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

No. 05-4591
MARCOS PEREZ,
                                               Plaintiff-Appellant,
                                v.

STATE OF ILLINOIS,
                                              Defendant-Appellee.
                         ____________
            Appeal from the United States District Court
                for the Central District of Illinois.
             No. 03 C 1386—Joe Billy McDade, Judge.
                         ____________
      ARGUED JANUARY 10, 2007—DECIDED JUNE 8, 2007
                         ____________


  Before POSNER, MANION, and SYKES, Circuit Judges.
   MANION, Circuit Judge. Marcos Perez sued the State of
Illinois, Department of Corrections, alleging that he was
terminated and later, after reinstatement, denied a promo-
tion because of his national origin in violation of Title VII.
The district court granted summary judgment in favor
of the defendant. Perez appeals, and we affirm.
2                                              No. 05-4591

                            I.
  Marcos Perez, an American of Hispanic ancestry, has
been employed by the Department of Corrections (“De-
partment”) since January 1988, and began serving as a
Captain in 1998. In 2002, Correctional Officer Debra
Riley filed an incident report with the Department alleging
that Perez had sexually harassed her, listing numerous
instances of unwanted touching and comments of a
sexual nature. After the Department conducted an investi-
gation on Riley’s report, Correctional Captain Frank Shaw
held a hearing and submitted a memorandum to the
warden recommending that Perez receive a thirty-day
suspension pending discharge. Shaw premised his recom-
mendation upon the testimony and evidence presented
at the hearing, including the investigative report which
concluded that Perez committed sexual harassment when
he “touched Officer Debra Riley on her back, touched
Riley’s hair, commented about Riley’s husband, com-
mented about Riley’s buttocks, breasts and menstrual
period, commented about Riley’s relationships or al-
leged sexual relationships with other employees, and
hugged Riley and permitted Riley to sit on his lap.” The
warden concurred with the recommendation, and the
Department Director approved the discipline. Accordingly,
on May 3, 2002, Perez was discharged. Perez appealed
to the Civil Service Commission. After a de novo hearing,
the Commission reversed the warden’s decision and
imposed a thirty-day suspension in addition to Perez’s
previously imposed suspension, but without discharge.
The Commission’s Administrative Law Judge (“ALJ”)
noted that he questioned Riley’s credibility and that Perez
presented witnesses who testified that Riley and Perez
were friendly. The ALJ, however, concluded that while the
Department could not prove sexual harassment, it did
No. 05-4591                                                    3

prove significant conduct and comments that violated
Department rules of conduct, thus warranting a sixty-day
suspension.1
   Following the ALJ’s decision, the Department reinstated
Perez at the rank of captain. In 2003, due to budget cut-
backs, the position of captain within the Department was
eliminated statewide. Part of the captain elimination plan
was for present captains to assume vacant lieutenant,
correctional officer, or youth supervisor positions at the
same facility or in the same county or to apply for a
new shift commander position. There were four open
lieutenant slots and the new shift commander position at
the facility where Perez was stationed. Perez applied for
a shift commander position, but garnered the lowest
score out of the twelve applicants for the three available
slots. Then, Perez voluntarily assumed a correctional
officer position and has since been promoted to shift
commander, where he serves to date.


1
  Specifically, the ALJ determined that Perez violated Em-
ployee Responsibilities and Rules of Conduct §§ 13 and 23
which state:
    Section 13: Employees shall conduct themselves on and off
    duty in such a professional manner as not to reflect unfavor-
    ably on the Department and shall not engage in conduct
    unbecoming an employee or which impairs the operations
    of the Department. Employees shall not engage in con-
    duct which impairs their abilities to perform their duties
    and responsibilities in an impartial manner. Employees
    shall notify their supervisors when their job duties may
    give rise to a conflict of interest.
    Section 23: Conduct of staff on duty is to be professional in
    nature. Cursing, loud, boisterous behavior, arguments,
    horseplay or other unprofessional behavior is prohibited.
4                                                 No. 05-4591

  Perez filed suit alleging that the Department violated
Title VII, 42 U.S.C. § 2000e-2(a)(1), et seq., by firing him
because of his national origin and similarly not promoting
him to shift commander because of his national origin. The
Department filed a motion for summary judgment which
the district court granted, concluding that Perez failed
to establish that others who were similarly situated
were treated more favorably with regard to his termina-
tion claim and that the Department’s non-discriminatory
rationale for not promoting him was not pretextual. Perez
appeals.2


                              II.
  We review a district court’s grant of summary judgment
de novo. Vallone v. CNA Fin. Corp., 375 F.3d 623, 631 (7th
Cir. 2004). All reasonable inferences from the evidence
are drawn in the light most favorable to the non-moving
party. Id.
  A plaintiff can prove national origin discrimination
under either the direct or indirect method. See Sun v. Bd. of
Tr. of Univ. of Ill., 473 F.3d 799, 812 (7th Cir. 2007). In this
case, Perez proceeds solely under the indirect method
governed by McDonnell-Douglas. Paul v. Theda Med. Ctr.,
Inc., 465 F.3d 790, 794 (7th Cir. 2006) (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Under
McDonnell Douglas, the plaintiff must establish a prima
facie case of discrimination by showing that: “(1) he was a
member of a protected class; (2) he was qualified for the


2
  Perez also filed a retaliation claim, and the district court
granted the Department summary judgment on that claim as
well, but Perez does not appeal from that decision.
No. 05-4591                                                   5

job in question; (3) he suffered an adverse employment
action; and (4) the defendant treated other similarly
situated employees who were not members of the class
more favorably.” Id. (citations omitted). A similarly
situated employee is one who is “comparable to plaintiff
in all material respects,” Crawford v. Ind. Harbor Belt RR. Co.,
461 F.3d 844, 846 (7th Cir. 2006). If the plaintiff establishes
a prima facie case, then the burden shifts to the defendant
to present evidence of a legitimate, non-discriminatory
reason for its actions. Paul, 465 F.3d at 794. If the defen-
dant makes that showing, then the burden shifts back
to the plaintiff to show that the defendant’s reason is
pretextual, i.e., a “lie” or a “phony reason” for the action.
Id. (citation omitted).
  On his first claim, that the Department fired him because
of his national origin, Perez’s membership in a pro-
tected class, qualification for the captain position, and
receipt of an adverse employment action are not at issue
regarding the Department’s firing of Perez. The sole
question is whether Perez presented evidence that the
Department treated similarly situated employees more
favorably. While in the district court, Perez argued
that there were three individuals who he claimed to be
similarly situated to himself. On appeal, Perez sufficiently
presents an argument for only one of the three, Lieutenant
Brad Livingston.3 As perfunctory and undeveloped
arguments are deemed waived, see Estate of Moreland v.


3
  Perez stated in his brief, “The only issue for the District
Court on Count I, then, was whether plaintiff had shown Lytle,
Small, or Livingston to be similarly situated. For purposes of
this brief, plaintiff will focus on Livingston.” Thus any claim
that Lytle or Small is similarly situated is waived on appeal.
6                                                 No. 05-4591

Dieter, 395 F.3d 747, 759 (7th Cir. 2005), we will only
consider whether Livingston is substantially similar to
Perez.
  Like Perez, Livingston was charged with violating
Sections 13 and 23 of the Employee Responsibilities and
Rules of Conduct. Livingston was disciplined for a
single instance of consensual kissing and embracing a
subordinate employee while on duty. For this “unprofes-
sional conduct and inappropriate behavior while on duty,”
Livingston was suspended for five days.
  Livingston is not similarly situated to Perez in either
position or conduct. Unlike Perez, Livingston was not a
captain, but a lower ranked lieutenant. Further, Livingston
was punished for a single instance, not activity that
spanned a two-year period.
   Perez, however, focuses on the fact that Livingston was
charged with violating the same Department directives
as he was, but received lesser punishments, namely
suspension rather than termination. While identical rule
violations may be helpful in determining whether there
has been discrimination, it is not dispositive of similarity.
See Johnson v. Artim Transp. Sys., Inc., 826 F.2d 538, 543 (7th
Cir. 1987) (“Even if a plaintiff shows different treatment
after violations of the same rule, he or she might not
succeed in establishing a prima facie case.”). Perez re-
sponds by citing Davis v. Wisconsin Department of Correc-
tions, 445 F.3d 971, 979 (7th Cir. 2006), claiming that his
case should nonetheless have been presented to the jury
because he and Livingston were charged with violating
the same rules. However, this case is distinct from Davis.
In Davis, the individuals at issue not only violated the
“same work rule, [but] [m]ore importantly, the [Depart-
ment] evaluated the severity of each man’s violation and
No. 05-4591                                                7

placed all three violations in category B. . . .” Id. Con-
versely, here, while there is an identical rule violation,
there was no severity classification amongst the rule
violations. Rather, although in this case the same rules
were implicated, the offenses, one being a consensual,
single instance and the other being unwelcomed and
sustained conduct, are of significantly different severity
such that they are not comparable. Therefore, Livingston is
not similarly situated to Perez. Because Perez does not
present a similarly situated individual, we affirm the
district court’s grant of summary judgment in favor of the
defendant on Perez’s claim of national origin discrimina-
tion stemming from his initial discipline of termination in
connection with the Riley complaint.
  In his remaining claim, Perez asserts that the Depart-
ment denied him a promotion to shift commander be-
cause of his national origin. In response, the Department
states that Perez did not receive one of the three shift
commander positions because Perez scored the lowest
on the examination given to the twelve applicants for the
job. Perez argues in response that the Department’s
purported reason for his denial, namely his test score,
was pretextual.
  To show pretext, “a plaintiff must show that (a) the
employer’s nondiscriminatory reason was dishonest; and
(b) the employer’s true reason was based on a discrim-
inatory intent.” E.E.O.C. v. Target Corp., 460 F.3d 946, 960
(7th Cir. 2006) (citations omitted). In the absence of direct
evidence of pretext, the plaintiff must “prove pretext
indirectly.” Johnson v. Nordstrom, Inc., 260 F.3d 727, 732
(7th Cir. 2001). With indirect evidence, the plaintiff must
show that the employer’s reason is not credible or that the
reason is factually baseless. See Guerrero v. Ashcroft, 253
8                                               No. 05-4591

F.3d 309, 313 (7th Cir. 2001) (citations omitted). “[The
plaintiff] must also provide evidence of at least an infer-
ence that the real reason for [the adverse employment
action] was discriminatory.” Jackson v. E.J. Brach Corp., 176
F.3d 971, 983 (7th Cir. 1999) (citations omitted).
  Perez claims he has presented sufficient evidence of
pretext by demonstrating that there is no factual basis for
the test scores he received. Shaw and William Smith both
administered and scored the test. The test contained four
main categories: job knowledge, leadership, verbal com-
munication skills, and education/training/experience. Job
knowledge and education/training/experience contained
two questions, and the remaining categories contained
only one question each. Shaw and Smith assigned an
overall score to each individual category with an available
four points for each.
  For the job knowledge category, Perez received a score
of 1.0. Perez argues that there is no factual basis for this
score, pointing to the score received by another candidate.
Under job knowledge, each candidate was asked, “What
steps are taken when dealing with an extremely high-risk
inmate?” Like Brian Kane, the top scoring candidate, Perez
incorrectly answered that a high risk inmate wears a
red tag, but Perez received a score of 1.0 while Kane
received a score of 4.0. Perez also points to his score under
the education/training/experience category, under
which each candidate was asked, “What is your level of
education?” Perez had earned a two-year degree in law
enforcement and attended three years of college in law
enforcement, and Donald West, the second ranked candi-
date, had earned a G.E.D. For education/training/ experi-
ence, Perez received a score of 3.0, and West received a
score of 3.5. Perez contends that these two examples ex-
hibit test score irregularities which evince that the scores
No. 05-4591                                                 9

are a false gauge, and, consequently, the Department’s
reason for not promoting him to shift commander is
pretextual for national origin discrimination.
  Perez’s claim that there is no factual basis for the test
scores fails because the scores for the job knowledge and
the education/training/experience categories were not
derived solely from the incorrect answer and levels of
education, respectively. As to job knowledge, each candi-
date was asked two questions, and the assigned scores
reflect the responses to both. A review of Perez’s responses
and Kane’s responses to the job knowledge questions
reveals that Kane’s answers were considerably more
detailed and exhaustive than those Perez offered. Similarly,
the education/training/experience category included
another question about the candidate’s law enforcement
and training experience. West, who received a slightly
higher score, had participated in a greater number of
training sessions than Perez and served in a variety of
capacities in which Perez did not. To assert pretext based
solely on the shared incorrect answer or differences in
educational levels does not fairly or adequately represent
the complete grounds for the assigned scores. Moreover,
a review of these respective categories reveals a basis
for the scoring differential. “It is true that an employer’s
use of subjective criteria may leave it more vulnerable to a
finding of discrimination, when a plaintiff can point to
some objective evidence indicating that the subjective
evaluation is a mask for discrimination,” Sattar v. Motorola,
Inc., 138 F.3d 1164, 1170 (7th Cir. 1998). Perez has not,
however, pointed to such objective evidence or any evi-
dence indicating that the test scores were pretextual.
  Perez insists that our opinion in Thanongsinh v. Board of
Education, 462 F.3d 762 (7th Cir. 2006), is “on all fours with
this case.” In Thanongsinh, the plaintiff, who was of Asian
10                                                No. 05-4591

descent, did not bring materials that he was required to
bring to an exam administered by the defendant, and he
received a zero on that test portion, apparently simply
because he did not have the materials. However, a
white counterpart who also failed to bring his testing
materials was questioned and received ten points out of a
possible ten points on that test portion. Id. at 780. Addition-
ally, Thanongsinh presented evidence indicating a dis-
criminatory bias by the decisionmakers. We held in
Thanongsinh that “although each piece of evidence offered
by Mr. Thanongsinh may not be sufficient standing
alone to create a material issue of fact for trial, when this
evidence is considered in the aggregate, a reasonable
jury could find discriminatory animus in the scoring of
the exam.” Thanongsinh, 462 F.3d at 780. Perez’s case is
distinct from Thanongsinh. Unlike Thanongsinh, Perez was
permitted to answer all questions and has failed to show
that he was treated differently from other candidates in
terms of the scores assigned based on the answers given
for the entire section. Further, there is no evidence of
comments or remarks from which one could infer that
Perez’s national origin was a consideration in the testing
process. Therefore, Perez’s reliance on Thanongsinh is
misplaced.
  Perez also claims that Smith’s unfamiliarity with the
test scoring method shows pretext. In support of this
argument, Perez points to Smith’s deposition testimony,
wherein he stated that he was not a “security person” and
was unable to provide the information that would consti-
tute a score 4 answer. Perez concludes that Shaw “was
dictating the [test] scores” of the shift commander candi-
dates. However, Smith also stated in that deposition that
he based his score on how well a candidate articulated
the answer, and that he “would look at the questions and
No. 05-4591                                                 11

listen to the answers and use my best judgment.” Perez
presents no evidence that Smith did not consistently
score candidates and provides no evidence undermin-
ing the independence of Smith’s scores that would support
his assertion that Shaw “was dictating the scores” of the
shift commander candidates. Moreover, even if Shaw
had dictated the scores, that would be insufficient to
establish pretext, absent evidence that Shaw’s scores
were also pretextual. Therefore, Perez’s invocation of
Smith’s deposition testimony fails to show pretext.
  Finally, in an attempt to assert pretext, Perez argues
that Shaw lied about his knowledge of an unrelated
investigational interview. Shaw signed a memorandum
indicating that he was present when Perez was inter-
viewed the morning of June 23, 2003, by Internal Affairs
about an allegation that Perez had threatened to shoot the
Governor. Perez was tested later that day for the shift
commander position. During his deposition for this case,
Shaw responded that on the day of Perez’s interview
for shift commander, he was unaware that Perez had
been interviewed that morning by Internal Affairs. Perez
claims that Shaw’s lie about the Internal Affairs investiga-
tion shows that the Department’s reason for denying him
the shift commander position is pretext. Even assuming
that Shaw had lied (as opposed to having honestly for-
gotten about the timing of the meetings), this does not
show pretext because the Internal Affairs interview was
completely unrelated to Perez’s shift commander inter-
view and the score he received. See Jackson v. E.J. Brach
Corp., 176 F.3d at 983.4


4
  Obviously a threat to “shoot the Governor” could be a serious
charge. Presumably the investigation was inconsequential
                                                 (continued...)
12                                                 No. 05-4591

  In sum, Perez’s assertions that Shaw lied or that Smith
was unfamiliar with the test answers do not alter the
quality of the answers Perez gave. Moreover, they do not
bridge the gap between Perez’s twelfth place finish and
third place, the last place which qualified for a shift
commander position. Therefore, Perez does not establish
that the Department’s use of the test scores to select
candidates is pretextual as either factually baseless or
not the actual motivation.


                              III.
  In the absence of a similarly situated employee or pre-
text, Perez has failed to prove a Title VII claim premised
on national origin for either his termination or not assum-
ing the position of shift commander within the Depart-
ment. Accordingly, the district court properly granted
summary judgment to the Department, and we AFFIRM.




4
  (...continued)
since Perez was interviewed for a promotion later in the day.
Even assuming the charge was unfounded and Smith’s sign-off
was routine, his failure to recall the timing seems unusual. But
Perez makes nothing more of this investigation affecting the
denial of the promotion.
No. 05-4591                                           13

A true Copy:
       Teste:

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




                USCA-02-C-0072—6-8-07
