Scaife, Samuel v. Cook County ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2966
SAMUEL SCAIFE,
Plaintiff-Appellant,
v.
COOK COUNTY, MICHAEL F. SHEAHAN,
RANDY PIETROWSKI, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 C 9557—William J. Hibbler, Judge.
____________
ARGUED DECEMBER 5, 2005—DECIDED MAY 10, 2006
____________
Before POSNER, KANNE, and SYKES, Circuit Judges.
KANNE, Circuit Judge. Thirteen employees of the Cook
County Sheriff’s Department, including Samuel Scaife, sued
Cook County, Sheriff Michael Sheahan, and several Depart-
ment supervisors including William Wallace (the “defen-
dants”), alleging numerous violations of federal law. The
district court granted the defendants’ motion for summary
judgment and dismissed the case. Only Scaife appeals. For
the following reasons, we affirm.
2 No. 04-2966
I. HISTORY
Samuel Scaife, an African-American male, has been
employed by the Cook County Sheriff’s Department since
June 1, 1988. Scaife began as a correctional officer and
in 1990 became an investigator in the Department’s
electronic monitoring unit. In 1994, Scaife was promoted to
supervisor, and, after returning from injury leave, was
permanently placed in the permissions section of the
electronic monitoring unit.
On March 18, 1999, Scaife signed Grievance No. 99-
003 along with several co-workers (who were plaintiffs in
the proceedings below but did not appeal). The grievance
alleged “that only particular people are allowed to leave
early. All investigators should be allowed to leave early
or All made to stay until the end of their 8-hour shift.
The permission office was told that if we complained,
that ‘you know what’s going to happen to you.’ We took that
as intimidation.” (emphasis in original). On March 31, a
threatening note left on Scaife’s desk stated, “Your
[sic] next Inv. Scaife.” Scaife requested an internal investi-
gation of the incident. Chief Randy Pietrowski conducted an
investigation and on April 19, found the allegations to be
inconclusive based on the lack of supporting evidence.
On May 30, Scaife and three others were transferred
to patrol from the permissions unit where they were
placed on a six-and-two schedule (six consecutive work-
ing days followed by two days off). Scaife, who had
been working a five-and-two schedule (Monday through
Friday with weekends off), did not request the transfer. On
August 10, Scaife filed Grievance No. 99-012, alleging
that he was transferred against his will, and that he
had been harassed for being an African-American single
parent. The grievance also alleged that Scaife had not
been informed of open job posts for which he otherwise
No. 04-2966 3
could have applied. This grievance was “granted” on
November 4.1
Scaife allegedly arrived late to work on September 7,
1999, resulting in a recommended suspension of three days.
Scaife filed a grievance.2 After Scaife failed to attend the
grievance hearing on October 14, the three-day suspension
was imposed. Scaife subsequently was written up for
arriving late to work on October 17, this time incurring a
recommended suspension of 29 days. Again Scaife filed a
grievance (No. 99-023) and again did not attend the hear-
ing. On December 3, executive director William Wallace,
citing Scaife’s absence from the grievance hearing scheduled
for that day, imposed the recommended 29-day suspension
in full.
On November 16, deputy director Michael Ricci notified
Department personnel that the electronic monitoring
unit would be reorganized. Under the plan, the permissions
section would be combined with another section to form a
new detainee management unit. The new unit would
employ a six-and-two standard schedule, with preferences
given according to seniority. Personnel in the unit would
also have patrol duties on weekends. On November 19, Ricci
gave notice that the reorganization would be effective
November 21. Apparently the effect of the reorganization
was to put Scaife on a six-and-two schedule, only a few
weeks after his grievance (No. 99-012) was granted which
presumably gave him weekends off. The next day, Scaife
requested a transfer from patrol to the records unit with
Saturdays and Sundays off, and his request was granted
November 28.
1
The remedy Scaife obtained by prevailing on Grievance No. 99-
012 is not clear, particularly in light of his subsequent labor-
relations claim seeking enforcement of the grievance.
2
The exact contents of this grievance are not included in the
record.
4 No. 04-2966
On November 30, Scaife filed a charge before the Illinois
Labor Relations Board (“Labor Board”) alleging that the
redeployment of November 19 violated state law and
seeking enforcement of Grievance No. 99-012. In October
2001, Scaife prevailed before the Labor Board, which
affirmed the Administrative Law Judge’s award of damages
and recommendation that Scaife’s Grievance No. 99-012 be
granted. Pursuant to the Labor Board’s order, on February
2, 2002, Scaife was reassigned to the detainee management
unit with weekends off.
Scaife filed a charge with the Equal Employment Oppor-
tunity Commission (“EEOC”) on September 18, 2001,
alleging discrimination on the basis of race and retalia-
tion for filing a union grievance. On December 14, 2001,
Scaife and several others filed a complaint in federal court.
The district court allowed the plaintiffs to amend their
complaint several times. The operative complaint is the
third amended complaint, which contained eleven counts, of
which Scaife alleged seven.
Specifically, Scaife joined Count I (42 U.S.C. § 1981 race
discrimination and retaliation); Count II (42 U.S.C. § 1983equal protection claims based on race); Count III (Title VII
race discrimination); Count VI (42 U.S.C. § 1983 first
amendment retaliation); Count VII (Title VII retaliation
claims naming only Cook County and Sheahan officially);
Count IX (29 U.S.C. § 157 et seq. unfair labor practices); and
Count X (29 U.S.C. § 207 unfair wage and hour claims)3.
The district court dismissed Count IX pursuant to the
defendants’ motion to dismiss. The portion of the complaint
relating solely to Scaife included numerous allegations
regarding his scheduling, transfers, grievances, and suspen-
sions.
3
Although Count IX of the complaint referred to Chapter 27 of
the United States Code, it is clear from the allegations that
the claim actually arises under Chapter 29.
No. 04-2966 5
The defendants moved for summary judgment seeking
to dismiss with prejudice all of the remaining claims,
including Scaife’s. The defendants’ Local Rule 56.1 state-
ment of facts and supporting materials referred to Scaife’s
transfers and filing of grievances but not the suspensions.
The defendants argued, inter alia, that Scaife had suf-
fered no adverse action. In his response, Scaife pointed
to his suspensions as instances of adverse action. On June
28, 2004, the district court granted summary judgment
for the defendants on all claims. In its opinion, the court
noted that the defendants did not address the suspensions
but concluded in any event that Scaife could not meet his
prima facie burden for discrimination and retaliation.
The scope of Scaife’s appeal is limited to the district
court’s judgment in favor of defendants Michael Sheahan in
his official capacity as Cook County Sheriff, Cook County,
and William Wallace in his individual capacity, and only for
the claims of discrimination and retaliation insofar as they
relate to the suspensions.
II. ANALYSIS
We review the district court’s grant of summary judgment
de novo, viewing the facts and drawing all inferences in the
light most favorable to Scaife, the nonmoving party.
Volovsek v. Wis. Dep’t of Agric., Trade & Consumer Prot.,
344 F.3d 680, 686 (7th Cir. 2003) (citation omitted);
Waggoner v. Olin Corp., 169 F.3d 481, 483 (7th Cir. 1999).
Summary judgment is appropriate only if the record shows
that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(c). Initially, the burden of production
is upon the moving party to identify “those portions of ‘the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,’
which it believes to demonstrate the absence of a genuine
6 No. 04-2966
issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). “[T]he
burden on the moving party may be discharged by ‘show-
ing’—that is, pointing out to the district court—that there
is an absence of evidence to support the nonmoving party’s
case.” Celotex, 477 U.S. at 325. “Once the moving party
satisfies this burden, the nonmovant must ‘set forth specific
facts showing that there is a genuine issue for trial.’ ” Vitug
v. Multistate Tax Comm’n, 88 F.3d 506, 512 (7th Cir. 1996)
(quoting Fed. R. Civ. P. 56(e)). If “the record taken as
a whole could not lead a rational trier of fact to find for
the non-moving party,” the nonmovant has not demon-
strated a dispute of material fact exists. Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986) (citation omitted).
Discrimination may be proven either directly, such as
by an admission by the defendant, or indirectly under
the burden-shifting method established in McDonnell
Douglas Corp. v. Green. 411 U.S. 792, 802-04 (1973); Herron
v. DaimlerChrysler Corp., 388 F.3d 293, 299-302 (7th Cir.
2004); Alexander v. Wis. Dep’t of Health & Family Servs.,
263 F.3d 673, 682 (7th Cir. 2001). For his discrimination
claim, Scaife makes no argument relating to the direct
method, opting instead to proceed only under the indirect
method. McDonnell Douglas places the initial burden on the
plaintiff to establish a prima facie case, which is the same
whether the claim is brought under Title VII or § 1981. See
Cerutti v. BASF Corp., 349 F.3d 1055, 1060-61 n.4 (7th Cir.
2003) (citations omitted). A prima facie case of discrimina-
tion is established if the employee provides evidence that:
(1) he is a member of a protected class; (2) he was meeting
his employer’s legitimate expectations at the time of the
alleged adverse action; (3) he was subjected to an adverse
employment action; and (4) the employer treated similarly
situated employees not in the protected class more favor-
ably. Herron, 388 F.3d at 299 (citation omitted).
No. 04-2966 7
Similarly, retaliation may be proven directly or indirectly.
A prima facie case for retaliation under the indirect method
requires the plaintiff to show that: (1) he engaged in
statutorily protected activity; (2) he was performing his job
according to his employer’s legitimate expectations; (3) he
suffered a materially adverse action; and (4) he was treated
worse than a similarly situated employee who did not
engage in statutorily protected activity. Firestine v.
Parkview Health Sys., Inc., 388 F.3d 229, 233 (7th Cir.
2004) (citations omitted). In both the discrimination and
retaliation contexts, once the plaintiff has established his
prima facie case, the burden shifts to the defendant to
provide a legitimate, nondiscriminatory reason for the
adverse employment action. Id. (citation omitted). If the
defendant has provided a legitimate reason, the burden
shifts back to the plaintiff to show that the defendant’s
proffered reason is merely pretextual. Id. (citation omitted).
Scaife’s claims are based upon his suspensions, which he
claims were motivated by his race and by his filing of
grievances.
The highlight of Scaife’s appeal is the defendants’ omis-
sion of Scaife’s suspensions in their summary judgment
motion and reply. Scaife argues that the district court
interjected arguments on the defendants’ behalf so that its
granting of summary judgment for the defendants
amounted to a sua sponte act without notice to Scaife. In
Scaife’s view, the suspensions were not within the scope of
the defendants’ motion for summary judgment even though
the defendants did move to dismiss all of Scaife’s claims
with prejudice. In effect, Scaife mischaracterizes the
suspensions to be legal claims, not factual allegations, so
that he may rest on his pleadings which, of course, he may
not do. Fed. R. Civ. P. 56(e); see Celotex, 477 U.S. at 325-26.
But Scaife’s claims are for discrimination and retaliation;
the suspensions are mere factual allegations supporting
these claims. The defendants’ motion for summary judg-
8 No. 04-2966
ment seeking dismissal of these claims (all claims actually)
was sufficient to put Scaife on notice that no longer could he
rest on the allegations in his pleadings, including the
suspensions. The burden was upon Scaife to show a mate-
rial dispute of fact existed as to these claims. Additionally,
Scaife did attempt to provide evidentiary support for his
suspensions in his response, indicating there was no
deficiency of notice or lack of opportunity to provide factual
support for his claims. We turn to whether Scaife has shown
a material factual dispute exists.
For his discrimination claim, Scaife cannot show an issue
of fact as to whether similarly situated employees were
treated more favorably. Scaife points to his affidavit, which
states: “Other investigators, including Chris Helms, Dan
Nadolski and Ray Villa, all white male investigators with
DCSI, regularly came in late to work and left early from
work without discipline from 1999 through and including
2003.” The affidavit continues, “Between November 1999 to
June, 2002 the terms and conditions of my employment
were significantly different and less favorable than for
white employees.” This may be sufficient to prevail against
a motion to dismiss under Rule 12(b)(6), but to survive
summary judgment, Scaife needed to do better than to
make such broad-brushed, conclusory allegations. See
Larsen v. City of Beloit, 130 F.3d 1278, 1282 (7th Cir. 1997)
(“ ‘The object of [Rule 56(e)] is not to replace conclusory
allegations of the complaint or answer with conclusory
allegations of an affidavit.’ ” (quoting Lujan v. Nat’l Wildlife
Fed’n, 497 U.S. 871, 888 (1990))); In re Morris Paint &
Varnish Co., 773 F.2d 130, 136 (7th Cir. 1985) (noting
“conclusory assertions are insufficient to raise a genuine
issue of material fact”). Scaife did not list instances in
which the three white men were late, did not indicate
whether they had the same supervisor as he did, nor did he
say how the terms and conditions of his employment
differed.
No. 04-2966 9
Scaife produced time sheets for the days he was allegedly
late to work, a review of his disciplinary history recom-
mending further action, and the notices of his suspension.
Scaife claims that he was never late and that his time
sheets were altered. The time sheets do indicate that on
several days Scaife signed in to work on time at 8:00 A.M.
and that someone subsequently wrote a later time, initial-
ing the change. But Scaife did not produce the time sheets
of the three white employees who Scaife asserts received
preferential treatment, nor do their names appear on the
time sheets Scaife did submit. Additionally, the time sheets
show that the same supervisor altered the sign-in times of
other employees who purported to sign in at 8:00 A.M. to
reflect that they had been late to work as well, but Scaife
does not identify these people. Finally, Scaife makes no
reference to the several employees listed on the time sheets
whose sign-in times on or before 8:00 A.M. were not subse-
quently altered. Presumably these are the people who
would have received the type of preferential treatment
which Scaife alleges, and the omission of them creates an
evidentiary gap which Scaife’s mere self-serving allegations
are insufficient to fill. See Abiero v. City of Kankakee, 246
F.3d 927, 933 (7th Cir. 2001) (“Self-serving affidavits
without factual support in the record will not defeat a
motion for summary judgment.” (quotations and citations
omitted)).
Scaife’s evidence shows at most that he was suspended at
least twice. Even if we were to assume that the suspensions
constituted an adverse action, there is nothing in the record
whatsoever to suggest that Scaife’s suspensions were
improperly motivated. Scaife has not produced sufficient
evidence that similarly situated employees not in Scaife’s
protected class were treated any better than Scaife. Without
this evidence, Scaife cannot meet his prima facie burden on
his discrimination claim.
10 No. 04-2966
For his retaliation claim, Scaife relies upon the same
evidence, buttressed by his own conclusory allegation
that the suspensions were the result of the grievances
he had filed. Scaife cannot satisfy the fourth element of
the prima facie case for retaliation because he has made
no attempt to describe the treatment of employees who
did not file grievances, which dooms his retaliation
claim under the indirect method.
Scaife argues alternatively that he has put forth sufficient
evidence to prove retaliation under the direct method using
circumstantial evidence. Scaife may prove retaliation under
the direct method by showing that he engaged in a statuto-
rily protected activity, that the defendants subjected him to
adverse employment action, and a causal connection exists
between the two events. Lang v. Ill. Dep’t of Children &
Family Servs., 361 F.3d 416, 418-19 (7th Cir. 2004) (cita-
tions omitted); McKenzie v. Ill. Dep’t of Transp., 92 F.3d
473, 483 (7th Cir. 1996) (citation omitted); Brenner v.
Brown, 36 F.3d 18, 19 (7th Cir. 1994) (citation omitted).
Putting aside the first two elements, Scaife cannot show
causation.
Scaife refers to the affidavit of Louis Mustari, Scaife’s
former supervisor. Mustari stated that Ricci told him
that he would never hire or promote blacks, and that
Ricci “blamed African American employees of DCSI for
failures in the department which were not their responsibil-
ity . . . [and] that he would never promote any investigator
who complained of race discrimination or associated with
blacks . . . [and] that if it weren’t for whites, the ‘black
bastards’ wouldn’t do any work.” The only context Mustari’s
affidavit provides is that Ricci made the remarks “to me in
my capacity as a chief in that department . . . .” Mustari’s
affidavit, much like Scaife’s, is conclusory, but most impor-
tantly the comment is not sufficiently connected to the
suspensions to support a finding of retaliation.
No. 04-2966 11
When a plaintiff offers an employer’s stray remark in
a discrimination case, it is necessary to demonstrate
“some nexus” between the remark and the challenged
employment decision. See Cowan v. Glenbrook Sec. Servs.,
Inc., 123 F.3d 438, 444 (7th Cir. 1997). At most, the record
shows that Ricci was one of Scaife’s superiors, but what
is more definite is that Wallace was the decisionmaker
because the suspensions were not effective until he upheld
them. Scaife has not shown that Ricci was a decisionmaker;
indeed, he makes no attempt to do so. Even if Ricci was a
decisionmaker, there is no evidence to connect the state-
ment to the suspensions. The statements, therefore, cannot
carry the day for Scaife.
Next, Scaife argues that the timing of the suspensions
is suspicious. “Close temporal proximity provides evi-
dence of causation and may permit a plaintiff to sur-
vive summary judgment provided that there is other
evidence that supports the inference of a causal link.” Lang,
361 F.3d at 419 (citations omitted). But rather than create
an inference of causation, the timing of Scaife’s suspensions
weighs against him. The notices of Scaife’s suspensions,
which Scaife provided to supplement his response, were
issued on the dates of hearings which had been scheduled
to resolve Scaife’s grievances challenging the recommended
suspensions for Scaife’s alleged tardiness. Had Scaife
prevailed on these grievances, the suspensions would have
been abated or not imposed at all. The notices set out in
detail the circumstances surrounding the hearings and
Scaife’s failure to attend. The notices also state that the
recommended suspensions were upheld not on the merits,
but because Scaife had defaulted upon the very grievances
he had filed to contest them. Scaife’s absences from the
grievance hearings are conspicuously missing from his
argument and, when taking into account that Scaife did
prevail on other grievances, provide a compelling and
unrebutted explanation of the suspensions. Thus, Scaife’s
retaliation claim cannot go forward.
12 No. 04-2966
Finally, Scaife’s claims against Cook County and Michael
Sheahan in his official capacity as Cook County Sheriff
do not warrant detailed discussion. Scaife cannot proceed on
these claims because, at this juncture, it is impossible to
find a constitutional deprivation, nor does Scaife argue any
differently. See McCormick v. City of Chicago, 230 F.3d 319,
324 (7th Cir. 2000).
III. CONCLUSION
For the foregoing reasons, the district court’s grant of
summary judgment in favor of the defendants was proper,
and its judgment of dismissal is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-10-06