                            UNPUBLISHED ORDER
                         Not to be cited per Circuit Rule 53




         United States Court of Appeals
                               For the Seventh Circuit
                               Chicago, Illinois 60604

                                Argued May 6, 2005
                             Decided November 29, 2005


                                        Before

                           Hon. MICHAEL S. KANNE, Circuit Judge

                           Hon. ILANA DIAMOND ROVNER, Circuit Judge

                           Hon. DIANE P. WOOD, Circuit Judge

No. 04-3625

YVONNE AVERHART,                                 Appeal from the United States
            Plaintiff-Appellant,                   District Court for the
                                                   Northern District of Illinois,
              v.                                   Eastern Division.

MICHAEL SHEAHAN, Sheriff of Cook                 Nos. 01 C 5569, 02 C 3981
County, and COOK COUNTY,
ILLINOIS,                                        Arlander Keyes, Magistrate Judge.
           Defendants-Appellees.



                                      ORDER

   This case arises out of the same set of events that were before us in Smith v.
Sheahan, 189 F.3d 529 (7th Cir. 1999). In that case, Valeria Smith had brought a Title
VII claim against Cook County Sheriff Michael Sheahan, claiming that she had been
the victim of sex discrimination in the form of “hostile environment” sexual
harassment. The district court had granted summary judgment in Sheahan’s favor, but
this court reversed, finding among other things that affidavits submitted by other
correctional officers helped to demonstrate the existence of genuine issues of material
fact. Yvonne Averhart, plaintiff in the case now before us, was one of those co-workers,
as we acknowledged in the Smith opinion. See id. at 531. According to Averhart, as
No. 04-3625                                                                     Page 2


soon as the Sheriff’s Department learned of her role in Smith’s case, it began to
retaliate against her, through a series of steps that culminated in her termination. The
Sheriff admits that he fired Averhart, but he claims that it was for quite a different
reason: that she had been arrested for shoplifting and that she had committed serious
violations of departmental regulations by developing personal relationships with jail
inmates.

    Averhart contested his action through two complaints in federal court, which were
consolidated and handled by Magistrate Judge Keyes, with the consent of the parties.
See 28 U.S.C. § 636(c)(1). The magistrate judge granted summary judgment for the
defendants. Averhart has appealed, but our consideration of her case is significantly
hampered by the poor state of the record on appeal. Federal Rules of Appellate
Procedure 10 and 11 impose the responsibility of assembling the record on the
appellant, but she has largely failed to do so here. That leaves this court with the
options of either dismissing if the state of the record precludes meaningful review or
taking the record as it exists and performing the usual de novo review of the decision
granting summary judgment. See Fisher v. Krajewski, 873 F.2d 1057, 1061 (7th Cir.
1989). Given that the appellant had the burden of providing the record, that she did
in fact provide part of the record, and that both sides have fully briefed the issues
before us, we take the second option, even though the record does not include some of
Averhart’s own key documents.

    The facts that we set forth here, which we present in the light most favorable to
Averhart, are those that we can glean from the memorandum opinion and order filed
by the magistrate judge as well as the limited record provided on appeal, which
consists principally of the complaints and the defendant-appellee’s Rule 56 Statement
of Facts in Support of Summary Judgment and accompanying exhibits. After Averhart
submitted her affidavit in Smith’s case, the department began disciplining her for
minor and concocted infractions. Averhart filed a number of grievances complaining
of the department’s actions against her and eventually filed a complaint with the
Equal Employment Opportunity Commission (EEOC). According to Averhart, her
complaints prompted increasingly severe retaliations, culminating in her dismissal
from the Sheriff’s Department in June 2003.

   The defendants’ explanation of the events leading to Averhart’s termination fills in
quite a number of additional facts. While Averhart’s EEOC charge was pending, the
Chicago police arrested her for shoplifting. Around this same time, in late 2000, the
County’s Internal Affairs Department (IAD) revealed that it had been investigating
accusations that Averhart had developed improper personal relationships with a
number of inmates. The IAD’s investigation revealed that inmates had called
Averhart’s home more than 200 times. Citing her arrest and the findings of the IAD
investigation, the County’s Employee Discipline Administrator recommended that the
County fire Averhart. Following up, the County lodged a complaint with the Cook
No. 04-3625                                                                       Page 3


County Sheriff’s Merit Board seeking Averhart’s termination. On June 11, 2003, after
a series of hearings, the Merit Board concluded that Averhart had indeed violated a
number of departmental regulations and should be terminated. Thus, the defendants
submitted to the district court, it was not retaliation that led to Averhart’s dismissal,
but her own improper and illegal actions.

    In the meantime, before the Merit Board ruled against her, Averhart filed two
complaints in federal district court. In both of them, Averhart alleged that the
defendants’ actions against her were in retaliation for speaking out against sexual
harassment, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq., and that their actions infringed her First Amendment rights, in violation of 42
U.S.C. § 1983. The defendants filed a motion for summary judgment, which the court
granted on September 9, 2004. In large part, the court relied on the Merit Board’s
conclusion that Averhart deserved to be fired, writing that “Plaintiff has not produced
any admissible evidence demonstrating that these charges were not valid . . . . Nor has
Plaintiff pointed to any evidence demonstrating that the Merit Board was influenced
by retaliatory intent, or any other improper motivation, in sustaining the charges
against her.”

    After the court granted the defendants’ motion, the Circuit Court of Cook County,
in the course of an administrative review hearing, reversed the Merit Board’s order
and remanded the case to the Merit Board for further proceedings. Although this
occurred after the summary judgment proceedings in the district court, Averhart has
informed us of this later judicial development in her brief, and the defendants not only
concede that the Circuit Court so ruled, but they have also withdrawn their res
judicata argument based on this later event.

    The record therefore shows that wholly apart from the “concocted” and “minor”
disciplinary matters, Averhart was arrested for shoplifting and that the Sheriff had
reason to believe at the time of her termination that she had extensive improper
contact with inmates. This evidence is unrebutted. As this court stated in Stone v. City
of Indianapolis Public Utilities Division, “If the defendant presents unrebutted
evidence of a noninvidious reason for the adverse action, he is entitled to summary
judgment.” 281 F.3d 640, 644 (7th Cir. 2000). Even if this case were viewed through
the lens of mixed-motive analysis, see Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003),
where the employer must demonstrate that it would have made the same decision
absent the protected conduct, these unrebutted findings satisfy that burden. In other
words, even viewed in a light most favorable to Averhart, the shoplifting arrest and
allegations of improper conduct with inmates were sufficient to demonstrate that the
Sheriff’s actions did not constitute retaliation in violation of 42 U.S.C. § 1983. This is
true even though the Merits Board, at the direction of the Circuit Court of Cook
County, is revisiting the issue. There is no doubt that at the time the Sheriff’s
Department took its action against Averhart, it had every reason to believe that she
No. 04-3625                                                                     Page 4


had committed serious violations of departmental policy.

    While we conclude based on the record before us that the defendants did not
retaliate in violation of Averhart’s constitutional rights, we take no position on the
proper result of the proceedings before the Merit Board or, should the Board’s decision
be appealed once again, on anything that might be presented to the state courts of
Illinois.

   The grant of summary judgment in this case is hereby AFFIRMED.
