In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3706
K EVIN H ARRIS,
Plaintiff-Appellant,
v.
W ARRICK C OUNTY S HERIFF’S D EPARTMENT,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Indiana, Evansville Division.
No. 3:09-cv-44-RLY-WGH—Richard L. Young, Chief Judge.
A RGUED M AY 4, 2011—D ECIDED JANUARY 13, 2012
Before E ASTERBROOK, Chief Judge, and F LAUM and
S YKES, Circuit Judges.
S YKES, Circuit Judge. The Warrick County Sheriff termi-
nated Kevin Harris’s probationary employment as a
deputy sheriff based on violations of standard operating
procedures, failure to follow orders, and insufficient
commitment to the job. Harris sued the Sheriff’s Depart-
ment under Title VII of the Civil Rights Act of 1964
(42 U.S.C. §§ 2000e et seq.) and 42 U.S.C. § 1981, claiming
2 No. 10-3706
he was fired because he is black. The district court
entered summary judgment for the Department and
Harris appealed.
We affirm. Harris’s circumstantial evidence of discrimi-
nation falls far short of supporting an inference that he
was terminated because of his race. No evidence sug-
gests that the sheriff or other decision-makers partici-
pated in any of the alleged racially charged behav-
ior—watching Blazing Saddles in the workplace and
giving Harris racially tinged nicknames. Finally, although
Harris identified several white deputies who were re-
tained despite performance problems during their proba-
tionary employment, their misconduct was not com-
parable to his, so they cannot be considered similarly
situated.
I. Background
In November 2003 Marvin Heilman, the Sheriff of
Warrick County, Indiana, hired Harris as a reserve deputy
sheriff. Harris was later promoted to part-time and then
full-time dispatcher, and in August 2007 became a full-
time deputy sheriff. The Sheriff’s Department requires
all new deputies to complete a one-year probationary
period learning basic law-enforcement techniques from
field training officers (“FTOs”). During this period, a
deputy could be discharged at the sheriff’s discretion.
Not long after Harris’s probationary period began,
Heilman and Lieutenant Paul Weinzapfel became con-
cerned about Harris’s lack of respect for departmental
policies. On one occasion Harris suspiciously took a sick
No. 10-3706 3
day the day after asking his FTO about sick-day proce-
dures. Around the same time, Harris asked a sergeant
whether the required minimum of 40 traffic contacts per
month should be taken seriously. Harris also installed
nonissue lights on his assigned patrol car and affixed
a nonstandard patch on his uniform jacket, both in viola-
tion of the Department’s standard operating procedures.
Harris did not even read the department’s standard
operating procedures until Weinzapfel confronted
him about these violations.
A few additional events prompted concerns about
Harris’s commitment to the job. Harris asked for a long-
term placement at the Warrick County Judicial Center—
widely regarded as a pre-retirement position—because
he liked the regular hours. He also quibbled with
Weinzapfel about his start time at the Judicial Center
and frequently stated that he needed to attend to
business at his recently opened hair salon.
In October 2007 Heilman and his command staff
(Chief Deputy Brett Kruse, Weinzapfel, and Lieutenant
Bob Irvin) met with Harris. Heilman expressed his disap-
pointment with Harris’s lack of motivation and ap-
parent failure to take his job seriously. The sheriff reiter-
ated the importance of following orders and standard
operating procedures. Heilman offered to return Harris
to his old job as a dispatcher if he wanted less de-
manding duty. Harris assured the sheriff that he was
committed to being a deputy.
Harris’s violation of departmental rules continued.
Weinzapfel noticed Harris’s patrol car parked at a local
4 No. 10-3706
gym, despite the fact that patrol cars were only
supposed to be used for work-related purposes.
Weinzapfel also discovered that Harris disobeyed a
direct order to have the wiring in his patrol car checked.
As a result of these violations, Weinzapfel revoked
Harris’s vehicle-take-home privileges for a month. Harris
thereafter disobeyed another direct order by failing to
make his patrol car available to transport a prisoner.
On January 4, 2008—about five months into Harris’s
probationary period as a deputy sheriff—Heilman and
his command staff unanimously voted to terminate
Harris. Heilman explained to Harris that although his
performance-based deficiencies might improve with
more training, the main problems were Harris’s habit
of disregarding orders, his casual approach to standard
operating procedures, and his lack of motivation.
Weinzapfel’s written statement memorializing the
reasons for Harris’s termination is consistent with
Heilman’s explanation.
Both before and after Harris’s termination, several
white deputies had performance problems during their
probationary employment but were retained. Officer
Matthew Young was an unsafe driver, was not suf-
ficiently aggressive, and did not follow the best police
practices in dealing with suspects. For example, he once
pulled up too closely to a dangerous suspect without
cover. Officer Matthew Claridge had problems with
prisoner control and traffic stops, and on one occasion
almost caused an accident while talking on his cell
phone while driving. Officer Dan Bullock, who replaced
No. 10-3706 5
Harris, struggled with decision-making skills and com-
pleting reports on time. He also had several driving
accidents, on one occasion striking a suspect’s vehicle.
Instead of terminating these deputies, however, Heilman
extended their training periods.
Harris testified in deposition to several events during
his employment that he claimed were evidence of racial
harassment. On one occasion detectives watched
excerpts from the movie Blazing Saddles in his presence.
Other deputies gave him racially tinged nicknames. For
example, Officer Brian Wessel called him “Calvin,” the
name of an African-American boy in a McDonald’s com-
mercial. Officer Richard Barnett called him “Urkel,” the
name of an African-American character on the television
show Family Matters. Others called him “Cowboy Troy,”
the nickname of an African-American country-western
singer, and “Tubbs,” the name of an African-American
officer on the show Miami Vice. The only other black
deputy in the Department, Officer Cory Smith, was
subjected to similar nicknames.
After his probationary employment was terminated,
Harris sued the Sheriff’s Department under Title VII and
§ 1981, alleging that he was terminated because of his
race. The district court granted the Department’s
motion for summary judgment, finding insufficient
evidence of discrimination. Harris appealed.
II. Discussion
We review the district court’s grant of summary judg-
ment de novo, construing all facts and drawing rea-
6 No. 10-3706
sonable inferences in favor of Harris, the nonmoving
party. Winsley v. Cook Cnty., 563 F.3d 598, 602 (7th Cir.
2009). Summary judgment is appropriate if the evidence
demonstrates that there is no genuine issue of material
fact and the moving party is entitled to judgment as a
matter of law. FED R. C IV. P. 56(c).
An employee alleging racial discrimination under
Title VII or § 1981 may proceed via the direct or the
indirect method of proof. Egonmwan v. Cook Cnty. Sheriff’s
Dep’t, 602 F.3d 845, 849-50 & n.7 (7th Cir. 2010). Harris
invoked the direct method of proof, which requires that
he present “direct or circumstantial evidence that
creates a convincing mosaic of discrimination on the
basis of race.” Winsley, 563 F.3d at 604 (quotation marks
omitted). Harris relied on circumstantial evidence, which
we have said typically falls into one of three categories:
(1) suspicious timing, ambiguous oral or written
statements, or behavior toward or comments directed
at other employees in the protected group; (2) evi-
dence, whether or not rigorously statistical, that
similarly situated employees outside the protected
class received systematically better treatment; [or]
(3) evidence that the employee was qualified for the
job in question but was passed over in favor of a
person outside the protected class and the em-
ployer’s reason is a pretext for discrimination.
Darchak v. City of Chi. Bd. of Educ., 580 F.3d 622, 631 (7th
Cir. 2009).
Harris’s proffered circumstantial evidence consists of
(1) racially charged workplace behavior; and (2) better
No. 10-3706 7
treatment for similarly situated white probationary depu-
ties.1 In the first category are the nicknames and the
workplace exposure to excerpts from Blazing Saddles. The
argument about Blazing Saddles is hard to take seriously.
The 1974 Mel Brooks comedy was nominated for three
Academy Awards and satirizes an array of racial,
ethnic, and social stereotypes. See W IKIPEDIA, http://
en.wikipedia.org/wiki/Blazing_Saddles (last visited
Jan. 5, 2012). The movie makes racism ridiculous, not
acceptable, as Harris seems to contend. The nicknames
are somewhat more compelling evidence of workplace
racial bias. But there is no evidence that Heilman,
Weinzapfel, or any others in the decision-making chain
used the nicknames—or for that matter had anything to
do with the viewing of film clips from Blazing Saddles.
To prove employment discrimination, a plaintiff needs
direct or circumstantial evidence “that the decisionmaker
has acted for a prohibited reason.” Rogers v. City of
Chicago, 320 F.3d 748, 754 (7th Cir. 2003). “Statements by
subordinates normally are not probative of an intent to
retaliate by the decisionmaker.” Long v. Teachers’ Ret. Sys.
of Ill., 585 F.3d 344, 351 (7th Cir. 2009) (quotation marks
omitted).
In the district court, Harris loosely advanced a “cat’s
paw” theory of liability. See Schandelmeier-Bartels v. Chi.
Park Dist., 634 F.3d 372, 379 (7th Cir. 2011) (explaining
this circuit’s formulation of the “cat’s paw” doctrine). In
1
Harris has abandoned his argument that the reasons given
by the Department for his termination were pretextual.
8 No. 10-3706
Staub v. Proctor Hospital, 131 S. Ct. 1186, 1194 (2011), the
Supreme Court addressed this theory of liability,
holding that an employer may be liable for employ-
ment discrimination if a nondecision-maker “performs
an act motivated by [discriminatory] animus that is
intended . . . to cause an adverse employment action,
and . . . that act is a proximate cause of the ultimate
employment action.” Id.
On appeal Harris did not mention his “cat’s paw”
argument until his reply brief and even then addressed
it only summarily. The argument is therefore waived.
See Dexia Credit Local v. Rogan, 629 F.3d 612, 625 (7th Cir.
2010). We note as well that Harris has not presented
evidence to support this theory of liability as the
Supreme Court explained it in Straub. Nothing links
Harris’s co-workers’ use of nicknames or their viewing
of Blazing Saddles to the termination of Harris’s proba-
tionary employment. See also Adams v. Wal-Mart Stores,
Inc., 324 F.3d 935, 939 (7th Cir. 2003) (when proceeding
via the direct method, “circumstantial evidence . . . must
point directly to a discriminatory reason for the
employer’s action”).
Harris’s argument that several white deputies re-
ceived better treatment also suffers from a straight-
forward problem: There is no evidence that those
deputies were similarly situated to him. “To establish that
employees not in the protected class were treated more
favorably, the [p]laintiff must show that those employees
were similarly situated with respect to performance,
qualifications and conduct.” Keri v. Bd. of Trs. of Purdue
No. 10-3706 9
Univ., 458 F.3d 620, 644 (7th Cir. 2006) (quotation marks
omitted). As relevant here, this inquiry does not re-
quire “near one-to-one mapping between employees,”
Humphries v. CBOCS W., Inc., 474 F.3d 387, 405 (7th
Cir. 2007), but the employees receiving more lenient dis-
ciplinary treatment must at least share “a comparable
set of failings,” Haywood v. Lucent Techs., Inc., 323 F.3d
524, 530 (7th Cir. 2003).
Harris has identified several white deputies who had
performance problems but were not terminated. But
none of them violated standard operating procedures,
disobeyed direct orders, or showed a lack of commitment
to the job during their probationary periods. So they
cannot be considered similarly situated to Harris. In
other cases in which a minority plaintiff had some short-
comings in common with a better-treated nonminority
employee but was terminated for additional, distinct
performance problems, we have found the comparator
employee not similarly situated. See, e.g., Burks v. Wis. Dep’t
of Transp., 464 F.3d 744, 751 (7th Cir. 2006). Moreover, there
are material distinctions between Harris’s misconduct
and the performance problems exhibited by the white
deputies. Cf. Humphries, 474 F.3d at 406 (where the com-
parator left a company safe unlocked during the day
and plaintiff left it unlocked at night, the distinction
between the two is merely “formalistic”). Harris was
fired for insubordination and a lack of commitment, not
just subpar performance; the other deputies made
errors but did not disobey direct orders or manifest a
cavalier attitude toward the job.
10 No. 10-3706
Harris insists that his mistakes were less serious than
those of his comparators, whose actions sometimes put
lives at risk. We have repeatedly said we do not sit as a
super-personnel department to determine which em-
ployment infractions deserve greater punishment. See
Ptasznik v. St. Joseph Hosp., 464 F.3d 691, 697 (7th Cir.
2006). It is enough that the misconduct that led to the
adverse job action in question is sufficiently distinct to
render the proposed comparators not similarly situated.
See Haywood, 323 F.3d at 530.
Finally, we briefly note that the district court did not
err in drawing a nondispositive inference in favor of
the Sheriff’s Department based on the “same-actor”
theory—that is, the theory that because the same person
(here, Heilman) both hired and fired the plaintiff, it is
unlikely that he had a discriminatory motive. We have
explained that “the same-actor inference is unlikely to be
dispositive in very many cases,” but we also have ap-
proved its use as “a convenient shorthand for cases in
which a plaintiff is unable to present sufficient evidence
of discrimination.” Johnson v. Zema Sys. Corp., 170 F.3d
734, 745 (7th Cir. 1999); see also Martino v. MCI Commc’ns
Servs., Inc., 574 F.3d 447, 455 (7th Cir. 2009) (finding
that the same-actor inference can be “one more thing
stacked against” a plaintiff). This is such a case.
A FFIRMED.
1-13-12