# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued May 6, 2005

Decided November 29, 2005

Before

Hon. MICHAEL S. KANNE, Circuit Judge

Hon. ILANA DIAMOND ROVNER, Circuit Judge

Hon. DIANE P. WOOD, Circuit Judge

No. 04-3625

YVONNE AVERHART,

Plaintiff-Appellant

,

v.

MICHAEL SHEAHAN, Sheriff of Cook

County, and COOK COUNTY,

ILLINOIS,

Defendants-Appellees

. Appeal from the United States

District Court for the

Northern District of Illinois,

Eastern Division.

Nos. 01 C 5569, 02 C 3981

Arlander Keyes

, Magistrate Judge

.

O R D E R

T his case arises out of the same set of events that were before us in S mith v.

Sheahan

, 189 F.3d 529 (7th Cir. 1999). In that case, Valeria Smith had brought a Title

VII claim against Cook County Sheriff Michael Sheahan, claiming that she had been

the victim of sex discrim ination in the form of “hostile environment” sexual

harassment. The district court had granted summary judgment i n Sheahan’s favor, but

this court reversed, finding among other things that affidavits submitted b y other

correctional officers helped to demonstrate the existence of genuine issues of material

fact. Yvonne Averhart, plaintiff in the case now before us, was one of those co-workers,

as we ack nowledged in the S mith opinion. See id. at 531. According to Averhart, as UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53No. 04-3625 Page 2

soon as the She riff’s Department learned of her role in Smith’s case, it began to

retaliate against her, through a series of steps that culminated in her termination. The

Sher iff admits that he fired Averhart, but he claims that it was for quite a different

reason: that she had been arrested for shoplifting and that she had committed serious

violations of departmental regulations by developing personal relationships with jail

inmates.

Averhart contested his action through two complaints in federal court, which were

consolidated and handled by Magistrate Judge Keyes, with the consent of the parties.

See 28 U.S.C. § 636(c)(1). The magistrate judge granted summary judgment for the

defendants. Averhart has appealed, but our consideration of her case is significantly

hampered by the poor state of the record on appeal. Federal Rules of Appellate

P rocedure 10 and 11 impose the responsibility of assembling the record on the

appellant, b

ut she has largely failed to do so here. That leaves this court with the

options of either dismissing if the state of the record precludes meaningful review or

taking the record as it exists and performing the usual de novo review of the decision

granting summary judgment. See Fisher v. Krajewski , 873 F.2d 1057, 1061 (7th Cir.

1989). Given that the appellant had the burden of providing the record, that she did

in fact provide part of the record, and that both sides have fully briefed the issues

before us, we take the second option, even though the record does not include some of

Averhart’s own key documents.

The facts that we set forth here, which we present in the light most favorable to

Averhart, are those that we can glean from the memorandum opinion and order filed

by the magistrate judge as well as the limited reco rd provided on appeal, which

consists principally of the complaints and the defendant-appellee’s Rule 56 Statement

of Facts in Support of Summary Judgment and accompanying exhibits. After Averhart

submitted her affidavit in Smith’s case, the department began discip lining her for

minor and concocted infractions. Averhart filed a number of grievances complaining

of the department’s actions against her and eventually filed a complaint with the

Equal Employment Opportunity Commission (EEOC). According to Averhart, her

complaints prompted increasingly severe retaliations, culminat ing in her dismissal

from the Sheriff’s Department in June 2003.

The defendants’ explanation of the events leading to Averhart’s termination fills in

quite a number of additional facts. While Averhart’s EEOC charge was pending, the

Chicago police arrested her for shoplifting. Around this same time, in late 2000, the

County’s Int ernal Affairs Department (IAD) revealed that it had been investigating

accusations that Averhart had developed improper personal re lationships with a

number of

inmates. The IAD’s investigation revealed that inmates had called

Averhart’s home more than 200 times. Citing her arrest and the findings of the IAD

investigation, the County’s Employee Discipline Administrator recommended that the

County fire Averhart. Fol lowing up, the County lodged a complaint with the CookNo. 04-3625 Page 3

County Sheriff’s Merit Board seeking Averhart’s termination. On June 11, 2003, after

a series of hearings, the Merit Board concluded that Averhart had indeed violated a

number of departmental regulations and should be terminated. Thus, the defendants

submitted to the district court, it was not retaliation that led to Averhart’s dismissal,

but her own improper and illegal actions.

In the meantime, before th e Merit Board ruled against her, Averhart filed two

complaints in federal district court. In both of them, Averhart alleged that the

defendants’ actions against her were in retaliation for speaki ng out against sexual

harassment, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e

et seq

., and that their actions infringed her First Amendment rights, in violation of 42

U.S.C. § 1983. The defendants filed a motion for summary judgment, which the court

granted on September 9, 2004. In large part, the court relied on the M erit Board’s

conclusion that Averhart deserved to be fired, writing that “Plaintiff has not produced

any admissible evidence demonstrating that these charges were not valid

. . . . Nor has

Plaintiff pointed to any evidence demonstrating that the Merit Board was influenced

by retaliatory intent, or any other improper motivation, in sust aining the charges

against her.”

After the court granted the defendants’ motion, the Circuit Court of Cook County,

in the course of an administrative review hearing, reversed the Merit Board’s order

and remanded the case to the Merit Board for further proceedings. Although this

occurred after the summary judgment proceedings in the district court, Averhart has

informed us of this later judicial development in her brief, and the defendants not only

concede that the Circuit Court so ruled, but they have also withdrawn their res judicata argument based on this later event.

The record therefore shows that wholly apart from the “concocted” and “minor”

disciplinary matters, Averhart was arrested for shoplifting and that the Sheriff had

reas o n to believe at the time of her termination that she had extensive improper

contact with inmates. This evidence is unrebutted. As this court stated in Stone v. City

of Indianapolis Public Utilities Division

, “ If the defendant presents unrebutted

evidence of a noninvidious reason for the adverse action, he is entitled to summary

judgment.” 281 F.3d 640, 644 (7th Cir. 2000). Even if this case were viewed through

the lens of mixed-motive analysis, see Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003),

where the employer must demonstrate that it would have made the same decision

absent the protected conduct, these unrebutted findings satisfy that burden. In other

words, even viewed in a light most favorable to Averhart, the shoplifting arrest and

allegations of improper conduct with inmates were sufficient to demonstrate that the

Sheriff’s actions did not constitute retaliation in violation of 42 U.S.C. § 1983. This is

true even though the Mer its Board, at the direction of the Circuit Court of Cook

County, is revisiting the issue. There is no doubt that at the time the Sheriff’s

Department took its action against Averhart, it had every reason to believe that sheNo. 04-3625 Page 4

had committed serious violations of departmental policy.

While we conclude based on the record b efore us that the defendants did not

retaliate in violation of Averhart’s constitutional rights, we t ake no position on the

proper result of the proceedings before the Merit Board or, should the Board’s decision

be appealed once again, on anything that might be presented to the state courts of

Illinois.

The grant of summary judgment in this case is hereby A FFIRMED

.