SNIPES, ROBERT v. IL DEPT CORRECTIONS
In the
United States Court of Appeals
For the Seventh Circuit
Nos. 01-3148 & 01-3493
Robert Snipes,
Plaintiff-Appellant/
Cross-Appellee,
v.
Illinois Department of Corrections,
Defendant-Appellee/
Cross-Appellant.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 96 C 137--Samuel P. King,/1 Judge.
Argued April 19, 2002--Decided May 23, 2002
Before Bauer, Posner and Easterbrook,
Circuit Judges.
Bauer, Circuit Judge. Robert Snipes
initiated this suit, claiming
discriminatory retaliation by the
Illinois Department of Corrections in
violation of Title VII of the Civil
Rights Act, 42 U.S.C. sec. 2000e-3(a),
for his complaints of racial
discrimination while working as a
correctional officer at the Department.
The district court entered judgment in
favor of the Department, finding that
Snipes failed to prove that he was
terminated in retaliation for his
discrimination complaints. Snipes then
filed this appeal, arguing that the
district court erred in excluding and
failing to consider evidence regarding
the disparate treatment of other
correctional officers under the
Department's attendance policy. The
Department cross-appealed, asserting that
the district court abused its discretion
in denying a bill of costs for $1785.00
submitted by the Department.
Background
Snipes was employed as a correctional
officer at the Department from August
1988 to September 1991, when he was
discharged for violating the Department's
attendance policy eleven times (more than
the threshold number for discharge under
the policy). Within one hundred and
eighty (180) days of his termination,
Snipes filed a Charge of Discrimination
with the Illinois Department of Human
Rights. A "right to sue" letter was
subsequently issued to Snipes by the
Equal Employment Opportunity Commission.
In January of 1996, Snipes filed a pro
se complaint against the Department.
After receiving permission to proceed in
forma pauperis, Snipes filed an amended
complaint through court appointed
counsel, claiming that he was discharged
by the Department in retaliation for
complaining about instances of race
discrimination at the Department. The
case proceeded to a bench trial, where
the only issue ultimately before the
court was whether the Department used its
attendance policy as a pretext for
terminating Snipes in retaliation for his
complaints of racial discrimination.
In an effort to prove his retaliation
claim, Snipes sought to introduce the
disciplinary records of other
correctional officers. The Department
moved to exclude such evidence regarding
the discipline given to and received by
other correctional officers for
violations of the Department's attendance
policy. The Department argued that
disparate disciplinary treatment of
correctional officers by different
supervisors in different time periods is
irrelevant because disparate treatment is
not an element of a retaliation claim.
The court found that the lack of
commonality in supervisors among those
correctional officers disciplined for
attendance violations rendered them
incomparable and therefore irrelevant to
Snipes' case.
At the conclusion of the trial, the
court found that the evidence presented
failed to establish a causal link between
Snipes' statutorily protected expression
(i.e., his complaints of racial
discrimination) and the adverse
employment action he suffered (i.e., his
termination). Judgment was entered in
favor of the Department.
Following the trial, the Department
filed a timely motion for an award of
costs. The bill of costs submitted by the
Department sought $1785.00 for deposition
and trial transcripts as well as for
copying fees. In response, Snipes
submitted a declaration detailing his
financial status. After reviewing this
information, the court determined that
Snipes was indigent, and was presently
and prospectively unable to pay the
costs.
Discussion
A) Exclusion of Evidence
We review the district court's decision
to exclude evidence under an abuse of
discretion standard. United States v.
Wilson, 159 F.3d 280, 290 (7th Cir.
1998). Our inquiry is not whether we
would have ruled the same way, but rather
whether any reasonable person would agree
with the trial court. United States v.
Johnson, 127 F.3d 625, 630 (7th Cir.
1997).
Where a plaintiff claims that he was
disciplined by his employer more harshly
than a similarly situated employee based
on some prohibited reason, a plaintiff
must show that he is similarly situated
with respect to performance,
qualifications and conduct. Radue v.
Kimberly Clark Corp., 219 F.3d 612, 617
(7th Cir. 2000) (citations omitted). Such
a showing normally entails establishing
that "the two employees dealt with the
same supervisor, were subject to the same
standards, and had engaged in similar
conduct without such differentiating or
mitigating circumstances as would
distinguish their conduct or the
employer's treatment of them." Id. at
617-18 (citations omitted). Requiring
that the plaintiff establish these
similarities is simply common sense, as
"[d]ifferent employment decisions,
concerning different employees, made by
different supervisors . . . sufficiently
account for any disparity in treatment,
thereby preventing an inference of
discrimination." Id. at 618 (citations
omitted).
The district court did not abuse its
discretion in finding that Snipes failed
to meet this minimum evidentiary
threshold. Snipes argues that despite the
lack of commonality in supervisors among
the correctional officers disciplined for
attendance violations, he and those
correctional officers are nonetheless
similarly situated because they held the
same job positions, were subjected to the
same evaluation process, worked for the
Department during the same time frame,
were subjected to the same attendance
policy, and were exposed to the same
multi-layer, centralized disciplinary
process for those violations. We are not
persuaded.
While Snipes and the other correctional
officers were technically subject to the
same written attendance policy and formal
disciplinary process, the record also
shows that the difference in supervisors
under whom Snipes and the other
correctional officers worked resulted in
disparate application of and adherence to
such policy and process. Given the
inconsistent administration of relevant
policy and process under different
supervisors, the district court's conclu
sion that the lack of commonality in
supervisors among the correctional
officers disciplined for attendance
violations precluded an inference of
discrimination is not unreasonable. See,
e.g., Patterson v. Avery Dennison Corp.,
281 F.3d 676, 680 (7th Cir. 2002)
(finding that plaintiff was not
comparable to another employee in all
material respects where plaintiff and
other employee were evaluated by
different supervisors); Radue, 219 F.3d
at 618 (finding that lack of common
supervisor precluded showing of
similarity because when "different
decision-makers are involved, two
decisions are rarely similarly situated
in all respects") (citations omitted).
Because the district court acted within
its discretion in determining that Snipes
and other correctional officers
disciplined for attendance violations
were not similarly situated, evidence
regarding the disciplinary records of
those officers was properly excluded.
B) Bill of Costs
With respect to the issue of costs, the
Department failed to comply with Circuit
Rule 30, which requires that a cross-
appellant include in its brief any
"judgment or order under review and any
opinion, memorandum of decision, findings
of fact and conclusions of law, or oral
statement of reasons delivered by the
trial court or administrative agency upon
the rendering of that judgment, decree,
or order" not included by the appellant.
7th Cir. R. 30. The purpose of Rule 30 is
to ensure that this Court has all
documents necessary to a fair and
complete consideration of the arguments
presented. Hill v. Porter Memorial Hosp.,
90 F.3d 220, 225-26 (7th Cir. 1996). It
is well established that where an
appellant or cross-appellant thwarts this
purpose by failing to comply with Rule
30, this Court may dismiss the appeal or
summarily affirm the judgment. Id.
(citations omitted). Because the
Department failed to include in its
appendix the subject order denying its
motion for costs, summary affirmance is
proper.
Conclusion
The decision of the district court is
AFFIRMED in all respects.
FOOTNOTES
/1 Judge King is a Senior District Judge for the
United States District Court of Hawaii, sitting
in the Northern District of Illinois by
designation.