                                  In the

     United States Court of Appeals
                   For the Seventh Circuit
No. 12-1500

RONALD BATES,
                                                     Plaintiff-Appellant,

                                    v.


CITY OF CHICAGO, et al.,
                                                 Defendants-Appellees.


          Appeal from the United States District Court for the
            Northern District of Illinois, Eastern Division.
               No. 05 C 1564 — James B. Zagel, Judge.




     ARGUED JANUARY 24, 2013 — DECIDE AUGUST 9, 2013




     Before MANION and WOOD, Circuit Judges, and BARKER,
District Judge.*



*
  Honorable Sarah Evans Barker, District Judge for the Southern District of
Indiana, sitting by designation.
2                                                    No. 12-1500

    MANION, Circuit Judge. Ronald Bates, a black firefighter
with the Chicago Fire Department, was demoted one level
from his at-will position as a District Chief to a Deputy District
Chief position. The Fire Commissioner who demoted him and
the firefighter who replaced him were also black. Nonetheless,
Bates claims that his demotion was based on racial discrimina-
tion. The district court dismissed several of Bates’s claims
under Federal Rule of Civil Procedure 12(b)(6), then granted
summary judgment against him on the remaining claims. We
affirm.
                              I. Facts
    Ronald Bates is a black firefighter who joined the Chicago
Fire Department in 1977 and gradually rose through the ranks.
He was promoted to Lieutenant in 1980, Captain in 1987,
Battalion Chief in 1989, and Deputy District Chief in 1998. In
2000, Fire Commissioner James Joyce appointed Bates to one of
seven District Chief positions in the Chicago Fire Department.
A District Chief is a member of the Fire Commissioner’s
personnel management team and holds an at-will position with
no expectation of continued employment. During Bates’s
tenure as a District Chief, Joyce had no complaints about
Bates’s job performance. Indeed, Bates instituted a diversity
program in his district and was involved in a training program
for newly appointed chiefs, and his work appears to have been
well received within the Chicago Fire Department.
   But Joyce resigned as Fire Commissioner in 2004, and
Cortez Trotter became the new Fire Commissioner. Trotter, like
Bates, is black. Trotter chose his own management team, and
on May 24, 2004, he issued a personnel order that contained a
No. 12-1500                                                               3

list of thirty promotions, demotions, and lateral reassignments
for at-will positions in the Chicago Fire Department.1 These
appointments consisted of eighteen promotions (eight black,
ten non-black); eight demotions (three black, five non-black);
and four lateral reassignments (two black, two non-black).2
    Bates was one of the demotions. Trotter demoted him to a
Deputy District Chief position in Operation Relief, which is a
floating assignment not associated with any particular district.
Among the seven District Chiefs, Bates was the only one
demoted. The other six District Chiefs were either promoted
(one black, four non-black) or laterally reassigned (one non-
black).
    Trotter promoted Nicholas Russell to Bates’s District Chief
position, and like Bates and Trotter, Russell was also black.
Russell had started working with the Chicago Fire Department
just a few years after Trotter began working there, and Russell
had been a Battalion Chief when Trotter promoted him to
Bates’s District Chief position. Significantly, Russell had been
the president of the African American Firefighters League for
more than a decade, and had led protests against racial
discrimination within the Chicago Fire Department during that
time. Overall, Trotter’s new appointments to the District Chief




1
   The order initially contained a list of thirty-one appointments, but an
addendum dated May 26, 2004, deleted a name from the list.

2
  The district court’s opinion and the briefs contain minor discrepancies in
these numbers, but these discrepancies are not significant enough to affect
the outcome of this appeal.
4                                                    No. 12-1500

positions increased the number of black firefighters serving as
District Chiefs from two to three.
    Bates worked in his new Deputy District Chief position for
a few months, then took a year-long medical leave. At the end
of his leave, Bates was unable to continue his work, and he
retired from the Chicago Fire Department on November 13,
2005. On March 16, 2005, during his medical leave, Bates filed
a pro se complaint, which he subsequently amended with the
assistance of counsel on September 27, 2005. The amended
complaint contained four counts alleging that Bates’s demotion
had been motivated by racial discrimination. It named Joyce,
Trotter, and two District Chiefs as defendants in their individ-
ual capacities and as agents of the City of Chicago in their
official capacities. Bates sued Trotter because Trotter had made
the decision to demote him, and Bates also sued Joyce and two
District Chiefs because they had allegedly influenced Trotter’s
decision. Count I was a Title VII claim against the City of
Chicago, Count II was a § 1983 claim against all defendants,
Count III was a § 1981 claim against the individual defendants,
and Count IV was a state law claim for intentional infliction of
emotional distress against all defendants.
     The district court ultimately resolved all counts in favor of
the defendants. The court dismissed Counts II and III under
Federal Rule of Civil Procedure 12(b)(6) for all defendants
except Trotter, and dismissed Count IV for all defendants. The
court allowed discovery for the remaining counts, then entered
summary judgment on Count I in favor of the City of Chicago
(the only defendant named in that count) and on Counts II and
III in favor of Trotter (the only defendant remaining in those
counts). Bates filed a timely appeal of these rulings.
No. 12-1500                                                               5

                                II. Discussion
    We first examine whether the district court erred in
granting summary judgment on Count I in favor of the City of
Chicago and on Counts II and III in favor of Trotter. We then
examine whether the district court erred in dismissing Counts
II and III against the other defendants under Rule 12(b)(6).3
             A. Claims Resolved on Summary Judgment
    Bates alleges that Trotter and the City of Chicago demoted
him because of racial discrimination that violated Title VII
(Count I), § 1983 (Count II), and § 1981 (Count III). The district
court granted summary judgment on these claims in favor of
the defendants. We review a district court’s grant of a motion
for summary judgment de novo, and we view all facts and
inferences in favor of the non-moving party (here, Bates). Good
v. Univ. of Chi. Med. Ctr., 673 F.3d 670, 673 (7th Cir. 2012).
    Bates argues that he has presented sufficient evidence of
racial discrimination to survive summary judgment under
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).4
Under the McDonnell Douglas framework, “a plaintiff must
produce evidence that he (1) belongs to a protected class, (2)
met his employer’s legitimate performance expectations, (3)


3
    Bates does not contest the district court’s dismissal of Count IV.

4
   Even though Bates was replaced by another black firefighter, that fact is
not dispositive, and we must still analyze Bates’s arguments through the
McDonnell Douglas framework. See Carson v. Bethlehem Steel Corp., 82 F.3d
157, 158-59 (7th Cir. 1996) (per curiam) (“An employee may be able to show
that his race … tipped the scales against him, without regard to the
demographic characteristics of his replacement.”).
6                                                     No. 12-1500

suffered an adverse employment action, and (4) was treated
worse than similarly situated employees outside the protected
class.” Rodgers v. White, 657 F.3d 511, 517 (7th Cir. 2011). If the
plaintiff satisfies these requirements, the burden shifts to the
defendant to offer a legitimate, non-discriminatory reason for
the employment action. Id. And if the defendant offers such a
reason, the burden shifts back to the plaintiff to show that the
defendant’s reason was merely a pretext. Id. The McDonnell
Douglas framework applies equally to claims under Title VII,
§ 1983, and § 1981. Id.
    The district court concluded that Bates could not establish
a prima facie case because he failed to prove the fourth
McDonnell Douglas element: whether Bates was treated worse
than similarly situated firefighters who were not black. We
have held that “[t]he similarly situated inquiry is a flexible,
common-sense one that asks, at bottom, whether ‘there are
enough common factors … to allow for a meaningful compari-
son in order to divine whether intentional discrimination was
at play.’” Henry v. Jones, 507 F.3d 558, 564 (7th Cir. 2007)
(quoting Barricks v. Eli Lilly & Co., 481 F.3d 556, 560 (7th Cir.
2007)). “[T]he comparator must still be similar enough ‘to
eliminate confounding variables, such as differing roles,
performance histories, or decision-making personnel, [so as to]
isolate the critical independent variable: complaints about
discrimination.’” Filar v. Bd. of Educ. of Chi., 526 F.3d 1054, 1061
(7th Cir. 2008) (quoting Humphries v. CBOCS West, Inc., 474
F.3d 387, 405 (7th Cir. 2007)).
    We agree with the district court that Bates failed to prove
the “similarly situated” element because “the numbers do not
No. 12-1500                                                      7

support the claim of race discrimination.” Across the board,
Trotter’s promotions, demotions, and lateral transfers did not
demonstrate any clear racial bias. Of the eight demotions, five
were for non-black firefighters, which suggests that Trotter
demoted both black and non-black firefighters without regard
to race. Bates therefore lacks evidence that he was treated
worse than similarly situated firefighters. See Bush v. Common-
wealth Edison Co., 990 F.2d 928, 931 (7th Cir. 1993) (“[A] pattern,
in which blacks sometimes do better than whites and some-
times do worse, being random with respect to race, is not
evidence of racial discrimination.”).
    Bates contends that we should limit our “similarly situated”
comparison to the appointments of the other six District Chiefs.
Of the seven District Chiefs, Bates was the only one demoted.
The other six District Chiefs had either been promoted (one
black, four non-black) or laterally reassigned (one non-black).
But we see no need to exclude Trotter’s other appointments
from our analysis. Trotter made all thirty appointments in the
same personnel order, and they consisted of a comprehensive
scheme to change the leadership in the at-will positions within
the Chicago Fire Department. And if we were to scrutinize the
District Chief comparisons more closely, we would note that
the other District Chiefs had qualifications and experiences that
distinguished them from Bates. For example, Trotter promoted
District Chief James Kehoe to a position that Kehoe had held
under a former Commissioner. Bates, however, had never held
a rank higher than District Chief. Trotter also promoted District
Chief William Donohue because Donohue had demonstrated
an aggressive management style while handling a scandal in
his district. Bates does not assert that he had similar experi-
8                                                   No. 12-1500

ence. Therefore, if we were to closely scrutinize the records and
accomplishments of the other District Chiefs, we would still
find that Bates is unable to show that he was treated worse
than a “similarly situated” group of non-black District Chiefs.
    Even if Bates were able to satisfy the “similarly situated”
element and establish a prima facie case, Trotter asserted a
legitimate, non-discriminatory reason to explain his decision to
demote Bates. Trotter testified during a deposition that he had
demoted Bates because Bates’s management style did not align
with his own:
     In looking at the goals and looking at my needs for
     the Fire Department, specifically [Bates’s] District, I
     felt that the person that I was appointing was better
     able to carry out my goals and reflect my manage-
     ment style. …
     …
     … I have an aggressive management style. I look for
     high energy, enthusiasm. I look for people that
     are—that appear, at least to me, to be engaged in
     what they’re doing.
    When asked specifically about Bates, Trotter testified that
he remembered “not being impressed by the overall demeanor
or the enthusiasm that I saw.” We have readily accepted such
concerns about an employee’s performance and leadership
skills “as legitimate, non-discriminatory reasons; indeed, they
are a staple of employer responses in these situations.” Sattar
v. Motorola, Inc., 138 F.3d 1164, 1170 (7th Cir. 1998).
No. 12-1500                                                    9

    Bates would then have to show that Trotter’s reason for
Bates’s demotion was merely a pretext. To show pretext, a
plaintiff “must identify such weaknesses, implausibilities,
inconsistencies, or contradictions in [the defendant’s] proffered
reasons that a reasonable person could find them unworthy of
credence and hence infer that [the defendant] did not act for
the asserted non-discriminatory reasons.” Boumehdi v. Plastag
Holdings, LLC, 489 F.3d 781, 792 (7th Cir. 2007). A plaintiff can
do this by showing that the defendant’s reason for the adverse
employment action (1) had no basis in fact; (2) did not actually
motivate the adverse employment action; or (3) was insuffi-
cient to motivate the action. Wells v. Unisource Worldwide, Inc.,
289 F.3d 1001, 1006 (7th Cir. 2002). “The focus of a pretext
inquiry is whether the employer’s stated reason was honest,
not whether it was accurate, wise, or well-considered.”
Stewart v. Henderson, 207 F.3d 374, 378 (7th Cir. 2000).
    Bates attempts to establish pretext by arguing that Trotter’s
reason for his demotion had no basis in fact. First, Bates claims
that Trotter changed his reason for the demotion, and Bates
argues that this alleged inconsistency demonstrates the
unreliability of Trotter’s explanation. Bates claims that Trotter
testified that Bates was a “good fit” for Trotter’s management
team in his second deposition, even though Trotter had
previously testified that Bates was not a “good fit” in his first
deposition. But Trotter’s statements did not create an inconsis-
tency in his position; they merely reflected Trotter’s desire to
keep Bates within his management team, but not at the level of
a District Chief. Bates further argues that his work performance
and management skills could not have been Trotter’s reason
for the demotion because, even though Trotter demoted Bates,
10                                                 No. 12-1500

Trotter still retained Bates in an at-will position and invited
him to a management retreat. But again, Trotter’s actions
simply demonstrated that Trotter wanted to keep Bates in his
management team, but not as a District Chief.
    Second, Bates argues that Trotter’s reason for his demotion
is based on factual inferences that are impermissible on
summary judgment. Bates cites conflicting evidence in the
record about the extent of his relationship with Trotter, and he
claims that these discrepancies are genuine issues of material
fact that preclude a summary judgment ruling. But any
inconsistencies in the depositions regarding the relationship
between Trotter and Bates are not material to the resolution of
this case. The record established that Trotter and Bates had met
in person at least several times, and they had worked together
in the Chicago Fire Department for decades. Trotter therefore
had sufficient experience with Bates and the Chicago Fire
Department to support his assertion that Bates’s demeanor and
level of enthusiasm were not compatible with his management
style.
    Finally, Bates argues that we should not infer that Trotter
opposes racial discrimination simply because he is black, and
therefore would not discriminate against another black
firefighter. Although it is possible for employers to discrimi-
nate against members of their own race, Bates provided no
evidence that Trotter was racially biased against black
firefighters. Instead, the record shows that Trotter promoted
many black firefighters to at-will positions in the Chicago Fire
Department. He promoted eight black firefighters in the
personnel order dated May 24, 2004, and he increased the
number of black District Chiefs from two to three. Indeed,
No. 12-1500                                                      11

Trotter replaced Bates with Russell, who was also a black
firefighter. And not only did Russell and Bates share the same
race, Russell had been the president of the African American
Firefighters League for more than a decade. Trotter was well
aware of Russell’s advocacy for the African American
Firefighters League, and Trotter and Russell had even been on
a television show together and discussed Russell’s work
against racial discrimination. Russell’s activism is likely what
Trotter referred to as the “high energy [and] enthusiasm” that
the Fire Department needed “to carry out [his] goals and
reflect [his] management style.” Therefore, we affirm the
district court’s ruling that Bates failed to establish a prima facie
case, and even if Bates were able to do so, he would be unable
to show that Trotter’s reason for Bates’s demotion was merely
pretext.
                       B. Dismissed Claims
    Bates further alleges that “Trotter was influenced by” Joyce
and two District Chiefs, and that Trotter demoted Bates as a
result of this influence. The amended complaint therefore
named Joyce and the two District Chiefs as defendants to the
§ 1983 claim (Count II) and the § 1981 claim (Count III). The
district court dismissed these claims against Joyce and the two
District Chiefs under Federal Rule of Civil Procedure 12(b)(6)
because it concluded that these defendants were entitled to
qualified immunity from a “cat’s paw” theory of liability.
    But Bates denies that he is invoking the “cat’s paw” theory
of liability. The amended complaint, however, specifically
alleged that “Trotter was influenced by” Joyce and two District
Chiefs, which is a classic example of a “cat’s paw” theory of
12                                                            No. 12-1500

liability. Joyce and the two District Chiefs lacked the authority
to demote Bates on their own, and the amended complaint
even conceded that only “Defendant Trotter made the decision
to demote Bates.” Therefore, the amended complaint alleged
a theory of “cat’s paw” liability, but Bates has since waived
that theory.5
   On appeal, Bates seems to frame his argument as one of
direct liability, in which Joyce and the two District Chiefs were
“actively involved” in Bates’s demotion. This hardly helps his
case. Even if these were the allegations in the amended
complaint (which they were not), we would find that the
amended complaint failed to specifically allege how Joyce and
the two District Chiefs were “actively involved” in Trotter’s
decision to demote Bates. The amended complaint was vague,
never explained its case, and lumped the defendants together
without sufficient detail.




5
   Joyce was the outgoing Fire Commissioner who was replaced by Trotter,
and the two District Chiefs were promoted further up into Trotter’s
management team in the May 24, 2004, personnel order. All three were
white. Because of Joyce’s experience in managing the Chicago Fire
Department, and the policy-making roles of the two promoted District
Chiefs, we assume that Trotter would naturally have considered the advice
of these defendants (among others) as a necessary part of reorganizing the
Department. But Bates alleges that this advice was based not on the
defendants’ professional judgment, but on the defendants’ alleged racial
biases. The amended complaint made nothing but vague and generalized
allegations about the racial attitudes of these defendants, and failed to make
any specific allegations about how racism was the basis for any advice these
defendants gave to Trotter.
No. 12-1500                                                    13

    But even if Bates had not waived his claims against Joyce
and the two District Chiefs, and even if the district court had
erred by dismissing the § 1983 and § 1981 claims against them
because of qualified immunity, such an error would be
harmless under Federal Rule of Civil Procedure 61. The § 1983
and § 1981 claims proceeded to summary judgment against
Trotter, and as discussed in Section II.A, Trotter asserted a
legitimate, non-discriminatory reason that explained his
decision to demote Bates. Trotter testified in his deposition that
his decision was based on his own goals and management
style, and he gave no indication that he had received any
racially motivated advice from Joyce or the two District Chiefs.
                          III. Conclusion
   The district court correctly determined that Bates was
unable to establish a prima facie case under the McDonnell
Douglas framework, and even if he could establish such a case,
Bates would be unable to show that Trotter’s reason for Bates’s
demotion was merely pretext. Additionally, the district court
correctly dismissed the § 1983 and § 1981 claims against Joyce
and the two District Chiefs for allegedly influencing Trotter’s
decision to demote Bates. We therefore AFFIRM the district
court’s rulings.
