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# United States Court of Appeals For the Seventh Circuit

No. 12-1500

R O NAL D B AT E S

, Plaintiff-Appellant,

v.

C I T Y OF C H I C A G O

, et al. , Defen dants-Appellees.

Appe al f ro m the Uni ted S tates Distri ct Co urt fo r the Nor thern Distri ct o f Il l i noi s, Eastern Di v i sio n. No. 05 C 1 56 4 — Jame s B. Zagel , Judg e.

A RGU E D J ANU

AR Y 24, 2013

— D E C I D E A UGUS T 9, 2013

Before M AN I O N and W O OD, Circ uit Judges, and B AR KE R , District Judge

. *

Hono rab l e Sarah Evans Barker, Distri ct Judge fo r the So uthern Distri ct of * Indi ana, si tting by desi gna tio n.2 No. 12-1500

M AN IO N, Circ uit Judge. Ronald Bates, a black fi refighter wi th the Chi cago Fire Department, was d e moted one level from hi s at-wi ll posi tion as a Di stric t Chi ef to a Deputy Di stric t Chi ef posi tion. The Fire Commi ssi oner who demoted hi m and the fi refighter who replaced hi m were also black. Nonetheless, Bates clai ms that hi s demotion was based on raci al di scri mination. The di stric t court di smi ssed sev e r a l of Bates’s clai ms under Feder al Rule of Ci vil Procedure 12(b) (6), the n gr anted

sum mary j udgment again st hi m on the remaining c lai ms. We affi rm. I. Facts
Ronald Bates i s a black fi refighter who jo ined the Chi cago Fire Department in 1977 and gr adually ro se thro ugh the ranks. He was promo ted to Li eutenant in 1980, Ca p t ain in 1987, Battalion Chi ef in 1989, and Deputy Di stric t C hi ef in 1998. In 2000, Fire Commi ssi oner James Joyce appointed Bates to one of

seven Di stric t Chi ef posi tions in the Chi cago Fire Department. A Di stric t Chi ef i s a member of the Fire Commi ssi oner’ s personne l m a n a ge m e n t te a m a n d h olds an at-wi ll posi tion wi th

no expec t a t i on of conti nued employment. During Bates’s tenure as a Di strict Chi ef, Joyce had no complaints about Bates’s jo b perfo r ma nc e. Indeed, Bates insti tuted a di ver si ty prog ram in hi s di stric t and was involv ed in a tr aining prog ram for newly appoi nted chi efs, and hi s work appears to have been well recei ved wi thi n the Chi cago Fire Department.
But Joyce resi gned as Fire Commi ssi oner in 2004, and Cor tez Trot ter becam e the n e w Fi re C om m i s s i one r. T ro tter, li ke Bates, i s black. Trot ter chose his own management t e a m, and

on May 24, 2004, he i ssu ed a personnel or der that contai ned aNo. 12-1500 3

li st of thi rt y promo tions, demotions, and later al reassi gnments for at-wi ll posi tions in the Chi cago Fire Department. These 1 appoi ntments consi sted of eig hteen promo tions (ei ght black, ten non-blac k); e ight demotions (three black, fi ve non-blac k); and four later al reassi gnments (two blac k, two no n-bl ack). 2
Bates was one of the dem otions. Trot ter demoted himto a Deputy Di stric t Chi ef po si tion in O p erat i on Reli ef, whi ch is a floatin g assi gnment not associ ated wi th any particu lar di stric t. Among the seven Di stric t Chi efs, B a t es was the only one demoted. The o t he r si x Di stric t Chi efs were ei ther promo ted (one black, four non-blac k) or later ally reassi gned (one nonblack).
Trot ter promo ted Ni cholas Russ ell to Bates’s Di stric t Chi ef posi tion, and li ke Bates and Trot ter , Ru ss e l l was also black. Russ ell had start ed work ing wi th the Chi cago Fire Department just a few year s after Trot ter began work ing there , and Russ ell had been a Battalion Chi ef when Trot ter promo ted hi m to Bates’s Di stric t Chief

posi tion. Si gni fi cantly, Russellhad been the presi dent of the Afric an Americ an Firefi ghter s League for
more than a decade, and had led prot ests again st raci al di s c rim in a ti on w i thin the Chi cago Fire Department duri ng that tim e. Ov erall, Trot ter ’s new appoi ntments to the Di stric t Chi ef

The or der i niti all y con t ai ne d a l i st of thirty- one appoi ntments, b ut an 1 addendum dated M ay 26, 20 04 , de l eted a na me fro m the l i st.

The di stric t cour t’s opi nio n and the b ri efs contain mino r di screpancie s i n 2 these numb ers, b ut these di screpancie s are not signi fi cant enough to affect the outc ome ofthis appeal

.4 No. 12-1500 posi tions increased the numb er of black fi refighters serving as Di stric t Chief s from two to three

. Bates work ed in hi s new Deputy Di stric t Chi ef posi tion for

a few months, then too k a year -long medi cal leave. At the end

o f hi s leave, Bates was unabl e to conti nue hi s work , a nd he ret i red fro m the Chi cago Fire Department on Nove mber 13, 2005. On Mar ch 16, 2005, duri ng hi s medi cal leave, Bates fi led

a pro se complaint, whi ch he sub sequently amended wi th the assi stance of couns el on Sept ember 27, 2005. The amended

c om p l a in t c onta in e d fou r c ounts allegin g that Bates’s demotion had been motivated by raci al di scri minati on. It named Joyce, Trot ter , and two Di stric t Chi efs as defendants in their indi vidual capac i ties and as agents of the Ci ty of Chi cag o in t he i r offi ci al capac i ties

. Bates sued Trot ter becau se Trot ter had made the deci si on to demote hi m, and Bates also sued Joyce and two Di stric t Chi efs becau se they had allegedly influ enced Trot ter ’s deci si o n. Count I was a Ti tle VII clai m again st the Ci ty of C hi cago, Count II was a § 1983 clai m again st all defendants, Count III was a § 1981 clai m again st the indi vidu al defendants, and Count IV was a state law clai m for intentional infli cti on of emotional di stress agai nst all defend ants. The di stric t court ulti mately resolv ed all counts in favor of the defendants. The court di smi ssed Counts II and III under Feder al Rule of Ci vil Procedure 12(b) (6) for all de fe nd a nts except Trot ter , and di smi ssed Count IV for all defendants. The court allowed di scovery for the re m aining counts, then enter ed

sum mary judgment on Count I in favor of the Ci ty of Chi cago (the only defendant named in that count) and on Counts II and III in favor of Trot ter (the only defendant remain ing in those counts). B ates fi led a tim ely appeal of these rulin gs.No. 12-1500 5

II. Di scu ssi on We fi rst examine whethe r the di stric t court err ed in gr anti ng sum mary judgment on Count I in favor of the Ci ty of Chi cago and o n C ounts II and II I in favor of Trot ter

. We then exami ne whether the di stric t court err ed in di smi ssing Counts II and II I agains t the o ther defendants under Rule 12(b) (6). 3

A. Clai ms Resolved on Summary Judgment
Bates alleges that Trot ter and the Ci ty of Chi cago demoted hi m becau se of raci al di scri minatio n t ha t violated Ti tle VII (Count I), § 1983 (Count II), and § 1981 (Count III ). The di stric t court gr anted sum mary ju d g ment on these clai ms in favor of the defendants. We rev i ew a di stric t court’s grant of a motion for sum mar y j ud gment de novo , and we view all facts and inferences in favor of the non-movin g party (here, Bates). Goo d v. Univ. of C hi. Med. Ctr. , 673 F.3d 670, 673 (7th Cir. 2012).
Bates arg ues that he has presented suffi ci ent evidenc e of raci al di scri minati on to survive sum mary judgment un der McDonnell Douglas Corp. v. Green , 41 1 U

. S

. 792, 802 (1973). 4 Under the McDonnell Douglas framework, “a plainti ff mus t produce evide nce that he (1) belongs to a prot ected clas s, (2) met hi s employer ’s legiti mate perfor manc e expectat i on s, (3)

Bates do es not contest the di stric t co urt’s di smissal o f Co unt IV. 3

Even though Bates was repl aced b y another b l ack fi refi ghter, tha t fact i s 4
not di sposi tive, and we must stil l ana l yze Bates’s argumen ts through the McDonnell Doug las framewor k. See Carson v. Beth lehem Steel Corp. , 8 2 F. 3d 15 7, 15 8- 59 (7 th Ci r. 19 96 ) (per curi am) (“ An empl oyee may b e ab l e to show tha t his race

... t i p p e d the scales aga i nst him, witho ut regard to the demo graphic characteri stics o f hi s repl acement.”).6 No. 12-1500

suffered an adver se employment acti on, and (4) was tr eated

worse than si mi larly si tuated employees outsi de the prot ected clas s.” Rodgers v. White, 657 F.3d 511, 517 (7th Ci r. 2011). If the plainti ff sati sfi es these requirements, the bur d e n shi fts to the defendant to offer a legiti mate, non-di scri minator y reason for the employment action. Id . And i f the defendant offers such a reason, the burden shi fts back to the pl ainti ff to show that the d e fendant’s reason was merely a pret ext

. Id

. The McDonnel l Douglas fra me wo r k appli es equally to clai ms under Ti tle VII, § 1983, and § 1981. Id.
The di stric t c ourt conclu ded that Bates could not establi sh

a prim a faci e case becau se he fai led to p r o v e t he fourth McDonnell Douglas element: whether Bates was tr eated worse than si mi larly si tuated fi refig ht e rs who were not black. We have held that “[t]he si mi larly si tuated inqui ry i s a flexible,

common-s ense one that asks, at bott om, whether ‘t he r e a re enough common factors

... to allow for a meaningful compari

son in or der to di vine whether intentional di scri minati on was at play.’” Henry v. Jones , 5 07 F.3d 558, 564 (7th Ci r. 2007) (quoti ng Barricks v. Eli Lill y & Co. , 481 F.3d 556, 560 (7th Ci r. 2007)). “[T] he comparato r mus t sti ll be si mi lar enough ‘to el iminate confounding var i ables, such as di ffering ro les, perfor manc e hi stor i es, or deci si on-making personnel, [so a s to] i solate the cri tic a l independent var i able: complaints about di scri minati on.’” Filar v. Bd. of Educ. of Chi. , 526 F.3d 1054, 1061 (7th Ci r. 2008) (quoti ng Humphr ies v. CBOCS West, Inc

. , 4 74 F.3d 387, 405 (7th Cir. 2007))

. We agr ee wi th the di stric t court that Bates fai le d to prov e the “si mi larly si tuated” element becau se “the numb ers do notNo. 12-1500 7

supp or t the cl ai m of race di scri minati on.” Across the board, Trot ter ’s promo tions, demotions, and later al tr ansfers di d not demonstrate any clear raci al bi as. Of the ei ght demotions, fi ve
were for non-blac k fi refighters, whi ch suggests that Tr ott er demoted both black and non-blac k fi refighters wi thout reg ard to race. Bates there fore lacks evidenc e that he was tr eated

worse than si mi larly si tuated fi refighters. See Bush v. Commonwealth Edison Co. , 990 F.2d 928, 931 (7th Ci r. 1993) (“[A] patter n, in whi ch blacks sometime s d o better than whi tes and sometim es do worse, being random wi th respect t o r a ce, i s not evidenc e of racialdi scri minati on.”).
Bates con te n d s th a t w e s h ou l d l i mi t our “si mi larly si tuated” compari son to the appoi ntm e n ts of the other si x Di stric t Chi efs. Of the s even D i stric t Chi efs, Bates was the only one dem ote d. The other si x Di stric t Chi efs had ei th e r be e n promo ted (one black, four non-blac k) or later ally reassi gned (one non-blac k). But we see no need to exclude Trot t e r ’ s other appoi ntments from our analysi s. Trot ter made all thi rt y appoi ntments in the

same personnel or der, and they consi sted of a comprehensi ve sch eme to change the leadershi p in the at-wi ll posi tions wi thi n the Chi cago Fire Department. And i f we were to scrutini ze the Di stric t Chi ef compari sons more cl o sely , we would note that the ot h e r D i s tr i c t Chi efs had quali fi cati ons and exper i ences tha t di stingui shed them from Bate s

. Fo r e xa m ple, Trot ter promo ted Di stric t Chi ef James Kehoe to a posi tion t ha t Kehoe had held under a former Commi ssi oner. Bates, however , had never held

a rank hi gher th an D i s tr i c t C hi ef. Trot ter also promo ted Di stric t Chi ef Willi am Dono hue because D onohue had demonstr ated

an aggr essi ve manag e ment style whi le handling a scan dal in hi s di stric t. Bates does not assert tha t he had si mi lar exper i

-8 No. 12-1500

ence. Therefore , i f we were to closely scrutini ze the recor ds and accompl i shm ents of the ot he r Dis tr i ct Chi efs, we would sti ll find that Bates i s unabl e to sh o w that he was tr eated worse than a “si mi larly si tuated” gr oup of non-blac k Di stric t Chi efs.
Even i f Bates were able t o sati sfy the “si mi larly si tuated” element and establi sh a prim a faci e case, Trot ter asserted a legiti mate, non-di scri minator y reason to explain hi s d e c i s i on to demote Bates. Trot ter testifi ed duri ng a deposi tion that he had demoted Bates becau se Bates’s management style di d not ali gn wi th hi s own: In look ing at t he goals and look ing at my needs for the Fire Department, speci fi cally [Bates’s] Di stric t, I felt that the person that I was appoi nting was better able to carry o ut my goals and reflect my management style. ...

...

... I have an aggr essi ve management style. I look for hig h energ y, enthusi asm. I look for people t ha t

a re—t hat appear, at least to me, to be engaged in what they’r e doin g. When ask e d sp eci fi cally abo ut Bates, Trot ter testifi ed that he remembered “not being i mpressed by the ov erall demeanor

or the enthusi asm that I saw.” We have readi ly accepted such

concerns about an employee’s perfor manc e and l e adershi p ski lls “as legiti mate, non-di scri minator y reasons; indeed, they

are a staple of employer responses in these si tuations.” Satta r v. Mot orola

, Inc. , 138 F.3d 1164, 1170 (7th Cir. 1998).No. 12-1500 9

Bates would then have to show that Trot ter ’s reason for Bates’s demotion was merely a pret ext

. To show pr e t ext, a plainti ff “mus t i denti fy such weaknesses, i mplaus ibi li ties, in c on s i s te n c i e s, or c ontradi cti ons in [the defendant’s] proffere d

reasons that a reasonable person could find them unw or thy of credence and hence infer th a t [t he defendant] di d not act for the asserted non-di scri minator y reasons.” Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 792 (7th Ci r. 2007). A plainti ff can do thi s by showing that the defendant’s reason for the adver se employment acti on (1) had no basi s in fact; (2) di d not actually motivate the adver se employment acti on; or (3) was insu ffi

ci ent to motivate the acti on. Wells v. Unis ource Worldwide, Inc. , 289 F

. 3 d 1001, 1006 (7th Ci r. 2002). “The focus of a pret ext inqui ry i s whether the employer ’s stated reason was honest, not whether i t was accur a t e , wi se, or well-c onsi dered.” Stewart v. Henderson , 207 F.3d 374, 378 (7th Cir. 2000).
Bates atte mpts to establi sh pret ext by arg uing that Trot ter ’s

reason for hi s demotion had no basi s in fact. First, Bates clai ms that Trot ter changed hi s reason for the demotion, and Bates arg ues that thi s alleged incons istency demonstrate s the unreli abi li ty of Trot ter ’s explanation. Bates clai ms that Trot ter testifi ed that Bates was a “goo d fi t” for Trot ter ’s management team in hi s second deposi tion, even though Trot ter had prev i ously testifi ed that Bat es was not a “goo d fi t” in his fi rst deposi tion. But Trot ter ’s statements di d not create an inconsi stency in his posi tion; t hey merely reflecte d Tr o tte r’s desi re to keep Bates wi thi n hi s management team, but not at the level of

a D i s tr i ct Chi ef. Bates further arg ues that hi s work pe rfor m a n c e and management ski lls co ul d not have been Trot ter ’s reason for the demotion becau se, even though Trot ter demoted Bates,10 No. 12-1500

Trot t e r sti ll ret ained Bates in an at-wi ll posi tion and invited hi m to a management ret reat

. But again , Trot ter ’s a ct io ns si mply demonstrate d that Trot ter wanted to keep Bates in hi s management team, but not as a Di stric t Chief

. Second, Bates arg ues that Trot ter ’s reason for hi s demotion i s based on factual inferences that are i mpermi ssi ble on
sum mary judgment. Bates ci te s confli cting evidenc e in the

recor d about the ext ent of hi s relat i onshi p wi th Trot ter , and he clai ms that these di screpanc i es ar e genuine i ssu es o f ma t erial fact that preclude a sum mary judgment r ul ing. But any inconsi stenci es in the deposi tions reg ardin g the relat i onshi p between Trot ter and Bates are not material to the resolution of thi s case. The recor d establi shed that Trot ter and Bates had met in person at least several tim es, and they had work ed tog ether in the Chi cago Fire Department for decades. Trot ter there fore had suffi ci ent exper i ence wi th Bates a nd the Chi cago Fire Department to supp or t hi s a s s e rti on th a t Bates’s demeanor and level of enthusi asm were not compati ble wi th hi s management style.
Fin ally, Bates arg ue s t ha t we should not infer that Trot ter opposes raci al di scri minati on si mply becau se he i s black, and the r efore would not di scri minate again st another black fi refighter. Although i t i s p o ss ibl e for employer s to di scri mi

nate again st members o f their own race, Bates prov i ded no evidenc e that Trot ter was r a cia lly bi ased again st black fir efi ghter s. Instead, the recor d shows that Trot ter promo ted many black fi refighters to at-wi ll posi tions in the Chi cago Fire Department. He promo ted ei ght black fi refighte rs in the personn e l or der dated May 24, 2004, and he increased the numb er of black Di stric t C hi efs from two to three

. Indeed,No. 12-1500 11

Trot ter replaced Bates wi th R us se ll, who was also a black fi refighter. And not only di d Russ ell and Bates share the same race, Russ ell had been the presi dent of t he Afric an Americ an Firefi ghter s League for more than a decade. Trot ter wa s well

aware of Russ el l’s advocacy for the Afric an Americ an Firefi ghter s League, and Trot ter and Russ ell had even been on
a telev i si on show tog ether and di scu ssed Russe l l ’ s work again st raci al di scri minati on. Russell’s acti vis m is li kely what Trot ter refer red to as the “hi gh energ y [and] enthusi asm” that the Fire Department needed “to carry out [hi s] go a l s and

r e flect [hi s] management style.” Therefore , we affi rm the di stric t court’s ruli ng that Bates fai led to establi sh a prim a faci e case, and even i f Bates were able to do so, he would be unabl e to show that Trot ter ’s reason for Bates’s demotion was merely pret ext

. B. Di smi ssed Clai ms Bates further alleges that “Trot ter was influ enced by” Joyce and two Di stric t Chi efs, and that Trot ter demoted B a t e s as a result of thi s influ ence. The amen d ed complaint there fore named Joy ce and t he two Di stric t Chi efs as defendants to the § 1 9 8 3 clai m (Count II) and the § 1981 clai m (Count III ). The di stric t court di smi ssed these clai ms again st Joyce and the two Di stric t Chief s un der Federal Rule of Ci vil P ro cedure 12(b) (6) becau se i t conclu ded that these defendants were ent it l ed to quali fi ed i mmu ni ty fr om a “cat’s paw” theory of li abi li ty.
But Bates deni es that he i s invok ing the “cat’s paw” theor y of li abi li ty. The amended complaint, however , speci fi cally alleged that “Trot ter was influ enced by” Joyce and two Di stric t Chi efs, whi ch i s a clas si c e xample of a “cat’s paw” theor y of12 No. 12-1500

li abi li ty. Joyce and the two Di stric t Chi efs lacked the authority to demote Bates on their own, and t he amended complaint

even conceded that only “Defendan t Trot ter made the deci si on to demote Bates.” Therefore , the amend e d co mplaint alleged

a theor y of “cat ’s paw” li abi li ty, but Bates has since wai ved that t heory

. 5
On appeal, Bates seems to frame hi s arg ument as one of di rect li abi li ty, in whi ch Joyce and the two Di stric t Chi efs were “acti vely involv ed” in Bates’s demotion. Thi s hardly helps hi s
cas e

. E v en i f these were the allegations in the amended complaint (wh i ch they were no t ), we would find that the amended complaint fai led to speci fi cally allege how Joyce and the two Di stric t Chi efs were “acti vely inv o l ved” in Trot ter ’s deci si on to demote Bates. The amended complaint was vag ue,
never explain ed i ts case, and lumped the defendants tog ether wi thout suffi ci ent detail.

Jo yce was the outgo i ng Fir e Co mmissio ner who was repl aced b y Tro tter, 5 and t he t wo Distri ct Chie fs were pro moted further up i nto Tro tter’s

man agement team i n the May 24 , 20 0 4, perso nnel or der. Al l three were white. Because of Jo yce’s experi ence i n man aging the Chic ago Fir e Department, and the pol i cy-making ro l es of the two p r o mo t e d Distri ct Chie fs, we ass ume tha t Tro tter woul d naturall y hav e consi dere d the adv i ce of these def endants (among others) as a necessary part of reo rganizing the De p ar tment. But Bates all eges tha t this adv i ce was b ased not on the def endants’ pro f e ss i o nal judgment, b ut on the def endants’ all eged racial b i ases. The amen ded compl aint made nothi ng but v ague an d general i zed all egatio ns ab out the racial attitudes of these def endants, and fail ed to mak e any speci fi c all egatio ns ab out how racism was the b asis fo r any adv i ce these def endants ga v e to Tro tter.No. 12-1500 13

But even if B ates had not wai ved hi s clai ms again st Joyce and the two Dis t ric t Chi efs, and even i f the di stric t court had

err ed by di smi ssing the § 1983 and § 1981 clai ms again st them becau se of quali fi ed i mmu ni ty, su ch an err or would be harmless under Feder al Rule of Ci vil Procedure 61. The § 1983 and § 1981 clai ms pro ce e d e d to sum mary judgment again st Trot ter , and as di scu ssed in Section II.A, Trot ter asserted a legiti mate, non-di scri minator y reason that explain ed hi s deci si on to demote Bates. Trot ter testifi ed in hi s deposi tion that hi s deci si on was based o n hi s own goals and management st y l e , a nd he gav e no indi cati on that he had received any raci ally motivated advic e from Joyce or the two Di stric t Chi efs.
III. Conclus i on The di stric t court corr ectly deter mined that Bates was unabl e to establi sh a prim a faci e case under the Mc Donnel l Douglas framework, and even i f he could establi sh such a case, Bates would be unabl e to show that Trot ter ’s reason for Bates’s demotion was mer ely pret ext

. Addi tionally, t he di stric t court

corr ectly di smi ssed the § 1983 and § 1981 clai ms again st Joyce and the two Di stric t Chief s for allegedly influ encing Trot ter ’s deci si on to demote Bates. We there fore AFF I R M t he di stric t court’s r ulings.