United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted February 10, 2020*

Decided February 10, 2020

Before

MICHAEL S. KANNE, Circuit Judge

DIANE S. SYKES, Circuit Judge

AMY J. ST. EVE, Circuit Judge

No. 18-3577

KEITH PERRY,

Plaintiff-Appellant,

v.

STATE OF ILLINOIS DEPARTMENT OF 

HUMAN SERVICES,

Defendant-Appellee.

Appeal from the United States District 

Court for the Northern District of Illinois, 

Eastern Division.

No. 15-cv-06893

Andrea R. Wood,

Judge.

O R D E R

Keith Perry worked as a caseworker for the Illinois Department of Human 

Services until the Department fired him for improperly using food-stamp benefits.

Before his discharge, the Department had suspended Perry several times for violating 

its workplace policies. Perry, a man over 40, sued the Department for discrimination 

based on age, sex, and retaliation for filing previous charges of discrimination. The 

* We have agreed to decide the case without oral argument because the briefs 

and record adequately present the facts and legal arguments, and oral argument would 

not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1
No. 18-3577 Page 2

district court entered summary judgment for the Department. We affirm because Perry 

did not present evidence that the Department disciplined or fired him unlawfully.

After working for over a decade on public-benefits cases at an office in Chicago, 

in 2012 Perry began to clash with coworkers and supervisors, leading to progressive 

discipline. First, after a coworker accused him of threatening her, Perry received a 

written warning because an investigation determined that, although the accusation was 

unfounded, he nonetheless behaved unprofessionally. The second discipline came four 

months later. The head of the local office, L.K. McIntosh, suspended Perry for one day 

for insubordination after a supervisor dropped a case file (Perry believes deliberately)

and told Perry to pick it up, which he refused to do. Another conflict flared three 

months later. An internal investigation found that Perry had threatened McIntosh (a 

guard had to restrain Perry), conduct that violated the Department’s policy against 

workplace violence. For this, a regional administrator suspended Perry for 29 days, and

a union liaison approved the suspension. Perry believes that this finding was mistaken: 

He asserts that he was not violent or threatening; instead, McIntosh had berated him to 

“stop acting like a little ass girl and do what [the supervisor] told you to do” after Perry 

refused the supervisor’s order to help a customer as Perry was leaving work. 

More discipline followed Perry’s return from suspension. McIntosh reassigned 

Perry to a new role and, to reduce conflict, assigned a new supervisor. Despite this

separation, Perry and his former supervisor still quarreled. The supervisor confronted 

Perry about attendance issues, sparking a clash between them. After an investigation, 

the Director of Labor Relations for the Department suspended Perry for 45 days for 

“conduct unbecoming a state employee.” A union liaison approved this discipline too.

The final discipline came a few months later. During his suspension, Perry 

applied for and received food stamps because of his loss of income. Though Perry 

returned to work on October 15, 2013—making him ineligible for benefits on that date—

charges on his food-stamp card continued until February 18, 2014. (Perry maintains that 

he lost his card and did not know that it was used improperly.) When the Department 

discovered these charges, it investigated the use of Perry’s card and questioned Perry, 

McIntosh, and a regional administrator. After considering the evidence, the Department

fired Perry for failing to monitor properly the use of his card.

Litigation followed. Perry had filed administrative charges against the

Department four times between 2013 and 2014. He asserted that the Department 

suspended, reassigned, and discharged him because of sex and age and in retaliation 
No. 18-3577 Page 3

for earlier administrative charges. Perry then sued the Department under the Age 

Discrimination in Employment Act, 29 U.S.C. § 623, and Title VII of the Civil Rights Act

of 1964, 42 U.S.C. § 2000e. In opposing the Department’s motion for summary 

judgment, Perry swore that—at an unspecified time—McIntosh called Perry an 

“old-timer” and stated that he thought that unnamed members of the Department 

wanted to discharge “old-timers” because of their high salaries and replace them with

“kids out of college” for less money. The district court entered summary judgment, 

ruling that Perry lacked adequate evidence of discrimination or retaliation.

On appeal, Perry generally challenges the district court’s entry of summary 

judgment, but his briefing is deficient in three ways. First, his two-and-a-half page 

opening brief does not develop relevant arguments. Rather it asserts that the district 

court violated his due process rights by not allowing him to present evidence. But “[t]he 

summary judgment procedure that Rule 56 of the Federal Rules of Civil Procedure

creates is not a denial of due process.” Altenheim Ger. Home v. Turnock, 902 F.2d 582, 585

(7th Cir. 1990). Perry had to present evidence that would necessitate a trial. If, as we are 

about to discuss, he failed to do so, then the district court properly followed Rule 56 by 

granting summary judgment without a trial. Second, Perry argues that the Department 

denied him “whistleblower protections,” but he failed to preserve this claim by not 

raising it in the district court. See Robinson v. Davol Inc., 913 F.3d 690, 696 (7th Cir. 2019). 

Third, Perry’s reply brief is just a resubmission of his summary judgment response in

the district court so it does not engage with the district court’s decision. 

In any event, nothing in the record justifies overturning summary judgment. In

reviewing an entry of summary judgment on a claim of discrimination or retaliation, we 

assess whether the evidence as a whole would permit a reasonable jury to find that the 

plaintiff’s sex, age, or prior charges led to adverse employment actions. See Ortiz v. 

Werner Enterprises, Inc., 834 F.3d 760, 765 (7th Cir. 2016).

We begin by assessing whether the statements that Perry attributes to McIntosh

suggest unlawful discrimination. Perry accuses McIntosh of calling him an expensive 

“old-timer” whom “they” wanted to replace with cheaper “kids.” We will assume that 

the comment reflects age bias; nonetheless, it cannot get Perry past summary judgment. 

Perry does not state when McIntosh called him “old.” For stray remarks to defeat 

summary judgment, they must closely relate in time to the adverse actions. See Overly v. 

KeyBank Nat. Ass’n, 662 F.3d 856, 865 (7th Cir. 2011). Second, Perry’s assertion that 

McIntosh said that unnamed persons wanted to fire older workers does not support his

discharge claim. Although McIntosh was involved in the decision to fire Perry, he was 
No. 18-3577 Page 4

one of multiple decisionmakers. No evidence suggests that the Director, who ultimately 

signed off on Perry’s discharge, based his decision on any bias. See Bagwe v. Sedgwick 

Claims Mgmt. Servs., Inc., 811 F.3d 866, 886 (7th Cir. 2016). Finally, the comment does not 

purport to explain the earlier decisions to suspend or reassign Perry during the two 

years before his discharge. So it is not probative of those claims either.

Perry also asserts that McIntosh called Perry “a little ass girl” during a clash with 

a supervisor that later led to a 29-day suspension. Even assuming this comment reflects

a gender bias, it is not evidence that the Department suspended Perry because of this 

bias. Nothing suggests that the investigator of the clash, or the regional administrator 

who suspended Perry based on that investigation, shared, acted on, or was influenced 

by any bias. See Milligan-Grimstad v. Stanley, 877 F.3d 705, 711 (7th Cir. 2017). 

Finally, Perry presents no evidence that the Department retaliated against him 

for filing administrative charges. He cites the closeness in time between filing his 

charges of discrimination and the adverse actions. Yet as we have often said, mere 

temporal proximity alone is insufficient to establish an inference of retaliatory motive.

See Davis v. Time Warner Cable of Se. Wis., L.P., 651 F.3d 664, 674–75 (7th Cir. 2011).

We have reviewed Perry’s remaining arguments, and none have merit. 

AFFIRMED