although Argyropoulos asserts that she

was “blam[ed] . . . for the mistakes of others,” she offers no

evidence to substantiate that assertion. Thus, any inference

of a causal link between Argyropoulos’s discrimination

complaint and her subsequent arrest and termination

would be based on “speculation or conjecture,” Fischer,

519 F.3d at 401, and such inferences are beyond the scope

of our obligation to the nonmovant. For these reasons,

Argyropoulos’s retaliation claim fails under the direct

method.

Argyropoulos also proceeds via the indirect method, but

fares no better. The indirect method requires her to show

both (1) that she performed her job satisfactorily and

(2) that she was treated less favorably than some similarly

situated employee. Nichols, 510 F.3d at 785. Because she

has not presented sufficient evidence to satisfy either

requirement, she cannot make the prima facie case under

this method.

No. 07-1903 19

First, Argyropoulos has not shown that she was perform-

ing her duties satisfactorily at the time of her termination.

See generally Gates v. Caterpillar, Inc., 513 F.3d 680, 689 (7th

Cir. 2008) (noting that “[t]he proper inquiry mandates

looking at [the employee’s] job performance through the

eyes of her supervisors at the time of her . . . termination”).

As already discussed, the consistency between

Argyropoulos’s November 2002 performance evaluation

and the negative reports that followed her April 2003

sexual harassment complaint undermines the reasonable-

ness of any inference that the latter reports were not

genuine. Moreover, Argyropoulos offers no evidence

contesting the substance of those criticisms or otherwise

demonstrating that she was performing her job satisfacto-

rily. For example, she does not dispute her difficulty in

booking multiple prisoners in a timely fashion. Therefore,

Argyropoulos has not shown that she was performing

her job satisfactorily at the time of her termination.

Even if she had shown satisfactory job performance,

Argyropoulos would still not satisfy the indirect method,

because she has not identified a similarly situated em-

ployee who received more favorable treatment. Her task

is particularly onerous because of the centrality of the

surreptitious tape-recording to this analysis. The similarly

situated inquiry is a flexible, common-sense comparison

based on “substantial similarity” rather than a strict “one-

to-one mapping between employees,” but still requires

“enough common features between the individuals to

allow [for] a meaningful comparison.” Humphries v. CBOCS

W., Inc., 474 F.3d 387, 405 (7th Cir. 2007), aff’d, 128 S. Ct.

1951 (2008). A meaningful comparison is one which

20 No. 07-1903

serves “to eliminate confounding variables, such as

differing roles, performance histories, or decision-making

personnel, which helps isolate the critical independent

variable: complaints about discrimination.” Id. (citation

omitted). In this case, that critical independent variable

can be isolated only by identifying an employee who

engaged in misconduct similar to Argyropoulos’s eaves-

dropping incident but who nevertheless received more

favorable treatment. See Nichols, 510 F.3d at 786 (requiring

plaintiffs to identify an employee who had engaged in

similar misconduct in order to satisfy the similarly

situated requirement).

Argyropoulos’s attempt to satisfy this requirement is

plainly insufficient. She has not identified any other

employee who engaged in comparable misconduct.

Although she points to another City employee who was

fired from a previous job for a similar incident involving

eavesdropping in the workplace, this is simply irrelevant.

Only if the other employee had engaged in similar mis-

conduct while employed by the City would this employee

possibly serve as a useful comparator. Argyropoulos

also points out that Duty’s job performance had been

criticized, but those criticisms did not identify any miscon-

duct remotely similar to surreptitiously recording one’s

superiors in the workplace. Absent such evidence,

Argyropoulos cannot avail herself of the indirect method

to avoid summary judgment.

Finally, even if Argyropoulos had managed to establish

the prima facie case, her retaliation claim would still face

an insurmountable obstacle, because she cannot show

No. 07-1903 21

that the City’s proffered justification for her arrest and

termination was a pretext for retaliation.6 The City submits

that Argyropoulos was arrested and dismissed largely

because of her behavior in the eavesdropping incident.

In light of this nonretaliatory explanation, to survive

summary judgment, Argyropoulos must “establish that

there is an issue of material fact as to whether the [City’s]

proffered reasons are merely pretext for unlawful dis-

crimination or retaliation.” Hudson v. Chi. Transit Auth., 375

F.3d 552, 561 (7th Cir. 2004). Pretext involves more than

6

Although we often discuss the employer’s proffer of a

nonretaliatory explanation and the corresponding pretext

inquiry in terms of the McDonnell Douglas burden-shifting

framework embodied by the indirect method, e.g., Hudson v.

Chi. Transit Auth., 375 F.3d 552, 561 (7th Cir. 2004), an em-

ployee’s failure to cast doubt on an employer’s nonretaliatory

explanation will also doom a retaliation claim under the

direct method. See Culver, 416 F.3d at 547 (finding that plain-

tiff established prima facie case of retaliation under the direct

method and proceeding to analyze whether, in light of em-

ployer’s proffered nonretaliatory explanation, plaintiff had

created triable issue of pretext). Therefore, “if a reasonable fact

finder would be compelled to believe [the City’s] explanation,”

id., Argyropoulos’s claim would necessarily fail under either

the direct or indirect method. See Stone, 281 F.3d at 643 (explain-

ing that satisfaction of the direct method “should be enough to

entitle the plaintiff to a jury trial unless the defendant can

produce uncontradicted evidence that he would have fired the

plaintiff anyway, in which event the defendant’s retaliatory

motive, even if unchallenged, was not a but-for cause of the

plaintiff’s harm”).

22 No. 07-1903

just faulty reasoning or mistaken judgment on the part of

the employer; it is “lie, specifically a phony reason for

some action.” Sublett v. John Wiley & Sons, Inc., 463 F.3d 731,

737 (7th Cir. 2006) (citation omitted). Thus, in assessing a

plaintiff’s claim that an employer’s explanation is

pretextual, we do not sit as a “ ‘super personnel review

board’ that second-guesses an employer’s facially legiti-

mate business decisions.” Culver, 416 F.3d at 547 (citation

omitted). Rather, we ask only whether the employer’s

explanation was “honestly believed.” Culver, 416 F.3d at

540 (“An employer’s explanation can be ‘foolish or trivial

or even baseless’ so long as it ‘honestly believed’ the

proffered reasons for the adverse employment action.”

(quoting Hartley v. Wis. Bell, Inc., 124 F.3d 887, 890 (7th Cir.

1997))). If a reasonable fact finder would be compelled

to believe the City’s explanation, then the City is entitled

to summary judgment. Culver, 416 F.3d at 547.

Argyropoulos has failed to cast doubt on the City’s

explanation for her arrest and termination. First, her

arrest and termination occurred almost seven weeks

after she had complained of discrimination, but just two

days after the City learned that she had secretly recorded

the meeting with Lane and Adams. Common sense sug-

gests that the latter event, rather than the former, triggered

her termination. Moreover, Argyropoulos was arrested

and fired only after evidence of criminal activity had

been recovered from her home and she had admitted to

lying to police investigators. Again, this evidence lends

credence to the City’s explanation for its actions. Although

Argyropoulos might still cast doubt on the City’s explana-

tion through evidence of bad faith on the part of the

No. 07-1903 23

investigators or other decision-makers, she has offered no

evidence to this end. For example, there is no evidence to

suggest that Simmons, who obtained and executed the

search warrant, was even aware of Argyropoulos’s sexual

harassment complaint. Nor is there any evidence to

suggest bad faith on the part of the (presumably disinter-

ested) state’s attorney who elected to pursue the felony

eavesdropping charge against Argyropoulos. Lacking

such evidence, Argyropoulos’s argument rests on specula-

tion that the City’s employees lied to conceal their true

motives. Such speculation will not withstand summary

judgment. See Springer v. Durflinger, 518 F.3d 479, 484 (7th

Cir. 2008) (because summary judgment is the “put up or

shut up” moment in the lawsuit, a mere “hunch about the

defendant’s motives” is insufficient to survive at this

stage).

Argyropoulos also attempts to show pretext by arguing

that her conduct was, in fact, legal under Illinois law. She

contends that, because she reasonably believed that she

faced a threat of imminent physical harm at the time she

began recording the meeting with Lane and Adams, her

conduct was not criminal under the Illinois eavesdropping

statute. Her argument is based on 720 Ill. Comp. Stat. 5/14-

3(i), which exempts from criminality the recording of a

conversation without the consent of all the parties thereto,

so long as that recording is made

by . . . a person . . . who is a party to the conversa-

tion, under reasonable suspicion that another

party to the conversation is committing, is about

to commit, or has committed a criminal offense

24 No. 07-1903

against the person or a member of his or her im-

mediate household, and there is reason to believe

that evidence of the criminal offense may be ob-

tained by the recording.

720 Ill. Comp. Stat. 5/14-3(i). Because the criminality of her

conduct depends on whether she harbored a “reasonable

suspicion” that she faced the threat of imminent physical

harm from Lane and/or Adams, Argyropoulos argues, she

has cast doubt on the City’s explanation for her arrest

and termination.

This argument goes to the merits, rather than the hon-

esty, of the City’s explanation, and thereby misses the

point of the pretext inquiry. To show pretext,

Argyropoulos needed to show not just that the City

exercised poor judgment, but that it acted in bad faith, i.e.,

dishonestly, when it arrested and fired her. Merely show-

ing that she might have been able to raise a meritorious

defense 7 to the eavesdropping charge is hardly tanta-

mount to showing bad faith. Argyropoulos does not

dispute that her conduct was subject to prosecution under

the language of 720 Ill. Comp. Stat. 5/14-2(a)(1)(A), which

criminalizes the use of “an eavesdropping device for the

purpose of hearing or recording all or any part of any

conversation . . . [without] the consent of all of the parties

7

Of course, we need not, and do not, express an opinion

regarding the merits of Argyropoulos’s defense to the criminal

eavesdropping charge. The record does not disclose the out-

come of the actual criminal proceedings. At oral argument,

Argyropoulos’s counsel informed the court that she eventually

pleaded guilty to an unidentified lesser offense.

No. 07-1903 25

to such conversation.” She argues only that she could have

prevailed on the “reasonable suspicion” defense created

by 5/14-3(i). Even if we assume that she had a good chance

of prevailing on this defense, this scenario remains far

removed from the sort of baseless prosecution that

might support an inference of bad faith.

In short, to show that the City’s explanation was

pretexual, Argyropoulos would need something more

than a colorable defense to the eavesdropping charge, and

she has offered nothing more. Therefore, she has not

raised a genuine issue of material fact that the City’s

explanation was a pretext for retaliation, and the district

court properly granted summary judgment for the City.

B. Motion to Set Aside Judgment

Argyropoulos also argues that the district court erred in

denying her motion seeking to set aside the judgment. In

addition, she challenges the denial of two related

postjudgment motions seeking to conduct further discov-

ery and several prejudgment motions seeking to compel

discovery. Argyropoulos cites no legal authority in

support of her argument, but instead simply states that she

“should be allowed to proceed with further discovery as

justice requires.” She explains that this argument is tied to

her retaliation claim, and that if the court elects to reverse

the district court’s grant of summary judgment on that

claim, she should be allowed to proceed with limited

discovery “in the interests of justice.” This argument is

perfunctory and undeveloped, and is therefore waived. See

United States v. Hook, 471 F.3d 766, 775 (7th Cir. 2006); Smith

v. Ne. Ill. Univ., 388 F.3d 559, 569 (7th Cir. 2004). Moreover,

26 No. 07-1903

we are not inclined to reverse the district court’s grant

of summary judgment on the retaliation claim; thus, the

terms of the request make clear that granting it would

be futile.

C. “Take Back” Letter and Due Process Claims

A post-argument letter sent to the court by Appellant’s

counsel presents one last puzzling thing that should be

addressed. As previously noted, in her second amended

complaint, Argyropoulos asserted, among other things,

claims for alleged due process violations in connection

with her termination, pursuant to 42 U.S.C. § 1983. The

district court granted summary judgment against her on

these claims (Count III against the City and Count IV

against Duty, Botterbush, and Sullivan). And, of course, an

appeal was taken from the adverse judgment. However, a

careful examination of the Appellant’s briefs on appeal

suggests that the due process ruling was not one of the

issues being appealed. For example, the Appellant’s

statement of the issues in her opening brief framed only

two issues:

I. Whether Plaintiff raised a reasonable inference

that her written complaint about sexual harass-

ment, among other things, moved the defendants

to mistreat her.

II. Whether, in the interests of justice, the district

court should have granted Plaintiff’s Motion for

Relief from Judgment, Motion for Stay and Lim-

ited Discovery, Motion to Supplement, and Mo-

tions to Compel Discovery and Disclosures.

No. 07-1903 27

The balance of the brief is devoted to arguing the retalia-

tion claim, save for what is essentially a passing reference

to general procedural due process concepts near the end

of the brief.8 Despite a short section in the Appellees’

response brief defending the trial judge’s ruling on the due

process claims, the Appellant’s reply brief made no

mention whatsoever of a due process theory.

So, leading up to the oral argument in this case,

Argyropoulos had devoted scant attention to the concept

of procedural due process. In the same vein,

Argyropoulos’s attempt to establish Monell liability for the

City consisted only of conclusory statements, devoid of any

8

For example, in explaining the nature of the asserted due

process violation, her opening appellate brief stated, without

elaboration, “Procedural Due Process requires, oral or written

notice of the charges against her, an explanation of the em-

ployer’s evidence, and an opportunity to present her side of

the story.” This cursory statement simply summarizes the black-

letter contours of procedural due process; it does not even

begin to explain why the process that she received in this case

was inadequate. Argyropoulos’s brief in opposition to sum-

mary judgment before the district court was similarly nebulous

on this point; the due-process-deprivation argument spans just

one page of that brief and fails to clearly identify the nature

of the liberty or property interest allegedly at stake. See Miyler

v. Vill. of E. Galesburg, 512 F.3d 896, 898 (7th Cir. 2008) (noting

that, under Illinois law, absent some statute or ordinance

imposing substantive limits on the employer’s discretion—e.g.,

specifying that a class of employees can only be fired for

cause—public employees do not ordinarily have property

rights in employment which trigger due-process protections).

28 No. 07-1903

citation to substantiating evidence in the record. Such

skeletal treatment of a claim does not facilitate well-

informed judicial decision-making; indeed, it essentially

invites the court to disregard the claim at issue. See Kramer

v. Banc of Am. Secs., LLC, 355 F.3d 961, 964 n.1 (7th Cir.

2004) (undeveloped argument constitutes waiver); Smith,

388 F.3d at 569. One is left to wonder whether

Argyropoulos chose to accept the trial court’s decision on

the due process claim as she did with respect to the Title

VII harassment and Illinois-law intentional infliction

of emotional distress theories.

As the above discussion suggests, the inadequate devel-

opment of Argyroupolos’s due process claim points in the

direction of waiver. See Hook, 471 F.3d at 775

(“[P]erfunctory and undeveloped arguments that are

unsupported by pertinent authority, are waived (even

where those arguments raise constitutional issues).”

(citation omitted)). And at oral argument, Appellant’s

counsel seemingly delivered the coupe de grace to this

claim by announcing his intention to waive it altogether;

indeed, he indicated that the due process argument should

receive consideration only insomuch as it was “relevant

to the retaliation claim.” 9 Based on this assurance, the oral

9

At oral argument, the court directly asked Argyropoulos’s

attorney whether he intended to pursue the § 1983 claim on

appeal. He explained that although he believed that he had

“technically” appealed this claim, he had probably waived it

by failing to make any relevant arguments. When the court

sought clarification, Argyropoulos’s counsel made clear his

(continued...)

No. 07-1903 29

argument focused on the retaliation claim, with no mean-

ingful discussion of a due process theory.

However, the day after oral argument, Appellant’s

counsel sent a letter to the court indicating his intention to

“reassert all arguments made in Appellant’s Brief” and to

“retract any waiver [he] made . . . at oral argument.”

Although the letter did not cite any authority for such a

retraction, the Seventh Circuit Practitioner’s Handbook

provides that, where counsel reconsiders a position taken

or a concession offered at oral argument, he may “send a

letter to the panel ‘taking back’ the concession or

restating [his] position on a particular point.” Practitioner’s

Handbook for Appeals to the United States Court of Appeals for

the Seventh Circuit 97 (2003), available at http://www.

ca7.uscourts.gov/Rules/handbook.pdf. While this provision

may be of use to some litigants, it is of no help to

Argyropoulos. First, the letter does not even hint at what

concession or position is being retracted. Next, it is

devoid of any explanation for the change of any position

taken at argument. And of course, such a shifting position

deprived this court of a clear explanation, either in her

brief or at oral argument, of the Appellant’s position on

due process. Most importantly, if the post-argument letter

was an attempt to reassert due process claims, it amounts

to far more than the mere “taking back” of a concession

9

(...continued)

intention to abandon the § 1983 claim, stating, “Your Honor, I’m

basically waiving any procedural due process claim by not

making those arguments and . . . making the retaliation claim

my focus . . . .”

30 No. 07-1903

imprudently offered at oral argument; because the due

process claims were never adequately developed, either

here or below, it is an attempt to revive claims that simply

never were. Cf. United States v. Ross, 412 F.3d 771, 775 (7th

Cir. 2005) (allowing retraction of concession where winning

argument was adequately developed in opening brief but

expressly abandoned in reply brief); Lear v. Cowan, 220 F.3d

825, 828-29 (7th Cir. 2000) (argument raised for the first

time at oral argument, by the judges no less, was “thor-

oughly waived”). A take-back letter following oral argu-

ment in this case simply cannot resuscitate claims that

were never alive in the first place. This court should not

have to divine arguments from such a scant record, nor

should it have to consider claims which are specifically

disavowed when an opportunity to argue them is pre-

sented.

A quick look at the merits suggests that Argyropoulos

gave up very little, if anything by waiving her wispy

due process claims. She completely failed at the trial court

to establish a basis for liability as to defendants Botterbush

and the City. (Duty wasn’t even named in the due process

counts of the second amended complaint.) Summary

judgment was properly granted for Botterbush, because

Argyropoulos failed to identify any evidence in the record

showing that he played a role in her termination. And

she also failed to support her claim for municipal liability.

She asserted, in conclusory fashion, that she was deprived

of due process pursuant to municipal policy because

“Chief Sullivan was the relevant policymaker,” but she

failed to identify any evidence in the record substantiating

this assertion. The authority, under state or local law, to set

No. 07-1903 31

policy—i.e., to “adopt rules for the conduct of govern-

ment”—distinguishes a “final policymaker,” whose

decisions may subject a municipality to § 1983 liability,

from an official who merely possesses “authority to

implement pre-existing rules.” Killinger v. Johnson, 389 F.3d

765, 771-72 (7th Cir. 2004) (emphasis added) (citation

omitted); see also McGreal v. Ostrov, 368 F.3d 657, 685-86

(7th Cir. 2004). The chief of a police department, even

when making internal personnel decisions, does not

always possess the requisite policymaking authority. See

Auriemma v. Rice, 957 F.2d 397, 399 (7th Cir. 1992) (police

superintendent did not act as final policymaker in

making allegedly racially and politically discriminatory

personnel decisions where municipal ordinances unequiv-

ocally banned racial and political discrimination); see also

Abbot v. Vill. of Winthrop Harbor, 205 F.3d 976, 982 (7th Cir.

2000). Thus, Argyropoulos needed to establish, by refer-

ence to applicable state or local law, that Sullivan was the

final policymaker with respect to police department

employment decisions; she failed to provide evidence to

this effect, and it is not the court’s task to do so on her

behalf. See Estate of Moreland v. Dieter, 395 F.3d 747, 759

(7th Cir. 2005) (“We will not scour a record to locate

evidence supporting a party’s legal argument.”).

The termination of the due process claim against Sullivan

in his individual capacity is a closer call. The district

court reasoned that the police department needed to act

quickly to remove Argyropoulos from active duty and

found that, under the circumstances, her post-termination

opportunities to challenge her dismissal were adequate.

The district court relied on Gilbert v. Homar, 520 U.S. 924

32 No. 07-1903

(1997), in which the Court stated, “[W]here a State must act

quickly, or where it would be impractical to provide

predeprivation process, postdeprivation process satisfies

the requirements of the Due Process Clause.” Id. at 930

(citing collected cases). However, that conclusion does not

displace the near-categorical guarantee of at least some pre-

termination process to tenured public employees as

discussed in Cleveland Board of Education v. Loudermill, 470

U.S. 532 (1985). But Argyropoulos never cited or dis-

cussed either Gilbert or Loudermill, and because of her

waiver, we need not explore this issue further.1 0

To recap, Argyropoulos waived her § 1983 claim by not

adequately developing her denial-of-due-process argu-

ment. Moreover, even if she had adequately developed

this argument in her brief, this claim was unequivocally

waived at argument, and was not revived by the post-

argument letter.

10

Perhaps even if successful on a due process claim against

Sullivan, only a nominal victory would have resulted, thus

justifying the waiver. See Dargis v. Sheahan, 526 F.3d 981, 989 (7th

Cir. 2008) (explaining that, because procedural due process

safeguards “are meant to protect persons not from the depriva-

tion, but from the mistaken or unjustified deprivation of life,

liberty, or property,” a plaintiff is not entitled to recover

damages “where [she] would have suffered the same fate

had the required hearing been held” (citation omitted)). Besides,

the concept of waiver does not apply only to meritless

claims; that Argyropoulos might have had a colorable argu-

ment did not relieve her of a litigant’s obligation to develop it.

No. 07-1903 33

III. Conclusion

Argyropoulos has not raised a genuine issue of material

fact regarding retaliation under either the direct or indirect

method of proof. In addition, she has not cast doubt on

the City’s nonretaliatory explanation for her arrest and

termination. Therefore, the district court properly con-

cluded that the City was entitled to summary judgment

on her Title VII retaliation claim. In addition, by failing

to adequately develop her arguments, Argyropoulos

waived both her challenge to the district court’s denial of

her motion seeking to set aside the judgment and her

§ 1983 due process claims. Accordingly, the judgment

of the district court is A FFIRMED.

8-26-08