United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued June 13, 2006

Decided June 29, 2006

Before

Hon. RICHARD A. POSNER, Circuit Judge

Hon. JOHN L. COFFEY, Circuit Judge

Hon. KENNETH F. RIPPLE, Circuit Judge

No. 05-1925

JAMES OAKLEY,

Plaintiff-Appellant,

v.

ROGER D. COWAN, STANLEY

BUCHEIT and GARY KNOP, 

Defendants-Appellees.

Appeal from the United States District

Court for the Southern District of Illinois.

No. 03 C 225

G. Patrick Murphy, 

Chief Judge.

O R D E R

James Oakley was fired from his job with the Illinois Department of

Corrections (“IDOC” or “Department”) for violating the Department’s sexual

harassment policy and standards of conduct. He brought this action against the

warden and two of his other superiors under 42 U.S.C. § 1983, claiming that they

had denied him equal protection by firing him, but not female officers, who had

engaged in like conduct. The district court granted summary judgment for the

defendants. We affirm the judgment. 

UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53
No. 05-1925 Page 2

I

Because this is an appeal from summary judgment, we must view the facts in

the light most favorable to Mr. Oakley, the non-moving party. Scaife v. Cook

County, 446 F.3d 735, 738-39 (7th Cir. 2006). Mr. Oakley began working for IDOC

in 1985. At the time of his discharge in April 2001, he held the rank of lieutenant at

Menard Correctional Center. In that position he supervised sergeants, correctional

officers and inmates. Mr. Oakley, in turn, was supervised by defendant Stanley

Bucheit, a major and the chief of security at Menard. Bucheit reported to defendant

Gary Knop, the assistant warden in charge of overall operations. Knop in turn

reported to defendant Roger Cowan, the warden at Menard. Warden Cowan

reported to the Deputy Director or Director of the IDOC. 

In early 2001, correctional officer Rachel Nutter notified Captain Anthony

Ramos that Mr. Oakley had grabbed, or attempted to touch, her breasts and

buttocks. Ramos directed Nutter to complete a written complaint and then

informed Knop of the allegation. Ramos normally would have informed his

supervisor, Major Bucheit, but Bucheit was unavailable. Ramos therefore reported

the incident directly to Assistant Warden Knop. 

Knop followed established departmental procedure and reported the

allegations to Warden Cowan. Bucheit was present in Warden Cowan’s office at the

time. Warden Cowan then notified the Deputy Director, per IDOC policy, and

referred the matter to the Office of Affirmative Action. After Warden Cowan and the

Deputy Director received the results of an internal investigation, Warden Cowan

arranged for a hearing before an employee review board. Due to the nature of the

allegations and Mr. Oakley’s position as a member of the supervisory staff, an officer

from another IDOC facility was brought in to hold the hearing.

Based on the testimony of ten female staff members who either had witnessed

or had been victims of Mr. Oakley’s sexual harassment, the hearing officer

recommended that he be suspended pending discharge for violation of the directives

regarding sexual harassment and standards of conduct. Warden Cowan concurred,

and the Director approved the suspension pending discharge. The Department of

Central Management Services approved the discharge on April 27, 2001.

In his complaint, Mr. Oakley claimed that Warden Cowan, Knop and Bucheit

violated his right to equal protection because the defendants knew of female

correctional officers who had engaged in sexual harassment, but they had did not

disciplined them. He contends that this lack of discipline demonstrates the

defendants’ intentional discrimination against him because he is male. In granting

summary judgment for the defendants, however, the district court determined that
No. 05-1925 Page 3

Mr. Oakley presented no evidence that Bucheit and Knop were involved personally

in the discharge decision. Warden Cowan was involved in the decision, but the court

concluded that Mr. Oakley had presented no evidence that Warden Cowan was

motivated by a desire to discriminate. Mr. Oakley has abandoned his claim against

Warden Cowan on appeal.

II

Mr. Oakley’s sole argument on appeal is that the evidence establishes

personal involvement by Bucheit and Knop. In Mr. Oakley’s view, these defendants

acquiesced in the chain of events that led to his termination, but failed to act when

female employees engaged in equally serious transgressions. Bucheit and Knop

respond, as they did in the district court, that (1) they cannot be liable under § 1983

because they were not personally involved in the decision to fire Mr. Oakley, and (2)

Mr. Oakley neither established a prima facie case of discrimination, nor rebutted the

nondiscriminatory reason for terminating his employment. Mr. Oakley does not

respond to the latter argument. We review a grant of summary judgment de novo,

Scaife, 446 F.3d at 738, and may affirm on any ground supported by the record,

Cygan v. Wisconsin Dep’t of Corr., 388 F.3d 1092, 1098 (7th Cir. 2004).

The premise of Mr. Oakley’s argument suffers from a fatal flaw. In his

complaint Mr. Oakley alleged that both Bucheit and Knop violated his right to equal

protection by terminating him even though they were aware of “far more significant”

acts of sexual harassment by female employees and did not terminate them. Compl.

¶ 10. However, Mr. Oakley presented no admissible evidence that any female

employees actually had engaged in sexual harassment or, if they had, that their

behavior was reported up the chain of command. In responding to Bucheit and

Knop’s motion for summary judgment, Mr. Oakley did assert that five female

correctional officers violated the sexual harassment policy but were never

disciplined. According to Mr. Oakley, Officer Wendy Holton sold sex toys at work

from a catalog, ate popsicles in a “sexually suggestive manner” and left

“inappropriate” messages when she paged other employees. Plaintiff’s Memorandum

of Law in Opp’n to Summary Judgment at 13. In addition, Mr. Oakley continued,

the other four women, including Rachel Nutter, his principal accuser, made sexually

suggestive comments and possessed pornography and other material of a sexual

nature while at Menard. However, Mr. Oakley’s only supporting evidence was his

own deposition testimony, and, except as to Holton, his knowledge was admittedly

limited to second-hand accounts and unsubstantiated rumors. He did assert firsthand knowledge of Holton’s sales of sex toys because he had purchased merchandise

from her, but that merchandise had been delivered to him off-site. He witnessed

Holton bring merchandise into Menard on one occasion but never reported this

activity as misconduct. Therefore, even if Holton’s side business could be seen as
No. 05-1925 Page 4

violating IDOC’s sexual harassment policy, Mr. Oakley hardly could complain about

uneven enforcement. Mr. Oakley presented no evidence that a written complaint

was ever filed against any of the female officers he named. Moreover, both Bucheit

and Knop testified in their depositions that they never received a written sexual

harassment complaint concerning anyone but Mr. Oakley. 

Having no admissible evidence to support his premise--that female harassers

were ignored while he was fired--Mr. Oakley’s equal protection claim is wholly

meritless with respect to all defendants. With respect to Bucheit and Knop,

however, his claim suffers an additional problem. Neither defendant was involved

personally in the decision to fire him. To survive summary judgment, a plaintiff

claiming a violation of § 1983 must produce evidence that the defendant knew of a

deprivation and “‘approved it, turned a blind eye to it, failed to remedy it, or in some

way personally participated.’” Johnson v. Snyder, 444 F.3d 579, 584 (7th Cir. 2006)

(quoting Vance v. Peters, 97 F.3d 987, 994 (7th Cir. 1996)). Absent direct

participation, there must at least be a showing that the defendants “acquiesced in

some demonstrable way” in the alleged violation. Palmer v. Marion County, 327

F.3d 588, 594 (7th Cir. 2003).

Mr. Oakley contends that Bucheit and Knop were present at the meeting

where Warden Cowan decided to inform the Deputy Director of the allegations and

that, therefore, they “acquiesced in the chain of events that led to Oakley’s

termination.” Appellant’s Br. at 8. However, Knop was following established

department policy when he passed the allegations along to Warden Cowan, and

Bucheit just happened to be in the room at the time. Cf. Conner v. Reinhard, 847

F.2d 384, 396-97 (7th Cir. 1988) (holding that defendant who “sets in motion” series

of events that he knew or should have known would cause others to deprive plaintiff

of rights may be liable under § 1983). Warden Cowan explained that department

policy required him to report allegations of this nature to his superiors and that he

always initiates an investigation when he receives a report of sexual harassment. 

Furthermore, even if Warden Cowan’s action had been discretionary, Bucheit and

Knop were not “involved” in that action by virtue of their presence. See Hildebrandt

v. Illinois Dep’t of Natural Res., 347 F.3d 1014, 1040 (7th Cir. 2003) (holding that

evidence of defendant’s attendance and active participation in meeting where § 1983

violation allegedly occurred did not create triable issue of fact as to personal

involvement). After the meeting at which Knop had informed Warden Cowan of the

allegations against Mr. Oakley, Bucheit and Knop had no other involvement in the

termination decision.

In any event, Mr. Oakley failed to make out a prima facie case of

discrimination. Mr. Oakley’s equal protection claim is analyzed under the same

standards as a Title VII claim. See Hildebrandt, 347 F.3d at 1036; Williams v.

Seniff, 342 F.3d 774, 788 n.13 (7th Cir. 2003). He relied on the indirect method of
No. 05-1925 Page 5

proof, see McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and, under that

method, the plaintiff typically must establish a prima facie case of discrimination by

producing evidence that he (1) is a member of a protected class, (2) was meeting his

employer’s legitimate performance expectations, (3) suffered an adverse employment

action, and (4) was treated less favorably than similarly situated individuals outside

his class, Ballance v. City of Springfield, 424 F.3d 614, 617 (7th Cir. 2005). This

formulation is even more difficult to satisfy in a case involving a member of a nonprotected class because, instead of the first prong, the plaintiff must identify

background circumstances--something “fishy”--demonstrating that the defendant

was motivated to discriminate against employees in his class. See Mlynczak v.

Bodman, 442 F.3d 1050, 1057 (7th Cir. 2006); Gore, 416 F.3d at 592; Ballance, 424

F.3d at 617; Phelan v. City of Chicago, 347 F.3d 679, 684 (7th Cir. 2003). Mr. Oakley

could not establish these background circumstances. Moreover, as we have

discussed earlier, his claim is doomed by his lack of evidence that any accused

harasser outside his class received more favorable treatment. 

AFFIRMED