James W. Curry v. R. JAMES NICHOLSON, Secretary, U.S. Department of Veterans Affairs

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued December 12, 2007
Decided May 13, 2008
Before
WILLIAM J. BAUER, Circuit Judge
DANIEL A. MANION, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 06‐4071
JAMES W. CURRY,
Plaintiff‐Appellant,
v.
R. JAMES NICHOLSON, Secretary, U.S.
Department of Veterans Affairs,
Defendant‐Appellee.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division
No. 05 C 3209
David H. Coar
Judge.
O R D E R
James W. Curry sued the Secretary of the United States Department of Veterans
Affairs, claiming that he was subject to racial discrimination and age‐based discrimination,
in violation of Title VII of the Civil Rights Act and the Age Discrimination in Employment
Act, see 42 U.S.C. §§ 2000e‐1 to 2000e‐17; 29 U.S.C. §§ 621 to 634. The district court granted
the VA’s motion for summary judgment. We affirm.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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1 The Westside VA has since been renamed the Jesse Brown VA Medical Center, but the
district court and the parties have continued to use the original name, and so for simplicity we
will follow their practice.
In 1987 Curry, who is black, began working as Chief of Police at the Westside
Veterans Affairs Medical Center1 (“Westside VA”) in Chicago. In 1996 he began serving in
the same capacity for the larger VA Chicago Health Care System after an administrative
merger of Westside VA with the Lakeside VA Medical Center (“Lakeside VA”). At all times
relevant to this litigation, Curry’s supervisor was Michelle Blakely, who consistently gave
Curry satisfactory formal evaluations between 2001 and 2004. Blakely, however,
acknowledged being aware of complaints regarding Curry’s performance.
The heightened security that followed September 11, 2001, severely strained the
police force; staff levels were often inadequate, overtime was compelled, and morale was
low. After seven anonymous complaints were made about mismanagement, local VA
director Richard S. Citron convened an Administrative Board of Investigation (“ABI”) to
investigate. Ultimately, the ABI found that five of the seven complaints were not
substantiated, and Curry was not faulted in the two that were. The ABI did not mention
any failings by Curry in its report about these complaints. Citron also directed the ABI to
investigate allegations of questionable recruiting practices by Curry, but no evidence of
wrongdoing by Curry was uncovered. Citron later launched a third investigation after a
patient suffered a brain hemorrhage and skull fracture as a result of a fall during a scuffle
with a police officer at the Westside VA. The officer was exonerated, however, and Curry
was not disciplined.
But in June 2004 the persistent complaints of mismanagement prompted VA
Network Director Joan Cummings (Citron’s supervisor) to request an additional inspection
of the police service. Cummings called the Office of Security and Law Enforcement
(“OSLE”), which is based in Washington D.C. and has final oversight over all VA police
services. The OSLE is part of the Department of Veterans Affairs and is separate from the
Veterans Health Administration, according to Curry. This non‐routine inspection by an
independent body from Washington, D.C., provides some indication that top officials at the
VA were concerned about mismanagement at the Westside VA.
Curry learned about the week‐long inspection in advance and had daily contact with
the OSLE inspectors from Washington. The inspectors asked that Curry and Blakely not
attend their exit interview with Citron. The inspectors also declined to release their findings
in time to permit rebuttal from Curry and Blakely. In their presentation to Citron on July 9,
2004, the OSLE investigators concluded that the operation of the police service was

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No. 06‐4071 Page 3
unsatisfactory and that Curry had systemically failed to manage the police program
properly. The investigators recommended that Citron re‐assign Curry as an initial step to
correct the problems. Later that month the investigators issued a written inspection report,
noting “grave concerns about the continued ability of the Police Chief to manage the Police
Service.” The inspectors confirmed allegations that Curry had engaged in questionable
hiring practices and that the police service was being mismanaged, was using outdated
operating procedures and policies, had staffing shortages, was using excessive overtime,
and had been implicated in a scuffle with a patient that resulted in the patient’s injury. The
inspectors also criticized Blakely’s oversight of Curry.
Curry did not receive a copy of the OSLE’s written report when it was issued at the
end of July 2004. However, it is clear that on July 12, 2004, three days after the exit
interview, Citron met with Curry, informed him that the police service did not do well
during the inspection, and told him that he would be reassigned immediately to work at
Lakeside VA under a new supervisor; Citron also gave Curry a letter to this effect. The
parties agree that Curry’s pay and grade remained the same, and Citron’s letter indicated
that Curry’s “tour of duty will remain the same, but [his] duty location is changed.” At the
time of his reassignment, Curry was detailed to “Unclassified Duties”; later this became a
permanent reassignment with the title “Program Specialist.” Curry, though, told Citron
during their meeting that he intended to retire, and afterward he met with a human
resources specialist, Michael Harvey, to discuss retirement. Harvey promised to start the
necessary paperwork, and Curry then went on what turned out to be a three‐month sick
leave, during which he communicated with some staff members but did not report to work.
Curry was replaced as Chief of Police by Jerry Brown, who is also black.
While still on sick leave, Curry filed a charge of discrimination with the VA Office of
Resolution Management, claiming he was reassigned involuntarily on the basis of his race
and age. On or around October 18, 2004, however, Curry reported to work at the Lakeside
VA, under the supervision of Harold Rhein. On his first day back, after sitting about two
hours in his new office without work to do, Curry told Rhein that he was going to retire and
left to speak with Harvey again about his paperwork. On November 1, 2004, Curry
formally retired.
Curry filed a complaint in the district court claiming that he was subject to
discrimination on the basis of his race and age. After discovery, the VA moved for
summary judgment. At a hearing on the VA’s motion, Rhein testified that before Curry’s
first day back, Blakely already had told him that Curry intended to retire, and that his
impending departure restricted the work he could assign to Curry. Curry contends that he
did not voluntarily retire but instead felt compelled to retire because Rhein did not assign
him any work. Rhein counters that he did assign Curry to update security policies but that

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Curry never produced any work product because he spent most of his time working on his
retirement papers. The district court granted the VA’s motion. Noting that Curry did not
argue that he had direct evidence of discrimination, the court proceeded to analyze Curry’s
discrimination claims under the indirect, burden‐shifting method set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802‐03 (1973). To set forth a prima facie case of
discrimination under the indirect method, Curry had to show that (1) he was a member of a
protected class, (2) he was meeting his employer’s legitimate job expectations, (3) he
suffered an adverse employment action, and (4) similarly situated employees outside of the
protected class were treated more favorably. However, the court did not make an explicit
determination concerning whether Curry had established a prima facie case of
discrimination. Instead, he noted that Curry’s satisfactory work evaluations did not
demonstrate that he was meeting his employer’s legitimate expectations, given the OSLE’s
evidence of serious problems in the police force. With this observation, the court proceeded
directly to the burden‐shifting analysis of whether there was a legitimate, non‐
discriminatory reason for the transfer. The court concluded that Curry had failed to
establish that the reasons for his reassignment were pretextual. See id. at 804. Instead,
according to the district court, Curry attempted to undermine the VA’s reasons with “a
variety of unconvincing arguments and vague conspiracy theories.”
I. Constructive discharge
On appeal Curry has abandoned his claim of age discrimination, and only his claim
of race discrimination remains. See Bannon v. Univ. of Chi., 503 F.3d 623, 632 n.3 (7th Cir.
2007). Curry first argues that he suffered a constructive discharge when he was transferred
to the new location. He acknowledges that his grade and pay remained unchanged, but
maintains that he was constructively discharged because he reported to work for
approximately two weeks at the end of October 2004, only to find that he had no job duties
of any kind.
Constructive discharge can take two different forms. Fischer v. Avanade, 519 F.3d 393,
409 (7th Cir. 2008). In order to establish the first form of constructive discharge, a plaintiff
must show that unlawful discrimination made his working environment so intolerable that
a reasonable person would be forced to resign. Bannon, 503 F.3d at 629‐30; Boumehdi v.
Plastag Holdings, LLC, 489 F.3d 781, 789 (7th Cir. 2007). To support a claim for constructive
discharge, a plaintiff’s working conditions “must be even more egregious than the high
standard for hostile work environment claims.” Id. Otherwise, an employee is expected to
remain employed while seeking redress. Boumehdi, 489 F.3d at 789. Therefore, Curry has to
clear a “high bar” to prove he was constructively discharged. Id.; see also Taylor v. W. S. Life
Ins. Co., 966 F.2d 1188, 1191, 1199 (7th Cir. 1992) (recognizing that jury could find
constructive discharge where plaintiffs’ boss constantly made racist comments, brandished

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2 This “two‐week” period is the time between when he showed up for work at Lakeside VA
on October 18 and when he formally retired on November 1. However, on November 18, after
sitting at his desk for two hours “with nothing to do,” Curry informed Supervisor Rhein that he
was going to retire, and then met with Harvey to discuss the retirement process. This is apparently
the same two‐week period that Rhein claims to have given Curry the assignment to update security
policies. Thus Curry’s final decision to retire (he had informed others earlier) apparently came after
only two hours of no work, not two weeks.
a pistol, and held it to one plaintiff’s head); Brooms v. Regal Tube Co., 881 F.2d 412, 417, 420
(7th Cir. 1989) (holding that constructive discharge was established where defendant’s
“repeated instances of grossly offensive conduct and commentary” culminated in an
incident where a co‐worker showed the plaintiff a racist pornographic photograph, told her
that she was hired to perform the task depicted in the photograph, grabbed the plaintiff,
and threatened to kill her). Curry has not suggested that he suffered any harassment, so his
claim clearly does not fit into the first form.
The second form—“[w]hen an employer acts in a manner so as to have
communicated to a reasonable employee that she will be terminated, and the plaintiff
employee resigns, the employerʹs conduct may amount to constructive discharge”—also
does not fit the facts of Curry’s case. See Fischer, 519 F.3d at 409; EEOC v. Univ. of Chi. Hosp.,
276 F.3d 326, 332 (7th Cir. 2002). In other words, constructive discharge also occurs where,
based on an employer’s actions, “‘the handwriting [was] on the wall’ and the axe was about
to fall.” Fischer, 519 F.3d at 409 (quoting Lindale v. Tokheim Corp., 145 F.3d 953, 956 (7th Cir.
1998)).
Curry was not told he was to be terminated. Rather, he was transferred to a different
job at the same pay. Curry has not cited any legal authority to support his contention that
not being given work for two weeks—if in fact that was what occurred—would compel a
reasonable person to resign because it was obvious that termination was inevitable. 2
Moreover, it is clear from Curry’s own deposition testimony that he made the decision to
retire months before he reported to work for Rhein. The facts indicate that Curry made the
decision to retire before giving his new position and new supervisor a chance. He presents
no evidence that the VA was unwilling to keep him on as an employee. Curry thus did not
carry his burden of showing a genuine issue of material fact with respect to constructive
discharge. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322‐23 (1986).
II. Prima facie case under McDonnell Douglas
A. Adverse employment action

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We turn now to the question of whether Curry has made out a prima facie case of
employment discrimination. Curry’s constructive discharge claim clearly fails; what is less
clear is whether he has established that his reassignment itself constitutes an adverse
employment action sufficient to satisfy the McDonnell Douglas requirement. We have noted
that “the range of employer conduct that constitutes an adverse employment action is
broad, but not unlimited.” Johnson v. Cambridge Indus., 325 F.3d 892, 902 (7th Cir. 2003). An
adverse employment action must be more disruptive than a mere inconvenience or an
alteration of job responsibilities. Crady v. Liberty Nat’l Bank & Trust Co., 993 F.2d 132, 136
(7th Cir. 1993). Such an action could be a termination of employment, a demotion
evidenced by a decrease in wages or salary, a less‐distinguished title, a material loss of
benefits, a significant decrease in material responsibilities, etc. Id.. Curry’s change in title,
his transfer to a new location, and his loss of his position as Chief of Police arguably suggest
that he suffered an adverse employment action, but on the other hand he suffered no loss of
benefits or wages. See Tart v. Ill. Power Co., 366 F.3d 461, 474 (7th Cir. 2004) (noting that
“title change and different reporting relationship” may be “largely semantic ‘where the
employee’s salary, benefits, and level of responsibility would remain unchanged’” (citation
omitted)). Curry arguably experienced only a lateral transfer to a different division under a
different supervisor, with a chance to improve on some of the management problems that
had been described in the OSLE report. As noted above, employees are ordinarily expected
to remain employed while seeking redress for claims of discrimination; had Curry done so,
we would be in a better position to evaluate the level of responsibility and quality of work
that Curry was assigned in his new position. On balance, therefore, we conclude that Curry
has failed to carry his burden of proving an adverse employment action.
B. Similarly situated employees
Despite all of this, however, Curry insists that he did establish a prima facie case of
discrimination on the basis of race. He asserts that it is “undisputed” that he met the first
three requirements of the prima facie case—membership in a protected class, meeting
legitimate expectations, and adverse employment action—and seeks to focus our attention
on the issue of whether similarly situated employees who were not black were treated more
favorably. See McDonnell Douglas, 411 U.S. at 802‐03. Curry identifies three comparators:
Frank Watts, the white Chief of Police at the VA Hospital in Brecksville, Ohio, who was not
reassigned even after numerous allegations of serious police misconduct were found to be
substantiated; Dr. Woods, the white Chief of Surgery at the Westside VA who retained his
position even after a body of independent investigators uncovered “egregious violations of
national standards”; and Dr. Nand, the Indian‐American Chief of Behavioral Health
Services at the Westside VA who was not removed from her position despite internal
reports reflecting mismanagement in her service area. In addition, according to Curry, all
three of these individuals were allowed to participate in the inspection process, though he

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was not. The VA counters, however, that Curry has not met any requirements of the prima
facie case except showing membership in a protected class.
The district court did not address the elements of the prima face case, see Coco v.
Elmwood Care Inc., 128 F.3d 1177, 1179 (7th Cir. 1997). In this case, however, the question of
similarly situated employees is easily resolved in favor of the VA. Curry admitted that
nearly all of his information about these three people was based on hearsay or double
hearsay—information obtained through the “grapevine.” See Johnson v. Nordstrom, Inc., 260
F.3d 727, 733 (7th Cir. 2001) (noting that job applicant’s personal belief carries no weight in
summary judgment analysis). Curry also admitted that he never saw any reports sustaining
the allegations of mismanagement or wrongdoing against these other VA employees.
Unlike Curry’s situation, there is no evidence to show that a team of outside investigators
recommended reassignment for any of three people he names. That is a critical factor in this
case. Finally, Curry was replaced in his position by another black man, which further
weakens his argument that the VA eliminated him because of his race. In sum, Curry did
not present any admissible evidence that similarly situated employees outside of his
protected class were treated more favorably. See Ajayi v. Aramark Bus. Servs., 336 F.3d 520,
531‐32 (7th Cir. 2003).
C. Meeting employer’s legitimate expectations and pretext
Ultimately, though, this case comes down to Curry’s performance, which the district
court chose to address as a question of pretext. See Hague v. Thompson Distrib. Co., 436 F.3d
816, 823 (7th Cir. 2006) (“Normally a court should first determine if a plaintiff has
established a prima facie case. . . . However, if the plaintiffs argue that they have performed
satisfactorily and the employer is lying about the business expectations required for the
position, the second prong and the pretext question seemingly merge.”). Curry argues that
he has produced sufficient evidence from which a reasonable jury could conclude that the
VA’s reason for reassigning him was pretextual. He points to deposition evidence by
Blakely, who is also black, who maintained that the entire investigation was “atypical” and
“unfair” to Curry and offered her opinion that his reassignment “may” have been due to his
race. She identified as irregularities her lack of participation in the exit interview, Curry’s
inability to participate in the investigation, and the lack of time to respond to the
investigators’ findings. Blakely also disagreed with the findings of mismanagement made
against Curry in the OSLE report.
To constitute pretext, the VA’s reason for reassigning Curry must be a lie. See Burks
v. Wis. Dep’t of Transp., 464 F.3d 744, 754 (7th Cir. 2006). It does not matter whether an
employer made the right decision, so long as its justification was an honest one. Id. “A
pretext . . . is a deliberate falsehood.” Forrester v. Rauland‐Borg Corp., 453 F.3d 416, 419 (7th

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Cir. 2006). To prove pretext, a plaintiff must do more than establish that the employer’s
decision “was mistaken, ill considered or foolish,” Jordan v. Summers, 205 F.3d 337, 343 (7th
Cir. 2000), and instead the plaintiff must prove that the employer did not honestly believe
the reason given for its action, Hague, 436 F.3d at 823.
Blakely’s testimony and the inferences Curry draws from it are not sufficient to show
that the VA’s reason for his reassignment was pretextual and that its actual reason was
discriminatory. Blakely correctly labeled the OSLE procedures “atypical.” An inspection by
the Washington office with final oversight prompted by persistent complaints is unusual, to
say the least. Curry questions the procedures the OSLE followed, but the OSLE’s methods
have no bearing on the honesty of the VA’s belief that Curry ought to be reassigned. And
the wisdom of that reassignment is not before us. See Traylor v. Brown, 295 F.3d 783, 790 (7th
Cir. 2002) (explaining that this court does “not sit as a super‐personnel department over
employers scrutinizing and second‐guessing every decision they make”). Curry’s
arguments regarding pretext do not rest on facts that genuinely call into question the
honesty of the decision‐maker; instead they imply a conspiracy to remove him from his
position through the guise of a legitimate investigation into departmental misconduct. We
have previously said that we are “skeptical of such elaborate plot theories.” See Murray v.
Chi. Transit Auth., 252 F.3d 880, 888 (7th Cir. 2001) (quotation marks and citation omitted).
The uncontested fact that Curry’s successor to his position was also black further belies his
assertion that the VA was operating under a negative racial bias.
AFFIRMED.

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