In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-2688

DERRICK NICHOLS, BABATUNDE OWOSENI,

DANIEL SMITH, et al.,

Plaintiffs-Appellants,

v.

SOUTHERN ILLINOIS UNIVERSITY-EDWARDSVILLE,

Defendant-Appellee.

____________

Appeal from the United States District Court 

for the Southern District of Illinois.

No. 04 C 555—G. Patrick Murphy, Judge.

____________

ARGUED JANUARY 5, 2007—DECIDED DECEMBER 28, 2007

____________

Before FLAUM, MANION, and SYKES, Circuit Judges.

MANION, Circuit Judge. Derrick Nichols, Babatunde

Owoseni, Daniel Smith, and Aaron Watson, current and

former officers of the Southern Illinois University Police

Department, sued Southern Illinois University (the

“University”) alleging that it discriminated against them

because of their race by disproportionally assigning

them to work at its East St. Louis campus. Owoseni, Smith,

and Nichols also alleged that the University denied them

temporary upgrades to sergeant because of their race and
2 No. 06-2688

retaliated against them for making complaints of racial

discrimination. The University moved for summary

judgment on all of the plaintiffs’ claims, and the district

court granted the University’s motion. The plaintiffs

appeal. We affirm.

I.

Derrick Nichols, Babatunde Owoseni, Daniel Smith, and

Aaron Watson (collectively the “plaintiffs”) are current

and former officers of the University’s police department

(the “Department”). Nichols and Watson currently are

employed by the University, while the State Universities

Civil Service Merit Board (the “Merit Board”) terminated

Owoseni’s and Smith’s employment in September 2003.

Each of the plaintiffs is black.

The University is a multi-campus public university

with facilities in East St. Louis, Alton, and Edwardsville,

Illinois. The Department is responsible for patrolling the

University’s East St. Louis and Edwardsville campuses.

The smaller East St. Louis campus is located in a predominantly black residential area, while the larger Edwardsville campus is located in a predominantly white residential area. Because the East St. Louis campus is smaller,

officers’ duties at that campus tend to be less strenuous.

According to the Department’s policy, officers must be

willing to work at either campus, and officers are stationed

at a campus for a semester-long assignment. Regardless

of an officer’s campus assignment, all officers received

the same pay, benefits, and opportunities for advancement.

The Department’s command staff makes assignments to

the two campuses with input from its sergeants, lieutenants, captains, and chief. First, the lieutenant in charge of
No. 06-2688 3

1 Only Nichols did not submit an assignment request for the

East St. Louis campus.

the patrol division prepares the schedules. The captain

supervising the division then must approve the schedules.

The Department’s chief is responsible for giving the

final approval to the assignments.

Officers may request assignment to a particular campus,

and all but one of the plaintiffs directly or indirectly

requested assignments to the East St. Louis campus.1

 For

example, from August 2002 through May 2003, Watson

requested an assignment to the East St. Louis campus so

that he could be closer to another college where he was

finishing a degree. When there was a temporary manpower

shortage, Watson agreed to work at the East St. Louis

campus on July 16 and July 17, 2003, and on August 27,

2003, he authored a memorandum to his sergeant stating

that he did not have a preference regarding his campus

assignment. In late 2001, Smith also requested assignment

to the East St. Louis campus from December 2001 through

December 2002, and he was assigned to that campus from

August through December 2002. Further, Owoseni requested to work with a sergeant who was primarily

assigned to the East St. Louis campus. In addition to the

plaintiffs, a number of white officers requested assignment

to the East St. Louis campus and were assigned to that

campus. The plaintiffs nonetheless allege that the Department disproportionally assigned them to the East St. Louis

campus based on their race.

The plaintiffs also make allegations regarding the

Department’s promotion and upgrade practices. The

University’s collective bargaining act (“CBA”) distin-
4 No. 06-2688

2 Owoseni and Nichols had passed the written examination and

were awaiting an opportunity to sit for the oral examination.

guishes between promotions and temporary upgrades.

Promotions are permanent appointments to a higher

position (e.g., officer to sergeant), which are governed

by the State Universities Civil Service Act (“Civil Service

Act”), 110 ILCS 70/0.01 et seq., and the CBA. Officers may

only be promoted to sergeant if they pass qualifying

examinations administered pursuant to the Civil Service

Act and the CBA and are placed on a “register.” None of

the plaintiffs had passed all portions of the qualifying

exam, and thus they were ineligible to be placed on the

“register” for promotions. On the other hand, upgrades

are not permanent and function to fill vacancies on an asneeded basis. Upgrades may last for one shift, or, under

unusual circumstances, they may last as long as several

months. Unlike promotions, the Department’s management team determines which officers receive upgrades.

All officers are eligible to receive upgrades, and at least

Owoseni and Smith periodically received them.

In late 2002, two sergeant positions opened when one

sergeant left the Department and another was called

to active military duty. At that time, there were no

sergeant candidates on the promotion register, i.e., none

had passed both the written and oral examinations.2

 The

Department thus looked for candidates for temporary

upgrades. In October 2002, the Department upgraded

Rich Delmore, who is white, to temporarily fill a sergeant

vacancy at the Edwardsville campus. The Department’s

management team stated its belief that Delmore was the

most qualified individual for the job due to his prior

performance as an officer. During a Department meeting
No. 06-2688 5

3 The Merit Board later determined that Owoseni knowingly

made numerous untruthful statements about Chief Harrison and

other command staff during the November 26, 2002, meeting.

(continued...)

at which the upgrade decision was considered, the attendees lauded Delmore’s method of report writing, his

ability to interview, his punctuality, and his ability to

represent the University. One month later, in November

2002, the Department temporarily upgraded Jim Royston,

who also is white, to temporarily fill a sergeant vacancy at

the East St. Louis campus. Prior to upgrading Royston,

the Department held a meeting regarding potential candidates, and the attendees discussed Royston’s communication skills, ability to supervise, decision-making and

problem-solving skills, and his relationships with other

members of the Department and the University, in particular those within the East St. Louis community. Captain

Tony Bennett also testified that the management team

believed that Delmore and Royston were the most qualified individuals for the job based on the skill they demonstrated as police officers, and that the decision was not

based on race. Nichols, Owoseni, and Smith, all of whom

were eligible for the upgrade but were not selected for

it, responded by claiming that the University denied them

the temporary upgrades to sergeant because of their race.

Later that month, on November 26, 2002, Owoseni,

Smith, and Nichols met with Chief Richard Harrison and

Captain John Oltmann to discuss their complaints regarding the Department’s alleged discriminatory employment practices. During the meeting, Owoseni spoke

on behalf of Smith, Nichols, and himself, and he made a

number of unsubstantiated allegations against Chief

Harrison and against the Department’s command staff.3

 A
6 No. 06-2688

3 (...continued)

Specifically, the Board concluded that Owoseni falsely accused

Chief Harrison of manipulating civil service test scores so that

no black officers could be placed on the “registry” for promotions, and he falsely claimed that Chief Harrison “would go to

any length to promote his life-long cohorts whether they

were qualified or not.”

few weeks later, in mid-December 2002, Smith, Owoseni,

and Nichols each wrote letters to the University’s president, repeating the allegations that Owoseni made during the November 26, 2002, meeting, as well as adding

other allegations. In particular, Owoseni alleged in his

letter that Chief Harrison engaged in a cover-up to protect a University parking service agent who was his friend,

an allegation later found to be meritless. In his letter,

Owoseni further alleged that he was the only officer

instructed to desist from making traffic stops on the

streets of East St. Louis and that the instruction was

racially motivated, despite the fact that he knew that all

officers were orally instructed not to make such traffic

stops. Smith alleged in his letter that one of the Department’s sergeants had been indicted for criminal sexual

assault and should have been dismissed by Chief Harrison, even though Smith knew when he wrote the letter

that the sergeant had been acquitted of all state charges.

Smith further alleged that “Chief Harrison promoted/

upgraded only his white long time friends,” and that he

“treated his white police friends favorably and rewarded

them with promotions.”

Around that same time, the University’s director of its

Office of Equal Employment Opportunity and the University’s assistant director of its Department of Human
No. 06-2688 7

4 Section 36o of the State Universities Civil Service Act states

that “no employee shall be demoted, removed or discharged

except for just cause, upon written charges, and after an opportunity to be heard in his own defense if he makes a written

request for a hearing to the Merit Board.” 110 ILCS 70/36o. If

the Merit Board finds “cause” for discharge, then “the employee shall be immediately separated from service.” Id. The

Merit Board’s discharge decisions are subject to review by

Illinois circuit and appellate courts pursuant to the Illinois

Administrative Review Act, 735 ILCS 5/3-101 et seq.

Resources undertook an extensive investigation into the

allegations against the Department. The University’s

general counsel responded to Owoseni’s and Smith’s letters

to the University’s president, advising them that they

should submit all complaints to the University’s director

of its Department of Human Resources or its Office of

Equal Employment Opportunity. All four of the plaintiffs

subsequently submitted their complaints. The University’s investigation culminated in a determination that

Smith and Owoseni had committed misconduct warranting the filing of formal charges for discharge with the

Merit Board.4

A Merit Board hearing officer held evidentiary hearings

for Smith’s discharge proceedings on June 13 and July 9,

2003, and a different Merit Board hearing officer held

hearings for Owoseni’s discharge proceedings on June 17

and July 23, 2003. The Merit Board, after rendering its

findings of fact, issued its decision and order concluding

that there was “just cause for discharge” for both Smith

and Owoseni. The Merit Board’s decision and order

regarding Smith listed the following reasons for his

discharge: (1) Smith’s recurring gross insubordination
8 No. 06-2688

and disobedience to management directives, including

personal use of a police squad car; (2) his making and

spreading of false statements concerning fellow officers

and the chief of police; (3) his writing of an improper

letter to the University’s president in December 2002;

and (4) his failure to cooperate reasonably with a police

investigation regarding a newspaper article. The Merit

Board’s decision and order regarding Owoseni listed the

following reasons for his discharge: (1) his recurring

gross insubordination and disobedience to management

directives and his disrupting the efficient operations of

the Department during November and December 2002,

and January and February 2003; (2) his making and spreading of false statements concerning fellow officers and

superior officers; (3) his writing of an improper letter to

the University’s president containing false information in

December 2002; and (4) his failure to reasonably cooperate with a police investigation and attempts by the Department to help him resolve his employment problems

and complaints. Following their discharge, Smith and

Owoseni elected not to challenge the Merit Board’s decision by filing suit in the Illinois state courts pursuant to

the Illinois Administrative Review Act.

While Smith’s and Owoseni’s proceedings were pending

before the Merit Board, Nichols was involved in an incident with a mentally unstable female while on duty

following a May 10, 2003, commencement ceremony. The

woman attempted to enter a street with busy traffic, and

Nichols used force to restrain her, ultimately forcing her

to the ground, handcuffing her, and placing her in his

police car. Following the incident, the Department placed

Nichols on paid administrative leave pending the results

of two fitness-for-duty psychological examinations. Once
No. 06-2688 9

Nichols completed the examinations, the Department

returned him to active, full-time duty. In total, Nichols was

on paid administrative leave for approximately three

months. Nichols, however, claims that the Department

subjected him to the examinations and forced him to go

on a paid leave of absence in retaliation for his complaints

regarding the Department’s alleged race discrimination.

The plaintiffs filed this action against the University in

the district court, alleging three claims under Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.

Specifically, the plaintiffs alleged: (1) that all of them were

disproportionally assigned to the University’s East St.

Louis campus because of their race; (2) that Owoseni,

Smith, and Nichols were denied temporary upgrades to

sergeant because of their race; and (3) that Owoseni, Smith,

and Nichols were retaliated against for making complaints

of racial discrimination. The University moved for summary judgment on all of the plaintiffs’ claims, and the

district court granted summary judgment to the University.

The plaintiffs appeal.

II.

On appeal, the plaintiffs argue that the district court

erred in granting summary judgment to the University

on their race discrimination and retaliation claims. This

court reviews a district court’s grant of summary judgment de novo. Perez v. Illinois, 488 F.3d 773, 776 (7th Cir.

2007). In doing so, we construe all facts and reasonable

inferences in the light most favorable to the non-moving

party. Healy v. City of Chicago, 450 F.3d 732, 738 (7th Cir.

2006). “Summary judgment is proper if ‘the pleadings,

depositions, answers to interrogatories, and admissions
10 No. 06-2688

on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of

law.’ ” Id. (quoting Fed. R. Civ. P. 56(c)).

A. Plaintiffs’ Disproportionate Assignment Claims

All four of the plaintiffs allege that they were

disproportionally assigned to what they refer to as an

inferior job at the University’s East St. Louis campus

because of their race. An employee can support a Title

VII claim for disparate treatment based on race using

either the direct method to show that racial discrimination motivated the employment decision, or by relying

on the indirect, burden-shifting method set forth in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See

Sun v. Bd. of Trs. of Univ. of Ill., 473 F.3d 799, 812-14 (7th

Cir. 2007). The plaintiffs attempt to proceed under both

methods. Regardless of which method they attempt to

proceed under, they must show that they suffered a

materially adverse employment action. See Lewis v. City

of Chicago, 469 F.3d 645, 652-53 (7th Cir. 2007) (citing

Rhodes v. Ill. Dep’t of Transp., 359 F.3d 498, 504 (7th Cir.

2004)).

1. No materially adverse employment action under either

direct or indirect method.

 As we have stated previously, “A materially adverse

employment action is something ‘more disruptive than

a mere inconvenience or an alteration of job responsibilities.’ ” Rhodes, 359 F.3d at 504 (quoting Crady v. Liberty

Nat’l Bank & Trust Co. of Ind., 993 F.2d 132, 136 (7th Cir.
No. 06-2688 11

1993)). “While adverse employment actions extend beyond

readily quantifiable losses, not everything that makes an

employee unhappy is an actionable adverse action.” O’Neal

v. City of Chicago, 392 F.3d 909, 911 (7th Cir. 2004). “Otherwise, minor and even trivial employment actions that an

irritable, chip-on-the-shoulder employee did not like

would form the basis of a discrimination suit.” Id. Thus,

for purposes of Title VII, we have articulated three general categories of actionable, materially adverse employment actions:

(1) cases in which the employee’s compensation,

fringe benefits, or other financial terms of employment

are diminished, including termination; (2) cases in

which a nominally lateral transfer with no change in

financial terms significantly reduces the employee’s

career prospects by preventing her from using her

skills and experience, so that the skills are likely to

atrophy and her career is likely to be stunted; and

(3) cases in which the employee is not moved to a

different job or the skill requirements of her present job

altered, but the conditions in which she works are

changed in a way that subjects her to a humiliating,

degrading, unsafe, unhealthful, or otherwise significantly negative alteration in her workplace environment.

Id. (citing Herrnreiter v. Chicago Hous. Auth., 315 F.3d 742,

744-45 (7th Cir. 2002) (citations omitted)). We have cautioned, however, that cases in the second category “are to

be distinguished from cases involving a purely lateral

transfer, that is, a transfer that does not involve a demotion in form or substance.” Id. Further, “ ‘[a] transfer

involving no reduction in pay and no more than a minor

change in working conditions will not do, either.’ ” Id. at
12 No. 06-2688

911-12 (quoting Williams v. Bristol-Myers Squibb Co., 85

F.3d 270, 274 (7th Cir. 1996)).

The plaintiffs assert that their assignment to the East St.

Louis campus constitutes a materially adverse employment action because the policing requirements at the

larger Edwardsville campus are more interesting and

intensive. For instance, the plaintiffs claim that officers

working on the Edwardsville campus “perform the interesting, varied and challenging work of real police officers . . . which include[s] enforcing traffic laws, making

arrests and investigating crimes.” The plaintiffs conversely assert that officers working on the East St. Louis

campus perform “the boring repetitive and semiskilled

work of mere security guards, which involve[s] monitoring hallways and patrolling buildings.” The University

counters that three of the four plaintiffs directly or indirectly requested assignment to the East St. Louis campus,

and that the University does not distinguish between an

officer’s service at a particular campus in making salary

or promotion decisions.

This case is analogous to O’Neal v. City of Chicago, 392

F.3d 909 (7th Cir. 2004), so we turn to that decision for

guidance. In O’Neal, a police officer was transferred from

the narcotics unit to a beat sergeant position. Id. at 910. The

officer complained that while both positions carried the

same rank, her former position gave her increased opportunities for overtime pay, more supervisory responsibilities, and additional perks, such as the use of a workprovided cellular telephone, pager, vehicle, and parking

space, as well as having most weekends and holidays off.

Id. at 912. We affirmed the district court’s grant of summary judgment, holding that the officer’s “complaints

about the transfer reveal only a ‘purely subjective prefer-
No. 06-2688 13

ence for one position over another,’ which does not ‘justify

trundling out the heavy artillery of federal antidiscrimination law.’ ” Id. at 913 (quoting Herrnreiter, 315 F.3d

at 745).

In this case, the plaintiffs’ claim is even weaker than

the officer’s in O’Neal. The plaintiffs here argued only

that they preferred the work at the Edwardsville campus,

and that claim is contradicted by three of the four plaintiffs’ specific or contingent requests to work at the very

location they purport to disdain. Further, in this case

there is no evidence that their assignment to the East St.

Louis campus impacted the plaintiffs’ salary, perks, or

opportunities for future advancement. This indicates that

the plaintiffs’ complaints involved purely subjective

preference for one assignment over another. The plaintiffs

thus failed to allege a materially adverse employment

action. Accordingly, the district court did not err in finding that, under either the direct or indirect method, the

plaintiffs failed to proffer sufficient evidence to support

their claim that the Department disproportionally assigned

its officers based on race, or in granting summary judgment in favor of the University on that claim.

2. Additionally, no direct or circumstantial evidence of

discriminatory motive.

Moreover, even if the plaintiffs had alleged a materially

adverse employment action, they did not proffer sufficient evidence of the University’s discriminatory motive

in disproportionally assigning them to work at the East

St. Louis campus to create a triable issue under the direct

method. See Rudin v. Lincoln Land Cmty. Coll., 420 F.3d 712,

721 (7th Cir. 2005) (stating that a plaintiff proceeding
14 No. 06-2688

according to the direct method “can avoid summary

judgment for the other party by ‘creat[ing] a triable issue

of whether the adverse employment action of which

[s]he complains had a discriminatory motivation.’ ”

(quoting Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394,

1397 (7th Cir. 1997)) (alteration in original)). “A plaintiff

proceeding according to the direct method may rely on

either direct or circumstantial evidence.” Sun, 473 F.3d at

812. “Direct evidence is evidence which, if believed by the

trier of fact, will prove the particular fact in question

without reliance upon inference or presumption.” Rudin,

420 F.3d at 720. “Circumstantial evidence of discrimination is evidence which allows the trier of fact to infer

intentional discrimination by the decisionmaker.” Sun,

473 F.3d at 812. In this case, under the direct method, the

plaintiffs claim that they have both direct and circumstantial evidence of discrimination.

The plaintiffs claim that Chief Harrison’s alleged statement “that the administration at East St. Louis wanted to

see more ‘black faces’ among [its] police force” constitutes

direct evidence of the Department’s discriminatory motive.

We have previously stated that an employer’s statement that he made an employment decision based upon

racial animus qualifies as direct evidence of discriminatory motive. See, e.g., Rudin, 420 F.3d at 720 (“ ‘[D]irect

evidence would be what [the employer] said or did in the

specific employment decision in question.’ For example,

evidence that an employer ‘said he discharged [the plaintiff] because he is black’ constitutes direct evidence.”

(quoting Plair v. E.J. Brach & Sons, Inc., 105 F.3d 343, 347

(7th Cir. 1997)) (alterations in original)). We have held,

however, that “stray remarks that are neither proximate

nor related to the employment decision are insufficient
No. 06-2688 15

5 Chief Harrison testified he initially rejected the suggestion to

assign black officers to the East St. Louis campus because the

contract in place at the time dictated that officers were assigned

based on seniority. He further testified that once the senioritybased assignment system ended, he continued to reject the

idea of assigning officers based on their race.

to defeat summary judgment.” Sun, 473 F.3d at 813.

Further, the “statements of a person who lacks the final

decision-making authority may be probative of intentional

discrimination,” but only “if that individual exercised a

significant degree of influence over the contested decision.”

Id. Here, the statement at issue purports to be a suggestion from someone in the East St. Louis campus administration to Chief Harrison to assign more black officers to

that predominantly black campus. This statement fails

to constitute direct evidence of the Department’s alleged

discriminatory motive because the Department’s command staff, and ultimately Chief Harrison, are solely

responsible for assigning Department officers to the two

campuses. There is no evidence in the record to indicate

that Chief Harrison was in any way influenced by or acted

upon any such suggestion by one or more members of the

East St. Louis administration. Chief Harrison, who was the

final decisionmaker regarding campus assignments,

testified that he explicitly rejected any such suggestion,

and he stated that his assignment decisions were not

based upon the plaintiffs’ or any other officer’s race.5

Additionally, notes taken at a meeting between Chief

Harrison and other officers indicate that the suggestion to

assign officers based on race was discussed and Chief

Harrison rejected it. Finally, there also is no evidence in

the record from which to conclude which individual or

individuals from the East St. Louis campus made the
16 No. 06-2688

suggestions to Chief Harrison, nor is there any evidence

indicating that the individual or individuals had any

authority whatsoever over Chief Harrison or any other

officer in the Department.

The plaintiffs also attempt to proffer circumstantial

evidence to prove the University’s discriminatory motive

under the direct method. Specifically, the plaintiffs offer

what they assert is statistical evidence that the Department

disproportionally assigned them to the East St. Louis

campus because of their race. We have recognized three

types of circumstantial evidence of intentional discrimination:

(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; and

(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.

Id. at 812 (citing Rudin, 420 F.3d at 720-21). The plaintiffs’

evidence falls into the second category. As we have

stated previously, a plaintiff may use pattern evidence

of disparate treatment even if that evidence is not rigorously statistical, although, standing alone, it is insufficient evidence to withstand summary judgment. Id. at

813 (stating that “[a]lthough the [plaintiff’s] sample size

is insufficient to provide statistically reliable evidence,

the [university’s promotion and tenure committee’s] voting pattern has some probative value regarding discriminatory employment practices”; however, “a questionable
No. 06-2688 17

pattern of promotion, standing alone” is insufficient

evidence to withstand summary judgment). In this case,

the plaintiffs’ statistics show that, from the 2001 summer

semester through the 2002 fall semester, the four plaintiffs

collectively received seventeen semester assignments,

which were broken down between eleven assignments to

the East St. Louis campus (61%), and six assignments to

the Edwardsville campus (39%). In contrast, during that

same time period, the Department’s eighteen white officers collectively received fifty-nine semester assignments,

which were broken down between fifteen assignments to

the East St. Louis campus (25.4%), and forty-four assignments to the Edwardsville campus (74.6%). Individually,

the four plaintiffs were assigned to the East St. Louis

campus for the following percentage of their semester

assignments during that time period: Owoseni 80%;

Watson 66.6%; Smith 60%; and Nichols 40%. With the

exception of Nichols, the plaintiffs’ statistics do show

that the Department assigned them to work at the East St.

Louis campus more frequently than the Edwardsville

campus. The plaintiffs’ statistics, however, omit a critical

variable in the Department’s assignment process: the

plaintiffs’ own requests to work at the East St. Louis

campus. The record shows that both Watson and Smith

specifically requested to work at the St. Louis campus,

and Owoseni indirectly requested to work at that campus

when he requested to work with a sergeant who was

primarily assigned there. The plaintiffs’ own statistics

evince that the only one of them who did not request to

work at the East St. Louis campus, Nichols, was assigned

to the Edwardsville campus the majority of the time.

Accordingly, the mere fact that the Department assigned

three of the plaintiffs to work at the East St. Louis campus

for the majority of their semester assignments, when each
18 No. 06-2688

of those plaintiffs either specifically or contingently

requested to work there, is not sufficient circumstantial

evidence to proceed under the direct method.

B. Owoseni’s, Smith’s, and Nichols’s Failure to Upgrade

Claims

Owoseni, Smith, and Nichols also assert that the district court erred in granting summary judgment in favor

of the University on their claim that the Department

denied them two temporary upgrades from officer to

sergeant because of their race, when the Department

selected two white officers to fill those positions. An

employee can support a Title VII claim for failure to

promote in one of two ways, either by “directly show[ing]

that racial discrimination motivated the employment

decision, or, as is more common, [by relying] on the

indirect, burden-shifting method.” Sublett v. John Wiley &

Sons, 463 F.3d 731, 736-37 (7th Cir. 2006). Owoseni, Smith,

and Nichols have not offered any evidence of discriminatory upgrades under the direct method, and thus they

proceed under the burden-shifting method. Under the

indirect method, Owoseni, Smith, and Nichols bear the

initial burden of establishing a prima facie case of race

discrimination by showing that: (1) they are members of

a protected group; (2) they were qualified for the position sought; (3) they were rejected for the position; and

(4) the employee who was promoted was a member of a

different race and was not better qualified than they. Id. at

737 (citing Johnson v. Nordstrom, Inc., 260 F.3d 727, 732 (7th

Cir. 2001)). If Owoseni, Smith, and Nichols carry their

burden, then the University must set forth a legitimate,

nondiscriminatory reason for its decision to upgrade the

white officers, “ which if believed by the trier of fact,
No. 06-2688 19

would support a finding that unlawful discrimination

was not the cause of the employment action.” Id. (quoting

St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993)).

Finally, if the University succeeds in articulating a nondiscriminatory reason for its upgrade decisions, then

Owoseni, Smith, and Nichols resume their original burden of proof and must establish by a preponderance of the

evidence that the University’s proffered reason is

pretextual. Id.

Owoseni, Smith, and Nichols potentially satisfy the

first three elements of their prima facie case, in that

they are black, they were arguably qualified for the upgrade to sergeant, and the Department rejected them for

the upgrade. Their claim fails, however, because they

did not offer sufficient evidence that they were equally or

more qualified than the two white officers whom the

Department upgraded to sergeant, Delmore and Royston.

The only evidence Owoseni, Smith, and Nichols point to

in the record regarding Delmore’s and Royston’s qualifications is found in their deposition testimony, which fails

to set forth any details of the upgraded officers’ qualifications. During his deposition, Nichols stated that he did

not know Delmore’s educational background, the amount

of hands-on experience Delmore possessed, or the type

of training Delmore had undergone. Nichols also testified

that while he was aware that Royston had twenty years’

experience with the University, he was not aware of

Royston’s educational background. Likewise, Smith

stated during his deposition that “I had no information on

Officer Delmore.” Smith further testified that he did not

know Royston’s qualifications and background other

than what he learned during prior depositions, and he

stated that he did not know the Department’s criteria
20 No. 06-2688

for determining upgrades. Owoseni also testified during

his deposition that he could not recall anything regarding Delmore’s qualifications or background, and he

stated that the only thing he knew about Royston’s background was that Royston had worked for the University

for approximately twenty years before he was upgraded.

We are unable to glean anything regarding Delmore’s and

Royston’s qualifications from these statements, and

Owoseni, Smith, and Nichols do not offer any additional

evidence. Instead, they rely on their own subjective beliefs that they were as qualified or even more qualified for

the upgrade than Delmore and Royston. We have repeatedly stated, however, that plaintiffs must offer more than

mere self-serving appraisals. See, e.g., Dunn v. Nordstrom,

Inc., 260 F.3d 778, 787 (7th Cir. 2001) (stating that the

plaintiff “must present more than his own, subjective selfappraisal to create a genuine issue of fact”); Fortier v.

Ameritech Mobile Commc’ns, Inc., 161 F.3d 1106, 1114 (7th

Cir. 1998) (same); Gustovich v. AT&T Commc’ns, Inc., 972

F.2d 845, 848 (7th Cir. 1992) (same). Owoseni, Smith, and

Nichols thus failed to establish a prima facie case that the

University discriminated against them based on their

race when it denied them temporary upgrades to sergeant.

Accordingly, the district court did not err in granting

summary judgment to the University on this claim.

C. Owoseni’s, Smith’s, and Nichols’s Retaliation Claims

Owoseni, Smith, and Nichols also assert that the district court erred in granting summary judgment in favor

of the University on their claims that the University

retaliated against them for speaking out against the racial

discrimination. Specifically, they allege that the University

retaliated against them by terminating Owoseni’s and
No. 06-2688 21

Smith’s employment, and by subjecting Nichols to unwarranted disciplinary proceedings and placing him on paid

administrative leave pending the results of his fitness-forduty psychological examinations. Like the plaintiffs’ other

Title VII claims, Owoseni, Smith, and Nichols may

prove retaliation by using either the direct method or the

indirect, burden-shifting method. Tomanovich v. City of

Indianapolis, 457 F.3d 656, 662 (7th Cir. 2006). Under the

direct method, Owoseni, Smith, and Nichols must show

that (1) they engaged in statutorily protected activity;

(2) they suffered an adverse action taken by the University; and (3) there was a causal connection between the

two. Id. at 663. Under the indirect method, Owoseni,

Smith, and Nichols must establish a prima facie case of

retaliation by showing that: (1) they engaged in a statutorily protected activity; (2) they met the University’s legitimate expectations; (3) they suffered an adverse employment action; and (4) they were treated less favorably

than similarly situated employees who did not engage

in statutorily protected activity. Id. If they succeed in

establishing a prima facie case, then the burden shifts to

the University to produce a non-discriminatory reason

for its employment action. Id. If the University meets its

burden of production, then the burden of proof remains

with Owoseni, Smith, and Nichols to demonstrate that the

University’s proffered reason is pretextual. Id. Owoseni,

Smith, and Nichols assert on appeal that they presented

sufficient evidence to avoid summary judgment under

both the direct and indirect methods. We again examine

each in turn.

1. Direct method.

Owoseni and Smith first argue that they presented

sufficient evidence under the direct method that the
22 No. 06-2688

University retaliated against them by terminating their

employment. We note, however, that the Merit Board,

rather than the University or the Department, actually

terminated Owoseni’s and Smith’s employment pursuant to the Civil Service Act. Following hearings before

Merit Board hearing officers, during which both Owoseni

and Smith had the opportunity to be represented by

counsel, introduce evidence, call their own witnesses, and

question the University’s witnesses, the Merit Board

terminated their employment upon finding, inter alia, that

Owoseni and Smith made numerous false accusations

against their fellow officers. Specifically, the Merit Board

discharged Smith based on: (1) his recurring gross insubordination and disobedience to management directives,

including personal use of a police squad car; (2) his making

and spreading of false statements concerning fellow

officers and the chief of police; (3) his writing of an improper letter to the University’s president in December

2002; and (4) his failure to cooperate reasonably with a

police investigation regarding a newspaper article. The

Merit Board stated that it discharged Owoseni based on:

(1) his recurring gross insubordination and disobedience

to management directives and his disrupting the efficient

operations of the Department during November and

December 2002, and January and February 2003; (2) his

making and spreading of false statements concerning

fellow officers and superior officers; (3) his writing of an

improper letter to the University’s president containing

false information in December 2002; and (4) his failure to

reasonably cooperate with a police investigation and

attempts by the Department to help him resolve his

employment problems and complaints. Thus, the Merit

Board’s discharge decisions were based on, among

other things, Owoseni’s and Smith’s baseless allegations
No. 06-2688 23

against fellow officers. Significantly, those allegations

were separate and distinct from Owoseni’s and Smith’s

potentially actionable allegations that the Department

discriminated against them in its assignment and upgrade

practices. The latter discrimination allegations played no

role in the Merit Board’s decisions. “[T]his Court has

consistently stated that utterly baseless claims do not

receive protection under Title VII.” Mattson v. Caterpillar,

Inc., 359 F.3d 885, 890 (7th Cir. 2004) (citing cases). Further,

neither Owoseni nor Smith has presented any evidence to

impugn the Merit Board’s credibility or motivation, and

thus they cannot establish a nexus between their discrimination complaints and the Merit Board’s decision to

terminate their employment. In short, the Merit Board

decided to terminate Owoseni’s and Smith’s employment upon finding that they made numerous objectively

baseless allegations against their colleagues, in addition

to other offenses, and not because they made allegations

that the Department discriminated against them.

2. Indirect method.

 Owoseni and Smith also argue that they established

that the Merit Board terminated their employment because they complained about discriminatory practices

under the indirect McDonnell Douglas burden-shifting

method. While Owoseni and Smith may be able to satisfy

the first three elements of their prima facie case, they are

unable to show, however, that any similarly situated

employee made numerous baseless allegations against

fellow Department employees and was not terminated

by the Merit Board. See Little v. Ill. Dep’t of Revenue, 369

F.3d 1007, 1012 (7th Cir. 2004) (“A similarly-situated

employee must have been disciplined, or not, by the
24 No. 06-2688

same decisionmaker who imposed an adverse employment action on the plaintiff.” (citing Patton v. Indianapolis

Pub. Sch. Bd., 276 F.3d 334, 338 (7th Cir. 2002); Radue v.

Kimberly-Clark Corp., 219 F.3d 612, 617-18 (7th Cir. 2000))).

Even if Owoseni and Smith had succeeded in identifying

such an employee, they also would have to show that the

employee engaged in other misconduct similar to that in

which the Merit Board found that Owoseni and Smith

had engaged, such as gross insubordination and disobedience to management directives and failing to cooperate

with a police investigation. Because Owoseni and Smith

have not put forth competent evidence that they were

treated differently than a similarly situated employee

outside of their protected class, they failed to establish a

prima facie case for their retaliation claim. Accordingly,

the district court did not err in granting summary judgment in favor of the University on this claim.

Next, Nichols argues that the district court erred in

granting summary judgment in favor of the University

on his claim that the University retaliated against him for

complaining about discriminatory practices by placing

him on paid administrative leave pending the results of

his fitness-for-duty psychological examinations. As discussed above, the Department put Nichols on paid administrative leave after he used force to restrain a mentally

unstable woman and placed her on the ground and

handcuffed her following a commencement ceremony.

Regardless of whether Nichols attempts to proceed under

the direct method or indirect method, he must show that

he suffered a materially adverse action. Pantoja v. Am.

NTN Bearing Mfg. Corp., 495 F.3d 840, 848-49 (7th Cir.

2007). The alleged adverse action at issue here is the

Department’s placement of Nichols on paid administra-
No. 06-2688 25

tive leave. Nichols does not claim that his position,

salary, or benefits were impacted by the paid administrative leave, and he concedes that the Department

reinstated him to active duty upon receiving the results

of his fitness-for-duty psychological examinations. While

this circuit has not had an opportunity to address whether

an employer’s placement of an employee on paid administrative leave pending the conclusion of an investigation

constitutes a materially adverse action, our sister circuits have concluded that it does not. See Breaux v. City

of Garland, 205 F.3d 150, 157-58 (5th Cir. 2000) (finding

that a police officer did not suffer any adverse action by

being required to undergo a psychological examination

following an altercation with a colleague or by being

placed on paid administrative leave when he retained

his job and had not been demoted or transferred to a less

desirable position); see also Singletary v. Mo. Dep’t of Corrs.,

423 F.3d 886, 891-92 (8th Cir. 2005) (finding that corrections officer did not suffer a materially adverse action

when his employer placed him on administrative leave

pending a departmental investigation); Von Gunten v. Md.,

243 F.3d 858, 869 (4th Cir. 2001) (finding that an employer’s placement of an employee on short administrative leave with pay to allow time for internal investigation of complaint in accordance with procedures was not

an adverse action), abrogated on other grounds by Burlington

N. & Santa Fe Ry. Co. v. White, 126 S. Ct. 2405 (2006). We

agree with our sister circuits, and find that the Department’s placement of Nichols on paid administrative

leave pending the results of his fitness-for-duty psychological examinations did not constitute a materially adverse

action. Nichols’s retaliation claim thus fails under either

the direct method or indirect method. Accordingly, the
26 No. 06-2688

district court did not err in granting summary judgment

in favor of the University on this claim.

Finally, Nichols asserts a retaliation claim based on the

written notice he received requiring him to appear at

disciplinary hearings held in response to the letter he had

sent to the University’s president. That claim was not

addressed in the district court’s opinion, and the University did not address it in its brief and argument before this

Court. Nevertheless, the district court did not err in

granting summary judgment on it for the same reason as

it granted summary judgment on Nichols’s other retaliation claim, namely that Nichols has failed to demonstrate

how the notice was materially adverse, especially in light

of the fact that the disciplinary proceedings were instituted

in response to the plaintiffs’ unsubstantiated allegations

against other officers. Cf. Roney v. Ill. Dep’t of Transp., 474

F.3d 455, 462 (7th Cir. 2007) (“An employer’s truthful report to the police about an employee is not an adverse

action.” (citing Aviles v. Cornell Forge Co., 241 F.3d 589,

593 (7th Cir. 2001)) (emphasis in original)).

III.

The plaintiffs failed to show that they suffered an

adverse employment action to support their Title VII

claims that the Department disproportionally assigned

them to inferior jobs at the University’s East St. Louis

campus because of their race. Proceeding only under the

indirect method, Owoseni, Smith, and Nichols also failed

to establish a prima facie case that they were denied

temporary upgrades to sergeant based on their race,

because they did not show that they were as qualified or

more qualified than the two white officers who received

the upgrades. Additionally, Owoseni’s and Smith’s retalia-
No. 06-2688 27

tion claims failed under the direct method because they

did not show that the Merit Board’s decision to terminate

their employment, which was based, inter alia, on their

making objectively groundless claims about their colleagues, was causally connected to their complaints

regarding the Department’s alleged discriminatory practices. Owoseni and Smith also failed to establish a prima

facie case for their retaliation claims because they did not

put forth any evidence that they were treated differently

than a similarly situated employee outside of their protected class. Finally, Nichols’s retaliation claims failed

under either the direct method or the indirect method,

because the Department’s placement of him on paid

administrative leave pending the results of his fitness-forduty psychological examinations after he used force to

restrain a mentally unstable woman, like the initiation

of disciplinary proceedings against Nichols in response

to the plaintiffs’ unsubstantiated allegations in letters to the

University’s president, did not constitute materially

adverse actions. Accordingly, the district court’s grant of

summary judgment in favor of the University is AFFIRMED.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—12-28-07