                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 06-1637
MARK JENNINGS,
                                          Plaintiff-Appellant,
                              v.

STATE OF ILLINOIS DEPARTMENT OF CORRECTIONS,
                                          Defendant-Appellee.
                        ____________
          Appeal from the United States District Court
                for the Central District of Illinois.
           No. 03 C 4087—Michael M. Mihm, Judge.
                        ____________
     ARGUED MAY 25, 2007—DECIDED AUGUST 2, 2007
                    ____________


 Before BAUER, CUDAHY, and FLAUM, Circuit Judges.
  BAUER, Circuit Judge. Mark Jennings filed suit against
his former employer, the State of Illinois Department of
Corrections (“IDOC”), claiming that IDOC had discrimi-
nated against him based on his national origin, Mexican-
American, in violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000(e), et seq. The district court
granted summary judgment to IDOC. Jennings filed a
timely appeal, and we affirm.


                      I. Background
 IDOC employed Jennings as a correctional officer at its
East Moline Correctional Center (“EMCC”) for approxi-
2                                              No. 06-1637

mately 14 years until his discharge in 2002. In February
2002, Jennings came under investigation for smuggling
contraband cigars into the EMCC and trading them with
prisoners for goods from the prison commissary. Warden
Gary Wyant had initiated the investigation after cigars
were discovered in the possession of at least one prisoner.
Jennings maintained his innocence but an independent
investigator, who interviewed eight inmates and Jennings,
concluded that Jennings did in fact engage in the prohib-
ited conduct. After receiving the investigator’s report,
Major Steve Wright recommended a hearing before the
EMCC Employee Review Board. In September 2002, the
Board recommended a 30-day suspension pending dis-
charge, which Warden Wyant signed on September 3,
2002. The Illinois Department of Central Management
Services approved Jennings’ discharge in October 2002.
  After his discharge, Jennings filed a grievance through
his union, claiming that his termination was without
cause. An independent arbitrator upheld the termination,
concluding that Jennings had engaged in trading and
trafficking and that termination was appropriate in light
of the seriousness of the misconduct and Jennings’ recent
disciplinary history.
  Jennings filed the present suit after completing the
required EEOC administrative process. In this suit,
Jennings claims that he was terminated and denied a last-
chance settlement agreement, which forced him to sub-
mit to arbitration, because of his national origin, Mexican-
American.
  In response to IDOC’s motion for summary judgment,
Jennings brought forth a plethora of evidence of discrimi-
natory remarks and comments by Wyant and Wright to
and about Jennings and other Hispanic employees at the
EMCC around the time of Jennings’ termination. Such
comments included Wright calling Jennings a “lazy Mexi-
No. 06-1637                                             3

can” shortly before Jennings was investigated for trading
and trafficking the cigars; Wright informing Harry Hitch-
cock, the union representative and correctional officer at
the EMCC, that the EMCC “already had enough token
Mexicans in managerial positions” when Hitchcock con-
fronted him about Jennings having been turned down
repeatedly for additional education and training; Wright
informing Hitchcock that he, Wright, would never recom-
mend Jennings for additional training or education
because he did not like Jennings; Wyant commenting to
Hitchcock that it was his belief that affirmative action
was nothing less than reverse discrimination and that
what goes around comes around; Wright referring to
Lieutenant Tony Gonzales, the only Hispanic-American
with a rank above sergeant, as “Token Tony” more than a
dozen times; Wyant informing corrections officer Rick Lind
that he hated talking to Mexicans on the telephone and
that “those ‘damn beaners’ ” should have to pass a test
in English to show they can properly write and speak
English before they come into the country; and Wyant
stating that where he was from in the South “they had
different ways of handling those types of people,” meaning
Mexican-Americans.
  Additionally, Jennings brought forth evidence that other
non-Mexican-American employees were treated more
favorably when caught engaging in prohibited conduct.
Mark Koster, Robert Huskey, and Belinda Rusch were
found to have engaged in trading and trafficking by
bringing their personal electronic equipment to inmates to
have the inmates repair the equipment. Koster was given
a 30-day suspension pending discharge but later was
offered a last-chance agreement that allowed him to enter
into a settlement in which he gave up his right to pursue
a claim against IDOC in return for a suspension of five
days. Huskey was given a 30-day suspension but also
entered into a last chance agreement. Rusch was also
4                                               No. 06-1637

given a 30-day suspension pending discharge but did not
receive the option of a last-chance agreement. Her case
proceeded to arbitration. The arbitrator reduced Rusch’s
discipline to a 10-day suspension.
  The district court granted summary judgment to IDOC,
finding that Jennings had failed to offer any proof that
any of the actual decision makers had any animus
against Mexican-Americans or that the reasons for their
decisions were anything but legitimate.


                     II. Discussion
  We review the district court’s grant of summary judg-
ment de novo, “viewing all of the facts and drawing all
reasonable inferences therefrom in favor of ” Jennings, the
non-moving party. Franzoni v. Hartmarx Corp., 300 F.3d
767, 771 (7th Cir. 2002). Summary judgment is appropri-
ate when the “pleadings, depositions, answers to interroga-
tories, and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(c). See
also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct.
2548, 91 L. Ed. 2d 265 (1986).
  To prove his claim of national origin discrimination,
Jennings may use either the direct or indirect method.
Ptasznik v. St. Joseph Hospital, 464 F.3d 691, 695 (7th Cir.
2006) (citing Scaife v. Cook County, 446 F.3d 735, 739 (7th
Cir. 2006)). Jennings seeks to proceed under both methods
of proof but succeeds under neither.
  Under the direct method, Jennings must prove that
IDOC’s decisions to terminate his employment and not to
offer him a last-chance agreement were motivated by his
national origin by offering direct evidence, such as an
admission of discrimination, or sufficient circumstantial
No. 06-1637                                               5

evidence that points directly to a discriminatory reason for
the termination decision. Id. (citations omitted). For
purposes of the direct method of proof, “[a]ll that is
required is evidence from which a rational trier of fact
could reasonably infer that the defendant had fired the
plaintiff because the latter was a member of a protected
class.” Phelan v. Cook County, 463 F.3d 773, 780 (7th Cir.
2006) (quoting Troupe v. May Dep’t Stores Co., 20 F.3d 734,
736 (7th Cir. 1994)).
  Under the now familiar indirect method of proof, first
articulated by the Supreme Court in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed.
2d 668 (1973), Jennings may establish his claim of na-
tional origin discrimination by first proving a prima facie
case that (1) he is a member of a protected class, (2) he
performed his job to IDOC’s legitimate expectations,
(3) despite his satisfactory performance, he was subjected
to an adverse employment action, and (4) similarly situ-
ated employees outside of his protected class were treated
more favorably than he. Burks v. Wis. Dept. of Transp.,
464 F.3d 744, 750-51 (7th Cir. 2006). Once Jennings
proves a prima facie case of discrimination, the burden
shifts to IDOC to articulate a legitimate, nondiscrimina-
tory reason for the adverse employment action. Id. If
IDOC succeeds in rebutting Jennings’ prima facie case
with a legitimate, nondiscriminatory reason for its deci-
sion to terminate Jennings, the burden shifts back to
Jennings to prove that the stated reason for the termina-
tion decision is pretextual. Id.
  Jennings’ claim of discrimination fails because there was
no showing of a causal connection between the discrimina-
tory conduct of Wyant and Wright and Jennings’ termina-
6                                                    No. 06-1637

tion without the offer of a last-chance agreement.1
Jennings points to Wyant’s and Wright’s comments
denigrating Mexican-Americans and Jennings, in particu-
lar, accompanied by more favorable treatment for other
non-Hispanic employees, as direct evidence establishing a
discriminatory basis for his discharge. However, the
independent investigator and independent arbitrator both
concluded that Jennings had engaged in trading and
trafficking, which broke any connection between Wyant’s
and Wright’s improper motivations and the ultimate
outcome, absolving IDOC of liability. See Willis v. Marion
County Auditor’s Office, 118 F.3d 542, 547 (7th Cir.
1997) (“[W]hen the causal relationship between the sub-
ordinate’s illicit motive and the employer’s ultimate
decision is broken, and the ultimate decision is clearly
made on an independent and legally permissive basis, the
bias of the subordinate is not relevant.”). See also Brewer
v. Bd. of Trs. of the Univ. of Ill., 479 F.3d 908, 920 (7th
Cir. 2007) (recognizing line of cases holding that “even
where a biased employee may have leveled false charges
of misconduct against the plaintiff, the employer does



1
  The district court recognized that the failure to offer Jennings
a last-chance agreement was not the same as the decision to
terminate Jennings because it did not conclusively resolve the
question of whether IDOC would continue to employ Jennings.
The actual issue, instead, was whether forcing someone to sub-
ject himself to arbitration where he faces the possibility of losing
his position is an adverse employment action. The district court
concluded that this constituted an adverse employment action.
Because Jennings failed to establish a causal connection between
the discriminatory conduct and the ultimate outcome in this
case, however, we need not decide whether the failure to offer
Jennings a last-chance agreement or whether forcing someone to
subject himself to arbitration that may result in termination
constitutes an adverse employment action.
No. 06-1637                                              7

not face Title VII liability so long as the decision maker
independently investigates the claims before acting”).
  Wyant and Wright did not terminate Jennings or decide
against offering Jennings a last-chance agreement; in-
stead, the EMCC Employee Review Board recommended
a thirty-day suspension pending discharge, and the
Department of Central Management Services decided to
terminate Jennings’ employment without offering a last-
chance agreement. Wyant and Wright participated in
various aspects of the termination process: Wyant initiated
the investigation and signed off on the recommendation of
the Employee Review Board; Wright referred the matter
to the Employee Review Board after receiving the report
of the independent investigator. But Jennings has not
offered any evidence or even suggested that Wyant or
Wright had any influence over the independent investiga-
tor, the Employee Review Board, the Department of
Central Management Services, or the independent arbitra-
tor, much less the singular degree of influence necessary
for a finding that Wyant and Wright were functionally
responsible for Jennings’ termination without the offer of
a last-chance agreement. See Rozskowiak v. Village of
Arlington Heights, 415 F.3d 608, 612-13 (7th Cir. 2005)
(upholding summary judgment where an allegedly biased
employee was on a seven-member committee that recom-
mended the plaintiff ’s termination). Nor has Jennings
offered evidence that the independent investigation and
independent arbitration, in which he was offered the
opportunity to present his side of the story, were shams
or conduits for Wyant’s and Wright’s discriminatory
animus. See Shager v. Upjohn Co., 913 F.2d 398, 405 (7th
Cir. 1990) (holding that if review committee that was
ignorant of district manager’s age-based discriminatory
animus acted “as the conduit of [manager’s] prejudice—
his cat’s paw—the innocence of its members would not
spare the company from liability”).
8                                            No. 06-1637

  Additionally, even assuming that Jennings stated a
prima facie case of discrimination under the indirect
method of proof, he failed to offer evidence rebutting
IDOC’s legitimate explanation for its decisions to termi-
nate Jennings and not to offer him a last-chance agree-
ment; i.e., an independent investigator and independent
arbitrator separately reached the conclusion that Jennings
had engaged in the prohibited conduct of trading and
trafficking. And there was no evidence that the independ-
ent investigator, the EMCC Employee Review Board, the
independent arbitrator, or the Department of Central
Management Services bore any discriminatory animus
toward Mexican-Americans, or Jennings in particular. A
reasonable jury could not find that IDOC intentionally
discriminated against Jennings by firing him. The dis-
trict court therefore properly granted summary judgment
to IDOC.


                    III. Conclusion
  For the foregoing reasons, the judgment of the district
court is AFFIRMED.




  CUDAHY, Circuit Judge, concurring. This case presents
the anomaly of a prison manager (the warden) without
the ultimate power of management: the power to discharge
employees. Perhaps this apparent anomaly is merely a by-
product of the circumstances of litigation—a failure of
proof on Jennings’ part—and the authority exercised by
the Department of Central Management Services is
essentially a “liability shield,” despite whose obscuring
No. 06-1637                                                 9

effect the warden’s influence is in fact decisive. Shager v.
Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990). But on this
record it really seems that Illinois has bifurcated the
management of the personnel in its Department of Cor-
rections in the interest of insulating the exercise of certain
management prerogatives against the influence of im-
proper motives.
  I must agree with my colleagues that Jennings has not
offered any evidence that Wyant had sufficient influence
over the decision of the Department of Central Manage-
ment Services (the ostensible decision-maker) to make
Wyant’s motives decisive or even relevant; the suggestion
that he controlled the outcome “rests on surmise.” Wallace
v. SMC Pneumatics, Inc., 103 F.3d 1394, 1401 (7th Cir.
1997). How the warden’s lack of influence can be recon-
ciled in the real world with the need for efficient prison
administration is a bit mysterious, but it is not our
task for present purposes to unravel that mystery.

A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                    USCA-02-C-0072—8-2-07
