In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2764
IYARE E GONMWAN,
Plaintiff-Appellant,
v.
C OOK C OUNTY SHERIFF’S D EPARTMENT, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:06-cv-04764—Amy J. St. Eve, Judge.
A RGUED F EBRUARY 25, 2010—D ECIDED A PRIL 22, 2010
Before C UDAHY, E VANS, and SYKES, Circuit Judges.
E VANS, Circuit Judge. Iyare Egonmwan was charged
with custodial sexual misconduct while employed as a
correctional officer in the Cook County jail’s women’s
division and subsequently terminated.1 After being ac-
1
Today, we also decide the case of Swearnigen-El v. Cook County
Sheriff’s Department, No. 09-2709, which arises from the same
(continued...)
2 No. 09-2764
quitted of the charges, Egonmwan brought this lawsuit
against the Cook County Sheriff’s Department, which
operates the Cook County Department of Corrections
(CCDOC) and Sheriff’s Police (CCSP); the County of Cook;
the sheriff, Michael Sheahan; two CCDOC directors,
Callie Baird and Scott Kurtovich; the superintendent of
the women’s division, Katie Harrison; the chief of the
CCDOC’s Internal Affairs Division (IAD), Timothy
Kaufmann, deceased; and an IAD investigator, Miriam
Rentas. Egonmwan alleges that the defendants initiated a
frivolous criminal prosecution and ultimately terminated
him because of his gender, race, and protected speech.
The defendants, on the other hand, contend that they
terminated Egonmwan because of his sexual misconduct
and were uninvolved with his criminal proceedings. The
district judge sided with the defendants, granting their
motion for summary judgment, see Egonmwan v. Cook
County Sheriff’s Dep’t, No. 06 C 4764, 2009 WL 1139150
(N.D. Ill. Apr. 27, 2009), and denying Egonmwan’s sub-
sequent motion for reconsideration. Egonmwan now
appeals.
1
(...continued)
investigation of custodial sexual misconduct in the women’s
division. Like Egonmwan, Swearnigen was charged but ac-
quitted after a bench trial, by the same state court judge. He
then brought a lawsuit, by the same counsel, against the
defendants, alleging gender and race discrimination (among
other things), which was dismissed on summary judgment.
See Swearnigen-El v. Cook County Sheriff’s Dep’t, No. 05 C 1493,
2009 WL 1849809 (N.D. Ill. June 26, 2009).
No. 09-2764 3
At this stage in the proceedings we must construe all
facts and reasonable inferences in favor of Egonmwan.2
As so viewed, the facts are that CCDOC General Order 4.1
provides that “serious misconduct,” such as disregarding
federal, state, or local laws or engaging in conduct unbe-
coming to an employee, is grounds for disciplinary
action. General Order 3.8 forbids employees from
engaging in “sexual conduct or sexual relationships,
physical in nature, with a person in the custody and care
of the CCDOC” and further states that a detainee is
incapable of consent. Illinois law similarly provides that
a penal system employee commits the offense of custodial
sexual misconduct by “engag[ing] in sexual conduct or
sexual penetration with a person who is in the custody
of that penal system” and that an inmate is incapable
of consent. See 720 ILCS 5/11-9.2.
Egonmwan, an African-American 3 male, began working
as a correctional officer at the jail in 1999 and transferred
to the women’s division in the summer of 2001. On Sep-
tember 1, 2002, Harrison de-deputized Egonmwan for
violating the jail’s ethics and standard of conduct re-
2
The defendants criticize the statement of facts section of
Egonmwan’s appellate brief for containing inaccurate cita-
tions. We were able to locate the vast majority of Egonmwan’s
citations and therefore we decline the defendants’ request
to impose sanctions.
3
Egonmwan refers to his race as “African-American” so we
will do the same. Swearnigen, in the companion case, refers
to himself as “Black” so in his case we will do the same.
4 No. 09-2764
garding an incident that occurred in April 2001—that is,
before his transfer to the women’s division. On Septem-
ber 11, 2002, Egonmwan filed an internal sexual harass-
ment complaint against Harrison, claiming that she used
sexual innuendos and pressured him for dates. The
IAD investigated the claim and deemed it unfounded. A
week later, Harrison told Egonmwan, while referring to
a terminated employee, “There’s someone else that will
be getting out of here real soon.” A week after that,
Egonmwan was suspended for 10 days without pay,
again regarding the April 2001 incident. (He never
served the sentence, however, because he was still
grieving it when he was arrested in August 2003.)
In January 2003, 4 Harrison told Kenneth Swearnigen-El,
another African-American correctional officer in the
women’s division, that she wanted to remove all the men
from the women’s division. In February 2003, Egonmwan
received a performance evaluation indicating that he
was meeting standards overall but needed improvement
on “promptness/absences.” In March or April 2003,
Nicole Burns, a female detainee, gave Harrison a letter
alleging that male correctional officers were engaging
in sexual intercourse with her and other detainees in the
4
Egonmwan now argues, without citing to the record, that this
conversation took place “[s]ometime after May 2003 but
before July 3, 2003.” The defendants, on the other hand, point
to three places in the record where Swearnigen admitted that
the conversation took place in January 2003. It therefore
would be unreasonable to accept Egonmwan’s contention as
to when the conversation occurred.
No. 09-2764 5
women’s division. The letter did not name any individual
officers. Harrison met with Burns to discuss the letter
and made a report, which stated that Burns named
officers Robert Buchanan and Fred McBride, both African-
American, as culprits. In her deposition several years
later, Harrison initially testified inaccurately that Burns
named Egonmwan.
Harrison sent the letter to Kurtovich and Kaufmann,
who then forwarded the allegations to the CCSP. Detec-
tives from the CCSP conducted interviews of numerous
female detainees. Approximately 20 male officers, about
half of them African-American, were “suspects of inter-
est,” including Buchanan and McBride. The detectives
reported their findings to the Cook County State’s At-
torney.
In June 2003, two assistant state’s attorneys (ASAs)
began interviewing detainees. They did not interview
the defendants. Harrison and Rentas attended some of
the detainees’ interviews and purportedly questioned
them, but the defendants otherwise were not involved.
During the investigation, detainee Aurora Acuna told
the ASAs that she and her cell mate, Portia Warrington,
had a sexual encounter with Egonmwan. Warrington
was interviewed and confirmed Acuna’s story. Acuna
also said that Egonmwan agreed to pay her for sexual
favors and deliver the money to her brother. The ASAs
met with Aurora’s brother, Gonzalo. He told them that,
on two occasions, Egonmwan drove to his house to
deliver money for Acuna.
On July 30, 2003, the IAD de-deputized Egonmwan. On
August 13, 2003, the CCSP arrested him. That same day,
6 No. 09-2764
the ASAs approved felony charges for custodial sexual
misconduct against Egonmwan. Swearnigen and another
African-American officer, James Anthony, were also
charged. The ASAs testified that they did not consult
with the defendants on their decisions and that those
three officers were charged due to consistent witnesses
and corroborative evidence. Three days later, Egonmwan
was suspended with pay pending a hearing pursuant
to Cleveland Board of Education v. Loudermill, 470 U.S. 532
(1985), as only the merit board could terminate his em-
ployment. See 55 ILCS 5/3-7012. One Caucasian officer,
Paul Usyak, was also de-deputized and suspended
with pay pending a Loudermill hearing for living with a
former inmate. (Usyak was not, however, criminally
charged.) The women’s division was subsequently con-
verted into a unit monitored almost exclusively by
female officers. The female-only policy was deemed a
bona fide occupational qualification. Male officers in
that division were transferred, not terminated.
On August 22, 2003, the hearing board sustained the
charges against Egonmwan, suspending him without
pay pending merit board action. Sheahan then filed a
merit board complaint seeking Egonmwan’s removal for
violating general orders. The merit board hearing,
which initially began in July 2004, was postponed until
December 2004 to enable Egonmwan to obtain legal
representation. At that time, Egonmwan was denied an
additional continuance and left the hearing, foregoing
his option to proceed pro se. Warrington and Acuna
testified at the hearing regarding their sexual contact
with Egonmwan. Acuna’s brother testified about re-
No. 09-2764 7
ceiving money from Egonmwan. And a jail administrator
authenticated Egonmwan’s records, which confirmed that
he was assigned to Warrington’s and Acuna’s tier on the
day of their alleged sexual encounter. No defendant
testified. In January 2005, the board issued its order,
finding by a preponderance of evidence that Egonmwan
violated General Orders 3.8 and 4.1 and terminating
his employment effective August 25, 2003. Egonmwan
did not appeal the decision.
Egonmwan’s criminal proceedings also moved forward.
In September 2003, a grand jury indicted Egonmwan. A
bench trial ensued. Again, neither the defendants nor
Egonmwan testified. Warrington and the Acuna siblings,
however, did testify consistent with their earlier state-
ments. The ASAs agreed to recommend reductions in
the two detainees’ sentences in exchange for their testi-
mony. Despite this evidence, Egonmwan was acquitted
in August 2004.5
After the trial, Egonmwan filed a four-count complaint
alleging (1) race discrimination under 42 U.S.C. § 1981;
(2) gender and race discrimination under 42 U.S.C. § 1983;
(3) retaliation under 42 U.S.C. § 1981; and (4) First Amend-
ment retaliation under 42 U.S.C. § 1983. In June 2008, a
few weeks before the close of discovery, Egonmwan
mailed a copy of the declaration of a female detainee,
5
The state trial judge found no corroboration for the de-
tainees’ testimony, which he discounted because they had
“motivations to lie.” He also found Gonzalo Acuna’s testi-
mony incredible.
8 No. 09-2764
Latoya Williams, to the defendants. (Williams was inter-
viewed by the CCSP investigators but not the ASAs.) In
the declaration, Williams claimed that investigators
pressured her to falsely implicate Egonmwan, which
Williams refused to do. Williams also stated that Acuna
and Warrington told her that investigators told them to
lie about having sex with officers. After receiving the
declaration, the defendants scheduled Williams’s deposi-
tion, but she failed to appear. The defendants then filed
a motion for a rule to show cause. The district judge
denied the motion but barred Egonmwan from using
Williams’s declaration.
After the defendants moved for summary judgment,
Egonmwan dropped his § 1981 retaliation claim. Three
months later, Williams was deposed in the related
Swearnigen case. The district court subsequently granted
the defendants’ motion for summary judgment on all of
Egonmwan’s remaining claims. Egonmwan moved to
reconsider the judgment and also to supplement his
response with Williams’s deposition. The district judge
denied the motion, finding that “Rule 59(e) is not a vehicle
for Egonmwan’s counsel to undue her own failures,
namely, her failure to take and defend a timely deposi-
tion of Williams, especially because counsel had
contact with Williams from at least June 2008.”
We review the grant of summary judgment de novo.6
Nagle v. Vill. of Calumet Park, 554 F.3d 1106, 1114 (7th Cir.
6
Egonmwan expressly waives his right to appeal the district
court’s grant of summary judgment on his First Amendment
retaliation claim.
No. 09-2764 9
2009). Summary judgment is appropriate where the
admissible evidence shows that “there is no genuine
issue as to any material fact and that the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c)(2). “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 quotation marks omitted).
To avoid summary judgment on his gender and race
discrimination claims, Egonmwan must either point to
enough evidence, whether direct or circumstantial, of
discriminatory motivation to create a triable issue (the
“direct” method) or establish a prima facie case under
the McDonnell Douglas formula (the “indirect” method).7
Paz v. Wauconda Healthcare & Rehab. Ctr., 464 F.3d 659, 665
(7th Cir. 2006). A prima facie case under the indirect
method requires Egonmwan to prove that (1) he is a
member of a protected class; (2) his job performance
met the CCDOC’s legitimate expectations; (3) he
suffered an adverse employment action; and (4) another
similarly situated individual outside his protected class
was treated more favorably. Burks v. Wis. Dep’t of Transp.,
464 F.3d 744, 750-51 (7th Cir. 2006). After making this
showing, if the defendants counter with legitimate, nondis-
7
The same requirements for proving discrimination apply
to claims under Title VII, § 1981, and § 1983. See Humphries
v. CBOCS West, Inc., 474 F.3d 387, 403-04 (7th Cir. 2007); Davis
v. Wis. Dep’t of Corrections, 445 F.3d 971, 976 (7th Cir. 2006).
10 No. 09-2764
criminatory reasons for their actions, Egonmwan would
also have show that those reasons were pretextual. Id.
at 751.
Egonmwan purports to establish gender discrimination
via the direct method. To this end, he points to (1) Harri-
son’s September 2002 statement to Egonmwan, while
referring to a terminated employee, that “[t]here’s some-
one else that will be getting out of here real soon”;
(2) Harrison’s January 2003 statement to Swearnigen that
she wanted to remove all men from the women’s division;
and (3) the August 2003 policy change permitting
only female officers to monitor the women’s division.
Although stray remarks are generally insufficient
to establish discriminatory motivation, an exception may
be made where the remark was (1) made by the
decisionmaker, (2) around the time of the decision, and
(3) in reference to the adverse employment action.
Hemsworth v. Quotesmith.Com, Inc., 476 F.3d 487, 491 (7th
Cir. 2007).
Egonmwan argues that Harrison should be considered
the decisionmaker because she “exercised a significant
degree of influence over the contested decision,” see Sun
v. Bd. of Trustees, 473 F.3d 799, 813 (7th Cir. 2007),
even though it was the merit board that terminated his
employment and the ASAs who brought criminal charges
against him. Specifically, Egonmwan claims that Harrison
initiated the investigation against him, which was the
“fruit of the poisonous tree” that led to his criminal
prosecution and termination. But the only admissible
evidence offered to support this contention is Harrison’s
No. 09-2764 11
deposition testimony, in which she initially testified
(inaccurately) that Burns named Egonmwan. This is not
enough to create a reasonable inference that Harrison
brought Egonmwan’s name into the investigation. Fur-
thermore, how the investigation was triggered is not the
point. Rather, the point is that, after the investigation
was triggered, evidence of misconduct was uncovered
by the CCSP investigators and the ASAs, the ASAs inde-
pendently decided to bring charges, and various wit-
nesses testified about Egonmwan’s wrongdoing in front
of the merit board and a grand jury—all without any
input from Harrison or the other defendants.
Even if Harrison could be considered the decision-
maker, the time lapse between her two statements and
the July and August actions against Egonmwan is too
long to support an inference of discrimination. See, e.g.,
Petts v. Rockledge Furniture LLC, 534 F.3d 715, 722 (7th
Cir. 2008) (collecting cases and finding a gap of three
months insufficient to create a reasonable inference of
discrimination). Nor did her remarks specifically refer
to Egonmwan’s termination. And, as for the August 2003
policy change, it did not affect Egonmwan because it
was implemented only after his arrest and on the heels
of an investigation into custodial sexual misconduct by
male officers. Moreover, male officers in the women’s
division were transferred to other divisions, not termi-
nated. Summary judgment was proper on Egonmwan’s
gender discrimination claim.
Egonmwan attempts to show race discrimination via
both methods of proof. Under the direct method, he
12 No. 09-2764
points to circumstantial evidence, arguing that similarly
situated non-African-American officers were treated
more favorably and that the defendants’ proffered
reasons for taking action against him were pretextual.
Because these are also required elements of his case
under the indirect method, our analyses overlap. See
Hemsworth, 476 F.3d at 490-91 (explaining that the
indirect method “involves a subset of circumstantial
evidence (including the disparate treatment of similarly
situated employees) that conforms to the prescription of
[McDonnell Douglas]”); Venturelli v. ARC Cmty. Servs., Inc.,
350 F.3d 592, 601 (7th Cir. 2003) (explaining that the
“pretext” category of circumstantial evidence under the
direct method is substantially the same as the evidence
required under the indirect method).
The evidence shows that about 20 officers of various
races were “suspects of interest” during the investiga-
tion, including many African-American officers—such as
McBride and Buchanan, the two officers originally named
by Burns—who were not administratively charged by
the defendants. If the defendants had racial animus, we
would have expected them to take action against more
than three of the African-American suspects. Egonmwan
contends, however, that one similarly situated Caucasian
officer, Usyak, was treated more favorably. But the defen-
dants took action against Usyak: like Egonmwan, he
was de-deputized and suspended with pay pending a
Loudermill hearing. Usyak, however, quit before the
merit board could decide whether to terminate his em-
ployment. The fact that Usyak was not criminally charged
is irrelevant because that decision was made by the ASAs.
No. 09-2764 13
Furthermore, Usyak is not similarly situated because
there were no allegations that he was having sexual
relations with a current detainee. Rather, he was sus-
pended because he was living with a former jail detainee.
Meanwhile, the defendants offer legitimate, nondiscrimi-
natory reasons for their actions: (1) Burns’s letter stated
that officers in Egonmwan’s division were having sex
with detainees; (2) Warrington and Acuna said that they
had a sexual encounter with Egonmwan; (3) Acuna said
that Egonmwan agreed to deliver money to her brother
money for sexual favors; (4) Acuna’s brother said that
he received money from Egonmwan; and (5) a jail ad-
ministrator confirmed that Egonmwan was assigned to
Warrington’s and Acuna’s tier on the day of their alleged
sexual encounter. After hearing this testimony, the merit
board found by a preponderance of evidence that
Egonmwan violated general orders. Egonmwan argues that
he was prevented from disputing these allegations but
glosses over his failure to appear at the merit board
hearing or appeal its decision. He also cites a good per-
formance evaluation, but it was issued prior to the inves-
tigation into his alleged sexual misconduct. And the
fact that Egonmwan was acquitted of the criminal charges
does not demonstrate pretext because the state had a
higher burden of proof at trial than was required before
the merit board. See Faas, 532 F.3d at 642 (“Pretext means
a dishonest explanation, a lie rather than an oddity or
an error.”) (internal quotation marks omitted). Because
Egonmwan has not shown discriminatory motivation
under the direct method or carried his burden under the
indirect method, summary judgment was proper on his
race discrimination claim.
14 No. 09-2764
Finally, we turn to the district court’s denial of
Egonmwan’s motion for reconsideration, which asked
the court to consider Williams’s deposition testimony.
We review this decision for an abuse of discretion.
Andrews v. E.I. Du Pont De Nemours & Co., 447 F.3d 510,
515 (7th Cir. 2006). Rule 59(e) allows a court to amend
a judgment “only if the petitioner can demonstrate a
manifest error of law or present newly discovered evi-
dence.” Obriecht v. Raemisch, 517 F.3d 489, 494 (7th Cir.
2008). The district court correctly granted summary
judgment for the defendants, so there was no manifest
error of law. As for new evidence, motions under
Rule 59(e) cannot be used to introduce evidence that
could have been presented earlier. Id. Here, the district
court found that Egonmwan’s counsel was in contact
with Williams before the close of discovery and failed
to offer any valid reason why she did not produce
Williams for a deposition at that time. There is no
evidence that the district court abused its discretion in
denying Egonmwan’s motion.8
In sum, there is no evidence that, as Egonmwan con-
tends, the defendants “perpetuated and fed a hysteria
8
Even if it had been admitted, Williams’s testimony would not
have affected the outcome. Williams claimed that, contrary
to the information in the CCSP report, she never told inves-
tigators that she saw officers having sex with inmates. But there
is no indication that her allegedly fabricated statements
were used to charge or terminate Egonmwan. And Williams’s
testimony regarding statements made by Warrington and
Acuna about investigators offering them deals to falsely
implicate officers is hearsay.
No. 09-2764 15
among the inmates, which rivals that of only Abigail
Williams and her Salem pack, for their own nefarious
purposes.” Rather, Egonmwan—one of many suspects
in a wide-ranging investigation of custodial sexual mis-
conduct—was terminated and prosecuted because of
corroborated evidence of wrongdoing. As a result, his
claims cannot move forward. The judgments of the
district court are A FFIRMED.
4-22-10