In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1754
F LYNN H ANNERS,
Plaintiff-Appellant,
v.
L ARRY T RENT, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of Illinois.
No. 3:09-cv-03111-MPM-CHE—Michael P. McCuskey, Chief Judge.
A RGUED D ECEMBER 2, 2011—D ECIDED M ARCH 19, 2012
Before
R IPPLE and R OVNER, Circuit Judges, and
F EINERMAN, District Judge.
R IPPLE, Circuit Judge. Flynn Hanners, a former Master
Sergeant with the Illinois State Police (“ISP”), brought
this action in the district court, alleging that fellow ISP
employees Larry Trent, Harold Nelson, Lance Adams,
The Honorable Gary S. Feinerman of the Northern District
of Illinois, sitting by designation.
2 No. 11-1754
Richard Woods and Leonard Stallworth discriminated
against him because of his race, in violation of 42 U.S.C.
§§ 1981 and 1983. The district court granted summary
judgment for the defendants, and Mr. Hanners now
timely appeals. For the reasons set forth in the fol-
lowing opinion, we affirm the judgment of the district
court.
I
BACKGROUND
A. Facts
1. The Email
On February 4, 2008, Mr. Hanners, then a Master Ser-
geant in the Medicaid Fraud Control Bureau of the ISP,
sent an email that included pictures and descrip-
tions of eleven fictitious Barbie Dolls to sixteen
fellow ISP employees; Mr. Hanners sent the email
using his ISP computer and email account.1 Each fictitious
1
The subject line of the email was “Updated Springfield Area
Barbies,” and the email itself was entitled “Mattel recently
announced the release of limited-edition Barbie Dolls for the
Springfield market.” R.28-1 at 18. The email included the
following:
’Chatham Barbie’
This princess Barbie is sold only at The Gables. She
comes with an assortment of Kate Spade Handbags, a
Lexus SUV, a long-haired foreign dog named Honey,
(continued...)
No. 11-1754 3
1
(...continued)
and cookie-cutter house. Available with or without
tummy tuck and face lift. Workaholic Ken sold only
in conjunction with the augmented version.
’Rochester Barbie’
The modern day homemaker Barbie is available with a
Ford Windstar minivan and matching gym outfit. She
gets lost easily and has no full-time occupation. Traffic
jamming cell phone sold separately.
’East Side Barbie’
This recently paroled Barbie comes with a 9mm hand-
gun, a Ray Lewis knife, a Chevy with dark tinted
windows, and a Meth Lab Kit. This model is only
available after dark and must be paid for in cash
(preferably small, untraceable bills), unless you are a
cop, then we don’t know what you are talking about.
’Panther Creek Barbie’
This yuppie Barbie comes with your choice of BMW
convertible or Hummer H2. Included are her own
Starbucks cup, credit card, and country club member-
ship. Also available for this set are Shallow Ken and
Private School Skipper. You won’t be able to afford any
of them. This Barbie also comes with her own credit
card debt, car loans and three mortgages.
’Riverton Barbie’
This pale model comes dressed in her own Wrangler
jeans two sizes too small, a NASCAR t-shirt, and
Tweety Bird tattoo on her shoulder. She has a six-pack
of Bud Light and a Hank Williams Jr. CD set. She can
spit over 5 feet and kick mullet-haired Ken’s butt
(continued...)
4 No. 11-1754
1
(...continued)
when she is drunk. Purchase her pickup truck sepa-
rately and get a Confederate Flag bumper sticker
absolutely free!
’Lake Area Barbie’
This collagen injected, bo-toxed, rhinoplastied Barbie
wears a leopard print outfit and drinks cosmopolitans
while entertaining friends. Percocet prescription
available as well as duplex on the lake. Live-in partner
Dr. Ken available with new prescription pad and
Skipper-on-the-side.
’Pawnee Barbie’
This tobacco-chewing, brassy-haired Barbie has a pair
of her own high-heeled sandals with one broken heel
from the time she chased beer-gutted Ken out of
Divernon Barbie’s house. Her ensemble includes
low-rise acid-washed jeans, fake fingernails, and a
see-through halter-top. Also available with a mobile
home.
’Downtown Barbie’
This doll is made of actual tofu. She has long straight
brown hair, arch-less feet, hairy armpits, no makeup,
and Birkenstocks with white socks. She prefers that
you call her Willow. She does not want or need a Ken
doll, but if you purchase two Downtown Barbies and
the optional Subaru wagon, you get a rainbow flag
bumper sticker for free.
’North End Barbie’
This 16-year-old Barbie now comes with a stroller and
infant doll. Optional accessories include a GED, bus
(continued...)
No. 11-1754 5
doll was a caricature of a stereotypical woman
living in an identifiable area in and around Springfield,
Illinois.
One of the original recipients, Special Agent Stacy
Conner, forwarded the email to three additional ISP
employees, including Sergeant Brenda Burton. Con-
cerned that the email might have been “a set up to see
how she would react as a supervisor,” R.28-1 at 16,
Sergeant Burton brought it to the attention of her own
supervisor and noted that the email likely was for-
warded to her by mistake.
1
(...continued)
pass, and Link Card. Gangsta Ken and his 1979
Caddy were available, but are now very difficult to find
since the addition of the infant.
’Leland Grove Barbie / Ken’
She’s perfect in every way. Comes with the old money
Springfield pedigree and small-mindedness. She
belongs to Illini Country Club, the Sangamo Club, and
the DAR. (Only available in Caucasian).
’South of Downtown Barbie / Ken’
This versatile doll can be easily converted from Barbie
to Ken by simply adding or subtracting the multiple
snap-on parts. HeShe comes with his/her own bail bond
card and criminal record for prostitution and posses-
sion. HeShe has also been banned from Walgreen’s
and CVS for attempting to purchase more than two
boxes of ephedrine-containing drugs in one day.
Id. at 19-25 (images omitted).
6 No. 11-1754
On April 21, 2008, Captain Scott Rice, Commander
of Zone 7, where Sergeant Burton was assigned, com-
pleted a Complaint Against Department Member
(“CADM”) form against Special Agent Conner, and the
case was referred to the ISP’s Equal Employment Op-
portunity (“EEO”) office shortly thereafter.
The email also was brought to the attention of defendant
Richard Woods, who held the position of Investigative
Support Commander and was in Mr. Hanners’s chain
of command. Commander Woods shared the email with
his own direct supervisor and with Captain Gordon
Fidler, the chief of Mr. Hanners’s bureau. Commander
Woods directed Captain Fidler to open an investigation
and, in particular, to determine whether Mr. Hanners
was indeed the source of the email. The email also was
brought to the attention of defendants Colonel Harold
Nelson, Deputy Director of the Division of Operations;
Lieutenant Colonel Leonard Stallworth, Assistant
Deputy Director of Special Operations and Lieutenant
Colonel Lance Adams, Assistant Deputy Director of
Field Operations. All of the defendants except for Lieu-
tenant Colonel Adams were in Mr. Hanners’s direct
chain of command at the time the email incident
took place.
In accordance with Commander Woods’s instructions,
Captain Fidler contacted the Division of Internal Inves-
tigations (“DII”) to determine the appropriate course
of action. On April 3, 2008, as part of the reporting
process, Captain Fidler filed a CADM with DII
regarding the email sent by Mr. Hanners.
No. 11-1754 7
After reviewing the complaint, DII referred the
incident back to Captain Fidler with instructions to con-
tinue the investigation. Captain Fidler asked Lieutenant
Sheryl Anderson-Martin, Mr. Hanners’s direct super-
visor, to handle the investigation. As part of the investiga-
tion, Lieutenant Anderson-Martin conducted a series of
three interviews with individuals who had direct knowl-
edge of the email incident: Sergeant Burton, Special
Agent Conner and Mr. Hanners. During his interview,
Mr. Hanners admitted to sending the email to fellow ISP
employees, including Special Agent Conner. After she
completed the investigation, Lieutenant Anderson-
Martin met with Captain Fidler to discuss her findings
and recommendations. Once the initial investigation
was complete, DII resumed control of the investigation
and informed Captain Fidler that the matter had
been referred to the EEO office.
Although the exact timing is not clear from the
record, the EEO office became involved in the investiga-
tion of the email incident through the submission of
Captain Fidler’s CADM. Among its other responsi-
bilities, the EEO office maintains an internal complaint
process, which includes options for investigation and
mediation. This complaint process, set out in a written
ISP policy, requires an employee filing a complaint
with the EEO office to sign an intake questionnaire
that provides a narrative of what occurred and how the
alleged activity constitutes discrimination, harassment
or retaliation. Suzanne Bond, Chief of the ISP EEO
office, testified in her deposition that a supervisor also
8 No. 11-1754
may refer an incident to the EEO office by submitting
a signed CADM through DII.2
As part of the investigation into Mr. Hanners’s email,
the EEO office contacted all of the email recipients, but
none of these individuals was willing to file a com-
plaint against Mr. Hanners that would state that he
had been offended by the email. However, during
his interview with the EEO officer, Mr. Hanners
eventually admitted that sending the email was an im-
proper use of his ISP email account and acknowledged
that he had received training on EEO policies in the past.
Sergeant Robert Sgambelluri, the EEO officer in charge
of Mr. Hanners’s investigation, concluded that, “[w]hile
the contents of the email were related to race, sexual
orientation, parental status, pregnancy, family responsi-
bilities, and the characteristics of gender, no person
receiving the email reported being offended by its con-
tents.” R.28-2 at 45. Notably, he found that none of the
individuals who received the email believed that “it
interfered with [his] work performance or created an
2
At the same time as the Barbie Doll email investigation, the
EEO office also had at least two other ongoing investiga-
tions involving inappropriate emails sent using ISP computer
equipment. One of the cases involved a District Commander
who had sent to the other District Commanders an email
that depicted a cartoon of a man and a woman in a car. The
man had a traditional seatbelt, while the woman had a
seatbelt that went over her lap, shoulder and mouth. A second
email incident involved a link to a video that pertained to
the proper use of the “F-word.”
No. 11-1754 9
intimidating, hostile, abusive or offensive work environ-
ment.” Id. (internal quotation marks omitted). Sergeant
Sgambelluri ultimately concluded that the investigation
did not warrant a charge of hostile work environment
under ISP policy.
Sergeant Sgambelluri did conclude, however, that
the email “contained derogatory references to women,
African Americans, and other categories of people, and
presented negative and demeaning stereotypes of these
groups.” Id. He therefore determined that Mr. Hanners’s
act of transmitting the content of the email to others
using an ISP computer and email, without a business
reason, was contrary to various ISP policies, including
PER-009, which provides that the ISP “will ensure man-
agers and supervisors recognize their responsibility
for carrying out the spirit and intent of the EEO Pro-
gram.” Id. (internal quotation marks omitted). Addition-
ally, Sergeant Sgambelluri determined that the results
of the investigation supported charging Mr. Hanners
with violating several Rules of Conduct pertaining to
misuse of ISP equipment.
Chief Bond agreed with Sergeant Sgambelluri’s
finding that Mr. Hanners violated ISP policy and for-
warded to ISP Director Larry Trent her recommendation
that Mr. Hanners be charged with violating the Rules of
Conduct. Chief Bond’s recommendation to Director
Trent included a citation to PER-009, III.6.C. 3 The memo-
3
ISP policy PER-009, III.6.C provides: “Colonels and their
Supervisors and Managers will recognize their explicit respon-
(continued...)
10 No. 11-1754
randum also included recommendations for discipline
for three other individuals who had further disseminated
the Barbie Doll email, including Special Agent Conner.4
Director Trent reviewed the EEO office’s recommenda-
tions and determined that Mr. Hanners should be disci-
plined in accordance with Chief Bond’s recommenda-
tions. He then forwarded the recommendations to
Colonel Nelson and instructed him to “advise the EEO
Office what actions you have taken in response to
the charges identified above within 30 days of your
receipt of this information.” R.28-2 at 48.
2. The Disciplinary Review Board
An ISP officer facing disciplinary action has the right
to appear before the Disciplinary Review Board (“the
Board”), composed of the Deputy Directors, and to
3
(...continued)
sibility for carrying out the spirit, as well as the intent, of
the EEO Program, including but not limited to the EEO Plan,
and actively work to advance the program among the em-
ployees they supervise.” R.28-2 at 42.
4
In addition to Special Agent Conner, Special Agent Mari
Rolape and Trooper Mark Beagles also were disciplined for
forwarding the Barbie Doll email using their ISP computers.
Special Agent Rolape was counseled regarding her actions
of forwarding the email from her ISP computer to her home
computer. Special Agent Conner and Trooper Beagles partici-
pated in the settlement agreement process and ultimately
received letters of reprimand.
No. 11-1754 11
present his own perspective on the case. As part of the
process, an officer who takes full responsibility for his
actions may agree to a settlement with the Board, and,
in doing so, receive a reduced disciplinary penalty.
Prior to his appearance before the Board, Mr. Hanners
was offered a settlement by Colonel Nelson. Its terms
would have reduced his suspension from thirty days
to ten to fifteen days—the same suspension that
Colonel Nelson was offering to two other officers who
were facing similar charges. Although the other indi-
viduals accepted Colonel Nelson’s settlement proposal,
Mr. Hanners rejected the proposed resolution. Mr.
Hanners elected to appear before the Board and read
from a prepared statement. Following his appearance
before the Board, the Deputy Directors unanimously
recommended to Director Trent that Mr. Hanners
receive the original thirty-day suspension. They ex-
pressed concern regarding Mr. Hanners’s apparent lack
of remorse. Director Trent accepted the Board’s recom-
mendation and imposed a thirty-day suspension.5
3. Ratings Session and Promotions
As part of the ISP employee promotion process, each
sworn employee receives an annual promotional rating,
5
Colonel Nelson, as Deputy Director of the Division of Opera-
tions, participated in Mr. Hanners’s meeting with the Board.
Lieutenant Colonel Adams also attended, but only as an
observer.
12 No. 11-1754
which is given by the employee’s direct supervisor.6
During the 2008 ratings session, approximately thirty
individuals, including Mr. Hanners, were to be con-
sidered for promotion from master sergeant to lieutenant.
Lieutenant Anderson-Martin was Mr. Hanners’s rater
for 2008. Following the usual protocol, she met with
Mr. Hanners to go over the components of the ratings
process. She then scored Mr. Hanners on a scale of 1 to 9
in nine different categories and preliminarily calculated
his aggregate score as 68. Prior to the ratings session,
Lieutenant Anderson-Martin inquired as to whether
she should take the email incident into account for pur-
poses of rating Mr. Hanners’s job performance; she
was told that she should do so. She therefore adjusted
Mr. Hanners’s aggregate score accordingly. However,
when she reviewed her scores with the other super-
visors at the ratings session, several individuals, in-
cluding Commander Woods, suggested that the grade
still was too high given the email incident.7 Lieutenant
Anderson-Martin expressed her concern regarding the
further lowering of Mr. Hanners’s rating because, aside
from the email, Mr. Hanners had performed at a high
level throughout the year.
At the ratings session, Lieutenant Anderson-Martin
felt that the discussion of her grading decision became
6
When a sworn employee seeks a promotion, he must agree
to take a promotional examination and receive a job perfor-
mance evaluation.
7
Director Trent and Colonel Nelson did not attend the
ratings session.
No. 11-1754 13
adversarial and that the situation was compounded by
the fact that she was being considered for promotion
to captain. In what she deemed a difficult situation,
Lieutenant Anderson-Martin ultimately agreed to
reduce Mr. Hanners’s grade to reflect the recommenda-
tions given by the other supervisors. Mr. Hanners there-
fore received an aggregate grade of 54.
Mr. Hanners challenged his promotion grade in ac-
cordance with ISP protocol. The challenge was reviewed
by Commander Woods, who recommended that
Mr. Hanners’s grade of 54 be upheld. Further, three
of Mr. Hanners’s superiors, Captain Fidler, Lieutenant
Anderson-Martin and Lieutenant Colonel Stallworth,
after considering the merits of Mr. Hanners’s challenge,
all agreed that his grade of 54 should not be raised. As
part of the process, Lieutenant Anderson-Martin was
tasked with writing a memorandum in response to
Mr. Hanners’s contentions. During the drafting of her
memorandum in response to Mr. Hanners’s challenge,
Lieutenant Colonel Stallworth, who had made his dis-
pleasure with the content of the email known, informed
Lieutenant Anderson-Martin that Mr. Hanners’s grade
would not be increased above a 54.8 Lieutenant Anderson-
Martin created several drafts of the memorandum;
8
Lieutenant Colonel Stallworth testified at his deposition
that he indeed found the Barbie Doll email inappropriate
and could not believe that a supervisor would send it out or
think it was funny. R.22-7 at 19 (Stallworth Dep. 22). Addition-
ally, he testified that, as an African-American, he found the
email to be racially offensive. Id. at 22-23 (Stallworth Dep. 25-26).
14 No. 11-1754
each draft was rejected until it was deemed to be suffi-
ciently “generic.” R.31-5 at 4 (Anderson-Martin Dep. 152-
53). After the challenge was reviewed by the individuals
in his chain of command, including Colonel Nelson,
Mr. Hanners ultimately received a promotion rating of 54.
B. District Court Proceedings
Mr. Hanners filed a complaint in the Central District
of Illinois. Asserting claims based upon 42 U.S.C. §§ 1981
and 1983, he alleged that he was suspended and graded
unfairly because of his political views and his race.9
Addressing Mr. Hanners’s contention that the ISP had
imposed sanctions and graded him in a racially discrim-
inatory manner, the district court determined that
Mr. Hanners had failed to establish a prima facie case
of race discrimination based on the direct method.1 0
The court explained that, in order to establish a claim
9
In his complaint, Mr. Hanners alleged that the defendants
retaliated against him because of his political views, in viola-
tion of his rights under the First Amendment. In his brief in
response to the defendants’ motion for summary judgment,
Mr. Hanners conceded that there was insufficient evidence
from which a jury reasonably could conclude that the defen-
dants violated his First Amendment rights. The district court
therefore concluded that the defendants were entitled to
summary judgment on Mr. Hanners’s First Amendment
claim. This claim is not at issue on appeal.
10
The district court noted, and the parties appear to agree,
that Mr. Hanners is attempting to prove discrimination by
the direct method only.
No. 11-1754 15
under the direct method, Mr. Hanners “ ‘must have
provided direct evidence of—or sufficient circumstantial
evidence to allow an inference of—intentional racial dis-
crimination.’ ” R.38 at 24 (quoting Montgomery v. Am.
Airlines, Inc., 626 F.3d 382, 393 (7th Cir. 2010)). The
court noted that Mr. Hanners did not offer any admis-
sions of discrimination of the kind that would con-
stitute direct evidence, but rather relied upon circum-
stantial evidence to advance his claim. In reviewing
the circumstantial evidence offered by Mr. Hanners,
the court noted that Mr. Hanners had failed to compare
his thirty-day suspension to similarly situated persons,
i.e., the other individuals who had forwarded the
Barbie Doll email. Mr. Hanners instead compared his
punishment to that of eighteen individuals, only three
of whom had misused ISP equipment. All had been
involved in activities unrelated to the Barbie Doll email.
The court noted that the list provided by Mr. Hanners
did not identify any instances of conduct deemed of-
fensive for reasons of race, sexual orientation or gender,
nor did it indicate that any of the individuals listed
were non-Caucasian. The court therefore concluded that
Mr. Hanners had “provide[d] no evidence that employees
outside the protected class (i.e.[,] non-Caucasians) re-
ceived systematically better treatment than Caucasians
such as Hanners.” R.38 at 27-28.
Next, the district court explained that Mr. Hanners
could “alternatively show discrimination by establishing
‘ambiguous statements or behavior toward other em-
ployees in the protected group that taken together allow
an inference of discriminatory intent.’ ” Id. at 28 (quoting
16 No. 11-1754
Montgomery, 626 F.3d at 393). The court acknowledged
that Mr. Hanners “trie[d] to create an inference of dis-
criminatory intent by asserting that: the e-mail would
not have been problematic if he were an Afri-
can[]American; irregularities [existed] in the investiga-
tion of the e-mail incident; and Hanners’[s] supervisor
was pressured to reduce Hanners’[s] grade when
assessing his job performance.” Id. at 28. The court deter-
mined, however, that Mr. Hanners’s assertion that
the email would not have been problematic if he were
African-American, did “not merit much discussion”
because, without any supporting evidence, the assertion
amounted to nothing more than “mere speculation.” Id.
at 28-29.
The court then turned to the facts surrounding the
investigation of the email incident. The court acknowl-
edged Mr. Hanners’s contention that the ISP deviated
from well-established internal policy during the investi-
gation of the email incident because there was neither
a complainant nor a completed EEO intake form. Al-
though the court recognized that an employer’s de-
parture from its own internal policies might serve as
circumstantial evidence that an employer’s stated
reason for an adverse employment action is pre-
textual, it understood the case law to require “more than
a deviation from an employer’s internal policy” alone
in order to withstand summary judgment. Id. at 30. In
any event, the court explained that there was no devia-
tion from ISP policy, despite the fact that an intake ques-
tionnaire never was completed, because Captain Fidler
No. 11-1754 17
had submitted the CADM to DII. The court further con-
cluded that Mr. Hanners’s assertion that the with-
drawal of the investigation from Captain Fidler and
Lieutenant Anderson-Martin was evidence of discrim-
ination was at odds with the facts. The court found
that the investigation was assigned to Captain Fidler’s
office for the limited purpose of verifying the origin
of the email.
Finally, the court turned to Mr. Hanners’s assertion
that the defendants improperly had used the email inci-
dent to impact his job performance rating during the
2008 ratings and promotions period. The court first ex-
plained that, as Mr. Hanners’s supervisor and the
person charged with grading his job performance, it
was Lieutenant Anderson-Martin’s conduct that was
relevant to Mr. Hanners’s discrimination claim based
upon the ratings process. The court concluded that,
despite the fact that Lieutenant Anderson-Martin felt
pressure to reduce Mr. Hanners’s rating on the basis of
the email incident, there was no evidence that she was
ordered by any of the defendants to lower Mr. Hanners’s
grade. Second, the court noted that Mr. Hanners was
permitted to challenge his grade, and that Captain Fidler,
Lieutenant Anderson-Martin and Lieutenant Colonel
Stallworth unanimously had decided to uphold Com-
mander Woods’s recommendation that the grade not
be raised. The court therefore concluded that, because
Mr. Hanners did not allege any discriminatory animus
against Captain Fidler and Lieutenant Anderson-
Martin, Mr. Hanners “would have received the same
grade regardless of the Defendants’ alleged animus.” Id.
18 No. 11-1754
at 35.11 The court therefore granted summary judgment
for the defendants on Mr. Hanners’s §§ 1981 and
1983 claims.12
II
DISCUSSION
A. Standard of Review
We review a district court’s decision to grant a motion
for summary judgment de novo, construing all the facts
in the light most favorable to the nonmoving party,
Mr. Hanners. See Coffman v. Indianapolis Fire Dep’t, 578
F.3d 559, 563 (7th Cir. 2009). Summary judgment is
proper where “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as
11
In addition, Mr. Hanners asserted that the defendants were
not entitled to qualified immunity. Because the district court
concluded that Mr. Hanners did not establish a prima facie
case for discrimination, and that the defendants, therefore,
were entitled to summary judgment, the court did not con-
sider the issue of qualified immunity.
12
Mr. Hanners also asserted, in his Memorandum in Opposi-
tion to Summary Judgment, that summary judgment would
violate his Seventh Amendment right to a jury trial. The
district court correctly concluded that the disposition of
Mr. Hanners’s case on a motion for summary judgment did
not deprive him of his Seventh Amendment right to a trial
by jury. See Burks v. Wisconsin Dep’t of Transp., 464 F.3d 744,
759 (7th Cir. 2006). This issue also is not raised on appeal.
No. 11-1754 19
a matter of law.” Fed. R. Civ. P. 56(a). “A genuine issue
of material fact arises only if sufficient evidence
favoring the nonmoving party exists to permit a jury
to return a verdict for that party.” Faas v. Sears, Roebuck &
Co., 532 F.3d 633, 640-41 (7th Cir. 2008) (internal quota-
tion marks omitted).
B. Race Discrimination and the Direct Method of Proof
Mr. Hanners contends that he has demonstrated
that race was a motivating factor in the decisions to
suspend him for thirty days and to lower his promotion
rating. In his view, the district court failed to apply
the proper standard in evaluating whether he had pro-
duced sufficient evidence to avoid summary judgment
under the direct method.
A plaintiff proceeding under the direct method “must
demonstrate a triable issue as to whether discrimina-
tion motivated the adverse employment action.” Davis v.
Time Warner Cable of Se. Wis., L.P., 651 F.3d 664, 672
(7th Cir. 2011); see also Sheehan v. Daily Racing Form,
Inc., 104 F.3d 940, 940 (7th Cir. 1997). “A plaintiff pro-
ceeding according to the direct method may rely on
two types of evidence: direct evidence or circum-
stantial evidence.” Rudin v. Lincoln Land Cmty. Coll., 420
F.3d 712, 720 (7th Cir. 2005). “Direct evidence is evidence
which, if believed by the trier of fact, will prove the
particular fact in question without reliance upon infer-
ence or presumption.” Eiland v. Trinity Hosp., 150 F.3d 747,
20 No. 11-1754
751 (7th Cir. 1998) (internal quotation marks omitted).1 3
“Circumstantial evidence of discrimination . . . allows
the trier of fact ‘to infer intentional discrimination by
the decisionmaker.’ ” Rudin, 420 F.3d at 720 (emphasis in
original) (quoting Rogers v. City of Chi., 320 F.3d 748, 753
(7th Cir. 2003)); see also Montgomery v. Am. Airlines, Inc.,
626 F.3d 382, 393 (7th Cir. 2010). We have explained
that “[t]he relevant circumstantial evidence in discrim-
ination cases ordinarily consists of indicators showing
what may be ‘the real motivating force for employ-
ment decisions.’ ” Montgomery, 626 F.3d at 393 (quoting
Coffman, 578 F.3d at 563). We further have described
the circumstantial evidence capable of sustaining a jury
verdict as a “convincing mosaic of circumstantial
evidence . . . that point[s] directly to a discriminatory
reason for the employer’s action.” Davis v. Con-Way
Transp. Cent. Express, Inc., 368 F.3d 776, 783 (7th Cir.
2004) (alterations in original) (internal quotation marks
omitted). Mr. Hanners challenges the district court’s
reliance upon this language and asserts that, by using
it, the court applied a heightened standard to the
13
See also Plair v. E.J. Brach & Sons, Inc., 105 F.3d 343, 347 (7th
Cir. 1997) (recognizing that if an employer stated that an
employee was discharged “because he is black,” that would
be direct evidence of discrimination); Mojica v. Gannett Co.,
7 F.3d 552, 561 (7th Cir. 1993) (en banc) (acknowledging
as direct evidence of discrimination a manager’s statement
that an employee would not be promoted because she was
not “a black male”).
No. 11-1754 21
evidence a plaintiff must offer under the direct method
in order to avoid summary judgment.
In Sylvester v. SOS Children’s Villages Illinois, Inc., 453
F.3d 900 (7th Cir. 2006), we clarified that the “mosaic”
language, first used by this court in Troupe v. May Depart-
ment Stores Co., 20 F.3d 734, 737 (7th Cir. 1994), was not
intended to “promulgate a new standard.” Sylvester, 453
F.3d at 904. Indeed, we consistently have employed
this language to articulate the principle that, for a
plaintiff proceeding under the direct method to defeat
summary judgment using circumstantial evidence,
“[a]ll that is required is evidence from which a rational
trier of fact could reasonably infer that the defendant
had [taken an adverse employment action against] the
plaintiff because the latter was a member of a protected
class.” Troupe, 20 F.3d at 737. We therefore cannot ac-
cept Mr. Hanners’s argument that the district court incor-
rectly identified and applied the standard for evalu-
ating a plaintiff’s proffered circumstantial evidence.
With this background, we turn to an evaluation of
the evidence upon which Mr. Hanners relies. First,
Mr. Hanners submits a list of other ISP employees who
had been disciplined by the ISP. He contends that a
comparison between himself and the eighteen listed
individuals demonstrates that other employees received
less severe punishment despite engaging in miscon-
duct that Mr. Hanners believes to be similar to or
worse than his own. However, Mr. Hanners has failed
to provide evidence that any of the listed individuals are
22 No. 11-1754
non-Caucasian.14 Nor does Mr. Hanners provide any evi-
dence that non-Caucasians had sent emails containing
similar content on the ISP computer system and had
received less severe punishment. We therefore con-
clude that he has failed to demonstrate that individuals
outside the protected class received systematically
better disciplinary treatment. Absent such circumstantial
evidence, Mr. Hanners’s assertion that he would not
have been suspended for thirty days had he been an
African American amounts to mere speculation, which
this court consistently has held is insufficient to avoid
summary judgment. See, e.g., Karazanos v. Navistar Int’l
Transp. Corp., 948 F.2d 332, 337 (7th Cir. 1991).
Furthermore, Mr. Hanners did not demonstrate that
the individuals listed were “directly comparable to [him]
in all material respects.” Patterson v. Avery Dennison Corp.,
281 F.3d 676, 680 (7th Cir. 2002) (internal quotation
marks omitted). Therefore, he has failed to establish
that the listed individuals were in fact similarly situated
to him. We have held that “[a]n employee is similarly
situated to a plaintiff if the two employees deal with
the same supervisor, are subject to the same standards,
14
See Montgomery v. Am. Airlines, Inc., 626 F.3d 382, 393 (7th
Cir. 2010) (stating that one accepted category of circumstantial
evidence is “evidence of systematically better treatment of
employees outside the protected class” (internal quotation
marks omitted)); Troupe v. May Dep’t Stores Co., 20 F.3d 734,
736 (7th Cir. 1994) (explaining that comparators must be
“similarly situated to the plaintiff other than in the charac-
teristic . . . on which an employer is forbidden to base a dif-
ference in treatment”).
No. 11-1754 23
and have engaged in similar conduct without such dif-
ferentiating or mitigating circumstances as would dis-
tinguish their conduct or the employer’s treatment of
them.” Fane v. Locke Reynolds, LLP, 480 F.3d 534, 540
(7th Cir. 2007). Therefore, when a plaintiff alleges that
he received harsher discipline than other employees,
it is necessary for the court to consider whether the
employees engaged in the same conduct for which the
plaintiff was disciplined. Here, only three of the indi-
viduals listed were disciplined for actions involving
the improper use of ISP equipment (two incidents in-
volving pornographic material and one incident
involving an email containing a video about the
“F-word”).15 In addition, there is no evidence that any
of the listed individuals were disciplined for conduct
involving the sort of racial and gender stereotyping
involved here. Moreover, Mr. Hanners has not shown
that any of the individuals whom he offers as com-
parators had the same leadership responsibilities as
he had.
It is also noteworthy that Mr. Hanners did not
provide evidence regarding the disciplinary measures
taken against the three other ISP employees who had
been reprimanded for disseminating the Barbie Doll email.
Nor did he provide evidence regarding whether any of
15
As the district court aptly noted, it is unclear whether two
of the three incidents, the incidents involving the pornographic
material, involved the improper use of an ISP computer or
the patrolmen’s personal computers.
24 No. 11-1754
the listed individuals similarly had refused to accept
settlement offers from the Board.1 6
A plaintiff also may show discrimination by estab-
lishing “ambiguous statements or behavior toward other
employees in the protected group that taken together
allow an inference of discriminatory intent.” Montgomery,
626 F.3d at 393 (internal quotation marks omitted).
Here, Mr. Hanners provides statements made by
Colonel Nelson, Lieutenant Colonel Adams, Commander
Woods and Lieutenant Colonel Stallworth, who said
that they found some of the content in the email to be
racially offensive.17 Although the defendants’ descrip-
tions of the email pertain to race, they are merely
probative of the fact that certain individuals found
aspects of the email to be offensive and do not point
to any racial animus against Mr. Hanners himself.
Mr. Hanners has failed to identify a single instance
where the defendants engaged in behavior or made
comments that suggested a discriminatory attitude
against Caucasians generally or against him because
he is a Caucasian.1 8 There is evidence that Colonel
16
As noted earlier, Mr. Hanners does not challenge the fact
that his thirty-day suspension would have been shortened to
ten or fifteen days if he had accepted the Disciplinary
Review Board’s settlement offer.
17
Director Trent did not express an opinion regarding
the offensive nature of the email.
18
Mr. Hanners’s circumstances, therefore, are different from
those where decisionmakers made derogatory comments
(continued...)
No. 11-1754 25
Nelson, Lieutenant Colonel Adams, Commander Woods
and Lieutenant Colonel Stallworth were upset by the
content of Mr. Hanners’s email and adamant that he
should be disciplined harshly because of it. However,
there is no evidence to suggest that the focus of the de-
fendants’ comments or actions were related to Mr.
Hanners’s race as opposed to the inappropriate nature
of his conduct. Although Mr. Hanners may believe that
the defendants’ statements are evidence of racial
animus, the “subjective beliefs of the plaintiff . . .
are insufficient to create a genuine issue of material
fact.” McMillian v. Svetanoff, 878 F.2d 186, 190 (7th Cir.
1989).
Mr. Hanners next contends that the atypical handling
of his investigation is evidence of discrimination. In
particular, he asserts that the ISP’s deviation from its
18
(...continued)
about an employee’s gender or race shortly before an adverse
employment action was taken. See Phelan v. Cook Cnty., 463
F.3d 773, 782 (7th Cir. 2006) (concluding that a female plaintiff
had produced sufficient evidence to reach the jury where
she was told that she was trying to work “in a man’s world”
and repeatedly abused and instructed that her work-
place was “no place for a woman” shortly before she was
terminated); Volovsek v. Wisconsin Dep’t of Agric., Trade &
Consumer Prot., 344 F.3d 680, 689-90 (7th Cir. 2003) (concluding
that a female plaintiff had produced sufficient evidence to
reach the jury under the direct method where she overheard
her supervisors speaking about “keeping them barefoot and
pregnant” shortly before she was denied a promotion).
26 No. 11-1754
internal policy as stated in PER-032 is circumstantial
evidence of racial discrimination. ISP policy PER-032,
III.B.1 provides:
When an employee, supervisor, or manager
reports allegations of discrimination, harassment
or retaliation to the EEO Office, the EEO Office
will send the employee reporting such discrim-
ination, harassment, or retaliation an EEO Com-
plaint Intake Questionnaire, form ISP1-36, within
5 calendar days of receiving the report.
R.29-2 at 17. Mr. Hanners asserts that no complaint
was filed and that no one completed an intake form.
He admits, however, that Captain Fidler, as his super-
visor, submitted a CADM upon concluding that the
email indeed originated from Mr. Hanners. Suzanne
Bond, Chief of the ISP EEO office, stated during her
deposition that there are two ways in which an EEO
investigation may be initiated. She acknowledged that
an employee may file a complaint directly with her
office and, in doing so, must complete an intake ques-
tionnaire. However, she also confirmed that a super-
visor may initiate an EEO investigation with a signed
CADM or by writing a memorandum to the Chief of
EEO requesting an investigation. Therefore, as the
district court concluded, the fact that an intake ques-
tionnaire never was completed is “immaterial given
the submission of Fidler’s CADM.” R.38 at 32. The evi-
dence shows, and Mr. Hanners does not refute, that
despite the language in PER-032, his investigation was
initiated in accordance with ISP policy.
No. 11-1754 27
Significant, unexplained or systematic deviations
from established policies or practices can no doubt be
relative and probative circumstantial evidence of dis-
criminatory intent. In Giacoletto v. Amax Zinc Co., 954
F.2d 424, 427 (7th Cir. 1992), we held that a jury rea-
sonably could have concluded that, because the
employer had “neglected to follow the procedures for
helping employees to overcome their deficiencies, [it]
had fired [the plaintiff] . . . to retaliate for his refusal to
retire.” There, the employer had not counseled the em-
ployee that his work had fallen below acceptable
levels, had not developed a plan to bring his per-
formance up to acceptable levels and had kept no
written records of any counseling sessions with him. See
id. In reaching our conclusion, we explained that,
despite the fact that the defendant’s witnesses “claimed
that the company never applied these procedures
to managerial personnel, the express language of the
corporate policy statement indicated that the policy
applied to [the plaintiff].” Id. Similarly, in Rudin, we
concluded that the employer’s departure from its
stated hiring policies constituted “circumstantial evi-
dence of discrimination.” 420 F.3d at 721. However,
Rudin is different from the present case because, in addi-
tion to the employer’s deviation from hiring policy, a
Caucasian plaintiff had demonstrated that the deviation
had resulted in the hiring of an African-American candi-
date, who ranked second to last of all of the applicants
and had been reinserted into the candidate pool after pre-
viously having been eliminated. Further, the reinsertion
followed a committee chairperson’s repeated statements
28 No. 11-1754
regarding pressure to hire a minority. See id. at 722-24.
Here, as the district court noted, the fact that Captain
Fidler submitted the CADM to DII appears to be “in
accordance with ISP policy.” R.38 at 32.
Mr. Hanners correctly asserts that the usual procedure
of having a complainant complete an intake question-
naire was not followed. However, the ISP has offered
an explanation for this seeming deviation from its pro-
cedures by noting that the procedures followed were
appropriate when a supervisor initiates the process.
Indeed, as we noted earlier, Mr. Hanners offers no
explicit contradiction for that explanation. See James v.
Sheahan, 137 F.3d 1003, 1007 (7th Cir. 1998) (declining
to consider a deviation of regular practice relevant and
probative of discrimination when plaintiff offered
nothing to refute defendant’s explanation); see also
Briggs v. Potter, 463 F.3d 507, 516 (6th Cir. 2006). More-
over, here the ISP’s deviation from its procedures is
hardly offered as a justification for the ultimate action
taken against Mr. Hanners. The deviation is far more
tangential and involves simply the manner in which
the charge was initiated. See Randle v. City of Aurora, 69
F.3d 441, 454 (10th Cir. 1995). Indeed, a good deal of the
concern about Mr. Hanners’s conduct was based on
the fact that, as a supervisor, he had special obligations
to the ISP and its employees to maintain an atmosphere
of even-handedness and trust in the ISP. Under these
circumstances, a senior officer initiating a disciplinary
process in a manner different from that employed in
other employee complaints is not indicative of racial
animus.
No. 11-1754 29
Additionally, we must consider the deviation, along
with other circumstantial evidence, in order to deter-
mine whether there is sufficient evidence that Mr.
Hanners was discriminated against on account of his
race such that it “warrants submission of the issue
to a trier of fact.” Rudin, 420 F.3d at 724. Here,
given the lack of circumstantial evidence supporting
Mr. Hanners’s claim of racial discrimination, we con-
clude that the minor deviation from written policy
is insufficient to avoid summary judgment.
Mr. Hanners also points to another alleged procedural
discrepancy. He notes that DII initially asked Captain
Fidler to investigate the email incident, but later
referred the matter to EEO. According to Mr. Hanners,
the investigation was “taken away” from Captain Fidler
and Lieutenant Anderson-Martin because they “were not
going to impose the desired discipline.” Appellant’s Br. 24.
Again, Mr. Hanners’s mere speculation, without more,
is insufficient to avoid summary judgment. Karazanos,
948 F.2d at 337.
Mr. Hanners submits no evidence that suggests that
the decision to refer the matter to the EEO office was
motivated by any type of racial animus. Rather, Captain
Fidler testified in his deposition that he believed that
removing the investigation from his work unit was in
keeping with other decisionmaking processes within
the ISP. He explained that, although such a transfer of
an investigation often causes confusion within the unit,
it is not out of the ordinary. R.32-6 at 1 (Fidler Dep. 42).
Moreover, given the fact that the subject matter of the
30 No. 11-1754
investigation was well within the purview of the EEO
office, we agree with the district court’s conclusion that
the series of events that led to the EEO investigation
was indeed “unremarkable.” R.38 at 32.
Finally, Mr. Hanners argues that ISP policy was
not followed in the promotion ratings process because
Lieutenant Anderson-Martin, his supervisor, was not
permitted the requisite discretion in rating Mr. Hanners,
nor was she permitted to respond to Mr. Hanners’s chal-
lenge in a manner that she deemed appropriate.
Mr. Hanners does not provide any written or oral ISP
policy that supports this assertion. However, it is clear
from the evidence presented that Lieutenant Anderson-
Martin was under pressure with regard to the handling
of Mr. Hanners’s promotion and challenge to the
proposed disciplinary action.
The district court correctly identified that it was Lieu-
tenant Anderson-Martin’s conduct, as the decision-
maker, that was relevant with respect to this aspect of
Mr. Hanners’s discrimination claim. See, e.g., Rogers, 320
F.3d at 754 (explaining that “[a] decisionmaker is the
person responsible for the contested decision” (internal
quotation marks omitted)). Here, the contested decision
is the lowering of Mr. Hanners’s promotion rating
to reflect the email incident. Therefore, at the outset, Mr.
Hanners must demonstrate that Lieutenant Anderson-
Martin ultimately lacked the authority to determine
his promotion rating. See Venturelli v. ARC Cmty. Servs.,
Inc., 350 F.3d 592, 600 (7th Cir. 2003). We also must evalu-
ate whether the ratings process “was a sham or conduit
No. 11-1754 31
for [the defendants’] alleged racial animosity.” Willis v.
Marion Cnty. Auditor’s Office, 118 F.3d 542, 547 (7th Cir.
1997). The fact that Commander Woods, Lieutenant
Colonel Stallworth and Lieutenant Colonel Adams
did not order Lieutenant Anderson-Martin to lower
Mr. Hanners’s grade does not necessarily mean that
they did not act as decisionmakers or exert undue in-
fluence over her decision. See, e.g., Wallace v. SMC Pneumat-
ics Inc., 103 F.3d 1394, 1400 (7th Cir. 1997) (concluding
that a formally subordinate employee should be treated
as a decisionmaker because he was “the real cause of
the adverse employment action”). However, even if
we were to assume that, given the influence they
exerted over Lieutenant Anderson-Martin, Commander
Woods, Lieutenant Colonel Stallworth and Lieutenant
Colonel Adams were indeed the “decisionmakers” with
regard to the handling of Mr. Hanners’s promotion
rating, Mr. Hanners has failed to provide any evidence
to support his assertion of racial animus on the part
of these defendants. The evidence presented with regard
to the ratings session instead demonstrates a strong
response on the part of the defendants based upon
the content of the email sent by Mr. Hanners and
their belief that he should be disciplined severely. In
addition, Captain Fidler and Lieutenant Anderson-
Martin ultimately joined Lieutenant Colonel Stallworth’s
rejection of Mr. Hanners’s challenge to his grade.
32 No. 11-1754
Conclusion
For the foregoing reasons, the judgment of the district
court is affirmed.
A FFIRMED
3-19-12