Hanners v. Trent

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-1754

F LYNN H ANNERS,

Plaintiff-Appellant,

v.

L ARRY T RENT, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of Illinois.

No. 3:09-cv-03111-MPM-CHE—Michael P. McCuskey, Chief Judge.

A RGUED D ECEMBER 2, 2011—D ECIDED M ARCH 19, 2012

Before

R IPPLE and R OVNER, Circuit Judges, and

F EINERMAN, District Judge.Œ

R IPPLE, Circuit Judge. Flynn Hanners, a former Master

Sergeant with the Illinois State Police (“ISP”), brought

this action in the district court, alleging that fellow ISP

employees Larry Trent, Harold Nelson, Lance Adams,

Œ

The Honorable Gary S. Feinerman of the Northern District

of Illinois, sitting by designation.

2 No. 11-1754

Richard Woods and Leonard Stallworth discriminated

against him because of his race, in violation of 42 U.S.C.

§§ 1981 and 1983. The district court granted summary

judgment for the defendants, and Mr. Hanners now

timely appeals. For the reasons set forth in the fol-

lowing opinion, we affirm the judgment of the district

court.

I

BACKGROUND

A. Facts

1. The Email

On February 4, 2008, Mr. Hanners, then a Master Ser-

geant in the Medicaid Fraud Control Bureau of the ISP,

sent an email that included pictures and descrip-

tions of eleven fictitious Barbie Dolls to sixteen

fellow ISP employees; Mr. Hanners sent the email

using his ISP computer and email account.1 Each fictitious

1

The subject line of the email was “Updated Springfield Area

Barbies,” and the email itself was entitled “Mattel recently

announced the release of limited-edition Barbie Dolls for the

Springfield market.” R.28-1 at 18. The email included the

following:

’Chatham Barbie’

This princess Barbie is sold only at The Gables. She

comes with an assortment of Kate Spade Handbags, a

Lexus SUV, a long-haired foreign dog named Honey,

(continued...)

No. 11-1754 3

1

(...continued)

and cookie-cutter house. Available with or without

tummy tuck and face lift. Workaholic Ken sold only

in conjunction with the augmented version.

’Rochester Barbie’

The modern day homemaker Barbie is available with a

Ford Windstar minivan and matching gym outfit. She

gets lost easily and has no full-time occupation. Traffic

jamming cell phone sold separately.

’East Side Barbie’

This recently paroled Barbie comes with a 9mm hand-

gun, a Ray Lewis knife, a Chevy with dark tinted

windows, and a Meth Lab Kit. This model is only

available after dark and must be paid for in cash

(preferably small, untraceable bills), unless you are a

cop, then we don’t know what you are talking about.

’Panther Creek Barbie’

This yuppie Barbie comes with your choice of BMW

convertible or Hummer H2. Included are her own

Starbucks cup, credit card, and country club member-

ship. Also available for this set are Shallow Ken and

Private School Skipper. You won’t be able to afford any

of them. This Barbie also comes with her own credit

card debt, car loans and three mortgages.

’Riverton Barbie’

This pale model comes dressed in her own Wrangler

jeans two sizes too small, a NASCAR t-shirt, and

Tweety Bird tattoo on her shoulder. She has a six-pack

of Bud Light and a Hank Williams Jr. CD set. She can

spit over 5 feet and kick mullet-haired Ken’s butt

(continued...)

4 No. 11-1754

1

(...continued)

when she is drunk. Purchase her pickup truck sepa-

rately and get a Confederate Flag bumper sticker

absolutely free!

’Lake Area Barbie’

This collagen injected, bo-toxed, rhinoplastied Barbie

wears a leopard print outfit and drinks cosmopolitans

while entertaining friends. Percocet prescription

available as well as duplex on the lake. Live-in partner

Dr. Ken available with new prescription pad and

Skipper-on-the-side.

’Pawnee Barbie’

This tobacco-chewing, brassy-haired Barbie has a pair

of her own high-heeled sandals with one broken heel

from the time she chased beer-gutted Ken out of

Divernon Barbie’s house. Her ensemble includes

low-rise acid-washed jeans, fake fingernails, and a

see-through halter-top. Also available with a mobile

home.

’Downtown Barbie’

This doll is made of actual tofu. She has long straight

brown hair, arch-less feet, hairy armpits, no makeup,

and Birkenstocks with white socks. She prefers that

you call her Willow. She does not want or need a Ken

doll, but if you purchase two Downtown Barbies and

the optional Subaru wagon, you get a rainbow flag

bumper sticker for free.

’North End Barbie’

This 16-year-old Barbie now comes with a stroller and

infant doll. Optional accessories include a GED, bus

(continued...)

No. 11-1754 5

doll was a caricature of a stereotypical woman

living in an identifiable area in and around Springfield,

Illinois.

One of the original recipients, Special Agent Stacy

Conner, forwarded the email to three additional ISP

employees, including Sergeant Brenda Burton. Con-

cerned that the email might have been “a set up to see

how she would react as a supervisor,” R.28-1 at 16,

Sergeant Burton brought it to the attention of her own

supervisor and noted that the email likely was for-

warded to her by mistake.

1

(...continued)

pass, and Link Card. Gangsta Ken and his 1979

Caddy were available, but are now very difficult to find

since the addition of the infant.

’Leland Grove Barbie / Ken’

She’s perfect in every way. Comes with the old money

Springfield pedigree and small-mindedness. She

belongs to Illini Country Club, the Sangamo Club, and

the DAR. (Only available in Caucasian).

’South of Downtown Barbie / Ken’

This versatile doll can be easily converted from Barbie

to Ken by simply adding or subtracting the multiple

snap-on parts. HeShe comes with his/her own bail bond

card and criminal record for prostitution and posses-

sion. HeShe has also been banned from Walgreen’s

and CVS for attempting to purchase more than two

boxes of ephedrine-containing drugs in one day.

Id. at 19-25 (images omitted).

6 No. 11-1754

On April 21, 2008, Captain Scott Rice, Commander

of Zone 7, where Sergeant Burton was assigned, com-

pleted a Complaint Against Department Member

(“CADM”) form against Special Agent Conner, and the

case was referred to the ISP’s Equal Employment Op-

portunity (“EEO”) office shortly thereafter.

The email also was brought to the attention of defendant

Richard Woods, who held the position of Investigative

Support Commander and was in Mr. Hanners’s chain

of command. Commander Woods shared the email with

his own direct supervisor and with Captain Gordon

Fidler, the chief of Mr. Hanners’s bureau. Commander

Woods directed Captain Fidler to open an investigation

and, in particular, to determine whether Mr. Hanners

was indeed the source of the email. The email also was

brought to the attention of defendants Colonel Harold

Nelson, Deputy Director of the Division of Operations;

Lieutenant Colonel Leonard Stallworth, Assistant

Deputy Director of Special Operations and Lieutenant

Colonel Lance Adams, Assistant Deputy Director of

Field Operations. All of the defendants except for Lieu-

tenant Colonel Adams were in Mr. Hanners’s direct

chain of command at the time the email incident

took place.

In accordance with Commander Woods’s instructions,

Captain Fidler contacted the Division of Internal Inves-

tigations (“DII”) to determine the appropriate course

of action. On April 3, 2008, as part of the reporting

process, Captain Fidler filed a CADM with DII

regarding the email sent by Mr. Hanners.

No. 11-1754 7

After reviewing the complaint, DII referred the

incident back to Captain Fidler with instructions to con-

tinue the investigation. Captain Fidler asked Lieutenant

Sheryl Anderson-Martin, Mr. Hanners’s direct super-

visor, to handle the investigation. As part of the investiga-

tion, Lieutenant Anderson-Martin conducted a series of

three interviews with individuals who had direct knowl-

edge of the email incident: Sergeant Burton, Special

Agent Conner and Mr. Hanners. During his interview,

Mr. Hanners admitted to sending the email to fellow ISP

employees, including Special Agent Conner. After she

completed the investigation, Lieutenant Anderson-

Martin met with Captain Fidler to discuss her findings

and recommendations. Once the initial investigation

was complete, DII resumed control of the investigation

and informed Captain Fidler that the matter had

been referred to the EEO office.

Although the exact timing is not clear from the

record, the EEO office became involved in the investiga-

tion of the email incident through the submission of

Captain Fidler’s CADM. Among its other responsi-

bilities, the EEO office maintains an internal complaint

process, which includes options for investigation and

mediation. This complaint process, set out in a written

ISP policy, requires an employee filing a complaint

with the EEO office to sign an intake questionnaire

that provides a narrative of what occurred and how the

alleged activity constitutes discrimination, harassment

or retaliation. Suzanne Bond, Chief of the ISP EEO

office, testified in her deposition that a supervisor also

8 No. 11-1754

may refer an incident to the EEO office by submitting

a signed CADM through DII.2

As part of the investigation into Mr. Hanners’s email,

the EEO office contacted all of the email recipients, but

none of these individuals was willing to file a com-

plaint against Mr. Hanners that would state that he

had been offended by the email. However, during

his interview with the EEO officer, Mr. Hanners

eventually admitted that sending the email was an im-

proper use of his ISP email account and acknowledged

that he had received training on EEO policies in the past.

Sergeant Robert Sgambelluri, the EEO officer in charge

of Mr. Hanners’s investigation, concluded that, “[w]hile

the contents of the email were related to race, sexual

orientation, parental status, pregnancy, family responsi-

bilities, and the characteristics of gender, no person

receiving the email reported being offended by its con-

tents.” R.28-2 at 45. Notably, he found that none of the

individuals who received the email believed that “it

interfered with [his] work performance or created an

2

At the same time as the Barbie Doll email investigation, the

EEO office also had at least two other ongoing investiga-

tions involving inappropriate emails sent using ISP computer

equipment. One of the cases involved a District Commander

who had sent to the other District Commanders an email

that depicted a cartoon of a man and a woman in a car. The

man had a traditional seatbelt, while the woman had a

seatbelt that went over her lap, shoulder and mouth. A second

email incident involved a link to a video that pertained to

the proper use of the “F-word.”

No. 11-1754 9

intimidating, hostile, abusive or offensive work environ-

ment.” Id. (internal quotation marks omitted). Sergeant

Sgambelluri ultimately concluded that the investigation

did not warrant a charge of hostile work environment

under ISP policy.

Sergeant Sgambelluri did conclude, however, that

the email “contained derogatory references to women,

African Americans, and other categories of people, and

presented negative and demeaning stereotypes of these

groups.” Id. He therefore determined that Mr. Hanners’s

act of transmitting the content of the email to others

using an ISP computer and email, without a business

reason, was contrary to various ISP policies, including

PER-009, which provides that the ISP “will ensure man-

agers and supervisors recognize their responsibility

for carrying out the spirit and intent of the EEO Pro-

gram.” Id. (internal quotation marks omitted). Addition-

ally, Sergeant Sgambelluri determined that the results

of the investigation supported charging Mr. Hanners

with violating several Rules of Conduct pertaining to

misuse of ISP equipment.

Chief Bond agreed with Sergeant Sgambelluri’s

finding that Mr. Hanners violated ISP policy and for-

warded to ISP Director Larry Trent her recommendation

that Mr. Hanners be charged with violating the Rules of

Conduct. Chief Bond’s recommendation to Director

Trent included a citation to PER-009, III.6.C. 3 The memo-

3

ISP policy PER-009, III.6.C provides: “Colonels and their

Supervisors and Managers will recognize their explicit respon-

(continued...)

10 No. 11-1754

randum also included recommendations for discipline

for three other individuals who had further disseminated

the Barbie Doll email, including Special Agent Conner.4

Director Trent reviewed the EEO office’s recommenda-

tions and determined that Mr. Hanners should be disci-

plined in accordance with Chief Bond’s recommenda-

tions. He then forwarded the recommendations to

Colonel Nelson and instructed him to “advise the EEO

Office what actions you have taken in response to

the charges identified above within 30 days of your

receipt of this information.” R.28-2 at 48.

2. The Disciplinary Review Board

An ISP officer facing disciplinary action has the right

to appear before the Disciplinary Review Board (“the

Board”), composed of the Deputy Directors, and to

3

(...continued)

sibility for carrying out the spirit, as well as the intent, of

the EEO Program, including but not limited to the EEO Plan,

and actively work to advance the program among the em-

ployees they supervise.” R.28-2 at 42.

4

In addition to Special Agent Conner, Special Agent Mari

Rolape and Trooper Mark Beagles also were disciplined for

forwarding the Barbie Doll email using their ISP computers.

Special Agent Rolape was counseled regarding her actions

of forwarding the email from her ISP computer to her home

computer. Special Agent Conner and Trooper Beagles partici-

pated in the settlement agreement process and ultimately

received letters of reprimand.

No. 11-1754 11

present his own perspective on the case. As part of the

process, an officer who takes full responsibility for his

actions may agree to a settlement with the Board, and,

in doing so, receive a reduced disciplinary penalty.

Prior to his appearance before the Board, Mr. Hanners

was offered a settlement by Colonel Nelson. Its terms

would have reduced his suspension from thirty days

to ten to fifteen days—the same suspension that

Colonel Nelson was offering to two other officers who

were facing similar charges. Although the other indi-

viduals accepted Colonel Nelson’s settlement proposal,

Mr. Hanners rejected the proposed resolution. Mr.

Hanners elected to appear before the Board and read

from a prepared statement. Following his appearance

before the Board, the Deputy Directors unanimously

recommended to Director Trent that Mr. Hanners

receive the original thirty-day suspension. They ex-

pressed concern regarding Mr. Hanners’s apparent lack

of remorse. Director Trent accepted the Board’s recom-

mendation and imposed a thirty-day suspension.5

3. Ratings Session and Promotions

As part of the ISP employee promotion process, each

sworn employee receives an annual promotional rating,

5

Colonel Nelson, as Deputy Director of the Division of Opera-

tions, participated in Mr. Hanners’s meeting with the Board.

Lieutenant Colonel Adams also attended, but only as an

observer.

12 No. 11-1754

which is given by the employee’s direct supervisor.6

During the 2008 ratings session, approximately thirty

individuals, including Mr. Hanners, were to be con-

sidered for promotion from master sergeant to lieutenant.

Lieutenant Anderson-Martin was Mr. Hanners’s rater

for 2008. Following the usual protocol, she met with

Mr. Hanners to go over the components of the ratings

process. She then scored Mr. Hanners on a scale of 1 to 9

in nine different categories and preliminarily calculated

his aggregate score as 68. Prior to the ratings session,

Lieutenant Anderson-Martin inquired as to whether

she should take the email incident into account for pur-

poses of rating Mr. Hanners’s job performance; she

was told that she should do so. She therefore adjusted

Mr. Hanners’s aggregate score accordingly. However,

when she reviewed her scores with the other super-

visors at the ratings session, several individuals, in-

cluding Commander Woods, suggested that the grade

still was too high given the email incident.7 Lieutenant

Anderson-Martin expressed her concern regarding the

further lowering of Mr. Hanners’s rating because, aside

from the email, Mr. Hanners had performed at a high

level throughout the year.

At the ratings session, Lieutenant Anderson-Martin

felt that the discussion of her grading decision became

6

When a sworn employee seeks a promotion, he must agree

to take a promotional examination and receive a job perfor-

mance evaluation.

7

Director Trent and Colonel Nelson did not attend the

ratings session.

No. 11-1754 13

adversarial and that the situation was compounded by

the fact that she was being considered for promotion

to captain. In what she deemed a difficult situation,

Lieutenant Anderson-Martin ultimately agreed to

reduce Mr. Hanners’s grade to reflect the recommenda-

tions given by the other supervisors. Mr. Hanners there-

fore received an aggregate grade of 54.

Mr. Hanners challenged his promotion grade in ac-

cordance with ISP protocol. The challenge was reviewed

by Commander Woods, who recommended that

Mr. Hanners’s grade of 54 be upheld. Further, three

of Mr. Hanners’s superiors, Captain Fidler, Lieutenant

Anderson-Martin and Lieutenant Colonel Stallworth,

after considering the merits of Mr. Hanners’s challenge,

all agreed that his grade of 54 should not be raised. As

part of the process, Lieutenant Anderson-Martin was

tasked with writing a memorandum in response to

Mr. Hanners’s contentions. During the drafting of her

memorandum in response to Mr. Hanners’s challenge,

Lieutenant Colonel Stallworth, who had made his dis-

pleasure with the content of the email known, informed

Lieutenant Anderson-Martin that Mr. Hanners’s grade

would not be increased above a 54.8 Lieutenant Anderson-

Martin created several drafts of the memorandum;

8

Lieutenant Colonel Stallworth testified at his deposition

that he indeed found the Barbie Doll email inappropriate

and could not believe that a supervisor would send it out or

think it was funny. R.22-7 at 19 (Stallworth Dep. 22). Addition-

ally, he testified that, as an African-American, he found the

email to be racially offensive. Id. at 22-23 (Stallworth Dep. 25-26).

14 No. 11-1754

each draft was rejected until it was deemed to be suffi-

ciently “generic.” R.31-5 at 4 (Anderson-Martin Dep. 152-

53). After the challenge was reviewed by the individuals

in his chain of command, including Colonel Nelson,

Mr. Hanners ultimately received a promotion rating of 54.

B. District Court Proceedings

Mr. Hanners filed a complaint in the Central District

of Illinois. Asserting claims based upon 42 U.S.C. §§ 1981

and 1983, he alleged that he was suspended and graded

unfairly because of his political views and his race.9

Addressing Mr. Hanners’s contention that the ISP had

imposed sanctions and graded him in a racially discrim-

inatory manner, the district court determined that

Mr. Hanners had failed to establish a prima facie case

of race discrimination based on the direct method.1 0

The court explained that, in order to establish a claim

9

In his complaint, Mr. Hanners alleged that the defendants

retaliated against him because of his political views, in viola-

tion of his rights under the First Amendment. In his brief in

response to the defendants’ motion for summary judgment,

Mr. Hanners conceded that there was insufficient evidence

from which a jury reasonably could conclude that the defen-

dants violated his First Amendment rights. The district court

therefore concluded that the defendants were entitled to

summary judgment on Mr. Hanners’s First Amendment

claim. This claim is not at issue on appeal.

10

The district court noted, and the parties appear to agree,

that Mr. Hanners is attempting to prove discrimination by

the direct method only.

No. 11-1754 15

under the direct method, Mr. Hanners “ ‘must have

provided direct evidence of—or sufficient circumstantial

evidence to allow an inference of—intentional racial dis-

crimination.’ ” R.38 at 24 (quoting Montgomery v. Am.

Airlines, Inc., 626 F.3d 382, 393 (7th Cir. 2010)). The

court noted that Mr. Hanners did not offer any admis-

sions of discrimination of the kind that would con-

stitute direct evidence, but rather relied upon circum-

stantial evidence to advance his claim. In reviewing

the circumstantial evidence offered by Mr. Hanners,

the court noted that Mr. Hanners had failed to compare

his thirty-day suspension to similarly situated persons,

i.e., the other individuals who had forwarded the

Barbie Doll email. Mr. Hanners instead compared his

punishment to that of eighteen individuals, only three

of whom had misused ISP equipment. All had been

involved in activities unrelated to the Barbie Doll email.

The court noted that the list provided by Mr. Hanners

did not identify any instances of conduct deemed of-

fensive for reasons of race, sexual orientation or gender,

nor did it indicate that any of the individuals listed

were non-Caucasian. The court therefore concluded that

Mr. Hanners had “provide[d] no evidence that employees

outside the protected class (i.e.[,] non-Caucasians) re-

ceived systematically better treatment than Caucasians

such as Hanners.” R.38 at 27-28.

Next, the district court explained that Mr. Hanners

could “alternatively show discrimination by establishing

‘ambiguous statements or behavior toward other em-

ployees in the protected group that taken together allow

an inference of discriminatory intent.’ ” Id. at 28 (quoting

16 No. 11-1754

Montgomery, 626 F.3d at 393). The court acknowledged

that Mr. Hanners “trie[d] to create an inference of dis-

criminatory intent by asserting that: the e-mail would

not have been problematic if he were an Afri-

can[]American; irregularities [existed] in the investiga-

tion of the e-mail incident; and Hanners’[s] supervisor

was pressured to reduce Hanners’[s] grade when

assessing his job performance.” Id. at 28. The court deter-

mined, however, that Mr. Hanners’s assertion that

the email would not have been problematic if he were

African-American, did “not merit much discussion”

because, without any supporting evidence, the assertion

amounted to nothing more than “mere speculation.” Id.

at 28-29.

The court then turned to the facts surrounding the

investigation of the email incident. The court acknowl-

edged Mr. Hanners’s contention that the ISP deviated

from well-established internal policy during the investi-

gation of the email incident because there was neither

a complainant nor a completed EEO intake form. Al-

though the court recognized that an employer’s de-

parture from its own internal policies might serve as

circumstantial evidence that an employer’s stated

reason for an adverse employment action is pre-

textual, it understood the case law to require “more than

a deviation from an employer’s internal policy” alone

in order to withstand summary judgment. Id. at 30. In

any event, the court explained that there was no devia-

tion from ISP policy, despite the fact that an intake ques-

tionnaire never was completed, because Captain Fidler

No. 11-1754 17

had submitted the CADM to DII. The court further con-

cluded that Mr. Hanners’s assertion that the with-

drawal of the investigation from Captain Fidler and

Lieutenant Anderson-Martin was evidence of discrim-

ination was at odds with the facts. The court found

that the investigation was assigned to Captain Fidler’s

office for the limited purpose of verifying the origin

of the email.

Finally, the court turned to Mr. Hanners’s assertion

that the defendants improperly had used the email inci-

dent to impact his job performance rating during the

2008 ratings and promotions period. The court first ex-

plained that, as Mr. Hanners’s supervisor and the

person charged with grading his job performance, it

was Lieutenant Anderson-Martin’s conduct that was

relevant to Mr. Hanners’s discrimination claim based

upon the ratings process. The court concluded that,

despite the fact that Lieutenant Anderson-Martin felt

pressure to reduce Mr. Hanners’s rating on the basis of

the email incident, there was no evidence that she was

ordered by any of the defendants to lower Mr. Hanners’s

grade. Second, the court noted that Mr. Hanners was

permitted to challenge his grade, and that Captain Fidler,

Lieutenant Anderson-Martin and Lieutenant Colonel

Stallworth unanimously had decided to uphold Com-

mander Woods’s recommendation that the grade not

be raised. The court therefore concluded that, because

Mr. Hanners did not allege any discriminatory animus

against Captain Fidler and Lieutenant Anderson-

Martin, Mr. Hanners “would have received the same

grade regardless of the Defendants’ alleged animus.” Id.

18 No. 11-1754

at 35.11 The court therefore granted summary judgment

for the defendants on Mr. Hanners’s §§ 1981 and

1983 claims.12

II

DISCUSSION

A. Standard of Review

We review a district court’s decision to grant a motion

for summary judgment de novo, construing all the facts

in the light most favorable to the nonmoving party,

Mr. Hanners. See Coffman v. Indianapolis Fire Dep’t, 578

F.3d 559, 563 (7th Cir. 2009). Summary judgment is

proper where “there is no genuine dispute as to any

material fact and the movant is entitled to judgment as

11

In addition, Mr. Hanners asserted that the defendants were

not entitled to qualified immunity. Because the district court

concluded that Mr. Hanners did not establish a prima facie

case for discrimination, and that the defendants, therefore,

were entitled to summary judgment, the court did not con-

sider the issue of qualified immunity.

12

Mr. Hanners also asserted, in his Memorandum in Opposi-

tion to Summary Judgment, that summary judgment would

violate his Seventh Amendment right to a jury trial. The

district court correctly concluded that the disposition of

Mr. Hanners’s case on a motion for summary judgment did

not deprive him of his Seventh Amendment right to a trial

by jury. See Burks v. Wisconsin Dep’t of Transp., 464 F.3d 744,

759 (7th Cir. 2006). This issue also is not raised on appeal.

No. 11-1754 19

a matter of law.” Fed. R. Civ. P. 56(a). “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 quota-

tion marks omitted).

B. Race Discrimination and the Direct Method of Proof

Mr. Hanners contends that he has demonstrated

that race was a motivating factor in the decisions to

suspend him for thirty days and to lower his promotion

rating. In his view, the district court failed to apply

the proper standard in evaluating whether he had pro-

duced sufficient evidence to avoid summary judgment

under the direct method.

A plaintiff proceeding under the direct method “must

demonstrate a triable issue as to whether discrimina-

tion motivated the adverse employment action.” Davis v.

Time Warner Cable of Se. Wis., L.P., 651 F.3d 664, 672

(7th Cir. 2011); see also Sheehan v. Daily Racing Form,

Inc., 104 F.3d 940, 940 (7th Cir. 1997). “A plaintiff pro-

ceeding according to the direct method may rely on

two types of evidence: direct evidence or circum-

stantial evidence.” Rudin v. Lincoln Land Cmty. Coll., 420

F.3d 712, 720 (7th Cir. 2005). “Direct evidence is evidence

which, if believed by the trier of fact, will prove the

particular fact in question without reliance upon infer-

ence or presumption.” Eiland v. Trinity Hosp., 150 F.3d 747,

20 No. 11-1754

751 (7th Cir. 1998) (internal quotation marks omitted).1 3

“Circumstantial evidence of discrimination . . . allows

the trier of fact ‘to infer intentional discrimination by

the decisionmaker.’ ” Rudin, 420 F.3d at 720 (emphasis in

original) (quoting Rogers v. City of Chi., 320 F.3d 748, 753

(7th Cir. 2003)); see also Montgomery v. Am. Airlines, Inc.,

626 F.3d 382, 393 (7th Cir. 2010). We have explained

that “[t]he relevant circumstantial evidence in discrim-

ination cases ordinarily consists of indicators showing

what may be ‘the real motivating force for employ-

ment decisions.’ ” Montgomery, 626 F.3d at 393 (quoting

Coffman, 578 F.3d at 563). We further have described

the circumstantial evidence capable of sustaining a jury

verdict as a “convincing mosaic of circumstantial

evidence . . . that point[s] directly to a discriminatory

reason for the employer’s action.” Davis v. Con-Way

Transp. Cent. Express, Inc., 368 F.3d 776, 783 (7th Cir.

2004) (alterations in original) (internal quotation marks

omitted). Mr. Hanners challenges the district court’s

reliance upon this language and asserts that, by using

it, the court applied a heightened standard to the

13

See also Plair v. E.J. Brach & Sons, Inc., 105 F.3d 343, 347 (7th

Cir. 1997) (recognizing that if an employer stated that an

employee was discharged “because he is black,” that would

be direct evidence of discrimination); Mojica v. Gannett Co.,

7 F.3d 552, 561 (7th Cir. 1993) (en banc) (acknowledging

as direct evidence of discrimination a manager’s statement

that an employee would not be promoted because she was

not “a black male”).

No. 11-1754 21

evidence a plaintiff must offer under the direct method

in order to avoid summary judgment.

In Sylvester v. SOS Children’s Villages Illinois, Inc., 453

F.3d 900 (7th Cir. 2006), we clarified that the “mosaic”

language, first used by this court in Troupe v. May Depart-

ment Stores Co., 20 F.3d 734, 737 (7th Cir. 1994), was not

intended to “promulgate a new standard.” Sylvester, 453

F.3d at 904. Indeed, we consistently have employed

this language to articulate the principle that, for a

plaintiff proceeding under the direct method to defeat

summary judgment using circumstantial evidence,

“[a]ll that is required is evidence from which a rational

trier of fact could reasonably infer that the defendant

had [taken an adverse employment action against] the

plaintiff because the latter was a member of a protected

class.” Troupe, 20 F.3d at 737. We therefore cannot ac-

cept Mr. Hanners’s argument that the district court incor-

rectly identified and applied the standard for evalu-

ating a plaintiff’s proffered circumstantial evidence.

With this background, we turn to an evaluation of

the evidence upon which Mr. Hanners relies. First,

Mr. Hanners submits a list of other ISP employees who

had been disciplined by the ISP. He contends that a

comparison between himself and the eighteen listed

individuals demonstrates that other employees received

less severe punishment despite engaging in miscon-

duct that Mr. Hanners believes to be similar to or

worse than his own. However, Mr. Hanners has failed

to provide evidence that any of the listed individuals are

22 No. 11-1754

non-Caucasian.14 Nor does Mr. Hanners provide any evi-

dence that non-Caucasians had sent emails containing

similar content on the ISP computer system and had

received less severe punishment. We therefore con-

clude that he has failed to demonstrate that individuals

outside the protected class received systematically

better disciplinary treatment. Absent such circumstantial

evidence, Mr. Hanners’s assertion that he would not

have been suspended for thirty days had he been an

African American amounts to mere speculation, which

this court consistently has held is insufficient to avoid

summary judgment. See, e.g., Karazanos v. Navistar Int’l

Transp. Corp., 948 F.2d 332, 337 (7th Cir. 1991).

Furthermore, Mr. Hanners did not demonstrate that

the individuals listed were “directly comparable to [him]

in all material respects.” Patterson v. Avery Dennison Corp.,

281 F.3d 676, 680 (7th Cir. 2002) (internal quotation

marks omitted). Therefore, he has failed to establish

that the listed individuals were in fact similarly situated

to him. We have held that “[a]n employee is similarly

situated to a plaintiff if the two employees deal with

the same supervisor, are subject to the same standards,

14

See Montgomery v. Am. Airlines, Inc., 626 F.3d 382, 393 (7th

Cir. 2010) (stating that one accepted category of circumstantial

evidence is “evidence of systematically better treatment of

employees outside the protected class” (internal quotation

marks omitted)); Troupe v. May Dep’t Stores Co., 20 F.3d 734,

736 (7th Cir. 1994) (explaining that comparators must be

“similarly situated to the plaintiff other than in the charac-

teristic . . . on which an employer is forbidden to base a dif-

ference in treatment”).

No. 11-1754 23

and have engaged in similar conduct without such dif-

ferentiating or mitigating circumstances as would dis-

tinguish their conduct or the employer’s treatment of

them.” Fane v. Locke Reynolds, LLP, 480 F.3d 534, 540

(7th Cir. 2007). Therefore, when a plaintiff alleges that

he received harsher discipline than other employees,

it is necessary for the court to consider whether the

employees engaged in the same conduct for which the

plaintiff was disciplined. Here, only three of the indi-

viduals listed were disciplined for actions involving

the improper use of ISP equipment (two incidents in-

volving pornographic material and one incident

involving an email containing a video about the

“F-word”).15 In addition, there is no evidence that any

of the listed individuals were disciplined for conduct

involving the sort of racial and gender stereotyping

involved here. Moreover, Mr. Hanners has not shown

that any of the individuals whom he offers as com-

parators had the same leadership responsibilities as

he had.

It is also noteworthy that Mr. Hanners did not

provide evidence regarding the disciplinary measures

taken against the three other ISP employees who had

been reprimanded for disseminating the Barbie Doll email.

Nor did he provide evidence regarding whether any of

15

As the district court aptly noted, it is unclear whether two

of the three incidents, the incidents involving the pornographic

material, involved the improper use of an ISP computer or

the patrolmen’s personal computers.

24 No. 11-1754

the listed individuals similarly had refused to accept

settlement offers from the Board.1 6

A plaintiff also may show discrimination by estab-

lishing “ambiguous statements or behavior toward other

employees in the protected group that taken together

allow an inference of discriminatory intent.” Montgomery,

626 F.3d at 393 (internal quotation marks omitted).

Here, Mr. Hanners provides statements made by

Colonel Nelson, Lieutenant Colonel Adams, Commander

Woods and Lieutenant Colonel Stallworth, who said

that they found some of the content in the email to be

racially offensive.17 Although the defendants’ descrip-

tions of the email pertain to race, they are merely

probative of the fact that certain individuals found

aspects of the email to be offensive and do not point

to any racial animus against Mr. Hanners himself.

Mr. Hanners has failed to identify a single instance

where the defendants engaged in behavior or made

comments that suggested a discriminatory attitude

against Caucasians generally or against him because

he is a Caucasian.1 8 There is evidence that Colonel

16

As noted earlier, Mr. Hanners does not challenge the fact

that his thirty-day suspension would have been shortened to

ten or fifteen days if he had accepted the Disciplinary

Review Board’s settlement offer.

17

Director Trent did not express an opinion regarding

the offensive nature of the email.

18

Mr. Hanners’s circumstances, therefore, are different from

those where decisionmakers made derogatory comments

(continued...)

No. 11-1754 25

Nelson, Lieutenant Colonel Adams, Commander Woods

and Lieutenant Colonel Stallworth were upset by the

content of Mr. Hanners’s email and adamant that he

should be disciplined harshly because of it. However,

there is no evidence to suggest that the focus of the de-

fendants’ comments or actions were related to Mr.

Hanners’s race as opposed to the inappropriate nature

of his conduct. Although Mr. Hanners may believe that

the defendants’ statements are evidence of racial

animus, the “subjective beliefs of the plaintiff . . .

are insufficient to create a genuine issue of material

fact.” McMillian v. Svetanoff, 878 F.2d 186, 190 (7th Cir.

1989).

Mr. Hanners next contends that the atypical handling

of his investigation is evidence of discrimination. In

particular, he asserts that the ISP’s deviation from its

18

(...continued)

about an employee’s gender or race shortly before an adverse

employment action was taken. See Phelan v. Cook Cnty., 463

F.3d 773, 782 (7th Cir. 2006) (concluding that a female plaintiff

had produced sufficient evidence to reach the jury where

she was told that she was trying to work “in a man’s world”

and repeatedly abused and instructed that her work-

place was “no place for a woman” shortly before she was

terminated); Volovsek v. Wisconsin Dep’t of Agric., Trade &

Consumer Prot., 344 F.3d 680, 689-90 (7th Cir. 2003) (concluding

that a female plaintiff had produced sufficient evidence to

reach the jury under the direct method where she overheard

her supervisors speaking about “keeping them barefoot and

pregnant” shortly before she was denied a promotion).

26 No. 11-1754

internal policy as stated in PER-032 is circumstantial

evidence of racial discrimination. ISP policy PER-032,

III.B.1 provides:

When an employee, supervisor, or manager

reports allegations of discrimination, harassment

or retaliation to the EEO Office, the EEO Office

will send the employee reporting such discrim-

ination, harassment, or retaliation an EEO Com-

plaint Intake Questionnaire, form ISP1-36, within

5 calendar days of receiving the report.

R.29-2 at 17. Mr. Hanners asserts that no complaint

was filed and that no one completed an intake form.

He admits, however, that Captain Fidler, as his super-

visor, submitted a CADM upon concluding that the

email indeed originated from Mr. Hanners. Suzanne

Bond, Chief of the ISP EEO office, stated during her

deposition that there are two ways in which an EEO

investigation may be initiated. She acknowledged that

an employee may file a complaint directly with her

office and, in doing so, must complete an intake ques-

tionnaire. However, she also confirmed that a super-

visor may initiate an EEO investigation with a signed

CADM or by writing a memorandum to the Chief of

EEO requesting an investigation. Therefore, as the

district court concluded, the fact that an intake ques-

tionnaire never was completed is “immaterial given

the submission of Fidler’s CADM.” R.38 at 32. The evi-

dence shows, and Mr. Hanners does not refute, that

despite the language in PER-032, his investigation was

initiated in accordance with ISP policy.

No. 11-1754 27

Significant, unexplained or systematic deviations

from established policies or practices can no doubt be

relative and probative circumstantial evidence of dis-

criminatory intent. In Giacoletto v. Amax Zinc Co., 954

F.2d 424, 427 (7th Cir. 1992), we held that a jury rea-

sonably could have concluded that, because the

employer had “neglected to follow the procedures for

helping employees to overcome their deficiencies, [it]

had fired [the plaintiff] . . . to retaliate for his refusal to

retire.” There, the employer had not counseled the em-

ployee that his work had fallen below acceptable

levels, had not developed a plan to bring his per-

formance up to acceptable levels and had kept no

written records of any counseling sessions with him. See

id. In reaching our conclusion, we explained that,

despite the fact that the defendant’s witnesses “claimed

that the company never applied these procedures

to managerial personnel, the express language of the

corporate policy statement indicated that the policy

applied to [the plaintiff].” Id. Similarly, in Rudin, we

concluded that the employer’s departure from its

stated hiring policies constituted “circumstantial evi-

dence of discrimination.” 420 F.3d at 721. However,

Rudin is different from the present case because, in addi-

tion to the employer’s deviation from hiring policy, a

Caucasian plaintiff had demonstrated that the deviation

had resulted in the hiring of an African-American candi-

date, who ranked second to last of all of the applicants

and had been reinserted into the candidate pool after pre-

viously having been eliminated. Further, the reinsertion

followed a committee chairperson’s repeated statements

28 No. 11-1754

regarding pressure to hire a minority. See id. at 722-24.

Here, as the district court noted, the fact that Captain

Fidler submitted the CADM to DII appears to be “in

accordance with ISP policy.” R.38 at 32.

Mr. Hanners correctly asserts that the usual procedure

of having a complainant complete an intake question-

naire was not followed. However, the ISP has offered

an explanation for this seeming deviation from its pro-

cedures by noting that the procedures followed were

appropriate when a supervisor initiates the process.

Indeed, as we noted earlier, Mr. Hanners offers no

explicit contradiction for that explanation. See James v.

Sheahan, 137 F.3d 1003, 1007 (7th Cir. 1998) (declining

to consider a deviation of regular practice relevant and

probative of discrimination when plaintiff offered

nothing to refute defendant’s explanation); see also

Briggs v. Potter, 463 F.3d 507, 516 (6th Cir. 2006). More-

over, here the ISP’s deviation from its procedures is

hardly offered as a justification for the ultimate action

taken against Mr. Hanners. The deviation is far more

tangential and involves simply the manner in which

the charge was initiated. See Randle v. City of Aurora, 69

F.3d 441, 454 (10th Cir. 1995). Indeed, a good deal of the

concern about Mr. Hanners’s conduct was based on

the fact that, as a supervisor, he had special obligations

to the ISP and its employees to maintain an atmosphere

of even-handedness and trust in the ISP. Under these

circumstances, a senior officer initiating a disciplinary

process in a manner different from that employed in

other employee complaints is not indicative of racial

animus.

No. 11-1754 29

Additionally, we must consider the deviation, along

with other circumstantial evidence, in order to deter-

mine whether there is sufficient evidence that Mr.

Hanners was discriminated against on account of his

race such that it “warrants submission of the issue

to a trier of fact.” Rudin, 420 F.3d at 724. Here,

given the lack of circumstantial evidence supporting

Mr. Hanners’s claim of racial discrimination, we con-

clude that the minor deviation from written policy

is insufficient to avoid summary judgment.

Mr. Hanners also points to another alleged procedural

discrepancy. He notes that DII initially asked Captain

Fidler to investigate the email incident, but later

referred the matter to EEO. According to Mr. Hanners,

the investigation was “taken away” from Captain Fidler

and Lieutenant Anderson-Martin because they “were not

going to impose the desired discipline.” Appellant’s Br. 24.

Again, Mr. Hanners’s mere speculation, without more,

is insufficient to avoid summary judgment. Karazanos,

948 F.2d at 337.

Mr. Hanners submits no evidence that suggests that

the decision to refer the matter to the EEO office was

motivated by any type of racial animus. Rather, Captain

Fidler testified in his deposition that he believed that

removing the investigation from his work unit was in

keeping with other decisionmaking processes within

the ISP. He explained that, although such a transfer of

an investigation often causes confusion within the unit,

it is not out of the ordinary. R.32-6 at 1 (Fidler Dep. 42).

Moreover, given the fact that the subject matter of the

30 No. 11-1754

investigation was well within the purview of the EEO

office, we agree with the district court’s conclusion that

the series of events that led to the EEO investigation

was indeed “unremarkable.” R.38 at 32.

Finally, Mr. Hanners argues that ISP policy was

not followed in the promotion ratings process because

Lieutenant Anderson-Martin, his supervisor, was not

permitted the requisite discretion in rating Mr. Hanners,

nor was she permitted to respond to Mr. Hanners’s chal-

lenge in a manner that she deemed appropriate.

Mr. Hanners does not provide any written or oral ISP

policy that supports this assertion. However, it is clear

from the evidence presented that Lieutenant Anderson-

Martin was under pressure with regard to the handling

of Mr. Hanners’s promotion and challenge to the

proposed disciplinary action.

The district court correctly identified that it was Lieu-

tenant Anderson-Martin’s conduct, as the decision-

maker, that was relevant with respect to this aspect of

Mr. Hanners’s discrimination claim. See, e.g., Rogers, 320

F.3d at 754 (explaining that “[a] decisionmaker is the

person responsible for the contested decision” (internal

quotation marks omitted)). Here, the contested decision

is the lowering of Mr. Hanners’s promotion rating

to reflect the email incident. Therefore, at the outset, Mr.

Hanners must demonstrate that Lieutenant Anderson-

Martin ultimately lacked the authority to determine

his promotion rating. See Venturelli v. ARC Cmty. Servs.,

Inc., 350 F.3d 592, 600 (7th Cir. 2003). We also must evalu-

ate whether the ratings process “was a sham or conduit

No. 11-1754 31

for [the defendants’] alleged racial animosity.” Willis v.

Marion Cnty. Auditor’s Office, 118 F.3d 542, 547 (7th Cir.

1997). The fact that Commander Woods, Lieutenant

Colonel Stallworth and Lieutenant Colonel Adams

did not order Lieutenant Anderson-Martin to lower

Mr. Hanners’s grade does not necessarily mean that

they did not act as decisionmakers or exert undue in-

fluence over her decision. See, e.g., Wallace v. SMC Pneumat-

ics Inc., 103 F.3d 1394, 1400 (7th Cir. 1997) (concluding

that a formally subordinate employee should be treated

as a decisionmaker because he was “the real cause of

the adverse employment action”). However, even if

we were to assume that, given the influence they

exerted over Lieutenant Anderson-Martin, Commander

Woods, Lieutenant Colonel Stallworth and Lieutenant

Colonel Adams were indeed the “decisionmakers” with

regard to the handling of Mr. Hanners’s promotion

rating, Mr. Hanners has failed to provide any evidence

to support his assertion of racial animus on the part

of these defendants. The evidence presented with regard

to the ratings session instead demonstrates a strong

response on the part of the defendants based upon

the content of the email sent by Mr. Hanners and

their belief that he should be disciplined severely. In

addition, Captain Fidler and Lieutenant Anderson-

Martin ultimately joined Lieutenant Colonel Stallworth’s

rejection of Mr. Hanners’s challenge to his grade.

32 No. 11-1754

Conclusion

For the foregoing reasons, the judgment of the district

court is affirmed.

A FFIRMED

3-19-12