In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 19-3270 

ROBBIE L. MARSHALL, 

Plaintiff-Appellant, 

v.

INDIANA DEPARTMENT OF

CORRECTION, 

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

____________________ 

ARGUED MAY 28, 2020 — DECIDED SEPTEMBER 4, 2020 

____________________ 

Before MANION, KANNE, and WOOD, Circuit Judges. 

MANION, Circuit Judge. Robbie Marshall claims his former 

employer, the Indiana Department of Correction, 

discriminated against him because 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 affirm. 

I. 

Marshall worked at the DOC for over 20 years. He received good reviews and promotions. He identified as homosexual. He reached the rank of Internal Affairs Investigator 2 at the Wabash Valley Correctional Facility. 

In 2015, he was arrested for operating a vehicle while intoxicated. Warden Richard Brown disciplined him with a 

written reprimand. 

In September 2016, he attended a law enforcement conference in Indianapolis. A sheriff from 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 and others confronted Robert 

Storm—a subordinate directly under Marshall’s supervision—about Storm’s unethical disclosure of confidential investigation materials.2

The 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 confidentiality. 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 allegations 

against 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 file a complaint 

with the EEOC that he was fired 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 only 

claims before us are the claims for sexual-orientation discrimination and for retaliation. The district judge granted 

summary 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 issue of material fact and he is 

entitled to judgment as a matter 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 firing an 

employee on the basis of sexual orientation. Id. at 1737. 

Marshall brings two Title VII claims before us on appeal: 

discrimination and retaliation. 
4 No. 19-3270 

B. Discrimination claim 

For his discrimination claim to survive summary judgment, Marshall must point to evidence sufficient to permit a 

reasonable factfinder 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 suffered an adverse employment action; 

and 4) another similarly situated employee who wasn’t in 

the protected class was treated better by the DOC. 

Then the burden of production would shift to the DOC to 

state a legitimate, non-discriminatory 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 dispute 

that 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 expectations. The district judge did not 

resolve this issue, and instead concluded that even if Marshall were meeting the DOC’s legitimate expectations, he has 
No. 19-3270 5

not shown that similarly situated employees who did not 

identify as homosexual were treated better than he was. 

We agree with the district judge that Marshall’s case falters for lack of a similarly situated comparator. Storm is not 

similarly situated because his alleged breach of confidentiality is not similar to Marshall’s alleged sexual harassment. For 

several reasons, two other proposed comparators also are 

not similarly situated to Marshall, even though they allegedly committed 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 training them. But the record shows 

this authority was distinguishable from the level and type of 

authority Marshall had over Storm. 

Second, these proposed comparators 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 identifies as homosexual. 

But the record contradicts this. There was at least a potential 

conflict of interest precluding Brown from being the 

decision-maker in Marshall’s case. Marshall and Brown were 

old friends. Also, Brown witnessed Marshall’s efforts to 

investigate Storm for breaching confidentiality. As Brown 

explained in an affidavit: “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 definitive 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 ensuing arrest in 2015, and conduct 

unbecoming staff at the law-enforcement conference in 2016. 

So we agree with the district judge that Marshall failed to 

show a similarly situated person outside the protected class 

was treated better 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 him for continually violating its 

policies: 1) driving drunk and getting arrested in 2015;3 2) 

engaging in conduct unbecoming staff at 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 is 

not 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 attacking 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 differently because she was an 

older employee ... .”). We are not a super-human-resources 

department, 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 dispute 

that violations of the standards of conduct justify termination. He does dispute the allegations about the 2016 incident 

at the conference and Storm’s allegations of sexual harassment. But the ultimate truth of those allegations is immaterial here because Marshall has pointed 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 all the evidence in a single Ortiz

pile, we conclude Marshall cannot show sexual-orientation 

discrimination. 

C. Retaliation claim 

The retaliation claim fares no better. 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 the 

investigators 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 suffered 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 statutorily 

protected activity. He makes much of the timing of his exposure of Storm’s breach of confidentiality 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 actionable here. Marshall’s exposure of Storm’s breach of confidentiality 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 file 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 retaliation under Title VII.”). But in 

this case, the claim borders on preposterous. Marshall would 

have us believe the termination was retaliation for the anticipated complaint about the termination, 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 the termination was sexualorientation discrimination. But the record indicates the DOC 

had already decided to terminate Marshall before this comment was made. Someone in the room where it happened 

testified 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 this 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 DOC 

terminated Marshall. So the comment does not help Marshall’s case.5 

And Marshall makes no allegation that Osburn planned 

to give him lesser discipline but then, in anticipation of future complaining to the EEOC, decided to terminate him. 

Marshall makes no allegation that 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 fire 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 file 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 ramifications 

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 the 

comment 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” cause of the adverse employment 

action, his retaliation claim must fail. 

We affirm.