Carlton Reives v. Illinois State Police ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-1438
CARLTON REIVES,
Plaintiff-Appellant,
v.
ILLINOIS STATE POLICE,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 18-cv-3997 — Charles P. Kocoras, Judge.
____________________
ARGUED FEBRUARY 23, 2022 — DECIDED MARCH 31, 2022
____________________
Before SYKES, Chief Judge, and FLAUM and KANNE, Circuit
Judges.
KANNE, Circuit Judge. Carlton Reives, who is Black,
worked for the Illinois State Police (“ISP”) until he retired in
2018. In 2016, he was suspended for sixty days for violating
internal rules of conduct prohibiting false statements in con-
nection with his employment. The same year, Reives’s super-
visors downgraded his ratings on his performance evalua-
tion, leading him to receive a lower ranking on a list of officers
2 No. 21-1438
certified for promotion. Reives sued his employer, alleging
that these two incidents constituted race discrimination in vi-
olation of Title VII of the Civil Rights Act of 1964. The district
court granted summary judgment for ISP. For the reasons set
forth in this opinion, we affirm.
I. BACKGROUND
Plaintiff Carlton Reives, a Black male, is a former special
agent at ISP. Reives worked for ISP from September 1989 to
April 2018, when he retired. In this appeal, he alleges that ISP
discriminated against him based on his race in two ways:
(1) by giving him a sixty-day suspension and (2) by down-
grading the ratings on his performance evaluation. 1
A. Sixty-Day Suspension
Reives’s suspension stemmed from a voluntary overtime
detail assignment in 2016 in which he and his partner, Boram
Kim, were to inspect businesses with video gaming machines
to monitor for illegal gambling. Reives and Kim, who is not a
member of Reives’s protected class, were assigned ten loca-
tions in total, but they decided to each inspect five locations.
After Kim submitted an inspection report to his superiors,
Lieutenant William Doster became skeptical of Kim’s work
activities and asked Sergeant Thomas Griffin to have Kim and
Reives each submit a memorandum describing what time
they arrived, who they spoke to, what they were looking for,
1 Reives also alleged before the district court that he was discrimi-
nated against when he was placed on “proof status,” which required him
to provide medical certification from his personal physician whenever re-
questing sick leave, but he does not make this argument on appeal.
No. 21-1438 3
and what they did at each location. Sergeant Griffin instructed
them to be as honest and accurate as possible.
Reives and Kim were supposed to complete the assign-
ment over a five-hour shift, from 12:00 to 5:00 p.m. on January
24, 2016. Reives’s memorandum stated that he arrived at the
first location at 12:00 p.m., the second location at 1:00 p.m., the
third location at 2:00 p.m., the fourth location at 3:00 p.m., and
the fifth and final location at 4:00 p.m. But security footage
showed Reives at his last location from 2:03 p.m. to 2:12 p.m.
and passing through a tollbooth at 2:38 p.m. Kim’s memoran-
dum was more truthful. It stated that he arrived at his loca-
tions at 11:45 a.m., 1:00 p.m., 1:20 p.m., 1:40 p.m., and 2:30
p.m. Kim also disclosed that he attended a wake at 3:45 p.m.
while he was still on duty.
Following an internal investigation, Reives and Kim were
charged with violations of the Rules of Conduct (“ROC”).
Reives received three charges. He was charged with two vio-
lations of ROC Paragraph III.A.33, which requires officers to
submit truthful and complete reports and prohibits them
from knowingly making false statements in department rec-
ords, for documenting false arrival times at the businesses he
inspected (1) in his inspection reports and (2) in his memoran-
dum. Reives was also charged with violating Paragraph
III.A.40, which mandates that officers truthfully answer any
questions directed to them about the scope of employment
and department operations, for submitting the untruthful
memorandum in response to Sergeant Griffin’s orders. A vio-
lation of Paragraph 33 is considered Level 5 Misconduct and
carries a recommended penalty of a sixty- to ninety-day sus-
pension, while the recommended penalty for a violation of
4 No. 21-1438
Paragraph 44, deemed Level 4 Misconduct, is a suspension of
thirty-one to forty-five days.
Kim, on the other hand, was charged with one violation of
ROC Paragraph III.A.12, which requires officers to perform
their duties “in a manner that will maintain the highest stand-
ards of efficiency in carrying out the functions and objectives
of the Department,” for attending a wake while on duty with-
out authorization. A violation of Paragraph 12 is considered
Level 1 Misconduct, and the recommended penalty for this
offense ranges from a reprimand to a three-day suspension.
A suspension of thirty days or more must be imposed by
the ISP Merit Board. A complaint against Reives was issued
to the Merit Board for (1) submitting false inspection reports,
(2) submitting a false departmental memorandum, and
(3) failing to truthfully answer the questions of a superior of-
ficer. After a hearing, the Merit Board issued a decision on Oc-
tober 24, 2017, finding that Reives violated Paragraphs 33 and
40 and imposing a sixty-day suspension. Kim’s disciplinary
charge, which did not carry a recommended penalty of a sus-
pension of thirty days or more, was not referred to the Merit
Board, and he was issued a three-day suspension.
B. Performance Evaluation
At ISP, the Merit Board certifies those who are eligible for
promotion and ranks them based on performance evalua-
tions, written tests, and seniority. ISP can then fill vacancies
from the list of certified individuals. The top ten officers on
the list are all equally certified for promotion, with no rank-
ing. Officers outside the top ten are given a numerical rank.
A performance evaluation rates an officer as “Needs Im-
provement,” “Meets Expectations,” “Exceeds Expectations,”
No. 21-1438 5
or “Not Applicable” across thirteen categories. In Reives’s Oc-
tober 2016 evaluation, Sergeant Griffin initially rated Reives
as “Meets Expectations” in six categories, “Exceeds Expecta-
tions” in six categories, and “Not Applicable” in one category.
Sergeant Griffin then discussed Reives’s ratings with Lieuten-
ant Doster. As a result of the discussion, Sergeant Griffin
downgraded the ratings in four categories from “Meets Ex-
pectations” to “Not Applicable” and in two categories from
“Exceeds Expectations” to “Meets Expectations.” Reives was
then presented with his revised evaluation.
Based in part on this performance evaluation, Reives was
ranked twenty-sixth in the 2016 promotion rankings and was
certified for promotion to sergeant. The year before, in 2015,
Reives had been ranked twelfth and had also been certified
for promotion. In 2017, by contrast, Reives was ranked
twenty-seventh and was not certified for promotion. Reives
had been paid the salary of a sergeant since 1998, when he
became a special agent, even though he did not hold the “hard
rank” of sergeant.
C. Procedural History
Based on these facts, Reives sued ISP for race discrimina-
tion in violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq. ISP filed a motion for summary judg-
ment, which the district court granted. Reives now appeals.
II. ANALYSIS
We review the district court’s grant of summary judgment
de novo, construing facts in the light most favorable to the
plaintiff and drawing all reasonable inferences in his favor.
Makowski v. SmithAmundsen LLC, 662 F.3d 818, 822 (7th Cir.
2011). “Summary judgment is appropriate where the
6 No. 21-1438
admissible evidence shows that ‘there is no genuine dispute
as to any material fact and the movant is entitled to judgment
as a matter of law.’” Id. (citing Fed. R. Civ. P. 56(a), (c)).
As stated, Reives claims race discrimination based on his
sixty-day suspension and his downgraded ratings. We dis-
cuss each issue in turn.
A. Sixty-Day Suspension
Under the burden-shifting framework set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the
plaintiff in a Title VII race discrimination suit must first
establish a prima facie case of discrimination by showing that
(1) he is a member of a protected class, (2) he was meeting the
employer’s legitimate expectations, (3) he suffered an adverse
employment action, and (4) similarly situated employees who
were not members of his protected class were treated more
favorably. Simpson v. Franciscan All., Inc., 827 F.3d 656, 661 (7th
Cir. 2016). Once a prima facie case has been established, “the
burden shift[s] to the defendant to ‘articulate a legitimate,
nondiscriminatory reason for the adverse employment action,
at which point the burden shifts back to the plaintiff to submit
evidence that the employer’s explanation is pretextual.’” Id.(quoting Andrews v. CBOCS W., Inc., 743 F.3d 230, 234 (7th Cir.
2014)).
Reives, however, urges us against “a rigid adherence to
the McDonnell Douglas burden shifting analysis” because that
can “lead to flawed results on motions for summary judg-
ment,” asking us instead to focus on the question whether “a
jury [could] reasonably conclude that the employment action
was made for an unlawful reason.” (Appellant’s Br. at 16–18.)
He relies on Ortiz v. Werner Enterprises, Inc., 834 F.3d 760 (7th
No. 21-1438 7
Cir. 2016), in which we held that district courts must not eval-
uate indirect and direct evidence via different “methods” in
employment discrimination cases because such an approach
“detract[s] attention from the sole question that matters,” i.e.,
whether a reasonable jury could conclude that the plaintiff
suffered the adverse employment action because of his mem-
bership in a protected class. Id. at 763–64.
But Ortiz “d[id] not concern McDonnell Douglas or any
other burden-shifting framework.” Id. at 766. While
McDonnell Douglas is sometimes “referred to as an ‘indirect’
means of proving employment discrimination,” it says
nothing about how to assess different categories of evidence.
Id. Thus, McDonnell Douglas is entirely consistent with our
holding in Ortiz, id., and it “remains an efficient way to
organize, present, and assess evidence in discrimination
cases,” Johnson v. Advoc. Health & Hosps. Corp., 892 F.3d 887,
894 (7th Cir. 2018). Reives is correct, though, that “[t]he
determinative question in discrimination cases is ‘whether the
evidence would permit a reasonable factfinder to conclude
that the plaintiff’s race … caused the discharge or other
adverse employment action.’” Igasaki v. Ill. Dep’t of Fin. & Pro.
Regul., 988 F.3d 948, 958 (7th Cir. 2021) (quoting Ortiz, 834
F.3d at 765); see also Coleman v. Donahoe, 667 F.3d 835, 863 (7th
Cir. 2012) (Wood, J., concurring) (“In order to defeat summary
judgment, the plaintiff one way or the other must present
evidence showing … that a rational jury could conclude that
the employer took that adverse action on account of her
protected class, not for any non-invidious reason.”).
Regardless of the approach we use, however, Reives’s dis-
crimination claim cannot survive summary judgment. Reives
contends that the fact that his partner, Kim, received a more
8 No. 21-1438
lenient punishment than he did supports an inference of dis-
crimination. We disagree.
Under the McDonnell Douglas framework, the fourth
element of a prima facie case requires that the plaintiff show he
was treated less favorably than a similarly situated employee
outside his protected class. See Simpson, 827 F.3d at 661.
Though similarly situated employees “need not be identical
in every conceivable way,” they “must be ‘directly
comparable’ to the plaintiff ‘in all material respects.’” Coleman,
667 F.3d at 846 (quoting Patterson v. Ind. Newspapers, Inc., 589
F.3d 357, 365–66 (7th Cir. 2009)). In cases like this one, where
the plaintiff alleges the employer disciplined him more
harshly than his comparator, the most relevant similarities are
those between the employees’ alleged misconduct,
performance standards, and disciplining supervisor. Id. at
849. “[I]n deciding whether two employees have engaged in
similar misconduct, the critical question is whether they have
engaged in conduct of comparable seriousness.” Peirick v. Ind.
Univ.-Purdue Univ. Indianapolis Athletics Dep’t, 510 F.3d 681,
689 (7th Cir. 2007).
Reives and Kim were both charged with violating the
ROC, but Reives received a sixty-day suspension while Kim
received a three-day suspension. Reives maintains that ISP
discriminated against him based on his race because he was
punished more harshly than Kim for doing “exactly the same
thing,” as they were both initially accused of providing false
information on their timecards. (Appellant’s Br. at 20.)
But Reives and Kim engaged in different misconduct and
were punished for violating different rules. Reives misrepre-
sented the timing of his inspections in his reports and his
memorandum, as well as throughout the investigation. He
No. 21-1438 9
claimed that he spent about an hour at each site and arrived
at his last location at 4:00 p.m., but security footage showed
him there between 2:03 p.m. and 2:12 p.m. and departing be-
fore 2:38 p.m., when he was seen driving through a tollbooth.
Reives was charged accordingly with three counts related to
making false statements in connection with his employment.
By contrast, Kim was more forthcoming in his memoran-
dum. He stated that he arrived at his first location earlier than
12:00 p.m. and arrived at his last location at 2:30 p.m., and he
also admitted that he attended a wake at 3:45 p.m. while still
on duty. Kim was charged with failing to be efficient in the
performance of his duties for attending the wake. Kim’s vio-
lation carried a much more lenient recommended punish-
ment than Reives’s violations because his misconduct was
deemed less serious under the ROC.
Reives maintains that our decision in Coleman supports his
argument, but that case is inapposite. Like this appeal, Cole-
man concerned a claim of discrimination based on differential
punishment of employees. Coleman, 667 F.3d at 847. The plain-
tiff was fired for violating her employer’s rule prohibiting
workplace violence and threats after she was believed to have
conveyed threats against her supervisor to her psychiatrist. Id.
at 843–44. Her proposed comparators were punished more le-
niently for violating the same rule, but they “did not break the
rule in precisely the same manner”—they directly threatened
another employee with a knife while at work. Id. at 851. We
nonetheless found that the comparators “engaged in conduct
that appear[ed] … at least as serious as Coleman’s indirect
‘threat’ against [her supervisor]—and arguably even more
so.” Id. Thus, we concluded that the plaintiff had sufficiently
demonstrated that her two proposed comparators were
10 No. 21-1438
similarly situated to her in part because they engaged in con-
duct of comparable seriousness. Id.
Here, Reives’s misconduct was deemed more serious than
Kim’s—his violations were considered Level 4 and Level 5
misconduct, while Kim’s violation was considered Level 1
misconduct. Reives does not argue that this classification was
erroneous or pretextual. Instead, he maintains that his mis-
conduct was similar to Kim’s. Reives tries to argue that the
only difference between his conduct and Kim’s was that his
timeline included “approximate times that he visited his
sites” rather than exact times. (Appellant’s Br. at 20.) Again,
Reives indicated that he arrived at his last location at 4:00
p.m., but the undisputed evidence shows that he really ar-
rived sometime before 2:03 p.m., was last seen there at 2:12
p.m., and left before 2:38 p.m. As the district court found, no
reasonable jury could conclude that 4:00 p.m. is “approxi-
mately” the same time as 2:12 p.m. Kim was honest in his
memorandum, while Reives was not. Thus, the evidence does
not support an inference that the two officers engaged in
“conduct of comparable seriousness.” Peirick, 510 F.3d at 689.
In short, Reives has not shown that Kim was similarly sit-
uated to him, so he cannot establish a prima facie case of race
discrimination under the McDonnell Douglas approach.
Reives’s claim also fails under a more straightforward
evaluation of the evidence. Again, “[t]he determinative ques-
tion … is ‘whether the evidence would permit a reasonable
factfinder to conclude that the plaintiff’s race … caused the
discharge or other adverse employment action.’” Igasaki, 988
F.3d at 958 (quoting Ortiz, 834 F.3d at 765). A court may infer
discrimination when an employer treats an employee in a pro-
tected class less favorably than it treats a similarly situated
No. 21-1438 11
employee outside that class. de Lima Silva v. Dep’t of Corr., 917
F.3d 546, 559 (7th Cir. 2019). As we explained, however, Kim
is not similarly situated to Reives, so the fact that he received
a shorter suspension does not support an inference of discrim-
ination against Reives. Reives presents no other evidence sug-
gesting that his harsher punishment was because of his race.
A reasonable jury therefore could not conclude that his sixty-
day suspension was discriminatory.
B. Performance Evaluation
Regarding the performance evaluation, the parties’ argu-
ments center on whether the downgrade of Reives’s job rat-
ings was an adverse employment action for purposes of his
employment discrimination claim.
A materially adverse employment action is one where the
plaintiff suffers “a significant change in employment status.”
Boss v. Castro, 816 F.3d 910, 917 (7th Cir. 2016) (quoting An-
drews, 743 F.3d at 235). But “not everything that makes an em-
ployee unhappy is an actionable adverse action” because,
“[o]therwise, minor and even trivial employment actions that
an irritable, chip-on-the-shoulder employee did not like
would form the basis of a discrimination suit.” Nichols v. S. Ill.
Univ.-Edwardsville, 510 F.3d 772, 780 (7th Cir. 2007) (quoting
O’Neal v. City of Chicago, 392 F.3d 909, 911 (7th Cir. 2004)).
Instead, adverse employment actions “generally fall into
three categories: (1) termination or reduction in compensa-
tion, fringe benefits, or other financial terms of employment;
(2) transfers or changes in job duties that cause an employee’s
skills to atrophy and reduce further career prospects; and
(3) unbearable changes in job conditions, such as a hostile
work environment or conditions amounting to constructive
12 No. 21-1438
discharge.” Barton v. Zimmer, 662 F.3d 448, 453–54 (7th Cir.
2011). “[N]egative performance evaluations, unaccompanied
by some tangible job consequence, do not constitute adverse
employment actions.” Grube v. Lau Indus., Inc., 257 F.3d 723,
729 (7th Cir. 2001).
Reives argues that ISP discriminated against him when
Lieutenant Doster and Sergeant Griffin downgraded his
ratings in his performance evaluation. He contends that the
downgrade constituted an adverse employment action
because it had the effect of reducing his future career
prospects—he went from being ranked number twelve in the
2015 promotion rankings to number twenty-six in 2016, based
on his downgraded evaluation. (The evaluation did not affect
the financial terms of his employment because he was already
being paid the same salary as a sergeant.)
But the downgrade was irrelevant because Reives was still
certified for promotion in 2016. See Oest v. Ill. Dep’t of Corr.,
240 F.3d 605, 613 (7th Cir. 2001) (finding that employee did
not suffer materially adverse employment action because she
could not “point[] to any immediate consequence of the [ad-
verse action], such as ineligibility for … promotion”), over-
ruled on other grounds by Ortiz, 834 F.3d 760. Reives empha-
sizes that his 2016 ranking “was a tremendous downward de-
parture,” but he does not explain how his lower ranking af-
fected his promotion prospects. (Appellant’s Br. at 15.) He
also asserts that “the same rankings were used for the follow-
ing year,” when he was not certified for promotion, but he
does not point to any evidence demonstrating that his nega-
tive evaluation in any way affected his non-certification for
promotion in 2017. (Id.) Therefore, Reives cannot base a dis-
crimination claim on his downgraded job ratings.
No. 21-1438 13
ISP contends that even if Reives has shown that he suf-
fered an adverse employment action, there is no evidence in
the record suggesting that the adverse action was discrimina-
tory. We need not address this argument because, as we ex-
plained, the downgrade of Reives’s job ratings was not an ad-
verse action, so his discrimination claim cannot survive.
III. CONCLUSION
For these reasons, the district court’s judgment is
AFFIRMED.