In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 14-2989

MICHAEL A. MILLER,

Plaintiff-Appellant,

v.

ST. JOSEPH COUNTY, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Northern District of Indiana, Hammond Division.

No. 2:11-cv-00217-RL — Rudy Lozano, Judge.

____________________

ARGUED APRIL 22, 2015 — DECIDED JUNE 9, 2015

____________________

Before POSNER and KANNE, Circuit Judges, and DARRAH,

District Judge.*

POSNER, Circuit Judge. The plaintiff, Michael Miller, a sergeant in the Detective Bureau of the St. Joseph County (Indiana) Police Department, where he had worked for more than 

thirty years, filed this suit against the County (which hap-

* Hon. John W. Darrah of the Northern District of Illinois, sitting by designation.

 
2 No. 14-2989

pens to be the county in which South Bend is located), the 

County Sheriff (Michael Grzegorek), who is in charge of the 

department and also the county jail, and other entities and 

individuals unnecessary to mention let alone discuss. Miller’s suit charges that the defendants had, in violation of 

several federal statutes, discriminated against him because 

he’s black. The district court granted summary judgment in 

favor of the defendants, precipitating this appeal.

Grzegorek was elected Sheriff in 2010 on the Democratic 

ticket. In the Democratic primary preceding the election, 

Miller had been a candidate along with Grzegorek, see “2010 

Primary, Meet the Candidates Night – Sheriff Candidate 

Speeches,” https://youtu.be/DepuTOcJTNI?t=3m32s (visited 

June 4, 2015), and despite their rivalry they had been cordial. 

After Grzegorek, having won the primary, went on to win

the general election, Miller called him and expressed interest 

in being appointed either Assistant Chief of the Police Department (which would have made him the Sheriff’s number 

two) or Warden of the county jail. Grzegorek was noncommittal, and eventually passed Miller over for these positions, 

instead appointing as Assistant Chief a man who had been a 

Sheriff of the St. Joseph County Police Department from 1985 

to 1998—hence a predecessor, though not the immediate 

predecessor, of Grzegorek. For Warden of the jail Grzegorek 

appointed the current Warden—in other words he retained 

her.

After the election, the head of the Detective Bureau, also 

an appointee of the new Sheriff, either suggested to Miller 

(who remember was one of the Bureau’s detectives) that he 

take charge of the Department’s “Property Room,” or ordered him to do so. That is a room in the basement of the 
No. 14-2989 3

county jail in which the Department had accumulated about 

a thousand guns, which needed to be sorted—some to be destroyed, some to be returned to their owners, etc. Miller took

the position, which involved no change in his pay, benefits, 

or rank, but several months later, expressing dissatisfaction 

with his assignment to the Property Room, he was offered a 

position in the Department’s Family Violence Unit. He declined, and instead continued working in the Property Room 

until the sorting was complete, at which point he returned to 

his other duties in the Detective Bureau.

Miller now claims that his assignment to the Property 

Room was degrading, and that he was not asked about his 

possible interest in other vacant positions, besides Assistant 

Chief and Warden, that would have been promotions for 

him. Those positions were police captain and police lieutenant, which are ranks above sergeant.

The district judge trudged patiently through the “direct” 

and “indirect” methods of proving discrimination, and concluded that under neither method could the plaintiff defeat 

the defendants’ motion for summary judgment. We do not 

question the judge’s analysis or result, but we agree with 

Judge (now Chief Judge) Wood’s proposal to substitute for 

these cumbersome tests a simple requirement that “in order 

to defeat summary judgment, the plaintiff one way or the 

other must present evidence showing that she [or, of course,

he if the plaintiff is male] is in a class protected by the statute, that she suffered the requisite adverse action (depending on her theory), and that a rational jury could conclude 

that the employer took that adverse action on account of her 

protected class, not for any non-invidious reason.” Coleman 

v. Donahoe, 667 F.3d 835, 863 (7th Cir. 2012) (concurring opin-
4 No. 14-2989

ion). That does not do away with McDonnell Douglas Corp. v. 

Green, 411 U.S. 792 (1973)—we have no authority to overrule 

a Supreme Court decision. So one way to establish discrimination remains by making a prima facie case to which the 

defendant offers no rebuttal. If the plaintiff makes a prima 

facie case of unlawful discrimination, “the burden then must 

shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” Id. at 802.

The plaintiff satisfies the first two elements of the test. He

is black, and he suffered an adverse action, or rather adverse

actions—he was denied each of the several alternative promotions that he sought. But there is no evidence that those 

denials had anything to do with his race. His brief in this 

court says very little about the racial composition of either 

St. Joseph County or the County’s police department. Nor is 

there any evidence of racial slurs or other manifestations of 

racial hostility. With regard to the plaintiff’s not being appointed either Assistant Chief of the police department or

Warden of the county jail, it is apparent that his qualifications were less impressive than those of the persons appointed to (or in the case of the Warden retained in) the positions. About the Property Room there is disagreement over 

whether he was asked whether he was interested in the job, 

or was ordered to fill it, but even if the second explanation is 

correct (as we’ll assume for purposes of analysis), there is 

nothing to suggest that race was a factor. Someone had to 

prune the department’s excessive gun collection, and it was 

natural to appoint a sergeant from the Detective Bureau, the 

head of which testified that he wanted an experienced sergeant to fill the position because he thought that such an appointment would promote cooperation with the forensic labs 

of the Indiana State Police.
No. 14-2989 5

And even if the plaintiff was ordered to take on the job of 

managing the Property Room rather than asked whether he 

was interested in it, as soon as he tired of it—after only a few 

months—he was offered an opportunity to switch to a different assignment in the Family Violence Unit. He rejected 

the offer, and after the gun project was complete resumed 

working on cases in the Detective Bureau.

As for the captain and lieutenant openings that were not 

offered to him, there is no indication that he didn’t know 

about them; if knowing about them he had wanted to be 

considered for them, he should have told someone. And finally his wages and benefits were the same before, during,

and after the period in which he claims to have been discriminated against. He was a sergeant at the beginning, in 

the middle, and at the end of the period; there was no cut in 

his wages and benefits during his sojourn as head of the 

Property Room, which remember was brief. There is also no 

evidence that he would have gotten a promotion to lieutenant’s or captain’s rank were he white rather than black. And 

also no evidence to support his further claim that his failure 

to be promoted and his transfer to the Property Room were

acts of retaliation against him for exercising his First 

Amendment right to run against Grzegorek in the Democratic primary.

He also challenges the police department’s practice of 

promoting officers via “temporary indefinite assignments” 

as distinct from basing promotions on performance on

“promotional exams.” But he offers no explanation of why 

this practice would discriminate against black members of 

the police force.
6 No. 14-2989

So his federal claims fail. He also has a supplemental 

state law claim for intentional infliction of emotional distress. But he is barred from pressing it, because he failed to 

comply with Ind. Code § 34-13-3-8(a), which requires notice 

to a county of tort claims against it within 180 days after the 

action giving rise to the claim.

The judgment of the district court dismissing the plaintiff’s suit is

AFFIRMED