Robert E. Alexander v. Wisconsin Department of Health and Family Services, Susan Moritz, Claire Nagel

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-2603
Robert E. Alexander,
Plaintiff-Appellant,
v.
Wisconsin Department of Health
and Family Services, Susan Moritz,
Claire Nagel, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 99 C 429--Barbara B. Crabb, Chief Judge.
Argued November 13, 2000--Decided August 27, 2001
Before Harlington Wood, Jr., Kanne, and Diane
P. Wood, Circuit Judges.
Kanne, Circuit Judge. Robert Alexander
sued his former employer, the Wisconsin
Department of Health and Family Services
(the "Department"), alleging that he was
subjected to unlawful race discrimination
and retaliation that resulted in his
receiving a ten-day suspension from work
without pay and, eventually, his
termination. Alexander also filed claims
against several Department employees for
their involvement in his termination, his
ten-day suspension, and a five-day
suspension that he received previously.
The defendants filed a motion for summary
judgment on all of Alexander’s claims.
The district court granted this motion,
finding that Alexander failed to provide
any evidence that the disciplinary action
he received was due to his race or in
retaliation for his complaining about
discrimination in the workplace. Because
we find that Alexander is unable to show
that the reasons for which he was
disciplined were pretext for race
discrimination or retaliation, we will
affirm the decision of the district
court.
I. History

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This appeal is from a grant of summary
judgment; therefore, we view the facts in
the light most favorable to Alexander,
the non-moving party, drawing all
reasonable inferences in his favor. See
EEOC v. Sears Roebuck & Co., 233 F.3d
432, 436-37 (7th Cir. 2000). Alexander,
who is African-American, was hired by the
Department in February 1992, as a Food
Service Worker at the Central Wisconsin
Center (the "Center"), a care center for
developmentally disabled residents, and
worked there until his termination in
December 1996. His claims arise from
three separate incidents at the Center
that resulted in his being subjected to
disciplinary action including a five-day
suspension, a ten-day suspension, and his
eventual termination.
The first of these incidents occurred on
August 3, 1995. Alexander was working at
the Center in the kitchen area and
recalls that it was a very hot day and he
was not feeling well. He mentioned to
several of his co-workers, including
Randy Severin, that he felt dizzy and
faint. Severin, who in Alexander’s
presence had previously referred to
African-Americans as "niggers," responded
by suggesting something to the effect of
"if you are not feeling well, why don’t
you fucking go home?" Alexander became
upset with Severin and the two men
exchanged heated words. However, when his
supervisor, Paul Scallon, told him to sit
down and cool down, Alexander complied by
taking a chair and sitting approximately
fifteen feet away from Severin. Alexander
acknowledges that he was very upset with
Severin and that he continued to look at
him. Severin then left that area of the
kitchen.
Scallon reported the incident to Susan
Moritz, Administrator of the Food Service
Department at the Center. As an
administrator, Mortiz’s duties included:
hiring, disciplining, and terminating
employees; enforcing Department policies
and procedures; and supervising food
service supervisors and employees. Moritz
investigated the incident and arranged a
pre-disciplinary meeting with Alexander
to discuss the altercation. Following
this meeting, Alexander was given a five-
day suspension because Moritz believed
that he was the aggressor in the
incident. Severin was not disciplined.

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In February 1996, Alexander asked Moritz
if the two of them could meet with Donna
Carlson, a unit supervisor Alexander
believed was harassing him. Moritz told
Alexander to make a list of his
allegations with specific issues and
dates and that she would set up the
meeting thereafter. Alexander never
compiled any such list and no meeting was
scheduled. Moritz has acknowledged that
it is not her usual practice to require
an employee to submit such written
documentation before an informal meeting.
The second incident for which Alexander
was disciplined took place approximately
seven months later on February 29, 1996.
According to Alexander, his primary
responsibility at work that day was to
stack trays coming off the tray line in
the kitchen area. The tray line was
particularly busy, and there was no time
for Alexander to step away from the line
in order to strap tray carts, another
aspect of his job. Whenever the tray line
momentarily stopped, however, Alexander
used that time to strap carts. Alexander
strapped approximately seven carts that
were taken downstairs by his co-worker,
Jalene Roth, before his supervisor, Donna
Carlson, arrived in the area of the line.
Carlson’s visit to the tray line area of
the kitchen was prompted by a report that
Alexander was not doing his job. When she
arrived, Alexander was working on the
tray line, and it was obvious that the
line was operating too quickly. Despite
the fact that Alexander was busy working,
and other employees were available to
help strap carts, Alexander contends that
Carlson singled him out, criticized him
for not strapping carts, and accused him
of not doing his job.
Alexander says that he asked Carlson to
help, by saying something to the effect
of "Can’t you help strap some carts?"
Although Alexander insists that his
statement was a good faith request for
assistance, Carlson responded to
Alexander’s request by shouting at him,
yelling that strapping carts was his job,
not hers, and that he had better strap
carts right away, or else it would be
insubordination. Alexander claims that he
continued to remove trays from the line
to keep it from stopping, but that as
soon as it did stop, he began to strap
the cart closest to him. This was not
fast enough for Carlson, however, and she

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sent Alexander home for insubordination.
Carlson reported the incident to Moritz,
who investigated the exchange and held a
pre-disciplinary meeting on March 4,
1996. Sandra Bohling and Jalene Roth,
both of whom were union representatives
and witnesses to the incident,
accompanied Alexander to the meeting,
along with a lawyer from the NAACP, and
department affirmative action officer
Robert Bentley. Moritz asked George
Bancroft, the Director of Institution
Management Services, and Robin Gruchow,
the Center’s personnel specialist, to
attend the meeting. At the meeting,
Alexander denied any wrongdoing, and
Bohling and Roth expressed their view
that Alexander had been mistreated by
Carlson. Moritz concluded, however, that
Carlson’s description of the incident was
more credible, and she recommended that
Alexander be disciplined. Alexander
subsequently received a ten-day
suspension without pay.
On the same day as the pre-disciplinary
meeting, Alexander filed an informal
complaint with Bentley, alleging that
Carlson and Moritz discriminated against
him on the basis of race. In his
complaint, Alexander listed fourteen
different acts that he considered to be
evidence of racial discrimination.
Following up on Alexander’s complaint,
Bentley sent written questionnaires
regarding the allegations to Carlson and
Moritz in April and May of 1996. Carlson
was also given the option of answering
the questionnaire in person. Carlson
showed the questionnaire to Brian
Fancher, the human resources director at
the Center, seeking advice in how to
respond. Fancher reviewed the
questionnaire and became concerned
because he considered the questions to be
hostile and somewhat accusatory. He also
thought it was unusual for an affirmative
action officer to use written
questionnaires as opposed to conducting
personal interviews. Gruchow also
believed that Bentley’s investigation
procedure was unusual. Fancher approached
Bentley to discuss the manner in which he
was investigating Alexander’s complaint.
In response to Fancher’s inquiry, Bentley
asked Fancher to put any questions he had
about the investigation in writing along
with an explanation of his need to know
the answer to those questions.

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Thereafter, Fancher sought guidance on
how to proceed from Department
Administration, and he instructed Moritz
and Carlson to wait to answer the
questionnaires until he received a
response. Bentley concluded his
investigation before Fancher received any
directive, however, and Bentley’s report
was completed without input from Carlson
or Moritz.
Bentley submitted the results of his
investigation to division administrator,
Tom Alt, in a memorandum dated June 26,
1996. His report indicated that he
believed that Alexander had been
subjected to harassing behavior and he
recommended that disciplinary action be
taken against Carlson and Moritz for
their treatment of Alexander. No such
action was taken, however, because the
department concluded that the lack of
input from Carlson and Moritz rendered
the report incomplete and therefore
unreliable.
On October 9, 1996, Alexander filed a
charge of discrimination with the
Wisconsin Personnel Commission, alleging
that he was subjected to discrimination
and harassment at the Center because of
his race. The complaint was cross-filed
with the EEOC and Alexander received a
right to sue letter. The Department
learned of the complaint on October 23,
1996.
The third and final incident that led to
Alexander’s termination took place eight
months later on October 24, 1996. Melodie
Stumpf, a co-worker of Alexander, accused
him of making a throat-slashing gesture
at her while passing her in the hall at
work. Alexander does not remember passing
Stumpf in the hall at work and contends
that if he did, he did not say anything
to her or make any gestures towards her.
Stumpf reported the alleged incident to
Claire Nagel, who informed Moritz. Moritz
contacted Gruchow, who called Alexander
to the personnel office. According to
Alexander, Gruchow informed him that he
had been accused of making a throat-
slashing gesture and placed him on paid
administrative leave.
On October 30, 1996, Alexander,
Alexander’s wife, Bohling, Bancroft,
Gruchow, and Moritz attended an
investigatory meeting. Alexander denied

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knowing anything about any threat toward
Stumpf, but stated that he knew he was
accused of making a throat-slashing
gesture because Gruchow had told him as
much on October 24. Gruchow denied
Alexander’s assertion, explaining that
Alexander knew and described the exact
manner of the alleged gesture even though
he had never told Alexander the full
details of the accusation.
Prior to this incident, Moritz had met
with Alexander and Stumpf, at Alexander’s
request, to discuss claims Stumpf had
made that Alexander was staring at her in
the workplace. At that meeting Stumpf
agreed she would let Alexander know when
she was unhappy with some aspect of his
behavior. Bohling had warned Moritz at
that time that Stumpf and other co-
workers were intent on harassing
Alexander with false accusations.
Bohling reiterated this point to Moritz
and Gruchow at the investigatory meeting.
She also noted that Alexander frequently
touched his beard guard at his throat
while working, and suggested that Stumpf
may have seen Alexander adjusting his
beard guard and misconstrued it as a
throat-slashing gesture.
Gruchow scheduled a meeting with
Alexander for December 9, to review his
discipline, but Alexander canceled
because of car trouble and illness. The
meeting was rescheduled for December 10
and then December 11, but Alexander
canceled for the same reasons. Gruchow
spoke with Alexander’s doctor, but the
doctor did not provide Gruchow with a
medical excuse. Alexander did have an
excuse from his doctor but did not give
it to defendants at that time. Gruchow
then sent Alexander a letter asking him
to respond to the investigation in
writing and Alexander complied.
Alexander was terminated on December 17,
1996, because management believed
Stumpf’s account of the throat-slashing
incident and that Alexander was lying.
Management doubted Alexander’s
credibility because Alexander knew that
he had been accused of making a throat-
slashing gesture without having been told
so by Gruchow and because there had been
a long history of Alexander confronting
his co-workers. Because Alexander had
previously received a five-day and then a

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ten-day suspension, termination was the
next step required by the Department’s
progressive discipline program.
Alexander filed suit in the Circuit
Court of Dane County, Wisconsin, and the
defendants removed the action to the
United States District Court for the
Western District of Wisconsin. Alexander
filed an amended complaint in the
district court seeking declaratory and
injunctive relief for unlawful race
discrimination and retaliation by the
Department in violation of Title VII of
the Civil Rights Act of 1964, 42 U.S.C.
sec. 2000 et seq., stemming from his ten-
day suspension and eventual
termination./1 Alexander also raised
claims under 42 U.S.C. sec.sec. 1981 and
1983, alleging that Moritz, Carlson, and
Gruchow discriminated against him and
denied him due process through their
involvement in his suspensions and
termination. The defendants filed a
motion for summary judgment on all of
Alexander’s claims. The district court
granted the defendants’ motion, finding
that Alexander failed to produce any
evidence indicating that the stated
reasons for his adverse employment
actions were pretext for discrimination
or retaliation. See Alexander v. Wis.
Dep’t of Health & Soc. Servs., No. 99-C-
0429-C, slip op. at 21 (W.D. Wis. May 23,
2000). The court also found that in all
three instances, the process by which
Alexander’s discipline was determined did
not violate his due process rights. See
id. at 29-31. Alexander now appeals.
II. Analysis
A. Standard of Review
We review a district court’s decision to
grant a motion for summary judgment de
novo. See Russell v. Bd. of Trs. of the
Univ. of Ill. at Chi., 243 F.3d 336, 340
(7th Cir. 2001). Summary judgment is
proper when "the pleadings, depositions,
answers to interrogatories, 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 a
judgment as a matter of law." Fed. R. Civ.
P. 56(c); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23, 106 S. Ct.
2548, 91 L. Ed. 2d 265 (1986). A genuine
issue of material fact exists "only if

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there is sufficient evidence favoring the
nonmoving party for a jury to return a
verdict for that party." Baron v. City of
Highland Park, 195 F.3d 333, 338 (7th
Cir. 1999) (citing Anderson v. Liberty
Lobby Inc., 477 U.S. 242, 248, 106 S. Ct.
2505, 91 L. Ed. 2d 202 (1986)). As
explained above, when making this
determination, we review the record in
the light most favorable to Alexander and
draw all reasonable inferences in his
favor. See Del Raso v. United States, 244
F.3d 567, 570 (7th Cir. 2001).
We take this opportunity to briefly
address our past use of the phrase "added
rigor" in employment discrimination
cases. The use of this phrase has raised
the question of whether we have been
reviewing grants of summary judgment in
employment discrimination cases under a
heightened level of scrutiny. See, e.g.,
Webb v. Clyde L. Choate Mental Health and
Dev. Ctr., 230 F.3d 991, 997 (7th Cir.
2000) ("We apply this standard with added
rigor in employment discrimination cases,
where intent and credibility are crucial
issues."). We first used the phrase
"added rigor" in McCoy v. WGN Cont’l
Broad. Co., 957 F.2d 368 (7th Cir. 1992),
explaining that the summary judgment
standard "is applied with added rigor in
employment discrimination cases, where
intent is inevitably the central issue."
Id. at 370-71. In support of this
proposition, we cited Stumph v. Thomas &
Skinner, Inc., 770 F.2d 93, 97 (7th Cir.
1985) ("’Summary judgment is notoriously
inappropriate for determination of claims
in which issues of intent, good faith and
other subjective feelings play dominant
roles.’") (quoting Pfizer, Inc. v. Int’l
Rectifier Corp., 538 F.2d 180, 185 (8th
Cir. 1976)), and Visser v. Packer Eng’g
Assocs., 924 F.2d 655, 660 (7th Cir.
1991) ("Caution is required in granting
summary judgment, especially under a
statute that allows for trial by jury, as
the age discrimination law does.").
Although it is understandable how one
might infer from our regular use of this
phrase that we meant to communicate a
more stringent standard to be used in
reviewing employment cases,/2 the
original use of this phrase indicates
that it was merely included to stress the
fact that employment discrimination cases
typically involve questions of intent and
credibility, issues not appropriate for
this court to decide on a review of a

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grant of summary judgment. Thus,
regardless of our inclusion of the phrase
"added rigor" in prior cases, we review a
district court’s decision to grant a
motion for summary judgment on a claim
involving issues of employment
discrimination as we review any case
brought before this court involving the
review of a grant of summary judgment.
See Wallace v. SMC Pneumatics, Inc., 103
F.3d 1394, 1396 (7th Cir. 1997).
B. Alexander’s Title VII and 42 U.S.C.
sec. 1981 Claims
Alexander appeals the district court’s
grant of the Department’s motion for
summary judgment on his Title VII claims,
arguing that summary judgment was
erroneously granted because he has
produced sufficient evidence from which a
jury could find that the Department’s
proffered reasons for his suspension and
termination were pretext for
discrimination and retaliation. Alexander
also challenges the district court’s
grant of summary judgment on his claim of
racial discrimination against Carlson,
Moritz, and Gruchow under 42 U.S.C. sec.
1981. Alexander contends that there are
sufficient facts in the record from which
a jury could infer that Carlson, Moritz,
and Gruchow’s decisions to discipline and
terminate him were racially motivated.
Title VII explains that it is unlawful
for an employer "to fail or refuse to
hire or to discharge any individual, or
otherwise to discriminate against any
individual with respect to his
compensation, terms, conditions, or
privileges of employment, because of such
individual’s race, color, religion, sex,
or national origin." 42 U.S.C. sec.
2000e-2(a)(1). Similarly, sec. 1981
states that "[a]ll persons within the
jurisdiction of the United States shall
have the same right . . . to the full and
equal benefit of the laws . . . as is
enjoyed by white citizens." 42 U.S.C.
sec. 1981. "Because we analyze sec. 1981
and Title VII discrimination claims in
the same manner," Eiland v. Trinity
Hosp., 150 F.3d 747, 750 (7th Cir. 1998);
see also Bratton v. Rdway Package Sys.,
Inc., 77 F.3d 168, 176 (7th Cir. 1996),
we will simultaneously review Alexander’s
claims of racial discrimination against
the Department and the three individual
defendants. Additionally, because the

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parties agree that the only disputed
issue with regard to Alexander’s claims
of discrimination and retaliation is
whether the stated reasons for his
suspension and termination are pretext,
we will consider these claims together.
A plaintiff alleging race discrimination
under Title VII and sec. 1981 can prove
such discrimination either by providing
direct evidence of an employer’s
discriminatory intent or by showing
disparate treatment using indirect
evidence and the burden-shifting method
established in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S. Ct. 1817, 36
L. Ed. 2d 668 (1973). See Contreras v.
Suncast Corp., 237 F.3d 756, 759 (7th
Cir. 2001). Likewise, a claim of
retaliation under Title VII can be proven
by "either offer[ing] direct evidence of
retaliation or proceed[ing] under a
burden-shifting approach." Fyfe v. City
of Fort Wayne, 241 F.3d 597, 601 (7th
Cir. 2001); see also Sanchez v.
Henderson, 188 F.3d 740, 745 (7th Cir.
1999) (explaining that "[a] claim for
retaliation under Title VII invokes a
variant of the familiar McDonnell Douglas
burden-shifting framework"). Because
Alexander does not present any direct
evidence, he must proceed under the
burden-shifting methods.
Alexander is required to present
sufficient evidence to make out a
specific prima facie case for both types
of claims. See Contreras, 237 F.3d at
759. In each instance, if a plaintiff
successfully makes out a prima facie
case, the employer must then present a
legitimate, non-discriminatory reason for
the allegedly unlawful action. See
Stewart v. Henderson, 207 F.3d 374, 376
(7th Cir. 2000); see also Sanchez, 188
F.3d at 746. Once such a reason is
presented, the plaintiff must establish
by a preponderance of the evidence that
the employer’s stated reason is merely a
pretext for discrimination or
retaliation. See Walker v. Glickman, 241
F.3d 884, 889 (7th Cir. 2001); see also
Freeman v. Madison Metro. Sch. Dist., 231
F.3d 374, 379 (7th Cir. 2000).
The parties in this case agree that
Alexander has made out a prima facie case
for his claims of race discrimination and
retaliation. They also agree that the
Department and the individual defendants
have provided legitimate, non-

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discriminatory reasons for Alexander’s
suspensions and his termination. Thus,
the sole issue in dispute is whether
Alexander can show, by a preponderance of
the evidence, that the defendants’ stated
reasons for suspending and eventually
terminating him "were not [their] true
reasons, but were a pretext for
discrimination." Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133,
143, 120 S. Ct. 2097, 147 L. Ed. 2d 105
(2000) (internal quotation omitted).
Therefore, we will turn directly to the
issue of pretext.
Alexander may establish that the
defendants’ offered reasons for
suspending and terminating him are
pretext for discrimination and
retaliation by providing either direct
evidence indicating that the defendants
were "more likely than not motivated by a
discriminatory reason," or indirect
evidence showing that the defendants’
stated reasons are not credible. Sarsha
v. Sears, Roebuck & Co., 3 F.3d 1035,
1039 (7th Cir. 1993) (citations omitted);
see also Walker, 241 F.3d at 889. Because
he does not present any direct evidence
that the defendants’ stated reasons for
his suspensions and termination were
pretext, Alexander must rely on indirect
evidence. "Creating a triable pretext
issue with indirect evidence is a
difficult task which may be accomplished
in one of two ways." Guerrero v.
Ashcroft, 253 F.3d 309, 313 (7th Cir.
2001). Alexander must show either that
the defendants lied about why they took
the adverse action that they did or that
the defendants’ stated reasons for his
suspensions and termination have no basis
in fact. See id. Additionally, we
recognize that "we are not a super-
personnel board and that we may not
punish an employer for choices that
constitute business decisions alone, no
matter how unwise or mistaken they may
seem to us." Id. at 314 (citing Reeves,
530 U.S. at 144). That having been said,
however, when reviewing a grant of
summary judgment, the only question
before us is whether the plaintiff has
provided evidence from which a rational
trier of fact could infer that the
employer’s stated reasons for taking the
adverse action were lies. See Bell v.
E.P.A, 232 F.3d 546, 550 (7th Cir. 2000).
"’If the only reason an employer offers
for [taking adverse action against] an

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employee is a lie, the inference that the
real reason was a forbidden one . . . may
reasonably be drawn. This is the common
sense behind McDonnell Douglas.’" Id.
(quoting Anderson v. Baxter Healthcare
Corp., 13 F.3d 1120, 1124 (7th Cir.
1994)). Thus, "’[b]ecause a fact-finder
may infer intentional discrimination from
an employer’s untruthfulness, evidence
that calls truthfulness into question
precludes summary judgment.’" Id.
(quoting Perdomo v. Browner, 67 F.3d 140,
145 (7th Cir. 1995)).
The district court correctly observed
that Alexander "has proffered ample
evidence that several of his co-workers
were bigots and that their bigotry made
his work environment extremely
difficult." Alexander v. Wis. Dep’t of
Health & Soc. Servs., No. 99-C-0429-C,
slip op. at 21 (W.D. Wis. May 23,
2000)./3 Furthermore, the seeming lack
of commitment by the Department to
prevent or respond to this insensitive
behavior in any meaningful manner is
troubling; hopefully the Department
recognizes that the behavior exhibited by
Alexander’s co-workers--state employees
no less--is unacceptable. Notwithstanding
the behavior of several of Alexander’s
co-workers, however, we agree with the
district court’s determination that
Alexander "has offered no evidence that
the disciplinary measures he is
challenging were motivated by his race or
by his complaints of discrimination
rather than by defendant[s’] legitimate
belief that such discipline was justified
by Alexander’s conduct." Alexander, slip
op. at 21.
1. Five-Day Suspension
Alexander’s five-day suspension resulted
from the confrontation between Alexander
and his co-worker Randy Severin that took
place on August 3, 1995. Alexander
describes the incident as an angry
altercation in which both men were
equally aggressive and equally at fault,
but for which Moritz and Gruchow
subjected him to a suspension without pay
and did not discipline Severin.
Alexander claims that Moritz, Carlson,
and Gruchow’s involvement in this adverse
employment action constitute
discrimination in violation of 42 U.S.C.
sec. 1981. We first note that Alexander

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provides no facts indicating that either
Carlson or Gruchow were involved in any
capacity with the decision to suspend
him. Thus, no further discussion is
necessary regarding Carlson and Gruchow;
we affirm the district court’s grant of
summary judgment as to these two
individuals on this claim. With regard to
Moritz, Alexander alleges that her
decision to discipline him was racially
motivated and that her stated reason for
this decision was a pretext for said
discrimination. Alexander contends that
the fact that he received such a severe
penalty while Severin was not disciplined
supports his claim of pretext.
Moritz’s stated reason for suspending
Alexander was that she believed he had
disobeyed Scallon’s orders and behaved in
a threatening manner toward Severin.
Scallon, who described the exchange
between Severin and Alexander much
differently than Alexander, explained
that after he called everyone back to the
tray line from a break, Severin wanted to
begin working on the tray line
immediately. Alexander saw this and
deliberately slowed down, asking if he
could get a drink of water. Scallon
allowed Alexander to get a drink but
urged him to do so quickly. When Severin
saw this, he asked "why can’t we get
going?" Scallon recalls that Alexander
replied: "I’m not gonna take that shit
from a white punk!" Alexander and Severin
exchanged heated words and Scallon told
them both to be quiet. Scallon reported
that Alexander was the aggressor in this
confrontation and that Alexander
disregarded Scallon’s repeated orders to
go to a different part of the kitchen, so
as to end the confrontation. Instead,
Alexander placed a chair very close to
Severin, sat down, and stared at him.
Scallon indicated that several of the
other workers in the kitchen area began
to cry and seemed concerned about what
Alexander would do next. The
confrontation finally ended when Severin
moved to a different section of the
kitchen, although Alexander continued to
stare at Severin for the rest of the time
they worked on the tray line. Scallon
also noted that later that day he saw
Alexander walking away from Severin’s
car, and that Severin told him that
Alexander was taunting him. After hearing
Scallon and Alexander’s description of
the confrontation, Moritz recommended

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that Alexander be disciplined.
Even though we accept Alexander’s
version of his confrontation with
Severin, as we must, we still find that
Alexander has failed to show any evidence
from which a rational trier of fact could
infer that Moritz’s stated reason for the
suspension was pretext for
discrimination. Moritz made her decision
to discipline Alexander based on
Scallon’s description of the exchange
between Severin and Alexander. While
"[s]ummary judgment generally is improper
where the plaintiff can show that an
employee with discriminatory animus
provided factual information or other
input that may have affected the adverse
employment action," Eiland, 150 F.3d at
752 n.1 (quoting Dey v. Colt Constr. &
Dev. Co., 28 F.3d 1446, 1459 (7th Cir.
1994)), Alexander has presented no such
evidence regarding Scallon. Additionally,
although the evidence Alexander has
offered regarding Moritz, reviewed in the
light most favorable to Alexander, might
indicate that Moritz could have been more
responsive to some of the insensitive
comments made by Alexander’s co-workers,
Alexander has not shown that Moritz had a
discriminatory animus towards him that
tainted her assessment of the
confrontation between Alexander and
Severin.
Furthermore, Alexander has presented no
evidence that a five-day suspension is
unusually severe for his conduct as it
was described to Moritz by Scallon. While
Alexander correctly notes that in 1990,
two white employees who engaged in a
physical confrontation did not receive
the same level of discipline as Alexander
did in this instance, it is undisputed
that the Department had, subsequent to
the 1990 incident, formulated a more
stringent policy regarding violence in
the workplace. Therefore, we find that
Alexander has failed to show that
Moritz’s stated reason for suspending him
for five days was pretext for
discrimination.
2. Ten-Day Suspension
The incident that led to Alexander’s
ten-day suspension took place on February
29, 1996. Alexander claims that Carlson
singled him out by falsely accusing him
of not doing his job and unfairly

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reprimanding him for insubordination.
Alexander further contends that Moritz
and Gruchow conducted a sham
investigation and pre-disciplinary
meeting before subjecting him to a
penalty that he alleges is the harshest
in Department history for an incident of
insubordination. Alexander argues that
these actions were the result of race
discrimination and retaliation by the
Department and race discrimination on the
part of Moritz, Carlson, and Gruchow, and
that the defendants’ stated reason for
this suspension was pretext for
discrimination and retaliation.
The defendants’ stated reason for
Alexander’s ten-day suspension was that
Alexander had been insubordinate to his
supervisor, Carlson, following his
previous five-day suspension. On the day
of the incident, Carlson received a
report that Alexander was not doing his
job. When she went to check out the
veracity of this report, Carlson observed
that Alexander had not strapped any
carts, even when there was a lull in the
tray line. Carlson told Alexander that he
needed to start strapping carts.
According to Carlson, Alexander responded
to this instruction by laughing and
sticking his tongue out at her. Carlson
again directed Alexander to strap carts,
to which Alexander suggested "Donna why
don’t you strap?" Carlson gave a third
instruction to begin strapping the tray
carts, but Alexander still made no effort
to comply. After Alexander failed to
comply with her third directive, Carlson
told him to leave work. Alexander
responded to this instruction by
beginning to strap carts; however,
Carlson told him that it was too late,
and that she wanted him to leave. Carlson
reported the incident to Moritz. After
hearing Carlson and Alexander’s
description of what happened, Moritz
recommended that Alexander be
disciplined.
Moritz’s reliance on Carlson’s
description of the cart strapping
incident would not be an acceptable basis
for the adverse employment action taken
against Alexander if Alexander could show
that Carlson harbored racial animus
towards him, and that Moritz knew or
should have known of Carlson’s bias. See
Dey v. Colt Constr. & Dev. Co., 28 F.3d
1446, 1459 (7th Cir. 1994) ("Summary

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judgment generally is improper where the
plaintiff can show that an employee with
discriminatory animus provided factual
information or other input that may have
affected the adverse employment
action."). Likewise, Alexander could also
undermine the defendants’ stated reason
for his suspension by showing that Moritz
herself carried a bias towards Alexander.
See id. Alexander has not shown, however,
that Carlson’s actions reflected a racial
animus towards him that Moritz knew or
should have known about, or that Moritz
herself carried a bias that tainted her
role as a decision-maker. The affidavits
of Jalene Roth and Sandra Bohling
presented by Alexander do not provide
evidence indicating that either Carlson
or Moritz was racially biased against
Alexander. Instead, these affidavits
describe their observations of the cart
strapping incident and opinions that
Alexander was not insubordinate. Moritz
heard these opinions, as well as
Carlson’s description of the exchange in
making her decision. Additionally,
although the exact phrasing and tone of
Alexander’s statements to Carlson are
disputed, Alexander’s own description of
his exchange with Carlson acknowledges
that instead of complying with Carlson’s
orders, he suggested to her that she
might assist him with his duties.
Alexander has also shown no evidence
that his ten-day suspension was unduly
harsh. Gruchow, whose duties included
handling probationary and permanent
employment discipline for the Center,
explained that the Department uses a
progressive discipline program, and that
in most cases, an employee who had
already received a five-day suspension
would be terminated if any further
discipline was necessary. See Gruchow
Aff. para. 14. In this instance, instead
of being terminated, Alexander received a
longer suspension. Thus, because we find
that Alexander has failed to show that
the Department’s stated reason for
suspending him for ten days was pretext
for racial discrimination, we will affirm
the district court’s grant of summary
judgment on this claim. We likewise find
that Alexander has failed to show that
Moritz, Carlson, or Gruchow discriminated
against him in violation of sec. 1981.
Alexander also claims that the ten-day
suspension was an act of retaliation for

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his complaining to Moritz about Carlson
and other workplace discrimination and
that the Department’s stated reason for
his suspension was pretext for this
retaliation. We cannot agree. Alexander
has presented no evidence from which it
can be inferred that the Department’s
stated explanation that Alexander
wasdisciplined because he was found to
have been insubordinate was in any way
pretext for an act of retaliation against
Alexander for his having complained about
Carlson and other racial discrimination
in the workplace. Therefore, we will
affirm the district court’s grant of
summary judgment on Alexander’s claim
that the ten-day suspension was an act of
retaliation.
3. Termination
Alexander was terminated after he
allegedly made a throat-slashing gesture
at co-worker Melodie Stumpf while passing
her in the hall at work on October 24,
1996. Alexander contends that he does not
remember passing Stumpf in the hall at
work, and that if he did, he did not say
anything to her or make any gestures
towards her. According to Alexander,
Gruchow informed him that he had been ac
cused of making a throat-slashing gesture
towards Stumpf, but later set up
Alexander by denying ever having
explained the gesture to Alexander and
insisting that Alexander knew the exact
manner of the alleged gesture without
having been told the full details of the
accusation. Alexander now argues that
Moritz and Gruchow conducted a sham
investigation to build a false case for
his termination because of his race and
the fact that he filed a complaint, and
that the defendants’ stated reason for
his termination was a pretext for that
discrimination and retaliation.
The Department’s stated reason for
Alexander’s termination was that Moritz
and Gruchow believed Alexander had made a
threatening gesture towards Stumpf and
then lied about the incident. Management
believed that Alexander’s denial of the
incident was not credible because
Alexander knew that he had been accused
of making a throat-slashing gesture
without having been told so by Gruchow
and because there was a documented
history of confrontations initiated by
Alexander against his co-workers. Because

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Alexander had already received a five-day
and ten-day suspension, termination was
the next step in progressive discipline.
Alexander has presented no evidence from
which it can be inferred that the
defendants’ stated reason for his
termination was a pretext for
discrimination. Gruchow explained to
Moritz that despite the fact that he had
been careful not to relay any of the
specific details of the alleged gesture
to Alexander when he spoke with him on
October 24, Alexander called him on
October 25 and knew that he had been
accused of making a throat-slashing
gesture. Although Alexander maintains
that Gruchow told him about the gesture
and then lied about it, he has made no
attempt to produce any evidence
indicating any discriminatory animus or
bias on the part of Gruchow that would
render Moritz’s reliance on Gruchow’s
explanation improper.
Alexander offers Bentley’s report in
support of his accusation that the
defendants’ stated reason for his
termination was pretext for race
discrimination. Bentley’s report
concluded that the discrimination alleged
by Alexander was "likely to have
occurred" and recommended that Moritz and
Carlson be disciplined. Thomas Alt,
Division Administrator of the Department,
discussed Bentley’s report and
recommendation with Gladys Benavides, who
at that time was the Acting Director of
the Department’s Office of Affirmative
Action/Civil Rights Compliance
("AA/CRC"). Because the report was
compiled without any input from Moritz or
Carlson, Alt concluded that it was
incomplete and decided not to take any
action.
Let us explain very plainly that an
entity cannot undermine the system it has
put in place to investigate and remedy
problems like discrimination in the
workplace in order to escape liability
for such discrimination. Thus, if there
were evidence that the Department had
instructed Fancher to tell Moritz and
Carlson not to fill out Bentley’s
questionnaires so that the Department
could later discard the report as being
incomplete and one sided, evidence of
such an attempt to hamper the
investigation of Alexander’s claim would

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render this case inappropriate for
summary judgment. However, that is not
what happened in this case. Besides there
being no evidence that Fancher’s decision
to seek guidance from other Department
officials was an attempt to interfere
with Bentley’s investigation, there is
likewise no evidence that the
determination that the report was
unreliable was the result of race
discrimination or retaliation. To the
contrary, Alt issued a memorandum to
Steve Watters, the Interim Director at
the Center, directing him to take certain
steps to ensure that future
investigations were timely, complete, and
accurate. Alt instructed Watters to:
Clarify with [Center] management and in
particular [Center] personnel management
that they are expected to cooperate fully
with any Department AA/CRC office staff
when they are conducting inquiries and
reviews. Should conflicts occur in this
process they should cooperate first, then
raise issues or concerns with
theirsupervisor or facility Director.
Additionally, there is no link between
Fancher’s decision to seek guidance
regarding the nature of Bentley’s
investigation, thereby delaying Moritz
and Carlson’s completion of Bentley’s
questionnaires, and Alt’s independent
determination that the investigation was
not a sufficient basis upon which to take
disciplinary action. Thus, Alt’s
treatment of the report cannot be
characterized as evidence of a Department
conspiracy to discriminate against
Alexander. Therefore, we find that
Alexander has shown no evidence that the
defendants’ stated reason for his
termination was mere pretext for race
discrimination.
Alexander has likewise provided no
evidence suggesting that the stated
reason for his termination was pretext
for retaliation for his having filed a
complaint with the Personnel Commission.
In support of his argument,
Alexandercorrectly notes that the
Department was notified that he had filed
a complaint with the Personnel Commission
on October 23, 1996, the day before he
was suspended. Although the timing of an
adverse employment action can be evidence
of an act of retaliation, see King v.
Preferred Technical Group, 166 F.3d 887,

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893 (7th Cir. 1999), Alexander’s
inability to provide "evidence that any
of the actors involved in his suspension
(Stumpf, Moritz and Gruchow) had any
knowledge of his complaint before his
suspension," Alexander v. Wis. Dep’t of
Health & Soc. Servs., No. 99-C-0429-C,
slip op. at 29 (W.D. Wis. May 23, 2000),
prevents any such inference to be drawn
from the timing of his suspension and
eventual termination. Thus, without more,
there is no indication that the
Department’s stated reason for
terminating Alexander was pretext for
retaliation.
C. Alexander’s sec. 1983 Claim
Alexander also appeals the district
court’s grant of summary judgment on his
sec. 1983 claim, alleging that Carlson,
Moritz, and Gruchow denied him of his
right to due process. Although he does
not articulate his challenge to the
district court’s ruling, it appears that
Alexander now contends that he provided
sufficient evidence from which a jury
could conclude that, in all three
instances of discipline, he was denied
the due process to which he is entitled
under the Fourteenth Amendment.
"Procedural due process imposes
constraints on governmental decisions
which deprive individuals of ’liberty’ or
’property’ interests within the meaning
of the . . . Fourteenth Amendment."
Mathews v. Eldridge, 424 U.S. 319, 332,
96 S. Ct. 893, 47 L. Ed. 2d 18 (1976).
For purposes of summary judgment, the
individual defendants have conceded that
Alexander had the requisite property
interest in his continued employment. The
Supreme Court has explained that "some
form of hearing is required before an
individual is finally deprived of a
property interest." Id. at 333. Although
such a hearing must provide "’the
opportunity to be heard at a meaningful
time and in a meaningful manner,’" Cooper
v. Salazar, 196 F.3d 809, 814 (7th Cir.
1999) (quoting Mathews, 424 U.S. at 333),
due process is not a "technical
conception with a fixed content unrelated
to time, place and circumstances."
Mathews, 424 U.S. at 334 (internal
quotation omitted). Thus, the precise
form and extent of process required in a
particular situation will vary from other
factual situations. See Soc’y of Lloyd’s

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v. Ashenden, 233 F.3d 473, 479 (7th Cir.
2000). We must balance three distinct
factors in evaluating the sufficiency of
the procedural process provided to
Alexander:
First, the private interest that will be
affected by the official action; second,
the risk of an erroneous deprivation of
such interest through the procedures
used, and the probable value, if any, of
additional or substitute procedural
safeguards; and finally, the Government’s
interest.
Gilbert v. Homar, 520 U.S. 924, 931-32,
117 S. Ct. 1807, 138 L. Ed. 2d 120 (1997)
(internal quotation omitted).
We again note, as we did with
Alexander’s sec. 1981 claim, that
Alexander has set forth no facts
indicating that Carlson and Gruchow were
involved with the process by which
Alexander was suspended for five days.
Carlson waslikewise uninvolved in any
capacity with the incident that lead to
Alexander’s termination. These
distinctions are of little consequence,
however, as we find that Alexander was
provided with adequate procedural due
process before each instance of
discipline. A pre-disciplinary meeting
was conducted by Moritz to discuss and
investigate each incident for which
Alexander was ultimately disciplined. The
record also indicates that Alexander was
allowed to explain his version of each
incident to Moritz and to present
witnesses to support his denials of
wrongdoing. Furthermore, Alexander was
able to have family members, union
representatives, and outside legal
advisors accompany him to these meetings.
Finally, as we explained before,
Alexander has presented no evidence
indicating that Moritz possessed a bias
or prejudice towards him that would have
caused her to be unable to preside at the
pre-disciplinary meetings as an unbiased
decision-maker. Thus, her participation
did not violate his right to due process.
See Withrow v. Larkin, 421 U.S. 35, 46,
95 S. Ct. 1456, 43 L. Ed. 2d 712 (1975)
("Not only is a biased decision-maker
constitutionally unacceptable but our
system of law has always endeavored to
prevent even the probability of
unfairness.") (internal quotation
omitted). Thus, we will affirm the

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district court’s decision granting the
individual defendants’ motion for summary
judgment on this claim.
III. Conclusion
For the abovementioned reasons, we AFFIRM
the district court’s decision to grant
the defendants’ motion for summary
judgment.
FOOTNOTES
/1 A person claiming discrimination under Title VII
is required to file a complaint with either the
EEOC or a State Personnel Commission within 300
days of the alleged discrimination. See 42 U.S.C.
sec. 2000e-5(e). Alexander filed his complaint
with the Wisconsin Personnel Commission on Octo-
ber 9, 1996. In his brief opposing defendants’
motion for summary judgment, Alexander conceded
that he did not purport to state a claim under
Title VII for any incident occurring more than
300 days prior to October 9, 1996. Thus, he does
not seek relief under Title VII for the five-day
suspension he received in August 1995.
/2 A review of our cases reveals that we have used
this "added rigor" phrase in some thirty pub-
lished opinions involving issues of employment
discrimination since McCoy.
/3 Evidence of this bigotry included such comments
as: "black people don’t like to work," "rap music
is jungle bunny music," and "blacks should still
be slaves." Additionally, State of Wisconsin
employees discussed the possibility of attending
an African-American wedding covered in shoe
polish and suggested to Alexander that his ap-
pearance resembled that of a picture of a bulldog
and a newspaper photograph of an orangutan.

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