### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 19-3270

R OBBIE L. M ARSHALL , Plaintiff-Appellant ,

v.

I NDIANA D EPARTMENT OF C ORRECTION , Defendant-Appellee

.

____________________ Appeal from the United States District Court for the Southern District of Indiana, Terre Haute Division. No. 2:18-CV-261 RLM-MJD — Robert L. Miller, Jr. , Judge

. 1

____________________
A RGUED M AY 28, 2020

— D ECIDED S EPTEMBER 4, 2020

____________________

Before M ANION , K ANNE , and W OOD , Circuit Judges

. M ANION , Circuit Judge . Robbie Marshall claims his former employer, the Indiana Department of Correction, discriminated against him becaus e of his sexual orientation

1 Sitting by designation.2 No. 19-3270

and retaliated against him. The district court granted summary judgment to the DOC. We a ffi rm. I.Marshall worked at the DOC for over 20 years. He received good reviews and promotions. He identi fi ed as homosexual. He reached th e rank of Internal A ff airs Investigator 2 at the Wabash Valley Correctional Facility.In 2015, he was arrested for operating a vehicle while intoxicated. Warden Richard Br own disciplined him with a wri tt en reprimand. In September 2016, he a tt ended a law enforcement conference in Indianapolis. A sheri fffrom another county complained that Marshall became intoxicated at the conference and behaved inappropriately. Marshall denies intoxication or inappropriate behavior at the conference. Later that month, Marshall an d others confronted RobertStorm—a subordinate directly under Marshall’s supervision—about Storm’s unethical disclosure of con fi dential investigation materials. 2The next day, Storm accused Marshall of sexually harassing him twice: once in January 2015 at an American Legion club, and once in April 2015 at a casino in French Lick.

2 Here are the details. Storm was an investigator who usually submitted poorly written reports. But suddenly, his reports improved dramatically. Marshall suspected someone new wrote them. He checked Storm’s emails and discovered Storm was drafting reports and sending them to his wife in breach of confiden tiality. She edited the drafts, significantly improving them, and returned them to him. Then Storm submitted the sanitized reports.No. 19-3270 3

Warden Brown called upon the State Personnel Department to investigate Storm’s sexual-harassment allegationsagainst Marshall. Ultimately, Regional Director Michael Osburn decided to terminate Marshall. At a meeting of Osburn and others one day before the termination, someone said the DOC should be prepared for Marshall to fi le a complaint with the EEOC that he was fi red because of his sexual orientation.
Osburn terminated Marshall and demoted Storm in October 2016. Marshall exhausted his administrative remedies. He then brought many claims to the district court. The onlyclaims before us are the claims for sexual-orientation discrimination and for retaliation . The district judge grantedsummary judgment to the DOC on these claims, and Marshall appeals.
II.
A. Law

We review de novo . A party is entitled to summary judgment if there is no genuine issu e of material fact and he is entitled to judgment as a ma tt er of law. We construe the facts and draw all reasonable inferences in Marshall’s favor.
In Hively, the Seventh Circuit extended Title VII to include sexual-orientation discrimination. Hively v. Ivy Tech Cmty. Coll. of Ind. , 853 F.3d 339, 341 (7th Cir. 2017). Recently, in Bostock , the Supreme Court did the same. Bostock v. Clayton Cty., Ga. , 140 S. Ct. 1731 (2020). According to the Supreme Court, Title VII prohibits employers from fi ring an employee on the basis of sexual orientation. Id. at 1737. Marshall brings two Title VII cl aims before us on appeal: discrimination and retaliation.4 No. 19-3270

B. Discrimination claimFor his discrimination claim to survive summary judgment, Marshall must point to evidence su ffi cient to permit a reasonable fact fi nder to conclude that his sexual orientation caused the termination. The district judge addressed Marshall’s assertion that he established a prima facie case under the McDonnell Douglas burden-shifting framework. The judge also kept in mind Ortiz ’s admonition to consider all evidence in one pile.

To show a prima facie case of discrimination under the McDonnell Douglas format, Marshall had to show: 1) he belongs to a protected class; 2) he met the DOC’s legitimate expectations; 3) he su ff ered an adverse employment action; and 4) another similarly situated employee who wasn’t in the protected class was treated be tt er by the DOC. Then the burden of production would shift to the DOC to state a legitimate, non-discrimin atory reason for the adverse employment action.
After that the burden would shift back to Marshall to present evidence that the stated reason is a pretext for discrimination. A pretext is a lie. As the district judge noted, the parties do not disputethat Marshall belongs to a protected class because of his sexual orientation, and they do not dispute that he faced an adverse employment action: termination. But the parties dispute whether Marshall was meeting the DOC’s legitimate expectatio ns. The district judge did notresolve this issue, and instead concluded that even if Marshall were meeting the DOC’s legitimate expectations, he hasNo. 19-3270 5

not shown that similarly situated employees who did not identify as homosexual were treated be tt er than he was. We agree with the district ju dge that Marshall’s case falters for lack of a similarly si tuated comparator. Storm is not similarly situated because his alleged breach of con fi dentiality is not similar to Marshall’s alleged sexual harassment. For several reasons, two other proposed comparators also arenot similarly situated to Marshall, even though they allegedly commi tt ed sexual harassment. First, the two other proposed comparators did not have the same level and type of authority over their victims that Marshall had over Storm. Marshall argues that at least one of these proposed comparators did have supervisory authority over his victims. He was traini ng them. But the record shows this authority was distinguishable from the level and type of authority Marshall had over Storm. Second, these proposed compar ators were disciplined by Brown and not by Osburn. Marshall argues Brown should have been the decision-maker in Marshall’s case but was not allowed to be because Brown also identi fi es as homosexual. But the record contradicts this. There was at least a potential

con fl ict of interest precludi ng Brown from being the decision-maker in Marshall’s case. Marshall and Brown were old friends. Also, Brown witnessed Marshall’s e ff orts to investigate Storm for breaching con fi dentiality. As Brown explained in an a ffi davit: “I was not involved in the decisionmaking process for Marshall’s dismissal. I was informed my lack of involvement was due to my participation in the investigation as a witness.”6 No. 19-3270

And third, these proposed comparators do not have the same sort of prior disciplinary record Marshall has. This is the most de fi nitive distinction between these proposed comparators and Marshall. There is no record that they had a disciplinary past similar to Marshall’s. Marshall had two alcohol-involved incidents on his record: driving while intoxicated and the ensuin g arrest in 2015, and conduct unbecoming sta ff at the law-enforcement conference in 2016. So we agree with the districtjudge that Marshall failed to show a similarly situated pers on outside the protected class was treated be tt er than he was. He therefore failed to establish a prima facie case of discrimination to shift the burden. The district judge also concluded that even if Marshall could establish a prima facie case, he could not show that the DOC’s stated reasons for terminating him were pretextual. The DOC said it terminated hi m for continually violating its policies: 1) driving drunk and ge tt ing arrested in 2015; 3 2) engaging in conduct unbecoming sta ffat the lawenforcement conference in 2016; and 3) sexually harassing Storm. Marshall cannot show this explanation is a lie. At most, he argued the investigations were sloppy. But that isnot enough. We have long noted that challenges to the manners in which employees conduct these investigations are generally misspent. See Kariotis v. Navistar Intern. Transp. Corp. , 131 F.3d 672, 677 (7th Cir. 1997) (“Therefore, Kariotis’ energy is misspent by a tt acking the company’s decisional process, unless she could point to facts suggesting that the

3 Sometimes the DOC seems to explain the 2015 incident as part of Marshall’s disciplinary past and not as one of the immediate reasons for his termination. But any distinction on this point is immaterial here.No. 19-3270 7

company investigated her di ff erently because she was an older employee ... .”). We are not a super-human-resourcesdepartment, judging whether the investigation was exemplary. Marshall does not dispute that he was disciplined for the alcohol-related arrest or that his drunk driving violated the standards of employee conduct. And he does not disputethat violations of the standards of conduct justify termination. He does dispute the alle gations about the 2016 incidentat the conference and Storm’s allegations of sexual harassment. But the ultimate truth of those allegations is immaterial here because Marshall has poin ted to no evidence that the DOC is lying about them, only that the DOC is wrong about them. That is not pretext.

Marshall must lose his discrimination claim because he cannot show the DOC terminated him because of his sexual orientation. He has no smoking gun. 4 He has no mass of circumstantial evidence pointing to discrimination. He cannot make out a prima facie case. And even if he could, he cannot show pretext. Considering al l the evidence in a single Ortiz pile, we conclude Marshall cannot show sexual-orientation discrimination.

C. Retaliation claim

The retaliation claim fares no be tt er. To prevail, Marshall had to show: 1) he engaged in statutorily protected activity;

4 He seems to think he might have a smoking gun because one of theinvestigators said he was no different from any other predator. But Marshall has advanced no reason to think this comment pertained to his sexual orientation.8 No. 19-3270

2) he su ff ered an adverse employment action; and 3) there is a “but for” causal connection between 1 and 2. His problem is he cannot show he engaged in statutorilyprotected activity. He makes much of the timing of his exposure of Storm’s breach of con fi dentiality relative to Storm’s report the next day of Marshall’s sexual harassment a long while before. But Storm’s “retaliation” against Marshall is not the sort of retaliation ac tionable here. Marshall’s exposure of Storm’s breach of con fi dentiality is not protected by Title VII. So retaliation for the exposure cannot be Title VII retaliation.Marshall tries to argue that the termination was anticipatory retaliation for the EEOC complaint for sexualorientation discrimination that the DOC suspected Marshall might fi le after the termination. We have recognized the viability of claims based on theories of anticipatory retaliation. See Beckel v. Wal-Mart Associates, Inc. , 301 F.3d 621, 624 (7th Cir. 2002) (“Such a threat would be a form of anticipatory retaliation, actionable as retalia tion under Title VII.”). But in this case, the claim borders on preposterous. Marshall would have us believe the terminatio n was retaliation for the anticipated complaint about the term ination, as though he were trapped with the DOC in a time loop. Marshall bases this argument on the comment during the meeting that the DOC should be prepared for the possibility that he would complain th e termination was sexualorientation discrimination. But the record indicates the DOC had already decided to termin ate Marshall before this comment was made. Someone in the room where it happened testi fi ed that the comment came after the termination decision had already been made. And Marshall does not serious-No. 19-3270 9

ly challenge that fact. He argues the actual termination occurred after the comment. But th is is neither controversial nor germane. The point is the record indicates the DOC decided to terminate Marshall, then someone made the comment about preparing for a complaint, and then the DOCterminated Marshall. So the comment does not help Marshall’s case. 5 And Marshall makes no allegation that Osburn plannedto give him lesser discipline but then, in anticipation of future complaining to the EEOC, decided to terminate him. Marshall makes no allegation th at Osburn or anyone else said anything like: “We should discipline him short of termination, but if we do he’ll probably claim we discriminated against him, so we should just go ahead and fi re him now.” Nor does Marshall allege he received any adverse employment action short of termination. Moreover, as the district judge noted, termination of Marshall would increase the possibility he might fi le a charge against the DOC, so dismissal was not a logical strategy if the DOC wanted to avoid a charge. See Beckel , 301 F.3d at 624 (“Rather than deterring a reasonable person from suing, [a threat of termination] would increase her incentive to sue by giving her a second claim ... .”). Title VII generally does not hold an employer accountable merely for discussing the potential rami fi cations of the action it already decided to take. Such a discussion generally does not transform a prior decision into

5 Marshall advances no argument , much less evidence, that thecomment about preparing reveals a mindset that influenced the preceding termination decision.10 No. 19-3270

anticipatory retaliation against future protected action, even when the actual termination has not yet occurred. Marshall has shown no reason to hold the DOC liable merely for discussing the potential consequences of its decision to terminate him. As Marshall cannot show any statutorily protected activity was the “but for” caus e of the adverse employment action, his retaliation claim must fail.

We a ffi rm.