United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued November 14, 2019

Decided December 10, 2019

Before

DANIEL A. MANION, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

DIANE S. SYKES, Circuit Judge

No. 18-3347

LOUIS PHILLIPS,

Plaintiff-Appellant,

v.

RICHARD V. SPENCER, 

Secretary, Department of the Navy of 

the United States,

Defendant-Appellee.

Appeal from the United States District 

Court for the Northern District of Illinois, 

Eastern Division.

No. 15-cv-05721

Andrea R. Wood,

Judge.

O R D E R

Louis Phillips, a former Navy police officer, sued the United States Navy for race 

discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964. He 

now appeals the district judge’s entry of summary judgment for the Navy. Because no 

reasonable jury could find that Phillips was fired because of his race or as retaliation for 

opposing race discrimination, we affirm. 

I. Background

From 2003 until his termination in 2012, Phillips, who is black, worked as a police 

officer at Naval Station Great Lakes, a navy base located near North Chicago. (Although 

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1
No. 18-3347 Page 2

a military base, Great Lakes employs a civilian police force.) He was assigned to the 

night shift, during which his primary duty was to patrol the base. His shift, like all 

shifts, was supervised by a watch commander, who in turn reported to the deputy 

police chief.

In 2010, James Pittman became the night shift’s watch commander. At some 

point between 2010 and 2012 (the record is not more specific), Phillips complained to 

Deputy Chief James Knapp and other supervisors that Pittman mistreated black 

detainees and that other officers regularly used racial slurs. Phillips asserts that Pittman 

was aware of these complaints, as well as unrelated race-discrimination complaints

against other defendants that Phillips filed in 2007 and 2009 with the Equal 

Employment Opportunity Commission.

The collective bargaining agreement between the Navy and the police officers’

union included a leave policy. The policy required officers who were going to miss 

work to request leave from a supervisor. In practice, however, watch commanders had 

long allowed officers simply to call the police dispatcher and report their planned 

absence without obtaining permission from a supervisor. But when Pittman became 

watch commander, he strictly enforced the written policy. Phillips nonetheless 

continued to follow the old practice of calling the dispatcher to report his absence, 

without obtaining a supervisor’s permission.

Pittman marked Phillips “Absent Without Leave” each time that he violated the 

written policy. Between December 2010 and February 2011, Phillips accumulated 15 

leave violations. Pittman met with Phillips to discuss the absences. The parties dispute 

whether Pittman explained at the meeting that Phillips was required to request leave 

from a supervisor. But they agree that Pittman recommended a 14-day suspension, 

which Knapp issued. Pittman also wrote to Phillips that the reason for his suspension 

was that he had “repeatedly been late to work, failed to call in to request leave, and 

been AWOL on numerous occasions.” Pittman listed 15 dates on which Phillips “did 

not follow the procedures for requesting leave.”

After Phillips returned from the suspension, he was marked AWOL five more 

times: twice for calling dispatch instead of requesting leave from a supervisor; once for

not requesting leave until after missing his shift; once when he was stuck in traffic and 

went home instead of following a supervisor’s orders to come in late; and once for 

missing a mandatory training. As for the last incident, Phillips knew that he was 

scheduled for training but disputes being told that the training was mandatory.
No. 18-3347 Page 3

Pittman also cited Phillips for two other incidents. First, Pittman cited Phillips for 

leaving his post while assigned to “late car” duty. Officers on late-car duty must remain 

on duty after their shift typically ends and until a supervisor relieves them. This ensures 

that someone is on patrol while officers from the next shift complete roll call. Toward 

the end of one of Phillips’s late-car shifts, a burglar alarm on the base went off. Phillips 

did not respond, leaving the other officer assigned to late-car duty to respond alone, in 

violation of the base’s policy that two officers must respond to every burglar alarm. 

Records showed that Phillips had signed out before the alarm, about a half hour before 

the other officer eventually did.

Second, Pittman cited Phillips for personal use of the office copier. Another 

officer had complained to Pittman that Phillips was using the copier for about two 

hours while he was supposed to be on patrol. Pittman checked the copier’s print

history, which showed that Phillips had used it to print more than 1,375 pages. 

Phillips’s use of the printer was also recorded on security cameras. Phillips maintained 

that another supervisor had given him permission to use the copier for personal use, 

but when Pittman asked other supervisors whether this was true, they denied it.

Pittman sent two memos to the human-resources department regarding 

Phillips’s infractions. After each memo, the base’s director of public safety met with 

Phillips. At both meetings, Phillips told the director that he believed Pittman singled 

him out because of his race and treated non-black employees more favorably, though he 

could not give any examples. At the director’s recommendation, the base’s executive 

director fired Phillips for reasons outlined in Pittman’s memos.

Phillips sued the Secretary of the Navy, alleging that he was fired because of his 

race and because he complained of discrimination. He presented his claims using the 

burden-shifting framework of McDonnell Douglas Corporation v. Green, 411 U.S. 792 

(1973), contending that non-black coworkers who had acted similarly were not 

disciplined, and that the infractions listed in Pittman’s memos were pretextual because 

Phillips’s actions complied with common practices on the base. Phillips fingered 

Pittman as the decisionmaker responsible for his discharge and argued that other 

supervisors acted as Pittman’s “cat’s paw.”1

 1 Cat’s paw theory is that someone (in this case, Pittman) who wished to retaliate against the 

plaintiff duped supervisors into taking adverse action against the plaintiff. See Robinson v. Perales, 

894 F.3d 818, 832 (7th Cir. 2018).
No. 18-3347 Page 4

The district court entered summary judgment for the Navy. The judge first 

concluded that Phillips had failed to establish a prima facie case under McDonnell 

Douglas because none of his proposed comparators was similarly situated—each

reported to a different supervisor and engaged in less egregious conduct than Phillips. 

Even if Phillips had carried his initial burden, the judge added, Phillips failed to 

provide evidence that Pittman’s reasons for disciplining him were pretextual. Phillips 

appealed.

II. Discussion

Title VII prohibits workplace discrimination on the basis of race, 42 U.S.C. 

§ 2000e–2(a), as well as employer retaliation against employees who oppose workplace 

discrimination, 42 U.S.C. § 2000e–3(a). For both types of claims, the ultimate question at 

the summary-judgment stage is essentially the same: whether the evidence, taken as a 

whole, would permit a reasonable factfinder to conclude that Phillips’s race, or his 

complaints about discrimination, caused his discharge. See Abrego v. Wilkie, 907 F.3d 

1004, 1012, 1014 (7th Cir. 2018) (citing Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765 

(7th Cir. 2016)). As in the district court, Phillips invokes on appeal the burden-shifting 

framework of McDonnell Douglas. Because McDonnell Douglas remains a useful tool for 

focusing the evidence in discrimination cases, and because both parties frame their 

arguments using it, we too address the parties’ arguments under this framework.

See Johnson v. Advocate Health & Hosps. Corp., 892 F.3d 887, 894 (7th Cir. 2018). And 

because Phillips relied on the same evidence for both claims, we analyze the claims 

together.

Under the McDonnell Douglas framework, Phillips bears the initial burden to 

show that: (1) he is a member of a protected class or engaged in protected activity; (2) he 

was meeting his employer’s legitimate expectations; (3) his employer took a materially

adverse action against him; and (4) at least one similarly situated employee, who was

not in his protected class or who did not engage in protected activity, was treated more 

favorably. David v. Bd. of Trs. of Cmty. Coll. Dist. No. 508, 846 F.3d 216, 225 (7th Cir. 

2017); Hutt v. AbbVie Prod. LLC, 757 F.3d 687, 694 (7th Cir. 2014). If Phillips makes this 

showing, the burden shifts to the Navy to articulate a legitimate, nondiscriminatory 

reason for the termination, at which point the burden shifts back to Phillips to prove 

that the Navy’s proffered explanation is pretextual. David, 846 F.3d at 225.

Phillips contends that the district judge erred in concluding that he failed to

identify a similarly situated employee. He points to five non-black officers who, he 

argues, engaged in similar behavior but were not disciplined. He argues that the judge
No. 18-3347 Page 5

applied the wrong standard by focusing on minor differences between him and the 

other employees, while ignoring similarities.

A similarly situated employee, however, must be directly comparable in all 

material respects, Barbera v. Pearson Educ., Inc., 906 F.3d 621, 629 (7th Cir. 2018), and the

judge identified several material differences between Phillips and his proposed 

comparators. From the outset, none reported to Pittman, and employees who were 

treated more favorably by a different decisionmaker are not similarly situated. 

See Moreland v. Nielsen, 900 F.3d 504, 507–08 (7th Cir. 2018). Phillips argues that Knapp

ultimately supervised the whole police department, but this is irrelevant because the 

decisionmaker—not the supervisor—is what matters. Coleman v. Donahoe, 667 F.3d 835, 

848 (7th Cir. 2012). The parties do not dispute that Knapp simply adopted Pittman’s 

recommendations, and Phillips has consistently argued that Pittman, not Knapp, was 

the decisionmaker who discriminated against him.

Furthermore, Phillips has not established that any of his proposed comparators 

engaged in similar conduct. None repeatedly violated policies like he did, and

employees without similar disciplinary histories and performance records are generally

not similarly situated. See Simpson v. Franciscan All., Inc., 827 F.3d 656, 662 (7th Cir. 

2016). To the extent Phillips identifies other employees’ misconduct, there are material 

differences that justify the lack of employer discipline:

Adrian Rivera, a Hispanic man, used the copier for personal use and was not 

disciplined. But none of Rivera’s supervisors knew about his copier use, so we cannot 

infer intentional discrimination from his lack of discipline. See Lane v. Riverview Hosp., 

835 F.3d 691, 697 (7th Cir. 2016). At oral argument, Phillips argued for the first time that

he told Pittman about Rivera’s copier use when Pittman questioned him about his own 

copying. But in the district court, he alleged only that he complained to Pittman that his 

discipline was unfair because “other officers” had used the copier. There is no evidence 

that Pittman, or anyone else, knew about Rivera’s copier use.

Robert Schultz, a white man, was caught waiting in the parking lot for his 

late-car shift to end instead of finishing his patrol. But unlike Phillips, who punched out 

early and left the base, Schultz remained on duty. And whereas Phillips failed to 

respond to a burglar alarm, there is no evidence that Schultz would have been 

unavailable had an alarm gone off.2 Because Phillips and Schultz did not engage in

 2 The only information about this incident comes from the proposed findings that Phillips 

submitted to the district court, which in turn cited Schultz’s deposition. Although both parties 
No. 18-3347 Page 6

conduct of comparable seriousness, their different treatment is not evidence of 

discrimination. See Coleman, 667 F.3d at 850.

Three non-black officers missed the same mandatory training as Phillips. 

Phillips speculates that they were not reprimanded for missing the training, but he 

provides no evidence to support this assumption—nor evidence that these officers

lacked prior approval from a supervisor to miss the training. A plaintiff cannot survive 

summary judgment by merely asserting that other employees were similarly situated 

without providing sufficient evidence for the court to conduct a meaningful 

comparison. McDaniel v. Progress Rail Locomotive, Inc., 940 F.3d 360, 369 (7th Cir. 2019).

Even if Phillips could identify a similarly situated employee (and otherwise 

make out a prima facie case of discrimination), he still would need to provide evidence

that the Navy’s explanation for his termination was pretextual. See David, 846 F.3d 

at 225. He cannot do so.

To establish that Pittman’s enforcement of the written leave policy was

pretextual, Phillips relies on evidence that (1) other commanders did not enforce it; and 

(2) Knapp did not order commanders to enforce it before 2012. But, at most, this 

evidence shows only that Pittman was out of step with the other watch commanders. 

Phillips points to no evidence that Pittman applied the policy inconsistently and, as the 

Navy points out, Pittman also recommended termination for white officers who 

violated the policy. Even if Pittman was mistaken about how to enforce the policy, that 

is not evidence of discriminatory intent. Pretext is “more than just faulty reasoning or 

mistaken judgment on the part of the employer; it is [a] lie, specifically a phony reason 

for some action.” Burton v. Bd. of Regents of Univ. of Wis. Sys., 851 F.3d 690, 698 (7th Cir. 

2017) (quoting Harden v. Marion Cty. Sheriff’s Dep’t, 799 F.3d 857, 864 (7th Cir. 2015)) 

(alteration in original).

Phillips also argues that Pittman’s decision to discipline him for leaving early 

from late-car duty was pretextual because “past practice was that an officer could leave 

after he saw two other officers dressed and ready to go.” But the evidence he cites—his

own deposition testimony—does not support this assertion. He testified that officers 

could wait inside the station for their late-car shifts to end, but only if they remained

available to respond to emergency calls. Assuming this was true, Phillips still violated 

 

represented to the district court that the deposition was included with the Navy’s judgment filings, 

neither party actually submitted it.
No. 18-3347 Page 7

the policy because he left the base early and was unavailable to respond to the burglar 

alarm.

Phillips’s four remaining arguments about pretext warrant only brief mention. 

First, he argues that Pittman did not tell him that he was required to comply with the 

written leave policy. But when Phillips was suspended in 2011, Pittman sent him a 

memo explaining that he had failed to “follow the procedures for requesting leave.” Yet 

he continued to violate the policy. There is no evidence that anyone misled Phillips or, 

more importantly, lied about why he was being disciplined. See Burton, 851 F.3d at 698.

Second, Phillips argues that he should not have been marked AWOL for missing 

training because, he says, doing so did not violate any rules and other officers missed 

training “all the time.” But he provides no evidence in support of these assertions.3

Third, he argues that when he used the copier for personal use in the past, a different 

supervisor chose not to discipline him. But this is irrelevant to whether Pittman’s reason 

for enforcing the copier policy—after another officer complained—was pretextual.

Fourth, Phillips argues that Pittman could not have known whether his use of the 

copier was work-related. But another officer had reported Phillips for excessive 

personal use of the copier. No reasonable factfinder could conclude that Pittman did not 

know that Phillips was printing personal documents.

In sum, Phillips has failed to submit evidence showing that the Navy’s 

explanation for his termination was pretextual. Without any other evidence that the 

Navy’s actions were motivated by race or a desire to retaliate, his Title VII claims for

race discrimination and retaliation fail. See Abrego, 907 F.3d at 1012, 1014.

III. Conclusion

Because no reasonable jury could find that Phillips was fired because of his race 

or as retaliation for opposing race discrimination, we AFFIRM the district judge’s entry 

of summary judgment.

 3 Phillips cited depositions of the trainer and Knapp, but he failed to submit them to the district 

court.