### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 14

- 2989
M ICHAEL A. M ILLER , Plaintiff

- Appell ant ,

v.

S T

. J OSEPH C OUNTY , et al

. , Defendant s

- Appell ees

.

____________________ Appeal from t he United States District Court for the

Northern District of Indiana
, Hammond Division

. No. 2:11

- cv

- 002 17

- RL

— Rudy Lozano
, Judge

.

____________________
A RGUED A PRIL 22, 2015

— D ECIDED J UNE 9, 2015

____________________

Before P OSNER and K ANNE , Circuit Judges , and D ARRAH , District Judge

. *

P O SNER , Circuit Judge

. The plaintiff, Michael Miller, a se rgeant in the Detective Bureau of the St. Joseph County (Ind iana) P o lice Department, where he had worked for more than thirty years, filed this suit against the County ( which ha p-

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

.2 No. 14

- 2989

pens to be the county in which South Bend is l o cated), the County Sheriff (Michael Grzegorek), who is in charge of the depar t ment and also the county jail, and other entities and individuals unnecessary to mention let alone discuss. Mi ller’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 a p peal. 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 D epartment (which would have made him the Sheriff’s number two) or W arden of the county jail. Grzegorek was nonco mmittal, and eventually passed Miller over for these positions , instead appointing as Assistant Chief a man who had been a She r iff of the St. Jo seph 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 r e tained her. After the election, t he head of the Detec tive 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 Depart ment’s “Property Room , ” or o rdered him to do so. That is a room in the basement of theNo. 14

- 2989 3

county j ail in which the Department had accumulated about a thousand guns, which needed to be sorted

— some to be d estroyed, some to be r e turned to the ir owners , etc . Miller took the position, which involved no change in his pay, benefits, or rank , but several month s later, expressing dissatisfaction with his assignment to the Property Room, he was offered a position in the Department’s Family Violence Unit . He d eclined, and instead continued working in the Property Room until the sorting was co m plete, at which point he returned to his other duties in the D e tective 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 W arden, that wo uld have been promotions for him. Those positions were police captain and police lieute nant, which are ranks above sergeant. The district judge trudged patiently through the “direct” and “indirect” methods of proving discrimination, and co ncluded that unde r 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 cu m bersome tests a simple requirem ent that “i n order to defeat summary judgment, the plaintiff one way or the other must present evidence sho w ing that she [or , of course, he if the plaintiff is male] is in a class protected by the sta tute, that she suffered the requisite adverse action (de pen ding on her theory), and that a rational jury could conclude that the employer took that adverse action on a c count of her protected class, not for any non

- invidious re a son.” Coleman v. Donahoe , 667 F.3d 835, 863 (7th Cir. 2012) (concurring opi n-4 No. 14

- 2989

ion)

. Tha t does not do away with McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)

— we hav e no authority to ove r rule a Supreme Court decision . S o one way to establish discrim ination remains by making a prima facie case to which the defendant offers no rebuttal

. I f the plaintiff makes a prima f a cie case of unlawful discrimination, “ the burden then must shift to the employer to articulate some legitimate, nondi scrim inatory reason for the employee’ s r e jection.” Id . at 802. The plaintiff satisfies the first two eleme nts of the test . He is black , and he suffered an adverse action , or rather adverse actions

— he was denied each of the several alternative pr omotions that he sought. But there is no evidence that those denials had anything to do with his race. His brief in t his court says very little about the racial composition of either St. Joseph County or the County’s p o lice department. Nor is there any evidence of racial slurs or other manifestations of racial hostility . With regard to the plaintiff’s not being a ppointed e i ther Assistant Chief of the police department or Warden of the county jail, it is apparent that his qualific ations were less impressive than those of the persons a ppointed to (or in the case of the Warden retained in) the pos itions. About the Property R oom there is disagreement over whether he was asked whether he was i n terested in the job, or was ordered to fill it, but even if the second explan a tion is
correct (as we’ll assume for purposes of analysis) , there is nothing to suggest that race was a facto r. Someone had to prune the department’s e x cessive gun collection, and it was natural to appoint a sergeant from the Dete c tive Bureau , the head of which testified that he wanted a n experienced se rgeant to fill the position because he thought that such an a ppointment 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

— aft er only a few months

— he was offered an opportunity to switch to a di fferent assignment in the Family Violence Unit

. He r e jected the offer, and after the gun project was complete resumed working on cases in the Detective B u reau. As for the captain and lieut enant 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 f inally his wages and benefits were the same before, during, and after the period in which he claims to have been di scriminated 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 lieute nant’s or ca p tain’s rank were he white rather than black. And also no evidence to support his further claim that his fai l ure to be promoted and his transfer to the Property Room were acts of r e taliation against him for exercising his Fi rst A mendment right to run against Grzegorek in the Demo c ra tic primary. He also challenges the police department’s practice of promoting officers via “temporary indef i nite assignments ” as distinct from basing promotions on performance on “promotional exams.” But he offers no explanation of why this practice would discrimi nate against black me m bers of the police force.6 No. 14

- 2989

So his federal claims fail. He also has a supplemental state law cla im for intentional infliction of emotional di stress . But he is barred from pressing it, because he failed to comply with Ind. Code § 34

- 13

- 3

- 8(a), which requires n o tice to a county of tort claims against it within 180 days after the

a c tion giving rise to t he claim. The judgment of the district court dismissing the plai ntiff’s suit is
A FFIRMED