Opinion
22-1316
05-20-2024
ANTHONY JORDAN, et al., Plaintiffs-Appellants, v. TIMOTHY C. EVANS, Chief Judge of the Circuit Court of Cook County, Defendant-Appellee.
NONPRECEDENTIAL DISPOSITION
Submitted May 17, 2024 [*]
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 15-cv-5907 Sara L. Ellis, Judge.
Before THOMAS L. KIRSCH II, Circuit Judge CANDACE JACKSON-AKIWUMI, Circuit Judge DORIS L. PRYOR, Circuit Judge
ORDER
Anthony Jordan, Theodis Chapman, and patrick Nelson are current and former juvenile probation officers at the probation department of the Circuit Court of Cook County. They have accused their employer of treating them differently because of their race (African American) in violation of Title VII of the Civil Rights Act of 1964 and state law. See 42 U.S.C. § 2000e-2; 740 ILL. COMP. STAT. 23/5. The district court entered summary judgment against Jordan, reasoning that no evidence suggested that the department fired or disciplined him because of his race. Later, a jury found that the department did not transfer Chapman and Nelson to less desirable positions to retaliate for their past charges of discrimination. All three appeal. We affirm across the board.
We begin with Jordan, reviewing the summary judgment de novo and the facts in the light most favorable to him. See Reives v. Illinois State Police, 29 F.4th 887, 891 (7th Cir. 2022). Beginning in 2007, about ten years after Jordan joined the department, Jordan was disciplined almost annually, receiving suspensions for charges of criminal and sexual misconduct. Jordan reached a "last chance" agreement with the county in 2011 under which he had to follow all departmental rules and expectations or face discharge.
After entering this last-chance agreement, Jordan faced discipline again. At the time, he worked in a division where he had to monitor up to 20 probationers and file reports of their probation violations. In September 2014, a probationer under Jordan's supervision violated the terms of his probation by committing rape. Jordan reported the incident two days late and never reported two other violations by the probationer. The department investigated Jordan's conduct as well as the actions of his immediate supervisor, Brian Modjeski. It placed Jordan on a temporary suspension and decided that Modjeski was not at fault. Then, after conducting a hearing, it concluded that Jordan had not adequately explained his failure to file the violation reports and discredited his contention that a supervisor told him he had discretion not to file them. Citing Jordan's "failure to discharge [his] duties as a Probation Officer" and his lastchance agreement, the department fired him, and he launched this suit.
In response to the defendant's motion for summary judgment, Jordan argued that three grounds supported his claim that the department discharged him, and disciplined him more harshly, because he is an African American officer. First, Jordan cited statistics. These statistics show that African Americans comprised 40% of the department's probation officers from 2014 to 2016, and from 2008 to 2013 African American officers received 75% of the most severe discipline (suspensions and firings). Second, Jordan cited testimony about racial bias: A union representative testified that the department had once attributed a disciplinary meeting with a white officer to complaints from the union about anti-Black discrimination. And Avic Das (who fired Jordan) testified that from 2000 to 2012 the department had received meritorious racediscrimination claims. Third, Jordan cited two white employees whom, he argued, the department treated more favorably. He pointed to his immediate supervisor, Modjeski, with whom Jordan shared the same deputy chief supervisor, the same bargaining unit, and the same probationers, but who was not disciplined after the rape-reporting incident. Jordan also identified Joseph Wozniak, whom the department did not fire despite his excessive absenteeism while under a last-chance agreement.
The district court entered summary judgment against Jordan. It explained that the statistics and race-bias testimony did not suggest disparate treatment in Jordan's case and the two comparators did not imply race discrimination: Modjeski was Jordan's supervisor, was not on a last-chance agreement, and did not have a history of discipline like Jordan; Wozniak did not report to the same supervisor or engage in similar misconduct. Later, after Jordan moved for reconsideration, the court also ruled that the statistics did not suggest that any departmental policy produced an unlawful disparate impact on Jordan. First, the data did not purport to control for nondiscriminatory bases for discipline (such as misconduct). Second, the demographic data (taken from 2014 to 2016) did not match the time frame of the discipline records (spanning 2008 to 2013). Third, the data preceded Jordan's discharge in 2014.
On appeal, Jordan maintains that he provided sufficient evidence for a rational jury to find that the department fired him because of his race. Jordan first relies on the familiar framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973), under which a prima facie case of discrimination requires evidence that (1) he is a member of a protected class, (2) he was meeting the department's legitimate expectations, (3) he suffered an adverse employment action, and (4) similarly situated employees outside of his protected class were treated more favorably. See also Reives, 29 F.4th at 891. Jordan has met the first and third elements, because he is African American and was fired. Because Jordan argues that he was disciplined more severely than white probation officers, the second and fourth elements merge. See Orton-Bell v. Indiana, 759 F.3d 768, 777 (7th Cir. 2014). We thus ask whether he supplied evidence that the department treated similarly situated white employees more favorably. Id.
Jordan's comparators do not support a prima facie case. Comparators need not be identical to the plaintiff, but they must be similar "in all material respects," such as position and supervisor. Reives, 29 F.4th at 892; Coleman v. Donahoe, 667 F.3d 835, 849 (7th Cir. 2012). Jordan points to Modjeski because they both oversaw probationers and reported to the department's chief deputy. But as the district court observed, Modjeski was Jordan's supervisor, and supervisors are ordinarily not comparable to subordinates because of their differing job duties. Rodgers v. White, 657 F.3d 511, 517-18 (7th Cir. 2011). To compare himself to his supervisor, Jordan had to supply evidence that they made "similar mistakes" and "were equally responsible for avoiding those mistakes." Id. at 518. But, although Jordan accuses Modjeski of not reporting the violations of the probationer accused of rape, Jordan did not provide evidence that Modjeski had that responsibility. Jordan also points to Wozniak, who was not discharged despite disciplinary issues after entering a last-chance agreement. But Wozniak is not comparable because he is not a probation officer and he reported to a different supervisor. Last, Jordan argues that the district court overlooked evidence of four other white employees. Although Jordan mentioned these employees in his complaint, he did not identify them as comparators at summary judgment; thus, his argument about them is waived on appeal. Poullard v. McDonald, 829 F.3d 844, 855 (7th Cir. 2016).
Without a prima facie case under McDonnell-Douglas, Jordan turns to what he argues is other evidence of racial animus, see Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765-66 (7th Cir. 2016), but it too is insufficient. He points to Das's testimony from the trial that the department received valid race-discrimination complaints in the past and that he used a racial slur at a staff meeting when he quoted and condemned the use of it by others. Neither statement, however, bolsters Jordan's claim. Das stated that he knew of meritorious complaints up to 2012, and Jordan was fired in 2014. In any case, evidence that other probation officers faced discrimination is not by itself evidence that Jordan did so. See Alston v. City of Madison, 853 F.3d 901, 907 (7th Cir. 2017). And Das's condemnation of a racial slur is not by itself evidence of his racial hostility.
Finally, Jordan maintains that his statistical evidence of disparities in discipline would allow a reasonable jury to infer that the department fired him because it treated him differently, or used criteria that had a disparate impact, by race. We disagree. With respect to a disparate-treatment claim, the fact that African American officers more frequently received harsher discipline does not, without controlling for possible explanatory variables, suggest that racial hostility motivated the discipline. See Chi. Tchrs. Union v. Bd. of Educ. of City of Chi., 14 F.4th 650, 657-58 (7th Cir. 2021). Further, the statistics do not permit an inference of disparate impact on Jordan because the demographic and disciplinary data do not cover the same time frame and the data predated Jordan's discharge. See Alston, 853 F.3d at 907. Thus, the district court rightly entered summary judgment on Jordan's claims.
We turn now to Chapman and Nelson. Recall that they went to trial on their claim that the department retaliated against them for filing discrimination charges. Before trial, the department filed motions in limine. It sought to exclude evidence about dismissed claims, settlement negotiations, and other proceedings. The court reserved ruling and invited the parties to make relevant objections at trial. The department also sought to bar the plaintiffs from calling as a witness the Chief Judge of the Circuit Court, because he was sued only in his official capacity. The parties later stipulated to a statement for the jury, explaining why the judge was not called.
Because the officers seek review of a judgment upon a jury verdict for the department, we recount the facts from the trial in the light most favorable to that verdict. Matthews v. Wis. Energy Corp., 642 F.3d 565, 567 (7th Cir. 2011). For about ten years, Nelson and Chapman taught juvenile probationers in one of the department's education programs. Over the years, attendance in the program dropped significantly, and in November 2015, the department eliminated Nelson and Chapman's roles during a restructuring. As a result of the restructuring, the department transferred Chapman and Nelson into the roles of field probation officers. The department assigned them to these positions using a random lottery, rather than the department's typical seniority bidding system. Their pay remained unchanged, but Chapman and Nelson considered their new positions a demotion, and they yielded more stress and required more work. Both officers attributed their transfer to retaliation for having filed charges of race discrimination with the Equal Employment Opportunity Commission over a year earlier. After the trial, the jury found in favor of the department. Chapman and Nelson did not file any post-verdict motions.
On appeal, Chapman and Nelson first argue that the district court erred in ruling on the motions in limine. To prevail on this argument, the officers must identify the rulings, explain how the court abused its discretion, and demonstrate that any error prejudiced their substantial rights. Stegall v. Saul, 943 F.3d 1124, 1128 (7th Cir. 2019). Although the absence of a post-trial verdict motion does not preclude them from attacking the district court's pretrial and trial rulings, see Fuesting v. Zimmer, Inc., 448 F.3d 936, 939-41 (7th Cir. 2006), their briefs do not develop a legal argument or analysis that responds to any pretrial or trial rulings, as our appellate rules require. See FED. R. APP. P. 28(a)(8). These arguments are thus forfeited. Hicks v. Avery Drei, LLC, 654 F.3d 739, 744 (7th Cir. 2011). Further, because we "discern neither extraordinary circumstances nor a risk of miscarried justice," we do not conduct a full plain-error analysis of these rulings. Id.
Next, Chapman and Nelson argue that a new trial is warranted because, in their view, the district judge was biased. At trial, the judge said that she was "getting slightly frustrated" during Chapman's cross examination, and the judge disagreed with the officers' attorney over the relevance of some questions. But a judge's "ordinary efforts at courtroom administration," such as ruling on the relevance of evidence, and remarks that are "critical or disapproving of, or even hostile to counsel, the parties, or their cases," do not by themselves show bias. United States v. Barr, 960 F.3d 906, 920 (7th Cir. 2020) (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)).
Chapman and Nelson also contend that the jury's verdict is against the weight of the evidence. (They present this argument in a motion they filed after the department filed its brief; we construe the motion as the officers' reply brief.) But we cannot reach this issue because the appellants did not preserve this argument by filing a post-trial motion under Rule 50 of the Federal Rules of Civil Procedure. See Collins v. Lochard, 792 F.3d 828, 831 (7th Cir. 2015). Without such a post-trial motion, which gives the district court the necessary opportunity to review the asserted concerns, we may not review an appellate contention that the evidence at trial was insufficient to support the verdict. Dupree v. Younger, 598 U.S. 729, 734-35 (2023).
Finally, Chapman and Nelson contend that the conduct of their lawyer and the jury entitle them to a new trial. They argue their own attorney ineffectively represented them because he prepared for trial at the last minute and antagonized the judge by pursuing a misguided line of questioning. But we do not overturn civil jury verdicts based on ineffective assistance of counsel at trial. Stanciel v. Gramley, 267 F.3d 575, 581 (7th Cir. 2001). Chapman and Nelson also argue that the jury "rushed" to judgment after one juror tested positive for COVID and was dismissed before closing arguments. But the court ensured that the remaining jurors were comfortable finishing the trial. Nothing in the record suggests that the judge improperly allowed the trial to continue after the jurors gave this reassurance and, after the dismissal of the one juror, at least six remained. See FED. R. CIV. P. 48(a).
AFFIRMED
[*] We have agreed to decide the case without oral argument because the briefs and record adequately present the facts and legal arguments, and oral argument would not significantly aid the court. FED. R. APP. p. 34(a)(2)(C).