In the

United States Court of Appeals

For the Seventh Circuit

No. 10-3706

KEVIN HARRIS,

Plaintiff-Appellant,

v.

WARRICK COUNTY SHERIFF’S DEPARTMENT,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Indiana, Evansville Division.

No. 3:09-cv-44-RLY-WGH—Richard L. Young, Chief Judge.

ARGUED MAY 4, 2011—DECIDED JANUARY 13, 2012

Before EASTERBROOK, Chief Judge, and FLAUM and

SYKES, Circuit Judges.

SYKES, Circuit Judge. The Warrick County Sheriff terminated Kevin Harris’s probationary employment as a

deputy sheriff based on violations of standard operating

procedures, failure to follow orders, and insufficient

commitment to the job. Harris sued the Sheriff’s Department under Title VII of the Civil Rights Act of 1964

(42 U.S.C. §§ 2000e et seq.) and 42 U.S.C. § 1981, claiming
2 No. 10-3706

he was fired because he is black. The district court

entered summary judgment for the Department and

Harris appealed.

We affirm. Harris’s circumstantial evidence of discrimination falls far short of supporting an inference that he

was terminated because of his race. No evidence suggests that the sheriff or other decision-makers participated in any of the alleged racially charged behavior—watching Blazing Saddles in the workplace and

giving Harris racially tinged nicknames. Finally, although

Harris identified several white deputies who were retained despite performance problems during their probationary employment, their misconduct was not comparable to his, so they cannot be considered similarly

situated.

I. Background

In November 2003 Marvin Heilman, the Sheriff of

Warrick County, Indiana, hired Harris as a reserve deputy

sheriff. Harris was later promoted to part-time and then

full-time dispatcher, and in August 2007 became a fulltime deputy sheriff. The Sheriff’s Department requires

all new deputies to complete a one-year probationary

period learning basic law-enforcement techniques from

field training officers (“FTOs”). During this period, a

deputy could be discharged at the sheriff’s discretion.

Not long after Harris’s probationary period began,

Heilman and Lieutenant Paul Weinzapfel became concerned about Harris’s lack of respect for departmental

policies. On one occasion Harris suspiciously took a sick
No. 10-3706 3

day the day after asking his FTO about sick-day procedures. Around the same time, Harris asked a sergeant

whether the required minimum of 40 traffic contacts per

month should be taken seriously. Harris also installed

nonissue lights on his assigned patrol car and affixed

a nonstandard patch on his uniform jacket, both in violation of the Department’s standard operating procedures.

Harris did not even read the department’s standard

operating procedures until Weinzapfel confronted

him about these violations.

A few additional events prompted concerns about

Harris’s commitment to the job. Harris asked for a longterm placement at the Warrick County Judicial Center—

widely regarded as a pre-retirement position—because

he liked the regular hours. He also quibbled with

Weinzapfel about his start time at the Judicial Center

and frequently stated that he needed to attend to

business at his recently opened hair salon.

In October 2007 Heilman and his command staff

(Chief Deputy Brett Kruse, Weinzapfel, and Lieutenant

Bob Irvin) met with Harris. Heilman expressed his disappointment with Harris’s lack of motivation and apparent failure to take his job seriously. The sheriff reiterated the importance of following orders and standard

operating procedures. Heilman offered to return Harris

to his old job as a dispatcher if he wanted less demanding duty. Harris assured the sheriff that he was

committed to being a deputy.

Harris’s violation of departmental rules continued.

Weinzapfel noticed Harris’s patrol car parked at a local
4 No. 10-3706

gym, despite the fact that patrol cars were only

supposed to be used for work-related purposes.

Weinzapfel also discovered that Harris disobeyed a

direct order to have the wiring in his patrol car checked.

As a result of these violations, Weinzapfel revoked

Harris’s vehicle-take-home privileges for a month. Harris

thereafter disobeyed another direct order by failing to

make his patrol car available to transport a prisoner.

On January 4, 2008—about five months into Harris’s

probationary period as a deputy sheriff—Heilman and

his command staff unanimously voted to terminate

Harris. Heilman explained to Harris that although his

performance-based deficiencies might improve with

more training, the main problems were Harris’s habit

of disregarding orders, his casual approach to standard

operating procedures, and his lack of motivation.

Weinzapfel’s written statement memorializing the

reasons for Harris’s termination is consistent with

Heilman’s explanation.

Both before and after Harris’s termination, several

white deputies had performance problems during their

probationary employment but were retained. Officer

Matthew Young was an unsafe driver, was not sufficiently aggressive, and did not follow the best police

practices in dealing with suspects. For example, he once

pulled up too closely to a dangerous suspect without

cover. Officer Matthew Claridge had problems with

prisoner control and traffic stops, and on one occasion

almost caused an accident while talking on his cell

phone while driving. Officer Dan Bullock, who replaced
No. 10-3706 5

Harris, struggled with decision-making skills and completing reports on time. He also had several driving

accidents, on one occasion striking a suspect’s vehicle.

Instead of terminating these deputies, however, Heilman

extended their training periods.

Harris testified in deposition to several events during

his employment that he claimed were evidence of racial

harassment. On one occasion detectives watched

excerpts from the movie Blazing Saddles in his presence.

Other deputies gave him racially tinged nicknames. For

example, Officer Brian Wessel called him “Calvin,” the

name of an African-American boy in a McDonald’s commercial. Officer Richard Barnett called him “Urkel,” the

name of an African-American character on the television

show Family Matters. Others called him “Cowboy Troy,”

the nickname of an African-American country-western

singer, and “Tubbs,” the name of an African-American

officer on the show Miami Vice. The only other black

deputy in the Department, Officer Cory Smith, was

subjected to similar nicknames.

After his probationary employment was terminated,

Harris sued the Sheriff’s Department under Title VII and

§ 1981, alleging that he was terminated because of his

race. The district court granted the Department’s

motion for summary judgment, finding insufficient

evidence of discrimination. Harris appealed.

II. Discussion

We review the district court’s grant of summary judgment de novo, construing all facts and drawing rea-
6 No. 10-3706

sonable inferences in favor of Harris, the nonmoving

party. Winsley v. Cook Cnty., 563 F.3d 598, 602 (7th Cir.

2009). Summary judgment is appropriate if the evidence

demonstrates that there is no genuine issue of material

fact and the moving party is entitled to judgment as a

matter of law. FED R. CIV. P. 56(c).

An employee alleging racial discrimination under

Title VII or § 1981 may proceed via the direct or the

indirect method of proof. Egonmwan v. Cook Cnty. Sheriff’s

Dep’t, 602 F.3d 845, 849-50 & n.7 (7th Cir. 2010). Harris

invoked the direct method of proof, which requires that

he present “direct or circumstantial evidence that

creates a convincing mosaic of discrimination on the

basis of race.” Winsley, 563 F.3d at 604 (quotation marks

omitted). Harris relied on circumstantial evidence, which

we have said typically falls into one of three categories: 

(1) suspicious timing, ambiguous oral or written

statements, or behavior toward or comments directed

at other employees in the protected group; (2) evidence, whether or not rigorously statistical, that

similarly situated employees outside the protected

class received systematically better treatment; [or]

(3) evidence that the employee was qualified for the

job in question but was passed over in favor of a

person outside the protected class and the employer’s reason is a pretext for discrimination.

Darchak v. City of Chi. Bd. of Educ., 580 F.3d 622, 631 (7th

Cir. 2009).

Harris’s proffered circumstantial evidence consists of

(1) racially charged workplace behavior; and (2) better
No. 10-3706 7

Harris has abandoned his argument that the reasons given 1

by the Department for his termination were pretextual.

treatment for similarly situated white probationary deputies. In the first category are the nicknames and the 1

workplace exposure to excerpts from Blazing Saddles. The

argument about Blazing Saddles is hard to take seriously.

The 1974 Mel Brooks comedy was nominated for three

Academy Awards and satirizes an array of racial,

ethnic, and social stereotypes. See WIKIPEDIA, http://

en.wikipedia.org/wiki/Blazing_Saddles (last visited

Jan. 5, 2012). The movie makes racism ridiculous, not

acceptable, as Harris seems to contend. The nicknames

are somewhat more compelling evidence of workplace

racial bias. But there is no evidence that Heilman,

Weinzapfel, or any others in the decision-making chain

used the nicknames—or for that matter had anything to

do with the viewing of film clips from Blazing Saddles.

To prove employment discrimination, a plaintiff needs

direct or circumstantial evidence “that the decisionmaker

has acted for a prohibited reason.” Rogers v. City of

Chicago, 320 F.3d 748, 754 (7th Cir. 2003). “Statements by

subordinates normally are not probative of an intent to

retaliate by the decisionmaker.” Long v. Teachers’ Ret. Sys.

of Ill., 585 F.3d 344, 351 (7th Cir. 2009) (quotation marks

omitted).

In the district court, Harris loosely advanced a “cat’s

paw” theory of liability. See Schandelmeier-Bartels v. Chi.

Park Dist., 634 F.3d 372, 379 (7th Cir. 2011) (explaining

this circuit’s formulation of the “cat’s paw” doctrine). In
8 No. 10-3706

Staub v. Proctor Hospital, 131 S. Ct. 1186, 1194 (2011), the

Supreme Court addressed this theory of liability,

holding that an employer may be liable for employment discrimination if a nondecision-maker “performs

an act motivated by [discriminatory] animus that is

intended . . . to cause an adverse employment action,

and . . . that act is a proximate cause of the ultimate

employment action.” Id.

On appeal Harris did not mention his “cat’s paw”

argument until his reply brief and even then addressed

it only summarily. The argument is therefore waived.

See Dexia Credit Local v. Rogan, 629 F.3d 612, 625 (7th Cir.

2010). We note as well that Harris has not presented

evidence to support this theory of liability as the

Supreme Court explained it in Straub. Nothing links

Harris’s co-workers’ use of nicknames or their viewing

of Blazing Saddles to the termination of Harris’s probationary employment. See also Adams v. Wal-Mart Stores,

Inc., 324 F.3d 935, 939 (7th Cir. 2003) (when proceeding

via the direct method, “circumstantial evidence . . . must

point directly to a discriminatory reason for the

employer’s action”).

Harris’s argument that several white deputies received better treatment also suffers from a straightforward problem: There is no evidence that those

deputies were similarly situated to him. “To establish that

employees not in the protected class were treated more

favorably, the [p]laintiff must show that those employees

were similarly situated with respect to performance,

qualifications and conduct.” Keri v. Bd. of Trs. of Purdue
No. 10-3706 9

Univ., 458 F.3d 620, 644 (7th Cir. 2006) (quotation marks

omitted). As relevant here, this inquiry does not require “near one-to-one mapping between employees,”

Humphries v. CBOCS W., Inc., 474 F.3d 387, 405 (7th

Cir. 2007), but the employees receiving more lenient disciplinary treatment must at least share “a comparable

set of failings,” Haywood v. Lucent Techs., Inc., 323 F.3d

524, 530 (7th Cir. 2003).

Harris has identified several white deputies who had

performance problems but were not terminated. But

none of them violated standard operating procedures,

disobeyed direct orders, or showed a lack of commitment

to the job during their probationary periods. So they

cannot be considered similarly situated to Harris. In

other cases in which a minority plaintiff had some shortcomings in common with a better-treated nonminority

employee but was terminated for additional, distinct

performance problems, we have found the comparator

employee not similarly situated. See, e.g., Burks v. Wis. Dep’t

of Transp., 464 F.3d 744, 751 (7th Cir. 2006). Moreover, there

are material distinctions between Harris’s misconduct

and the performance problems exhibited by the white

deputies. Cf. Humphries, 474 F.3d at 406 (where the comparator left a company safe unlocked during the day

and plaintiff left it unlocked at night, the distinction

between the two is merely “formalistic”). Harris was

fired for insubordination and a lack of commitment, not

just subpar performance; the other deputies made

errors but did not disobey direct orders or manifest a

cavalier attitude toward the job.
10 No. 10-3706

Harris insists that his mistakes were less serious than

those of his comparators, whose actions sometimes put

lives at risk. We have repeatedly said we do not sit as a

super-personnel department to determine which employment infractions deserve greater punishment. See

Ptasznik v. St. Joseph Hosp., 464 F.3d 691, 697 (7th Cir.

2006). It is enough that the misconduct that led to the

adverse job action in question is sufficiently distinct to

render the proposed comparators not similarly situated.

See Haywood, 323 F.3d at 530. 

Finally, we briefly note that the district court did not

err in drawing a nondispositive inference in favor of

the Sheriff’s Department based on the “same-actor”

theory—that is, the theory that because the same person

(here, Heilman) both hired and fired the plaintiff, it is

unlikely that he had a discriminatory motive. We have

explained that “the same-actor inference is unlikely to be

dispositive in very many cases,” but we also have approved its use as “a convenient shorthand for cases in

which a plaintiff is unable to present sufficient evidence

of discrimination.” Johnson v. Zema Sys. Corp., 170 F.3d

734, 745 (7th Cir. 1999); see also Martino v. MCI Commc’ns

Servs., Inc., 574 F.3d 447, 455 (7th Cir. 2009) (finding

that the same-actor inference can be “one more thing

stacked against” a plaintiff). This is such a case. 

AFFIRMED.

1-13-12