In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2709
K ENNETH SWEARNIGEN-E L,
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. 1:05-cv-01493—Elaine E. Bucklo, Judge.
A RGUED JANUARY 15, 2010—D ECIDED A PRIL 22, 2010
Before W OOD , E VANS, and SYKES, Circuit Judges.
E VANS, Circuit Judge. Kenneth Swearnigen-El was
charged with custodial sexual misconduct while em-
ployed as a correctional officer in the Cook County jail’s
women’s division and subsequently resigned.1 After
1
Today, we also decide the case of Egonmwan v. Cook County
Sheriff’s Department, No. 09-2764, which arises from the same
(continued...)
2 No. 09-2709
being acquitted of the charge in state court, Swearnigen
brought this lawsuit against the Cook County Sheriff’s
Department, which operates the Cook County Depart-
ment of Corrections (CCDOC) and Sheriff’s Police
(CCSP); the County of Cook; the sheriff, Michael
Sheahan; two CCDOC directors, Callie Baird and Scott
Kurtovich; and the superintendent of the women’s divi-
sion, Katie Harrison. Swearnigen alleges that the defen-
dants constructively discharged him because of his
gender, race, and protected speech and initiated a mali-
cious prosecution that caused him extreme emotional
distress. The defendants, on the other hand, contend that
they took no adverse action against Swearnigen, and
even if they did, it was because of his sexual misconduct.
The district judge sided with the defendants, dismissing
one claim, see Swearingen-El v. Cook County Sheriff’s Dep’t,
416 F. Supp. 2d 612, 616-17 (N.D. Ill. 2006), and granting
summary judgment on the rest. See Swearnigen-El v.
Cook County Sheriff’s Dep’t, No. 05 C 1493, 2009 WL
1849809 (N.D. Ill. June 26, 2009). Swearnigen now appeals.
1
(...continued)
investigation of custodial sexual misconduct in the women’s
division. Like Swearnigen, Egonmwan was charged but acquit-
ted 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 Egonmwan
v. Cook County Sheriff’s Dep’t, No. 06 C 4764, 2009 WL 1139150
(N.D. Ill. Apr. 27, 2009).
No. 09-2709 3
At this stage in the proceedings we must construe all
facts and reasonable inferences in favor of Swearnigen.2 As
so viewed, the facts are that CCDOC General Order 3.8
forbids employees from engaging in (1) “activities unbe-
coming of county employees, or conduct that reflects
unfavorably to the Office of the Sheriff of Cook County”
and (2) “sexual conduct or sexual relationships, physical
in nature, with a person in the custody and care of the
CCDOC.” It also directs employees to report code viola-
tions as follows:
It shall be the responsibility of every employee to
immediately report to their divisional Superinten-
dent/Unit Head and the department Internal Inves-
tigations Unit verbally and in writing, any fact or
situation which may give rise to or be construed
as corrupt, illegal or unethical behavior and/or a
possible conflict of interest. This shall include, but
not be limited to, reporting anything which could
impair the employee’s performance of their duties
in a fair and impartial manner.
Swearnigen, a black 3 male, began working as a correc-
tional officer at the jail in 1986. He held various positions
2
The defendants criticize the statement of facts section of
Swearnigen’s appellate brief as argumentative. As Swearnigen
concedes, his statement may not have been “the most artfully
stated,” but we decline the defendants’ request to impose
sanctions.
3
Swearnigen refers to his race as “Black” so we will do the
same. Egonmwan, in the companion case, refers to himself
as “African-American” so in his case we will do the same.
4 No. 09-2709
with the labor union that represented correctional officers
from 1990 to 2001. Swearnigen also attempted to bring a
new union into the CCDOC in February 2002. During his
time in the women’s division, Swearnigen voiced concerns
about jail policies and helped other officers with their
complaints against management—activities of which
Harrison was aware.
According to Swearnigen, Harrison and he bumped
heads in January 2003,4 when Harrison told him that her
“first goal as Superintendent was to remove all the men
out of the [women’s] division” and therefore Swearnigen
“must go.” During this same conversation, Harrison
also criticized Swearnigen’s efforts to help another officer
file a harassment complaint against her. Swearnigen re-
sponded that he would “fight” Harrison on her at-
tempt to remove men from the division because it “was
discriminatory and retaliatory.” He also reported his
concerns to other supervisors.
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 women’s division. The letter
4
Swearnigen 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 Swearnigen’s contention as
to when the conversation occurred.
No. 09-2709 5
did not specifically name Swearnigen. Harrison sent the
letter to Kurtovich and the CCDOC’s Internal Affairs
Department (IAD), which then forwarded the allegations
to the CCSP. There is some evidence that Harrison made
a phone call to the IAD that brought Swearnigen’s name
into the investigation, although Harrison disputes this
contention. Detectives from the CCSP conducted inter-
views of female detainees, including Latoya Williams,
who later claimed that detectives threatened her and
offered her bribes to implicate Swearnigen. Approxi-
mately 20 male officers, about half of them black, were
“suspects of interest” in the sweeping investigation. The
detectives reported their findings to the Cook County
State’s Attorney.
In June 2003, two assistant state’s attorneys (ASAs)
began interviewing detainees. They did not interview
Williams or the defendants. Harrison attended some of
the detainees’ interviews and purportedly questioned
them, but the defendants otherwise were not involved.
During the investigation, detainees said that Swearnigen
was having inappropriate relations with detainee Portia
Warrington. Warrington was interviewed by the ASAs
and admitted that she had sex with Swearnigen. Tele-
phone records also showed that between March 1 and
May 31, 2003, Warrington made about 100 collect calls
from the jail to Swearnigen’s personal cell phone and that
he accepted about 25 of those calls. Swearnigen now
contends that he gave Warrington his phone number
because she said that supervisors were threatening her
and “messing with [her] case.”
6 No. 09-2709
On July 3, 2003, the IAD de-deputized Swearnigen for
“conduct unbecoming” and transferred him to an
external operations post. A month later, Swearnigen
began a scheduled vacation outside the country. While
he was away, on August 13, 2003, a warrant for his
arrest was issued and he was charged with custodial
sexual misconduct. Two of the other 20 or so officers
who were the subjects of the investigation, James
Anthony and Iyare Egonmwan, were also charged. Like
Swearnigen, Anthony and Egonmwan are black.
The ASAs testified that they did not consult with the
defendants on their charging decisions and that the three
officers were tagged due to consistent witnesses’ state-
ments and corroborative evidence. Sheahan held a press
conference after the charges were issued, stating, “This
is something where individuals made bad choices and
put themselves in a position where they abused their
power and they’ll pay the consequences.” Swearnigen
also claims that another person heard Sheahan call
him a “fugitive.”
On August 26, 2003, Swearnigen 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 employment. See 55 ILCS
5/3-7012. One white 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.) Upon returning from
vacation, Swearnigen surrendered to the CCSP. He
later testified that someone told him that Kurtovich
No. 09-2709 7
wanted him to be placed in a maximum security area,
which caused him great distress. Swearnigen actually
was placed in a one-person, unlocked cell in a psycho-
logical evaluation area. He bonded out a few hours
later. As a result of these incidents, he now suffers from
posttraumatic stress disorder.
On August 28, 2003, Swearnigen resigned, noting in
his paperwork that he was leaving to attend school.
He later testified that he really resigned because of the
administrative proceedings but did not want to explain
that to a future employer. The women’s division was
subsequently converted 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 termi-
nated.
At Swearnigen’s state court bench trial, in June 2004,
neither the defendants nor Swearnigen testified. Warring-
ton, however, did testify and repeated her earlier state-
ments that, while she was a detainee, she had sex
with Swearnigen. The ASAs agreed to recommend a
reduction in Warrington’s sentence in exchange for her
testimony. The parties stipulated that Warrington made
100 calls from the jail to Swearnigen’s phone and
that he accepted 25 of them. Despite this evidence,
Swearnigen was acquitted.5
5
The trial judge found no corroboration for Warrington’s
testimony, which he discounted because, while on the stand,
Warrington told the prosecutor that she did not like her,
(continued...)
8 No. 09-2709
After the trial, Swearnigen filed an EEOC charge, alleg-
ing that he had been “discriminated against on the basis
of my race, Black, and sex, male, in violation of Title VII
of the Civil Rights Act of 1964, as amended.” The charge
did not mention retaliation. According to Swearnigen,
however, the EEOC investigator refused to allow him
to add this claim. Swearnigen received a “right to
sue” letter and thereafter filed a six-count complaint
alleging (1) gender and race discrimination and retalia-
tion under Title VII of the Civil Rights Act of 1964;
(2) gender and race discrimination under 42 U.S.C. § 1983;
(3) race discrimination under 42 U.S.C. § 1981; (4) First
Amendment retaliation under 42 U.S.C. § 1983; (5) mali-
cious prosecution under Illinois law; and (6) intentional
infliction of emotional distress under Illinois law.
The district court dismissed Swearnigen’s Title VII re-
taliation claim and later granted the defendants’ motion
for summary judgment on the remaining claims.
We review the grant of summary judgment de novo. Nagle
v. Vill. of Calumet Park, 554 F.3d 1106, 1114 (7th Cir. 2009).
Summary judgment is appropriate where the admissible
evidence shows that “there is no genuine issue as to
5
(...continued)
which, according to the judge, “show[ed] utter contempt and
disrespect for members of law enforcement.” The judge also
suggested that, by “willingly” having sex with Swearnigen,
Warrington was “aiding and abetting in the commission of a
felony.” That remark is rather curious when one considers
that the custodial sexual misconduct statute clearly states that
an inmate is incapable of consent. See 720 ILCS 5/11-9.2(e).
No. 09-2709 9
any material fact and that the movant is entitled to judg-
ment 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).
The first issue is whether summary judgment was
appropriate on Swearnigen’s gender and race discrim-
ination claims. The district judge found that Swearnigen
had not shown an adverse employment action (he
argued only constructive discharge), a required element
of those claims. See Lucero v. Nettle Creek Sch. Corp., 566
F.3d 720, 730 (7th Cir. 2009); Phelan v. Cook County, 463
F.3d 773, 780 (7th Cir. 2006); O’Neal v. City of Chi., 392 F.3d
909, 911 (7th Cir. 2004); see also Fischer v. Avanade, Inc., 519
F.3d 393, 408-09 (7th Cir. 2008) (“Constructive discharge
does constitute an adverse employment action . . . .”).
We agree.
The Supreme Court has held that, to establish construc-
tive discharge, a plaintiff must show that her working
conditions, from an objective standpoint, “became so
intolerable that her resignation qualified as a fitting
response.” Pa. State Police v. Suders, 542 U.S. 129,
133-34, 141 (2004). We have found constructive discharge
where “an employer acts in a manner so as to have com-
municated to a reasonable employee that she will be
terminated, and the plaintiff employee resigns . . . .”
E.E.O.C. v. Univ. of Chi. Hosps., 276 F.3d 326, 332 (7th Cir.
2002). But we have subsequently clarified that “the pros-
10 No. 09-2709
pect of being fired at the conclusion of an extended pro-
cess,” without more, does not meet this standard. Cigan
v. Chippewa Falls Sch. Dist., 388 F.3d 331, 333-34 (7th
Cir. 2004).
In addition to Cigan, the defendants rely on Levenstein
v. Salafsky, 414 F.3d 767 (7th Cir. 2005), in arguing
that Swearnigen was not constructively discharged.
There, the plaintiff, a professor on the faculty of the
medical school at the University of Illinois in Rockford,
was suspended with pay pending a sexual harassment
investigation, temporarily assigned off campus for
almost a year, removed as department head, and given
“demeaning” tasks before finally resigning. We distin-
guished Parrett v. City of Connersville, Indiana, 737 F.2d
690 (7th Cir. 1984), because there the plaintiff was forced
to sit in a windowless broom closet and spend his
entire shift with nothing to do, and the reassignment
was not explicitly temporary. Levenstein, 414 F.3d at 774-
75. Ultimately, we held that “a person who is on leave
with pay, with a temporary (though unsatisfying) reas-
signment pending an investigation of serious job mis-
conduct, who resigns rather than waits for the conclu-
sion of reasonable prescribed due process procedures
of the institution, has not from an objective standpoint
been constructively discharged.” Id. at 775.
In response, Swearnigen primarily points to the conse-
quences of his criminal proceedings—being charged,
arrested, and (briefly) jailed—as evidence that he
endured “much more” than the plaintiff in Levenstein. But
none of these actions involved Swearnigen’s working
No. 09-2709 11
conditions or the defendants. Swearnigen was de-depu-
tized and transferred to an external operations post by
the defendants. But this came after a comprehensive
investigation revealed evidence of misconduct and
did not impact his pay. Moreover, there is no evidence
that conditions at the operations post came close to those
in Parrett. This leaves Swearnigen with the argument
that his suspension, with pay and pending his
Loudermill hearing, constituted constructive discharge.
As Swearnigen lasted only two days on paid leave
before resigning and never participated in administra-
tive proceedings, he has an even weaker argument than
the plaintiff in Levenstein. Because no reasonable jury
could find that Swearnigen was constructively dis-
charged, summary judgment was proper on his discrim-
ination claims.
Even assuming that Swearnigen could prove an adverse
employment action, to avoid summary judgment he
would still have to either point to enough evidence,
whether direct or circumstantial, of discriminatory moti-
vation to create a triable issue (the “direct” method), or
establish a prima facie case under the McDonnell Douglas
formula (the “indirect” method).6 Paz v. Wauconda
Healthcare & Rehab. Ctr., 464 F.3d 659, 665 (7th Cir. 2006). A
prima facie case under the indirect method requires
6
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).
12 No. 09-2709
Swearnigen to prove that (1) he is a member of a pro-
tected class; (2) his job performance met the CCDOC’s
legitimate expectations; (3) he suffered an adverse em-
ployment action; and (4) another similarly situated indi-
vidual 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 defen-
dants counter with legitimate, nondiscriminatory rea-
sons for their actions, Swearnigen would also have to
show that those reasons were pretextual. Id. at 751.
Swearnigen purports to establish gender discrimina-
tion via the direct method, pointing to Harrison’s
January 2003 statement as evidence of discriminatory
motivation and analogizing to Lewis v. City of Chicago,
496 F.3d 645 (7th Cir. 2007).7 In Lewis, we found that a
supervisor’s remark “that he prevented [the plaintiff]
from participating on [a job] because she was a female
and that ‘it was going to be a working trip, and he
thought it would be dangerous and that [she] would
thank him for it later’ ” presented an issue of fact for trial.
Id. at 651. Here, however, Harrison’s January 2003 state-
ment that she wanted to remove men from the women’s
division did not concern the employment action in ques-
tion, as the female-only policy was not implemented
until after Swearnigen resigned. Moreover, the time
lapse between this statement and the July and August
actions against Swearnigen is too long to support an
7
It is understandable that Swearnigen would rely on Lewis,
as his counsel also represented the plaintiff in that case.
No. 09-2709 13
inference of discrimination. See Nichols v. S. Ill. Univ.-
Edwardsville, 510 F.3d 772, 781-82 (7th Cir. 2007) (“[S]tray
remarks that are neither proximate nor related to the
employment decision are insufficient to defeat summary
judgment.”). Swearnigen cannot avoid summary judg-
ment on his gender discrimination claim.
Swearnigen attempts to show race discrimination via
both methods of proof. Under the direct method, he
points to circumstantial evidence, arguing that similarly
situated nonblack 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 v.
Quotesmith.Com, Inc., 476 F.3d 487, 490-91 (7th Cir. 2007)
(explaining that the indirect method “involves a subset
of circumstantial evidence (including the disparate treat-
ment 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 around 20 officers of various
races were “suspects of interest” during the investigation,
including many black officers who were not ultimately
disciplined by the defendants. If the defendants had
racial animus, we would have expected them to take
action against more than three of the black suspects.
Swearnigen contends, however, that one similarly situated
14 No. 09-2709
white officer, Usyak, was treated more favorably. But the
defendants took action against Usyak: like Swearnigen,
he was de-deputized and suspended with pay pending
a Loudermill hearing before he resigned. The fact that
Usyak was not criminally charged is irrelevant
because that decision was made by the ASAs. Further-
more, Usyak is not similarly situated because he was
suspended for living with a former detainee, while
Swearnigen was suspended for having sex with a
current detainee.
Meanwhile, the defendants offer legitimate, nondiscrimi-
natory reasons for their actions: (1) Burns’s letter stated
that officers in Swearnigen’s division were having sex
with detainees; (2) detainees told investigators and the
ASAs that Swearnigen was having sex with Warrington;
(3) Warrington admitted having sexual contact with
Swearnigen in the jail; and (4) phone records indicated
that Swearnigen accepted collect calls from Warrington
to his personal cell phone. General Order 3.8 prohibits
these acts; thus, Swearnigen was not meeting his
legitimate job expectations. And the fact that Swearnigen
was subsequently acquitted does not demonstrate
pretext because the government bore a high burden of
proof at trial. 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
Swearnigen has not shown discriminatory motivation
under the direct method or carried his burden under
the indirect method, he cannot avoid summary judg-
ment on his race discrimination claim.
No. 09-2709 15
The second issue is whether summary judgment was
appropriate on Swearnigen’s First Amendment retalia-
tion claim. To establish a prima facie case, Swearnigen
had to present evidence that (1) his speech was constitu-
tionally protected; (2) he suffered a deprivation that
would likely deter protected speech; and (3) the
protected speech was at least a motivating factor in the
defendants’ actions. Nagle, 554 F.3d at 1123. After
making this threshold showing, if the defendants
produce evidence that they would have taken action
against Swearnigen even in the absence of his speech,
Swearnigen would also have to show that those reasons
were pretextual. Massey v. Johnson, 457 F.3d 711, 717 (7th
Cir. 2006). The district judge found that Swearnigen
had not established a prima facie case. We agree.
Speech is constitutionally protected if (1) the employee
spoke “as a citizen on matters of public concern” and
(2) his interest in commenting upon those matters out-
weighs the employer’s interest in promoting the
efficiency of its services. Nagle, 554 F.3d at 1123. When
employees make statements “pursuant to their official
duties,” they are not speaking “as citizens” for First
Amendment purposes. Garcetti v. Ceballos, 547 U.S. 410,
421 (2006). 8 Whether speech addresses a matter of public
8
Swearnigen criticizes the district judge’s invocation of
Garcetti, which was not cited by the defendants until their
reply brief on summary judgment. We find the issue suf-
ficiently raised to be preserved on appeal. See Houskins v.
Sheahan, 549 F.3d 480, 490 (7th Cir. 2008).
16 No. 09-2709
concern must be determined by its “content, form, and
context,” Connick v. Myers, 461 U.S. 138, 147-48 (1983),
with content being the most important. Nagle, 554 F.3d
at 1123.
The most content-rich speech Swearnigen offers is his
January 2003 statement to Harrison, while on duty, that
he would “fight” her efforts to remove all male
officers from the women’s division because it “was dis-
criminatory and retaliatory.” In Mills v. City of Evansville,
Indiana, 452 F.3d 646, 647-48 (7th Cir. 2006), however, we
held that the plaintiff spoke as a public employee
when, while on duty and in uniform, she objected to a
proposed policy change, leaving the impression that
she would enlist community organizations against it.
Swearnigen likewise was speaking in his capacity as a
public employee “contributing to the formation and
execution of official policy” when he disagreed with
Harrison’s plan. Id. at 648.
Also working against Swearnigen is General Order 3.8,
which created a duty to report “any fact or situation
which may give rise to or be construed as corrupt, illegal
or unethical behavior and/or a possible conflict of inter-
est.” Swearnigen criticizes this order as an effort to foil
First Amendment attacks but fails to acknowledge that
we have already considered it. In Houskins, 549 F.3d at
491, we held that, when the plaintiff officer in the case
filed a complaint with the IAD, she was “fulfilling her
responsibility as a CCDOC employee to report incidents
of misconduct . . . pursuant to the General Orders” and
therefore not speaking as a citizen. See also Spiegla v. Hull,
No. 09-2709 17
481 F.3d 961, 967 (7th Cir. 2007) (finding that the
plaintiff “ ‘acted as a government employee’ when she
reported the possible misconduct to her superior and
sought clarification of a security policy she felt may
have been breached”). Similarly, Swearnigen’s com-
plaints to his superiors about Harrison’s proposed
policy were made pursuant to his duties.
Swearnigen also fails to show that his other speech
was constitutionally protected. As the district judge
pointed out, at this stage Swearnigen must do more than
generally aver that he “spoke out” on various issues
without providing evidence that the content, form, and
context of those disputes relate to public concerns rather
than personal grievances. See, e.g., Nagle, 554 F.3d at 1124
(affirming summary judgment where “the content or
form of the statement . . . is unclear from the record, nor
is it apparent how these statements, whatever they
may be, relate either to [the plaintiff’s] job as a police
officer, his status as a citizen, or his capacity as a union
representative”). And, as for his speech as a union
steward from 1990-2001 and efforts to bring in a new
union in February 2002, they are too far removed to
support an inference of retaliatory motive. See, e.g.,
Wallscetti v. Fox, 258 F.3d 662, 669 (7th Cir. 2001) (finding
that a lag time of four months, without more, is too long
to support a reasonable inference of causation).
Finally, even if Swearnigen could establish a prima facie
case of retaliation, no rational juror could find that
the defendants’ reasons for taking action against him
were pretextual. As we discussed in conjunction with
18 No. 09-2709
Swearnigen’s discrimination claims, the defendants had
substantial evidence that Swearnigen violated general
orders, and even a criminal law, by engaging in sexual
relations with a female detainee. Moreover, the defen-
dants proceeded against other officers—who are not
alleged to have engaged in protected speech—for
similar alleged wrongdoing. Summary judgment was
proper on Swearnigen’s First Amendment retaliation claim.
The next issue is whether summary judgment was
appropriate on Swearnigen’s malicious prosecution
claim. To establish this claim under Illinois law,
Swearnigen must show (1) the commencement or con-
tinuation of an original criminal or civil proceeding by
the defendants; (2) termination of the proceeding in his
favor; (3) the absence of probable cause; (4) the presence
of malice on the defendants’ part; and (5) damages. Ross
v. Mauro Chevrolet, 861 N.E.2d 313, 319 (Ill. App. Ct.
2006). The district judge found that Swearnigen could
not satisfy the third element. Again, we agree.
Probable cause is “a state of facts that would lead a
person of ordinary caution and prudence to believe, or
entertain an honest and strong suspicion, that the
person arrested committed the offense charged.” Id. “[I]t
requires more than bare suspicion but need not be based
on evidence sufficient to support a conviction, nor even
a showing that the officer’s belief is more likely true
than false.” Woods v. City of Chicago, 234 F.3d 979, 996 (7th
Cir. 2000) (internal quotation marks omitted). Under
Illinois law, a grand jury indictment is prima facie
evidence of probable cause. Bontkowski v. United States,
28 F.3d 36, 37 (7th Cir. 1994).
No. 09-2709 19
As we previously discussed, the proceedings against
Swearnigen were initiated because (1) a detainee’s letter
stated that officers in Swearnigen’s division were
having sex with detainees; (2) detainees, including
Warrington herself, said that Swearnigen was having
sex with Warrington; and (3) phone records indicated
that Swearnigen accepted collect calls from Warrington
to his personal cell phone. Swearnigen attempts to ne-
gate this showing by accusing the defendants (Harrison,
primarily) of misconduct during the investigation. In
particular, Swearnigen focuses on evidence that
Harrison “triggered” the investigation against him. But,
as we pointed out at oral argument, how the investiga-
tion was triggered is not the point. Rather, the point is
that, after the investigation was triggered, evidence of
misconduct was uncovered, the ASAs independently
decided to bring charges, and a grand jury issued an
indictment—all without any input from Harrison or
the other defendants. The fact that Swearnigen was
eventually acquitted and now offers an innocuous ex-
planation for the phone calls does not negate the
existence of probable cause at the relevant time. See Kelley
v. Myler, 149 F.3d 641, 647 (7th Cir. 1998) (“[P]robable
cause does not depend on the witness turning out to
have been right; it’s what the police know, not whether
they know the truth, that matters.”); see also Mustafa v.
City of Chi., 442 F.3d 544, 548 (7th Cir. 2006) (finding
that there is “no duty to investigate extenuating circum-
stances or search for exculpatory evidence once probable
cause has been established . . .”). Summary judgment was
proper on Swearnigen’s malicious prosecution claim.
20 No. 09-2709
Moving on, we next consider whether summary judg-
ment was appropriate on Swearnigen’s intentional inflic-
tion of emotional distress claim. To prove this claim
under Illinois law, Swearnigen must show that (1) the
defendants’ conduct was extreme and outrageous; (2) the
defendants knew that there was a high probability that
their conduct would cause severe emotional distress;
and (3) the conduct in fact caused severe emotional dis-
tress. Kolegas v. Heftel Broad. Corp., 607 N.E. 2d 201, 211
(Ill. 1992). The district judge found that Swearnigen
failed to satisfy the first element. Once again, we agree
with the district judge.
To meet the “extreme and outrageous” standard, the
defendants’ conduct “must be so extreme as to go beyond
all possible bounds of decency, and to be regarded
as intolerable in a civilized community.” Id. The
evidence shows that the defendants’ only actions were
de-deputizing Swearnigen, transferring him to an-
other post, and suspending him with pay pending a
Loudermill hearing. Even when we add Harrison’s alleged
“triggering” of the investigation against Swearnigen, the
conduct does not rise to “extreme” levels because, after
the investigation was triggered, the CCSP and ASAs
uncovered evidence that supported the actions taken
against him.
Swearnigen also claims that other people heard
Sheahan call him a “fugitive” and heard Kurtovich order
him placed in a maximum security area. But, when
offered to prove their truth, Swearnigen’s statements are
double hearsay, and no exception is offered for the “outer
layer” of the hearsay. See, e.g., Halloway v. Milwaukee
No. 09-2709 21
County, 180 F.3d 820, 824-25 (7th Cir. 1999) (holding
that the plaintiff’s testimony that other people told him
that they had heard the defendants discussing how
they could “get rid of” him and force him to retire was
inadmissible double hearsay). Moreover, Swearnigen
was never placed in a maximum security area but rather
in a one-person, unlocked cell for a few hours before
bonding out. Summary judgment was proper on
Swearnigen’s intentional infliction of emotional
distress claim.
The final issue is whether the district court properly
dismissed Swearnigen’s Title VII retaliation claim be-
cause he failed to bring it in his earlier EEOC proceeding.9
We review the decision de novo, accepting all well-pled
allegations as true and drawing all favorable inferences
in Swearnigen’s favor. Hukic v. Aurora Loan Servs., 588
F.3d 420, 434 (7th Cir. 2009). A Title VII plaintiff may
bring only those claims that were included in his
EEOC charge or that are “like or reasonably related to
the allegations of the charge and growing out of such
allegations.” McKenzie v. Ill. Dep’t of Transp., 92 F.3d 473,
481 (7th Cir. 1996); see also Gibson v. West, 201 F.3d 990,
994 (7th Cir. 2000) (finding that failure to exhaust is not
a jurisdictional requirement, albeit a reason for dismissal).
To be “like or reasonably related,” the claims must, at
9
Swearnigen does not contend that the alleged retaliation
arose after his EEOC charge had been filed, which would not
require exhaustion. See Steffen v. Meridian Life Ins. Co., 859
F.2d 534, 545 n.2 (7th Cir. 1988).
22 No. 09-2709
minimum, describe the same conduct and implicate the
same individuals. Cheek v. W. & S. Life Ins. Co., 31 F.3d
497, 501 (7th Cir. 1994).
Swearnigen’s charge only alleges that he had been
“discriminated against on the basis of my race, Black, and
sex, male, in violation of Title VII of the Civil Rights
Action of 1964, as amended.” As the district judge
pointed out, Swearnigen did not check the box for re-
taliation or otherwise indicate that action had been taken
against him for reasons other than his race and gender.
Normally, retaliation and discrimination charges are not
considered “like or reasonably related” to one another.
Sitar v. Ind. Dep’t of Transp., 344 F.3d 720, 726 (7th Cir.
2003); Steffen, 859 F.2d at 545. Instead of distinguishing
this case law, Swearnigen now blames the EEOC, arguing
that the investigator refused to let him add a retaliation
claim and citing Federal Express Corp. v. Holowecki, 552
U.S. 389 (2008), in support of his argument that the
district judge should have looked beyond the formal
charge.
Holowecki is inapposite. The issue there was whether
an intake questionnaire supplemented by a six-page
affidavit constitutes a “charge” for purposes of timeliness
of an ADEA lawsuit. The Court held that “[i]n addition
to the information required by the regulations, . . . if a
filing is to be deemed a charge it must be reasonably
construed as a request for the agency to take remedial
action to protect the employee’s rights or otherwise settle
a dispute between the employer and the employee.” Id. at
402. Here, the issue is not whether a charge was timely
No. 09-2709 23
filed (it was) but rather whether it included an allegation
of retaliation. See Morrow v. Metro. Transit Auth., No.
08 CIV.6123 (DLC), 2009 WL 1286208, at *6 (S.D.N.Y.
May 8, 2009) (discussing reasons to restrict Holowecki
to timeliness issues).
We have suggested that written “[a]llegations outside
the body of the charge may be considered when it is
clear that the charging party intended the agency to
investigate the allegations.” Vela v. Vill. of Sauk Vill., 218
F.3d 661, 664 (7th Cir. 2000); cf. Novitsky v. Am. Consulting
Eng’rs, L.L.C., 196 F.3d 699, 702 (7th Cir. 1999) (rejecting
reliance on questionnaire where the plaintiff read the
formal charge and obtained legal advice before signing
it). But here, even if we examine Swearnigen’s intake
questionnaire, we find that it does not state a charge
of retaliation. Dismissal of Swearnigen’s Title VII retalia-
tion claim was proper.
In sum, Swearnigen was one of many suspects in a wide-
ranging investigation of custodial sexual misconduct. He
has not shown that improper motivations—as opposed
to corroborated evidence of wrongdoing—caused the
defendants to take action against him. This ultimately
dooms his claims. The judgments of the district court
are A FFIRMED.
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