LUSTER v. ILLINOIS DEPARTMENT OF CORRECTIONS (July 19, 2011)

Milton Luster is an African American male. In June of 2006, he was a lieutenant with the Illinois Department of Corrections assigned to the Dwight Correctional Center in Dwight, Illinois. On June 6, he and Christine Cole, a white female guard, got into a heated conversation during which Cole called Luster a "bitch." Luster filed an incident report accusing Cole of insubordination. Two days later, Cole filed her own report. In her report, she acknowledged a consensual affair with Luster years earlier and reported that Luster on two occasions had pinned her against the wall and put his mouth on her neck, that he had touched her buttocks, that he made suggestive remarks to her, and that he made unsolicited and uninvited phone calls and visits to her home. The Department began an investigation and put Luster on paid leave. Luster denied all the allegations but two other guards told investigators that they witnessed at least one of the incidents. In his final report, the investigator criticized Cole for the "bitch" remark and for her delay in reporting the harassment but credited her report of the events. The resulting disciplinary proceedings ended with a recommendation that Luster be fired. The warden agreed and suspended Luster without pay. As she was required to do under regulations, she requested the approval of the Illinois Department of Central Management Services for Luster's firing. Lester could have, but did not, file a grievance or administrative appeal. Instead, he resigned. He brought suit against the Department, alleging that he was fired because of his race in violation of Title VII. Judge Mihm (C.D. Ill.) granted summary judgment to the Department. Luster appeals.

In their opinion, Judges Posner, Tinder, and Hamilton affirmed. The Court stated the familiar elements under the indirect method of proof: member of a protected class, meeting the Department's performance expectations, an adverse employment action, and a similarly situated coworker treated more favorably. The first and third elements were not at issue and, here, the second and fourth elements merged. Luster put forward two "similarly situated" employees who he claims were treated more favorably. The Court rejected one of them as a comparator because the admissible evidence established that the accusations against that employee were found to be unsubstantiated. The other employee was an apt comparator. Accusations of physical harassment of a female coworker were found substantiated. That employee was also suspended without pay pending his discharge. Up until that point, the Court noted, he and Luster were treated identically. But the comparator employee, unlike Luster, successfully grieved his termination. The same opportunity was available to Luster. Therefore, he was not treated more favorably than Luster. The Court added that even if it had found a prima facie case, the Department would still prevail because it came forward with a legitimate, nondiscriminatory reason for their treatment of Luster. Luster did not provide sufficient evidence to allow a reasonable jury to conclude that the Department's reason was pretextual.