In the
United States Court of Appeals
For the Seventh Circuit
No. 09-4066
M ILTON L USTER,
Plaintiff-Appellant,
v.
ILLINOIS D EPARTMENT OF C ORRECTIONS,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of Illinois.
No. 1:08-cv-1114-MMM-JAG—Michael M. Mihm, Judge.
A RGUED N OVEMBER 9, 2010—D ECIDED JULY 19, 2011
Before P OSNER, T INDER, and H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. Milton Luster claims that
the Illinois Department of Corrections violated Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1),
by firing him from his job as a correctional lieutenant
because he is black. The warden at the prison where
Luster worked had suspended him “pending discharge”
and recommended his termination after concluding
that Luster had sexually harassed a female subordinate.
2 No. 09-4066
An independent state agency responsible for hiring and
firing unionized employees then had 30 days to act on
the recommendation to terminate. During that 30-day
window Luster could have objected to the proposed
termination. Instead he resigned and then filed suit.
Luster has no direct evidence of race discrimination
and relies instead on the indirect method of proving
unlawful discrimination. The district court granted sum-
mary judgment for the IDOC, finding that Luster had
established a prima facie case of discrimination but had
not shown that the IDOC’s stated reasons for its deci-
sion — the harassment, which included a battery, and
lying about the misconduct to IDOC officials — were pre-
textual. On appeal Luster challenges the latter conclu-
sion. The IDOC renews its contention that Luster’s evi-
dence was not actually sufficient to establish a prima
facie case of discrimination, and it defends the district
court’s conclusion on lack of pretext. We agree with
the IDOC on both points and affirm the judgment in
favor of the IDOC.
I. Facts for Summary Judgment
Because the district court granted summary judg-
ment, we consider the following facts as either undis-
puted or reflecting the evidence in the light reasonably
most favorable to Luster, the non-moving party. See
Berry v. Chicago Transit Auth., 618 F.3d 688, 690-91 (7th
Cir. 2010). Luster began working for the IDOC as a guard
in 1988. He was promoted several times and in 2001
was assigned to the Dwight Correctional Center as a
lieutenant.
No. 09-4066 3
The dispute stems from seemingly trivial events on
June 6, 2006, when Luster and a few of his co-workers
were discussing the origin of prunes. The conversation
became heated when Luster contended that prunes
are dried grapes while Christine Cole, a white guard,
insisted that dried grapes are raisins, not prunes. Luster
(foolishly) proposed that they “wager on this one,”
prompting Cole to reply, “Then get your check out bitch
cuz you lost.”
Later that day, Luster submitted an incident report
accusing Cole of being insubordinate for calling him a
“bitch.” Two days later Cole reported to her superiors
that on June 1, 2006, Luster had forcibly pinned her
against a wall in the control room while both were on
duty and put his mouth on her neck forcefully enough
to leave red marks. Luster had done the same thing a
week earlier, she reported, and also had touched her
buttocks a few days after the June 1st incident. Cole,
who acknowledged having had an affair with Luster
four years earlier, also reported that he had made sug-
gestive remarks to her in person at work, on the tele-
phone in unsolicited calls to her home, and in person at
her home when he showed up uninvited. She had told
him to stop, she said, but he had persisted.
Cole’s allegations triggered an investigation within
the IDOC. Warden Mary Sigler placed Luster on paid
administrative leave on June 11th. During the remainder
of June the matter was investigated by Larry Sims, who
worked in the IDOC investigations unit. Sims reviewed
incident reports and interviewed Luster, Cole, and two
4 No. 09-4066
other guards, one male and one female, who said they
had witnessed at least one incident like the one Cole
said occurred on June 1st. Luster was interviewed twice.
He denied all of Cole’s allegations.
In his final report to IDOC management, investigator
Sims criticized Cole for calling Luster a “bitch” and for
waiting to report his harassment, but he credited her
account of the June 1st encounter and disbelieved
Luster’s denials. Sims’ investigation prompted a crim-
inal referral to the State’s Attorney for battery, as well
as disciplinary proceedings. Luster and his union rep-
resentative appeared before an IDOC hearing officer on
August 1st. On August 15th, the hearing officer recom-
mended to Warden Sigler that Luster be fired.
Warden Sigler agreed. She suspended Luster without
pay beginning August 31st and recommended to the
Illinois Department of Central Management Services
that he be fired. That department must approve the
termination of unionized prison employees, see 80 Ill.
Admin. Code §§ 302.710, 302.720; Jennings v. Illinois
Dep’t of Corrections, 496 F.3d 764, 768 (7th Cir. 2007).
Central Management Services acted on the warden’s
recommendation by issuing an “action form” dated
September 7, 2006 informing Luster that he was
suspended effective August 31st “pending dis-
charge.” Luster was given a provisional termination
date of September 30th, but he could have tried to save
his job by filing a grievance before then. If those
avenues failed, he could have filed an administrative
appeal to the state Civil Service Commission. See 80 Ill.
No. 09-4066 5
Admin. Code § 302.750. Instead, on September 8, 2006,
he delivered a resignation letter to the warden.1
II. The Prima Facie Case of Discrimination
We consider first whether Luster offered evidence of
a prima facie case of discrimination. The IDOC moved
for summary judgment, arguing that Luster had no
evidence that would allow a reasonable jury to find that
he was disciplined because of his race. In opposing the
motion, Luster relied on the indirect method of proof
pursuant to McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802 (1973). It was his initial burden to establish a
prima facie case of discrimination by offering evidence
tending to show that (1) he is a member of a protected
class, (2) he was meeting the IDOC’s performance ex-
pectations, (3) he suffered an adverse employment
action, and (4) a similarly situated co-worker who is not
a member of the protected class was treated more favor-
ably. See Winsley v. Cook County, 563 F.3d 598, 604 (7th
1
Luster’s letter is dated September 6th but was stamped
“received” by the warden’s office on September 8th. At his
deposition Luster insisted that he never received the Septem-
ber 7th notice of his suspension “pending discharge.” He
acknowledged receiving a written communication that he
characterized as a “30-day termination” letter, also effective
August 31, 2006, but he claimed to have thrown that document
in the trash and could not produce it. He acknowledged
understanding, however, that the personnel action could
be contested during the 30-day window.
6 No. 09-4066
Cir. 2009); Ballance v. City of Springfield, 424 F.3d 614,
617 (7th Cir. 2005).
The first element is satisfied, and although the IDOC
maintains that Luster was never fired because he
resigned, the IDOC concedes that Luster’s suspension
without pay before he resigned was an adverse employ-
ment action sufficient to satisfy the third element for
purposes of summary judgment.
With respect to the remaining elements of the prima
facie case, the district court correctly reasoned in this
case of allegedly discriminatory discipline that the
second element, whether the employee was performing
satisfactorily, merged into the fourth element, whether
the employer treated plaintiff worse than a similarly
situated co-worker. See Caskey v. Colgate-Palmolive Co.,
535 F.3d 585, 592 (7th Cir. 2008); Flores v. Preferred
Technical Grp., 182 F.3d 512, 515 (7th Cir. 1999). Fed-
eral employment discrimination laws do not limit their
protection to perfect or even good employees. They
also protect employees who misbehave or perform
poorly. E.g., Schandelmeier-Bartels v. Chicago Park Dist.,
634 F.3d 372, 376 (7th Cir. 2011) (“perfection is not a
requirement for protection under Title VII”). Under
Title VII of the Civil Rights Act of 1964, an employer
cannot intentionally discipline poor employees more
severely on the basis of race, sex, religion, or national
origin.
A plaintiff trying to meet this element by showing
that comparators outside the protected group were
“similarly situated” need not demonstrate complete
No. 09-4066 7
identity. What is required is “substantial similarity”
given all relevant factors in the case. See Humphries v.
CBOCS West, Inc., 474 F.3d 387, 405 (7th Cir. 2007). Courts
should apply a flexible and factual, common-sense ap-
proach. Id. The question is whether the other employees’
situations were similar enough to the plaintiff’s that it
is reasonable to infer, in the absence of some other ex-
planation, that the different treatment was a result
of race or some other unlawful basis. For claims of dis-
criminatory discipline, courts compare the similarity of
misconduct, performance standards, qualifications, and
disciplining supervisor. See Radue v. Kimberly-Clark
Corp., 219 F.3d 612, 617-18 (7th Cir. 2000).
As the case is framed for us on appeal, Luster’s
prima facie case turns on whether he established that
one or more co-workers of other races who engaged in
physical misconduct of a sexual nature were given
lighter punishment than the 30-day suspension
pending discharge that he received from the IDOC. On
appeal, Luster relies on two comparators: Kinsella and
Kozlowski, both white guards.
The district court concluded that there is a disputed
issue of material fact in the comparison to Kinsella. In
answering an interrogatory, Luster said that Kinsella had
been “accused” of having sex with an inmate but was
punished with only a brief suspension. Warden Sigler
countered in an affidavit that Kinsella had never been
accused of having sex with an inmate, that the accusa-
tion had been “socializing” with an inmate, and that she
had concluded that even the “socializing” accusation
8 No. 09-4066
was unsubstantiated. The district court reasoned that
these differing accounts created a material factual
dispute that had to be resolved by a jury.
We disagree. A district court should deny a motion
for summary judgment only when the non-moving
party presents admissible evidence that creates a genu-
ine issue of material fact. United States v. 5443 Suffield
Terrace, 607 F.3d 504, 510 (7th Cir. 2010); Swearnigen-El
v. Cook County Sheriff’s Dep’t, 602 F.3d 852, 859 (7th Cir.
2010). In answering the interrogatory, Luster did not
claim to know what Kinsella had actually done; he
simply stated that Kinsella had been accused of having
sex with an inmate. Moreover, Luster’s answer to the
interrogatory does not supply an admissible founda-
tion from which to conclude that he even possessed
personal knowledge about the nature of the accusation.
In contrast, Warden Sigler herself reviewed and decided
the merits of the accusation against Kinsella. She thus
had personal knowledge of the “socializing” charge and
of her own finding that the accusation was unsubstanti-
ated. The evidence supplied by Warden Sigler is admissi-
ble. See Thanongsinh v. Board of Education, 462 F.3d 762,
777 (7th Cir. 2006); Kaba v. Stepp, 458 F.3d 678, 682 (7th
Cir. 2006). Without admissible evidence from Luster to
counter her affidavit, there was no genuine dispute as
to whether Kinsella was an appropriate comparator.2
2
Luster’s answer to the interrogatory was proper as a discovery
response. A party answering an interrogatory must provide
(continued...)
No. 09-4066 9
We agree with the district court that Luster’s other
proposed comparator, Kozlowski, does not present a
genuine issue of fact to help him establish a prima facie
case because Kozlowski was not treated more favorably.
Like Luster, Kozlowski physically harassed a female co-
worker, and the warden found the accusation to be sub-
stantiated. To that extent, Luster and Kozlowski were
similarly situated. Yet as she did with Luster, Warden
Sigler suspended Kozlowski for 30 days “pending dis-
charge.” Up to that point, both men were treated identi-
cally, but the fourth prong of the prima facie case
requires that a similarly situated employee be treated
more favorably. See Bio v. Federal Express Corp., 424
F.3d 593, 597-98 (7th Cir. 2005); Lucas v. Chicago Transit
Auth., 367 F.3d 714, 731-32 (7th Cir. 2004).
The fact that Kozlowski ultimately remained employed
with the IDOC does not distinguish him as being
treated more favorably. Rather, Kozlowski’s continued
employment reflects that both he and Luster received
2
(...continued)
the non-privileged, responsive information he has, whether
or not he has personal knowledge or admissible evidence of
the matter. But a party cannot use his own interrogatory
answer, which is almost certainly hearsay when offered by
that party himself to prove the truth of its contents, to sup-
port or oppose summary judgment. Rule 56(c)(4) requires
that affidavits and declarations to support or oppose sum-
mary judgment must be made on personal knowledge.
E.g., Payne v. Pauley, 337 F.3d 767, 772 (7th Cir. 2003) (applying
earlier version of Rule 56).
10 No. 09-4066
the same 30-day window to challenge their proposed
terminations while Central Management Services evalu-
ated the warden’s recommendation to fire them.
Kozlowski used the time to file a successful grievance.
Luster did not try. Instead he resigned immediately
and then filed this lawsuit. The IDOC is not legally re-
sponsible for that difference.
Luster also contends that he did not receive a 30-day
suspension “pending discharge,” but instead received a
more severe 30-day “termination” letter dated August 31st.
We overlook Luster’s difficulty in proving the existence
and content of this alternate letter. His characterization
of the letter yields the same result. As Luster conceded
at his deposition, the letter he received—whatever the
label given to it — gave him 30 days to challenge the dis-
cipline by filing a grievance. Kozlowski got nothing
better. Also, Luster treated his supposed immediate
termination as a suspension. At his deposition he some-
times referred to the action as a “30-day suspension.”
And the fact that he tendered his resignation on Septem-
ber 8th is a powerful indication that Luster did not
think he had been fired. Because Luster failed to come
forward with evidence that the IDOC treated him
worse than it treated any similarly situated white em-
ployees, he failed to offer a prima facie case of race dis-
crimination.
III. Pretext
The lack of a prima facie case doomed Luster’s Title VII
claim, but even if it did not, the IDOC was still entitled
to summary judgment because it provided a legitimate,
No. 09-4066 11
non-discriminatory reason for its adverse employment
action: Luster was suspended pending termination for
sexually harassing a coworker and then lying about his
misconduct. To defeat the IDOC’s motion for summary
judgment, it was Luster’s burden to present evidence
sufficient to allow a reasonable jury to find that this
reason was false (pretextual), from which a trier of
fact could infer that the real reason was unlawful dis-
crimination. See McDonnell Douglas, 411 U.S. at 804; Perez
v. Illinois, 488 F.3d 773, 776 (7th Cir. 2007). The district
court found that Luster had failed to do so, and we
agree with that conclusion.
In arguing otherwise, Luster quotes Jackson v. E.J. Brach
Corp., 176 F.3d 971, 983 (7th Cir. 1999), for the proposi-
tion that a plaintiff may prove pretext by offering “evi-
dence of at least an inference” that discrimination
was the real reason for the employer’s action. Luster
identifies several supposed flaws in the IDOC’s investi-
gation of battery committed against Cole. These flaws,
he says, support an inference of discriminatory intent.
According to Luster, IDOC investigator Sims admitted
that he “found some of the testimony given by one of
the witnesses to be ‘suspicious.’ ” Sims did not check
the employee log (to verify Luster’s presence on the
day Cole was assaulted), nor did he examine the layout
of the room where the assault occurred (to verify that
the incident could have happened as Cole described).
Luster also contends the investigation was rigged
against him because Warden Sigler chose the hearing
officer and told the selected official what discipline to
impose. In support, Luster points out that the assistant
12 No. 09-4066
warden testified that, contrary to protocol, she did not
receive Cole’s incident report before it reached Warden
Sigler. He also asserts that before the hearing, a super-
intendent stated that they were going to “get” Luster
and that a union representative called his termination
a “done deal.”
These supposed flaws are not sufficient to support
a reasonable inference that the IDOC lied about its
reasons for suspending Luster pending termination.
With regard to Sims’ investigation, another eyewitness
confirmed the June 1st incident with Cole. And while
Sims did not review the logbook to verify that Luster
was on duty at the time of the incident, Luster looked
at the logbook himself and conceded that he was on
duty for at least part of June 1st. In any event, whether
the June 1st incident occurred exactly as described by
Cole does not affect the outcome here. After a rea-
sonable, if not perfect, investigation, the warden be-
lieved Cole’s allegations. On that factual basis, the
IDOC suspended Luster. See Jackson, 176 F.3d at 985 (in
evaluating pretext: “An employer’s honest belief, whether
or not it is mistakenly held, is the issue relevant to
these situations.”). With regard to the hearing process
being suspect, Luster’s counsel at oral argument
conceded that the evidence of the reported comments
about a “done deal” and “getting” Luster was inadmis-
sible hearsay. Without admissible evidence of pretext,
the district court correctly granted summary judgment
for the IDOC.
No. 09-4066 13
IV. Conclusion
We affirm the grant of summary judgment for the
IDOC, but a final observation is in order. In his appellate
brief and at oral argument, counsel for Luster noted
that direct evidence of discriminatory intent is difficult
to obtain. Few employers today openly admit to en-
gaging in discriminatory practices. Thus, counsel
reminds us, the vast majority of employment-discrim-
ination claims will rest on circumstantial evidence. See
Rush v. McDonald’s Corp., 966 F.2d 1104, 1113 (7th Cir.
1992); Joshua L. Weiner et al., Disparate Impact and
Disparate Treatment/Legal Update and Practical Guide, 776
PLI/L IT 475, 477 (2008); Eddie Kirtley, Where’s Einstein
When You Need Him? Assessing the Role of Relative Qualifica-
tions in a Plaintiff’s Case of Failure-to-Promote Under Title
VII, 60 U. Miami L. Rev. 365, 366 (2006).
Counsel suggests that the McDonnell Douglas burden-
shifting framework, developed to address situations
where there is no smoking gun, is too inflexible and
burdensome for plaintiffs. Some commentators agree;
the academic literature is rife with critiques of McDonnell
Douglas, as the framework can produce both false
negative and false positive results. See Katherine T.
Bartlett, Making Good on Good Intentions: The Critical Role
of Motivation in Reducing Implicit Workplace Discrim-
ination, 95 Va. L. Rev. 1893, 1926-30, 1956-60 (2009) (re-
viewing and critiquing proposals to revise burden-
shifting framework by easing plaintiff’s burden at sum-
mary judgment, and urging caution in efforts to change
legal rules prohibiting discrimination); Chad Derum &
14 No. 09-4066
Karen Engle, The Rise of the Personal Animosity Presump-
tion in Title VII and the Return to “No Cause” Employment,
81 Tex. L. Rev. 1177 (2003) (critiquing McDonnell
Douglas model).
The McDonnell Douglas framework is not perfect, but
it remains the law of the land for handling cases
without direct evidence of unlawful discrimination. It
can be and has been adapted, as we have done in dis-
criminatory discipline cases like this one. And we have
often cautioned parties to avoid an unduly rigid
barrier between direct and circumstantial evidence of
discrimination, such as in our “convincing mosaic” line
of cases. See, e.g., Winsley v. Cook County, 563 F.3d 598,
604 (7th Cir. 2009), quoting Troupe v. May Dep’t Stores Co.,
20 F.3d 734, 737 (7th Cir. 1994); see also Dewitt v. Proctor
Hospital, 517 F.3d 944, 950-51 (7th Cir. 2008) (Posner, J.,
concurring) (explaining the mistake of treating direct
and indirect methods of proof “as if each were in its
own sealed compartment”). On the record here,
summary judgment for the defendant must be and
is A FFIRMED.
7-19-11