United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted April 25, 2013

*

Decided July 12, 2013

Before

RICHARD D. CUDAHY, Circuit Judge

KENNETH F. RIPPLE, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

Nos. 12-3626 & 12-3813

VALENTINO GRAHAM,

Plaintiff-Appellant,

v.

ILLINOIS DEPARTMENT OF

CHILDREN AND FAMILY SERVICES,

Defendant-Appellee.

Appeals from the United States District 

Court for the Central District of Illinois.

No. 11-CV-1101

James E. Shadid,

Chief Judge.

O R D E R

Valentino Graham had been a child welfare specialist with the Illinois Department of

Children and Family Services (DCFS) for three years when he was fired in 2009 for falsely

testifying at a child welfare hearing and mishandling confidential client materials. Graham

then sued his former employer under Title VII of the Civil Rights Act of 1964 and 42 U.S.C.

§ 1981, contending that the real reason he was fired is that he is black. The district court

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1

After examining the briefs and the record, we have concluded that oral argument is

*

unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.

34(a)(2)(C).
Nos. 12-3626 & 12-3813 Page 2

entered summary judgment for DCFS after concluding that Graham had provided neither

direct nor indirect evidence of race discrimination. We agree with the district court’s

assessment and affirm its judgment.

One of Graham’s job duties as a child welfare specialist was to testify at child welfare

hearings. In March 2009 he testified twice about his role in permitting a father to have an

unsupervised visit with his daughter in violation of an order of protection. As the hearing

transcripts establish, Grahamtestified at the first hearing that he had given permission forthe

visit, while at the second, after some equivocating, he denied giving this permission.

CathySmith,oneofGraham’s supervisors,heardabout his inconsistent statementsand

contactedthe assistant state’s attorneywhohadexaminedhimat thehearings toaskwhat had

happened.Theassistant state’sattorneyrespondedwithaletter accusingGrahamoftestifying

falsely and evasively. She wrote that she had “observed Mr. Graham lying in a court

proceeding” andthat he was “completelylackingincourtroomdecorum.” She addedthat she

would “never call Mr. Graham as a witness again” and in fact had already canceled his

scheduled testimony in another case.

The receipt ofthe attorney’s letterpromptedSmithtoinvestigatewhetherGrahamwas

performing his other job responsibilities satisfactorily. A search of his office uncovered

unsecured confidential client materials and release forms that were blank except for client

signatures that apparently had been copied from other forms. Graham was accused of

breachingconfidentialityandgivingfalse testimony,andthoughhedeniedintentionallydoing

either,DCFS’sdirectorultimatelydecidedtofirehimonthose grounds. Grahamexplains that

his firing was not the first time he was treated poorly at work: During an argument between

himanda former supervisorin2007,the supervisorthreatenedtocallthepolice ifGrahamdid

not “back off,” and afterward another supervisor explained to Graham that his large size and

shaved head could be intimidating.

Inresponse tohis firingGrahamsuedDCFSunderTitleVII and§ 1981, contendingthat

his race motivated the agency’s action. He argued that circumstantial evidence supports his

claimofrace discrimination, pointing specifically to the incident in2007 whenhe was warned

to “back off.” Grahamalso sought to make out a prima facie case ofrace discrimination using

the indirect, burden-shifting method established in McDonnell DouglasCorp. v. Green, 411 U.S.

792 (1973). To that end, he contended that similarly situated, white employees had made

“mistakes” while testifying but had not been fired. Additionally, Graham claimed that his

firing was retaliation for an earlier lawsuit.

Thedistrict court grantedDCFS’s motion for summary judgment after concludingthat

Grahamhad failed topresent evidence fromwhich a jury could find that he was fired because
Nos. 12-3626 & 12-3813 Page 3

of his race. The court explained that nothing indicated that the 2007 incident Graham

described had anything to do with his race or any bearing on the decision in 2009 to fire him.

The court alsoconcludedthat noneofthe employeesGrahamput forwardas comparators had

been accused of lying in court, breaking confidentiality rules, or doing anything comparable,

meaning that they were not situated similarly to him. (The court entered summary judgment

for DCFS on the retaliation claim as well, and Graham does not challenge that ruling on

appeal.)

Graham concedes that he is unable to present direct evidence of race discrimination,

but he argues that he offered evidence to support a prima facie case under McDonnell Douglas.

Again he contends that white employees working for DCFS made unspecified “mistakes”

while testifying at child welfare hearings but were not fired.

The McDonnell Douglas approach ordinarily requires the plaintiff to present evidence

that (1) he is a member of a protected class, (2) he met his employer’s legitimate job

expectations, (3) he suffered an adverse employment action, and (4) a similarly situated

employeeoutsideoftheprotectedclasswas treatedmore favorably. Keetonv.Morningstar,Inc.,

667 F.3d 877, 884 (7th Cir. 2012); Everroad v. Scott Truck Systems, Inc., 604 F.3d 471, 477 (7th Cir.

2010). If those elements are shown, the burden shifts to the defendant to provide a nondiscriminatoryreasonforthe adverse employment action. Ifthe employerdoes so,theburden

of proof shifts back to the plaintiff to show that the stated reason is pretextual. See Everroad,

604 F.3d at 477. But when, as in Graham’s case, the plaintiff satisfies the first and third

McDonnell Douglas elements, and the employer argues that the plaintiff was fired because he

did not meet legitimate expectations, “the credibility of the employer's assertion is at issue for

both the second element of the plaintiff's prima facie case and the pretext analysis.” Id. at

477–78; Elkhatib v. Dunkin Donuts, 493 F.3d 827, 831 (7th Cir. 2007); Curry v. Menard, 270 F.3d

473, 477–78 (7th Cir. 2001).

One way for Grahamto showpretext and thus defeat a motion for summary judgment

was topresent evidenceof similarlysituatedemployeeswhoweretreatedmore favorablythan

he. Everroad, 604 F.3d at 477–78. A plaintiff need not “present a doppelganger who differs

only by having remained in the employer's good graces,” but a comparator, to be suitable,

must resemble the plaintiff enough to allow for a meaningful comparison. Filar v. Board of

Educ. of City of Chicago, 526 F.3d 1054, 1061 (7th Cir. 2008). The seriousness of the proposed

comparator’s misconduct is of course relevant. See Coleman v. Donahoe, 667 F.3d 835, 847 (7th

Cir. 2012); Gates v. Caterpillar, Inc., 513 F.3d 680, 690 (7th Cir. 2008).

Graham’s evidence of similarly situated employees who were treated more favorably

falls far short of supporting a reasonable inference that DCFS’s stated reasons for firing him
Nos. 12-3626 & 12-3813 Page 4

were pretextual. He has offered nothing more than his statement that these employees made

“mistakes” while testifying yet were not fired. This vague and unsupported assertion is not

evidence that any of his proposed comparators engagedinmisconduct comparably serious to

his. And although Grahamrepeatedly points tothe assistant state’s attorney’s letter about his

false testimony, apparently believing that the letter somehow satisfies his burden under

McDonnellDouglas, his understanding ofits significance is mistaken. The attorney’s letter did

not identify any other DCFS employee who falsely testified and could serve as a comparator.

To the contrary, the letter —which assessed Graham as unfit for his duty of testifying at child

welfare hearings — is further justification for DCFS’s decision to treat him differently than

employees about whom no such letter was written.

Because Graham has presented no evidence from which a rational jury could find that

his firing was racially motivated, we conclude that the district court’s entry of summary

judgment was proper.

AFFIRMED.