NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 4, 2007*
Decided June 25, 2007
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 06-3130
TRAVIS J. HEFLEY, Appeal from the United States
Plaintiff-Apellant, District Court for the Northern
District of Illinois, Eastern Division
v.
No. 04 C 8032
VILLAGE OF CALUMET PARK and
MARK DAVIS, Blanche M. Manning,
Defendants-Appellees. Judge.
ORDER
After he was fired from his job as a part-time police officer for the Village of
Calumet Park, Travis Hefley sued the Village and Mark Davis, the chief of police,
claiming that he was the victim of “reverse” racial discrimination. The district
court dismissed the claim against Davis and granted summary judgment for the
Village. Hefley appeals, but his arguments are frivolous. We affirm.
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 06-3130 Page 2
On January 13, 2004, Susan Rockett, the assistant chief of police, sent a
memorandum to all police officers advising them that mandatory annual firearms
testing would begin on January 21 and that all officers must pass by March 17. By
March 5, Hefley had not qualified, nor had he attended any of the sessions held by
Sergeant Gregory Jones, the department’s firearms instructor, at which Jones
trained officers in the use of their weapons and administered the test. Hefley
received a written reminder from Rockett stating that part-time officers who did not
qualify by the deadline would be removed from the schedule. Still, Hefley missed
the next training session. On March 17, Hefley attended the final session along
with Curtis Smith, another part-time officer who had not qualified. Neither Hefley,
who is white, nor Smith, who is black, achieved a passing score of 76.
Jones advised Rockett that neither officer had qualified and asked her to give
them one more opportunity. Rockett agreed and notified Hefley and Smith that
they could test for the final time on March 24. She reminded them that they could
not perform patrol duties if they failed. On that date, Hefley and Smith once again
failed to qualify. Hefley’s top score was 60 and Smith’s was 74. Both men were
fired later that day.
The following week, Hefley attempted to contact Chief Davis to request
another chance to qualify. He was directed to Rockett, who informed him that he
would be given no further opportunities. In May, Smith reapplied for employment
as a part-time police officer. The following month, he passed the firearms
qualification and was rehired. Hefley did not reapply for a job with the Village.
After exhausting his administrative remedies, Hefley sued the Village and
Chief Davis, claiming that he had been fired because of his race in violation of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Civil Rights
Act of 1991, 42 U.S.C. § 1981a. After somewhat protracted proceedings, the parties
moved for summary judgment. The district court denied Hefley’s and granted the
defendants’. The court applied the modified burden-shifting approach for proving
reverse discrimination that we articulated in Mills v. HealthCare Servs. Corp., 171
F.3d 450, 455-57 (7th Cir. 1999), and Phelan v. City of Chicago, 347 F.3d 679 (7th
Cir. 2003), and concluded that Hefley did not make out a prima facie case of
discrimination. The court reasoned that Hefley did not demonstrate that he was
meeting his employer’s legitimate expectations or that different standards were
used to evaluate white and non-white employees.
Hefley, who is pro se, purports to raise nine separate arguments on appeal,
but we find it necessary to discuss only his contention that the district court
erroneously granted summary judgment for the defendants. The meat of Hefley’s
argument is that he was unfairly subjected to the “strict” punishment of
No. 06-3130 Page 3
termination for failing firearms testing, while Smith was given additional
opportunities to qualify.
We evaluate a claim of reverse discrimination under the same standard
applicable to any other action under Title VII; however, the type of evidence from
which we can infer discrimination under the familiar McDonnell Douglas approach
differs slightly when the plaintiff is white. See Phelan, 347 F.3d at 685. At the first
step, instead of showing that he is member of a protected class, the plaintiff must
establish the existence of “background circumstances” that support “an inference
that the defendant is one of those unusual employers who discriminates against the
majority,” Mills, 171 F.3d at 455; see Gore v. Ind. Univ., 416 F.3d 590, 592 (7th Cir.
2006). The remaining steps are the same: the plaintiff must show that he was
meeting his employer’s legitimate performance expectations, that he suffered an
adverse employment action, and that he was treated less favorably than similarly
situated employees of a different race. See Ballance v. City of Springfield, 424 F.3d
614, 617 (7th Cir. 2005).
We agree with the district court that Hefley did not make out a prima facie
case of racial discrimination. First, Hefley cannot show that he was meeting his
employer’s legitimate expectations because he does not dispute that annual
firearms certification was mandatory, that Rockett informed him he could not work
without it, and that he failed to qualify. See Brummett v. Lee Enterprises, Inc., 284
F.3d 742, 745 (7th Cir. 2002) (explaining that employee without driver’s license and
favorable driving record at time of his termination was not meeting legitimate
expectations of employer that required both). Moreover, despite Hefley’s suggestion
that his supervisors did not do enough to help him qualify, an employer is not
required to “bend over backwards to assist its employees with their job-related
difficulties,” id. Hefley also asserts that the positive performance reviews he
received earlier in his tenure establish that he was meeting legitimate expectations.
But he must prove he was doing so at the time of the discharge. Johal v. Little
Lady Foods, Inc., 434 F.3d 943, 946 (7th Cir. 2006); see Brummet, 284 F.3d at 745.
Furthermore, Hefley has not pointed to any similarly situated non-white
employee who was treated more favorably than he. He compares himself to Curtis
Smith, but Smith was fired on the same day as Hefley, and for the same reason, so
Hefley cannot demonstrate that Smith was treated any better with respect to the
consequences of failing to achieve firearms certification. The Village’s decision to
rehire Curtis months later says nothing of whether Hefley’s firing was
discriminatory. Because Hefley never reapplied, he and Curtis were not similarly
situated with respect to employment decisions made after they were fired. See
Crawford v. Ind. Harbor Belt R.R., 461 F.3d 844, 846 (7th Cir. 2006) (noting that
“similarly situated” means directly comparable to plaintiff in all material respects).
No. 06-3130 Page 4
Because Hefley did not make out a prima facie case of discrimination, we do
not address his contention that the reason given for his termination is pretextual.
His remaining arguments, to the extent they are independent of his challenge to the
grant of summary judgment for the defendants, have been considered and rejected.
The judgment of the district court is AFFIRMED.