# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Submitted Februar y 10, 20 20 *

Decided February 10, 20 20

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 violati ng its workplace polic ies

. Perry , a m an over 40
, sue d the Department for discrimination b ased on age , sex , and retaliat ion for filing previous charges of discrimination. T he

* 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. F ED

. R. A PP

. P. 34(a)(2)(C). NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1No. 18

- 3577 Page 2

district court entered summary judgment for the Department

. W e 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 a n office in Chicago
, i n 2012 Perry began to clash with coworkers and superviso rs , leading to pro gressive discipline

. First, a fter a coworker accused him of threatening her
, Perry received a written warning because a n investigation determined that
, al though the accusation was unfounded
, he nonetheless behave d unprofessionally

. The second discipline came f our months later . T he 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. A nother 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 susp ended Perry for 29 days , and

a union liaison approved the suspension

. Perry believes that th is 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 re assigned Perry to a new role and, to reduce conflict , a ssigned a new supervisor

. Despite this separation , Perry and his former supervisor still quarreled

. T he supervisor confronted Perry about attendance issues
, sparking a clash between them. After a n investigation
, the Director of Labor Relations for the Department suspended Perry for 45 day s for “conduct unbecoming a state employee.” A union liaison approved th is discipline too.

The final discipline came a few months later . D urin g his suspension, Perry applied for and received food stamps be cause 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 the se charges, it investigated the use of Perry’s card and questioned P erry, McIntosh
, and a regional administrator . After considering the evidence
, the Department fire d 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 assert ed that the Department
suspen ded , reassign ed , and discharge d him because of sex and age and in retaliationNo. 18

- 3577 Page 3

for earlier administrative charge s

. 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 sw ore that

— at a n un specif ied time

— McIntosh called Perry an “old

- timer” and stated that he thought t hat un named members of the Department wanted to discharg e “old

- timers” because of their high salaries and replac e them with “kids out of college” for less money. The district court entered summary judgment
, rul ing 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, h is two

- and

- a

- half page opening brief does not develop relevant arguments . R ather it asserts that the district court violated his due p rocess 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, 58 5 (7th Cir. 1990) . Perry had to present evidence that would necessitate a trial. If , as we are about to discuss, he failed to do s o, then the district court properly followed Rule 56 by granting summary judgment without a trial

. Second, Perry argues that t he Department denied him “ whistleblower protections, ” but he failed to preserve this claim by not
rais ing it in t he 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 th e district court so it does not engage with the district court’s decision

.
In any even t, n othing in the record justifies overturning summary judgment. In
review ing a n entry of summary judgment on a claim of discrimination or retaliation , we

asses s 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 action s

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

We begin by assessing whe ther the statements that Perry attributes to McIntosh suggest unlawful discrimination . Perry accuses McIntosh of calling him an expensive “old

- timer” who m “they” w anted to replace with cheaper “kids

. ” We will assume that th e comment reflect s 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 close ly 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 w anted to fire older workers does not support his discharge claim

. A lthough McIntosh was involved in the decision to fire Perry, he wasNo. 18

- 3577 Page 4

one of multiple decisionmakers. No evidence suggests that the Direct or, who ultimately signed off on Perry’s discharge, based his decision on any bias. See Bagwe v. Sedgwick Claims M gmt. S ervs., Inc. , 811 F. 3d 8 66, 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 . S o it is not probative of those claims either

.
Perry also asserts that M cIntosh 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. N o thing suggests that the investiga tor of the clash, or the regional administrator who suspended Perry based on th at investigation , shared
, acted on , or was influenced by any bias. See Milligan

- Grimstad v. S tanley , 877 F.3d 705, 711 (7th Cir. 2017).

Finally, Perry presents no evidence that the Department retaliat ed 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. 20 11).

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

AFFIRMED