Argyropoulos v. City of Alton ( 2008 )

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