# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued October 9, 2014

Decided October 28, 2014

Before

WILLIAM J. BAUER, Circuit Judge

FRANK H. EASTERBROOK, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

No. 13

‐ 3247

SALVATORE ZICCARELLI,

Plaintiff

‐ Appellant,

v.

THOMAS J. DART, Sheriff of Cook

County, Illinois, and COOK COUNTY,

ILLINOIS,

Defendants

‐ Appellees. Appeal from the United States District Court

for the Northern District of Illinois,

Eastern Division.

No. 11 C 4909

George M. Marovich,

Judge

.

O R D E R

Salvatore Ziccarelli, who is white, works for the Cook County Sheriff’s

Department as a guard at the county jail. He sued the sheriff (and the county as

indemnitor, see 745 ILCS 10/9

‐ 102) alleging that younger, female, and non

‐ white guards

were treated more favorably, and that he suffered retaliation when he complained to

supervisors about the unequal treatment. The district court granted summary judgment

for the defendants, reasoning that Ziccarelli, who relied on the indirect method of

McDonnel Douglas Corp. v. Green

, 411 U.S. 792 (1973), had not established a prima facie NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 13

‐ 3247 Page 2

case of discrimination or retaliation. That conclusion is correct. Ziccarelli did not

identify anything but trivial distinctions between himself and his coworkers, nor did he

identify any adverse action taken in response to his complaints of unfair treatment.

No jury could find from the evidence that Ziccarelli was treated less favorably than

other guards or that he suffered retaliation.

Unless otherwise noted, the following facts are undisputed and presented in the

light most favorable to Zicarrelli. Arizanovska v. Wal

‐ Mart Stores, Inc.

, 682 F.3d 698, 702

(7th Cir. 2012); SMS Demag Aktiengesellschaft v. Material Sci. Corp.

, 565 F.3d 365, 368 (7th

Cir. 2009).

Ziccarelli has worked at the jail for 25 years. In April 2009 he began submitting

grievances complaining that he was receiving too few “lunch premiums.” “Lunch

premiums” are given if guards must work through their lunch break when the jail is

understaffed. Guards working through lunch have the option of being paid time

‐ and

‐ a

‐

half for that hour or receiving an hour of compensatory or vacation time. A month

before he submitted his first grievance, Ziccarelli saw the timecard of a less

‐ senior

Hispanic guard who, he alleged, received significantly more premiums. Ziccarelli

complained to his superiors, who directed his scheduling supervisors to give Ziccarelli

more opportunities to earn premiums.

The same day that Ziccarelli filed one of his grievances, April 13, 2009, he was

written up for losing his utility belt. He had forgotten the belt in the employee

washroom after becoming ill on shift, and although equipment losses are to be reported

within 72 hours, Ziccarelli waited 5 days. Initially he was suspended for 5 days, but a

successful appeal reduced that sanction to a written reprimand (which eventually was

removed from his file).

In May 2009 Ziccarelli repeatedly telephoned another guard on shift to ask about

his lunch premiums. That guard formally complained that Ziccarelli’s calls were

harassing, and then a year later Ziccarelli submitted a grievance asserting that the guard

had been pressured into complaining. Ziccarelli was never disciplined for this incident,

and the other guard conceded later that perhaps “harassment” was too strong a word to

describe the situation.

A few months after the “harassment” incident, in August 2009, Ziccarelli was

ordered to complete the paperwork of a younger, female, Hispanic guard. Then in

October 2009, Ziccarelli wrote a letter that he and other guards signed; the letter assertsNo. 13

‐ 3247 Page 3

that a younger, female, black guard was receiving easier assignments. The next day

Ziccarelli filed another grievance accusing a supervisor of retaliating for the letter by

calling the “anonymous author” a coward and using profanity during roll call. At some

point in 2009, Ziccarelli was transferred from Division 2 to Division 5 because of

purported harassment and favoritism. He says he received more lunch premiums after

the transfer.

Prior to his transfer Ziccarelli also complained to a supervisor that, effectively, he

was being assigned more “cross

‐ watching” duties than other guards. Cross

‐ watching

means observing two tiers of inmates without a partner. Ziccarelli explained that

whenever he was partnered with a female guard, she invariably would be called away

to other assignments, leaving him to cross

‐ watch for most of his shift. Indeed, there

were some areas that female guards routinely were not assigned to protect inmate

privacy (if they were undressed), but the male guards watching these areas still had

backup. Moreover, the practice of cross

‐ watching is not prohibited, and Ziccarelli was

working in the minimum security area of the jail.

Before his transfer Ziccarelli also concluded that he was being denied a normal

rotation of job assignments, though he never filed a grievance about it. Standard

practice is to rotate guards into new positions every 90 days. Ziccarelli felt he was being

kept in positions with greater inmate contact for longer periods than other guards.

Ziccarelli filed an administrative charge of discrimination with the Equal

Employment Opportunity Commission and Illinois Department of Human Rights in

October 2009. In July 2011 he filed this action claiming that the Sheriff’s Department had

discriminated against him based on his age, race, and sex and then retaliated after he

complained. See 42 U.S.C. § 2000e

‐ 5(f)(1); 29 U.S.C. § 626(c)(1). He alleged that the

Department had denied him lunch premiums, given him more

‐ difficult job rotations,

and forced him to guard a higher number of inmates. He further alleged that the

Department had retaliated against him by pressuring his coworker to accuse him of

harassment, unfairly disciplining him for losing his utility belt, and making him

complete another guard’s paperwork.

In granting summary judgment for the Sheriff’s Department, the district court

concluded that a jury could not reasonably find from the evidence that Ziccarelli had

been treated adversely or that similarly situated employees outside his class were

treated more favorably.No. 13

‐ 3247 Page 4

For the lunch premiums, the district court compared the totals for Ziccarelli and

four other guards and concluded that the numbers do not raise an inference of adverse

or unequal treatment. No younger guard had received more premiums than Ziccarelli.

One female guard had bested him by six premiums over a 22

‐ month period, as had two

male Hispanic guards during that same period. A jury could not reasonably find, the

court reasoned, that a deficit of 6 premiums in 22 months constituted a materially

adverse employment action.

For the job rotations, the district court noted that Ziccarelli had not identified a

younger or non

‐ white guard for comparison, eliminating any finding of age or race

discrimination. Ziccarelli had offered some evidence that a female guard was not

rotated out of her “easier” job during the same time that he remained in place for more

than 90 days. The district court concluded, however, that Ziccarelli could not prevail on

a claim of sex discrimination because, the court reasoned, he is arguing “reverse

discrimination,” but lacks additional evidence of “background circumstances”

suggesting that the Sheriff’s Department discriminated against men. See Garofalo v.

Village of Hazel Crest

, 754 F.3d 428, 439 (7th Cir. 2014)

.

Regarding cross

‐ watching, the district court reasoned that Ziccarelli had not

produced evidence that guards outside his protected classes were treated more

favorably or were asked to perform safer or easier tasks.

Finally, on Ziccarelli’s retaliation claims, the district court concluded that he

lacked evidence of adverse treatment because the written reprimand for losing his belt

had been removed from his file. Similarly, his coworker’s accusation of harassment had

never led to disciplinary action, so it was not adverse.

Ziccarelli moved for reconsideration, but the district court denied that motion

with the explanation that the plaintiff simply was rehashing his previous contentions,

save for one new one that could have been, and should have been, made in opposition

to the Department’s motion for summary judgment.

On appeal Ziccarelli has abandoned his claim of age discrimination but

challenges the grant of summary judgment for the Sheriff’s Department on his claims of

sex and race discrimination. These claims rest on his allegations of unfair treatment in

allocating lunch premiums, allotting cross

‐ watching duties, and rotating job

assignments. Ziccarelli also challenges the grant of summary judgment on his claim ofNo. 13

‐ 3247 Page 5

retaliation; he says that the purported denial of lunch premiums also is evidence of

retaliation.

A prima facie case of discrimination includes four elements, among them that the

plaintiff suffered an adverse employment action. See Andrews v. CBOCS West, Inc., 743

F.3d 230, 234–35 (7th Cir. 2014); Lewis v. City of Chicago

, 496 F.3d 645, 653 (7th Cir. 2007).

This element helps to distinguish meritorious claims of discrimination from lawsuits

about trivial personnel matters. See Dass v. Chicago Bd. of Educ., 675 F.3d 1060, 1069–70

(7th Cir. 2012); Lewis

, 496 F.3d at 653. To have satisfied this element of his prima facie

case, Ziccarelli needed evidence of “some quantitative or qualitative change in the terms

or conditions of his employment or some sort of real harm.” Atanus v. Perry

, 520 F.3d

662, 675 (7th Cir. 2008) (internal quotation marks and citation omitted). Examples of

adverse employment actions might include reduced benefits, a transfer that diminishes

career prospects, or a job placement that subjects an employee to unsafe or significantly

negative conditions. Chaib v. Indiana

, 744 F.3d 974, 981 (7th Cir. 2014) ; Nagle v. Vill. of

Calumet Park

, 554 F.3d 1106, 1114, 1119 (7th Cir. 2009). Ziccarelli’s case presents nothing

of the sort.

First, Ziccarelli argues that the district court erred in concluding that the six

‐ premium deficit was not an adverse employment action. Lower pay or benefits can be

an adverse employment action, Harper v. Fulton Cnty., Ill.

, 748 F.3d 761, 767 n.5 (7th Cir.

2014), but we have distinguished between pay that employees are entitled to and pay

within the employer’s discretion, Lewis

, 496 F.3d at 653–54; Hunt v. City of Markham, Ill.

,

219 F.3d 649, 654 (7th Cir. 2000); Rabinovitz v. Pena

, 89 F.3d 482, 488–89 (7th Cir. 1996).

The distinction is useful in deciding if a pay disparity or change in pay was sufficiently

material to qualify as adverse action. Lewis

, 496 F.3d at 654. Broadly, if pay differences

result from “sporadic,” “discretionary” payments that the plaintiff could not count on,

rather than from an expected component of the plaintiff’s salary, then the denial was

not adverse. See Lewis

, 496 F.3d at 653–54; Fyfe v. City of Fort Wayne

, 241 F.3d 597, 602–03

(7th Cir. 2001). As pointed out in Hunt

, issues of discretionary payments and “the

principle of de minimis non curat lex ” often are intertwined “to place such denials

beyond the reach of employment discrimination statutes.” 219 F.3d at 654. The guards

at the jail surely had no expectation of working only on days when the facility was

understaffed, and Ziccarelli does not dispute that he was not entitled to lunch

premiums. Premiums can be distributed by seniority, although the record is unclear

whether this was the consistent practice. But no matter how they were distributed,

premiums were not available as a matter of right, but only when the jail was

shorthanded.No. 13

‐ 3247 Page 6

Ziccarelli ignores this basic point. The parties’ and district court’s comparisons of

total lunch premiums allotted to Ziccarelli and other guards neglect to analyze whether

Ziccarelli even was eligible for a premium when another guard received one, not to

mention that the totals do not account for the guards’ different shifts and assignments.

See Cisneros v. City of Chicago

, 2002 WL 31356404, at *3,*6–7 (N.D. Ill. 2002) (Department

of Aviation worker alleging discriminatory denial of overtime had to account for

Collective Bargaining Agreement that limited days when she was eligible to work extra

shifts, and could not make comparison to coworker who worked at different facility for

part of year in question).

After engaging in discovery, Ziccarelli managed to identify five dates in 2009

when, he says, he was denied a lunch premium: April 13, May 7, May 8, August 6, and

August 9. In his administrative charge of discrimination, he also alleged that he was

denied a premium on March 24, 2009. Ziccarelli’s payroll records show that he wasn’t

even working on May 8, 2009. On appeal, Ziccarelli still offers Anna DeJesus and

Enrique Cruz as similarly situated employees who were treated more favorably. Even

assuming that DeJesus and Cruz were in positions with the same operational needs and

were chosen over Ziccarelli (an assumption for which there is no evidence), neither

guard received a lunch premium on March 24, April 13, August 6, or August 9. Cruz

received a premium on May 7, when Ziccarelli and DeJesus didn’t receive one. But an

examination of the roster sheet and payroll records for May 7 indicates that Ziccarelli

wasn’t on the same watch as Cruz.

So Ziccarelli’s evidence raises no inference of adverse treatment relative to his

chosen comparators. More importantly, a difference of 6 premiums over 22 months is

negligible. Assuming that the hourly wages of the guards are as listed in Appendix A of

the Collective Bargaining Agreement, this deficit would total between $172.53 and

$345.06 (6 premiums, paid at time

‐ and

‐ a

‐ half, would equal 9 hours paid at an hourly

wage between $19.17 and $38.34). This is hardly the “chasm” Ziccarelli alleges. It does

not rise to the level of adverse action under Title VII.

This also resolves Ziccarelli’s claim of retaliation. While adverse actions in the

retaliation context are not limited to acts that affect the terms and conditions of

employment, the acts must still be more than trivial. Thompson v. N. Am. Stainless LP

,

562 U.S. 170, 868 (2011); Burlington N. & Santa Fe Ry. Co. v. White

, 548 U.S. 53, 68 (2006);

Henry v. Milwaukee Cnty

., 539 F.3d 573, 586–87 (7th Cir. 2008). This is trivial.No. 13

‐ 3247 Page 7

Even weaker is Ziccarelli’s evidence that as a male he was forced to cross

‐ watch

more frequently and rotated to new positions less frequently than other guards.

Ziccarelli points to what he views as preferential treatment given female guards. But his

views are subjective, and subjective impressions about the desirability of particular

work assignments, without more, are insufficient. Nagle

, 554 F.3d at 1114, 1117. For

rotation assignments, Ziccarelli’s evidence is limited to his own subjective beliefs that

other assignments were easier and given to female guards, and the deposition

testimony of one guard who opined that some rotations were perceived as “cush”

positions and seemed to be occupied by women. Even assuming that some rotations are

less desirable, being assigned a less

‐ desirable rotation doesn’t rise to the level of a

significant negative change in work conditions when other guards share these same

rotations and job duties. Nagle

, 554 F.3d at 1120 (strip mall and senior liaison

assignments not adverse actions where other officers also performed same duties);

Stephens v. Erickson

, 569 F.3d 779, 791–92 (7th Cir. 2009) (allegedly less

‐ desirable duties

not adverse when other accident adjusters also performed same duties). Ziccarelli offers

the same subjective statements and deposition testimony as evidence that he was

assigned more cross

‐ watching duties. Again, Ziccarelli offered no evidence to show that

cross

‐ watching is anything but a normal part of a jail guard’s job.

Ziccarelli’s final contention on appeal is that the district court erred in denying

his motion for reconsideration, which, he says, was rejected on the ground that the

motion included a new argument that could have been presented in response to the

Sheriff’s Department’s motion for summary judgment. But other than disagreeing with

the court that his postjudgment motion included a new argument, Ziccarelli does not

say how he was harmed by the court’s “mistake.” His motion simply repeated

arguments made previously, and it was not an abuse of discretion to deny it.

AFFIRMED.