Darell D. Burton v. Will County Sheriff ’ S Merit Commission , Will County Sheriff ’ S Office

In the
United States Court of Appeals
for the Seventh Circuit
____________________
No. 23-1802
DARELL D. B URTON ,
Plaintiff-Appellant,
v.
WILL C OUNTY S HERIFF ’ S M ERIT C OMMISSION ,
WILL C OUNTY S HERIFF ’ S O FFICE, and WILL C OUNTY , I LLINOIS ,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 19-CV-03875 — John J. Tharp, Jr., Judge.
____________________
A RGUED J ANUARY 10, 2024 — DECIDED M AY 22, 2026
____________________
Before S YKES , HAMILTON , and LEE, Circuit Judges.
S YKES , Circuit Judge. The Will County Sheriff’s Office uses
a merit-selection process to hire new deputy sheriffs in ac-
cordance with Illinois and local law. Applicants must be cer-
tified by the Will County Sheriff’s Merit Commission before
the sheriff may consider them for appointment. The applica-
tion process is rigorous and includes a background check.

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2 No. 23-1802
Darell Burton applied for deputy sheriff but did not pass
the background check. His then-employer told the Merit
Commission that he was not a dependable employee, did not
work well with others, would not be rehired in his current
position as a railroad signalman, and was not recommended
for hire as a deputy sheriff. Based on this negative employ-
ment reference, the Commission removed him from the certi-
fication process.
Burton, who is black, sued the Merit Commission, the
Sheriff’s Office, and Will County under Title VII of the Civil
Rights Act of 1964. He alleged that he was removed from the
certification process because of his race. But he did not pro-
duce evidentiary support for this claim, so the district judge
entered summary judgment for the defendants.
We affirm. No evidence suggests that Burton’s race played
any role in the Merit Commission’s decision. And nothing in
the record could support an inference that the Commission’s
reason for removing Burton from the certification process—
his negative professional reference—was a pretext for racial
discrimination.
I. Background
The Will County Sheriff’s Merit Commission is a five-
member body appointed by the sheriff to oversee the merit-
selection process for appointment of new deputy sheriffs.
Established in accordance with the Illinois Counties Code, the
Commission receives and screens applications for deputy
sheriff and certifies candidates for inclusion on a list of appli-
cants who may be considered when positions become availa-
ble. See generally 55 I LL. C OMP . S TAT. 5/3–8001, et seq.

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No. 23-1802 3
Applicants must be certified by the Merit Commission before
the sheriff may hire them as deputies.
As expected for a job in law enforcement, the certification
process is lengthy and rigorous. It includes successive steps:
a short-form application, a written exam, a physical agility
test, a long-form application, a psychological evaluation, a
polygraph test, a formal background investigation, and ulti-
mately, an interview with the Merit Commission.
The formal background investigation is the step at issue
here. The Merit Commission has only two full-time employ-
ees and relies on investigators in the Sheriff’s Office to carry
out background investigations. At the beginning of this step
in the process, the Commission’s staff solicits information
from an applicant’s current employers, former employers,
and personal references by mailing out reference forms.
When these so-called “mail out” inquiries are returned, the
applicant’s file is assigned to an investigator in the Sheriff’s
Office, who then conducts a thorough background investiga-
tion.
The investigator’s duties include contacting any employ-
ers who did not respond to the “mail out” reference forms.
When the investigation is complete, the investigator provides
a handwritten summary to the Commission’s staff using a
template form, and a staff member then types it up for inclu-
sion with other background-investigation material in the ap-
plicant’s file.
Many applicants never advance to the interview stage
based on concerns that arise earlier in the certification pro-
cess. If negative information surfaces at any step in the pro-
cess, the matter is presented to the Merit Commission for a

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4 No. 23-1802
decision whether to remove the applicant from further con-
sideration. Colloquially known as “red flags,” these negative
datapoints include (among other things) poor employment or
personal references, reports of substance abuse, a failed poly-
graph, or an undisclosed prior arrest revealed by fingerprint
analysis.
Applicants who successfully complete the certification
process are considered by the Commission for final scoring
and inclusion on a list of certified candidates who may be ap-
pointed as a deputy sheriff. Certified applicants remain on the
list for two years, and the sheriff fills open deputy positions
by hiring from the list.
Darell Burton applied to become a deputy sheriff in Will
County in 2010. His application moved along well at first, but
it faltered during the formal background investigation. At
that time the Commission’s staff included Pam Taylor, who
coordinated the certification process, and Kathy Rogina, who
reported to Taylor and assisted her in the Commission’s
work. Richard Ackerson, a sergeant in the Sheriff’s Office,
was assigned to conduct Burton’s background investigation.
When he applied for certification to become a Will County
deputy sheriff, Burton was working for the Canadian
National Railway as an assistant signalman. But railroad offi-
cials did not return the mailed reference form to the Merit
Commission. So Ackerson contacted Mike Youngman,
Burton’s supervisor, to check his employment reference over
the phone. Youngman gave Burton exceedingly negative
marks, telling Ackerson that Burton was not a dependable
employee. He also said that Burton’s ability to work with oth-
ers was poor and that the railroad would not rehire him or
recommend him for a job in the Sheriff’s Office. Finally,

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No. 23-1802 5
Youngman explained that Burton was “currently off on a
questionable work-related injury” that he had not timely re-
ported. Ackerson recorded this information and included it in
the summary template that he gave to Taylor for inclusion in
Burton’s file.
Taylor determined that Burton’s unfavorable employment
reference from the Canadian National Railway raised a red
flag, so she presented it to the Merit Commission. The Com-
mission reviewed the matter and removed Burton from the
certification process based on the negative information from
his employer.
Burton responded by suing the Merit Commission, the
Sheriff’s Office, and Will County claiming that he was re-
moved from the certification process because of his race in vi-
olation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2.
The defendants moved for summary judgment, arguing first
that the Merit Commission is not covered by Title VII because
it has fewer than the statutory threshold of 15 employees, see
id. § 2000e(b), and neither the Sheriff’s Office nor Will County
were involved in the certification process. Alternatively, they
argued that Burton’s claim lacked evidentiary support.
The district judge bypassed the issue of Title VII coverage
and instead resolved the case on the merits. The judge agreed
with the defendants that Burton had failed to produce evi-
dence that his race was a motivating factor in the Commis-
sion’s decision to remove him from the certification process.
Nor was there anything in the record to suggest that the Com-
mission’s reason for doing so—the negative employment ref-
erence from the Canadian National Railway—was a
pretextual cover for racial discrimination. Accordingly, the

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6 No. 23-1802
judge granted the motion and entered judgment for the de-
fendants. This appeal followed.
II. Discussion
We review the judge’s summary-judgment order de novo,
construing the evidence in the light most favorable to Burton.
Smith v. Chi. Transit Auth., 806 F.3d 900, 904 (7th Cir. 2015). As
relevant here, Title VII of the Civil Rights Act prohibits em-
ployers from failing or refusing to hire a person because of his
race. § 2000e-2(a)(1). The Act excludes employers with few
employees: the statute defines the term “employer” to include
only those with 15 or more employees. § 2000e(b).
The defendants argued below and reiterate here that
Burton’s claim falls outside Title VII’s coverage because the
Merit Commission—with only two full-time employees in ad-
dition to the five commissioners—is too small to qualify as an
employer under the statute, and the Sheriff’s Office and Will
County had nothing to do with these events. Burton counters
that the three governmental units should be deemed a single
employer and their employees aggregated to satisfy the 15-
employee threshold.
The district judge declined to address whether the em-
ployees of related government agencies and political subdivi-
sions may be aggregated for purposes of Title VII’s
15-employee baseline. We do the same. Because Burton’s
claim plainly lacks evidentiary support, we see no reason to
decide this threshold issue. The statutory definition of “em-
ployer” is not a limit on the court’s jurisdiction. See Komor-
owski v. Townline Mini-Mart & Rest., 162 F.3d 962, 964 (7th Cir.
1998) (noting that the failure to meet the statutory definition

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No. 23-1802 7
of employer does not deprive federal courts of subject-matter
jurisdiction). We therefore move directly to the merits.
To proceed to trial on his Title VII claim, Burton had the
burden to produce evidence that would permit a reasonable
factfinder to conclude that his race caused the Merit Commis-
sion to remove him from the certification process. See Ortiz v.
Werner Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016). Burton
framed his case under the McDonnell Douglas burden-shifting
formula. That familiar evidentiary framework requires the
plaintiff to first show that he “applied for an available posi-
tion” for which he was qualified “but was rejected under cir-
cumstances [that] give rise to an inference of unlawful
discrimination.” Texas Dep’t of Cmty. Affairs v. Burdine, 450
U.S. 248, 253 (1981) (describing the plaintiff’s prima facie case
under McDonnell Douglas). If the plaintiff establishes this
prima facie case, the burden shifts to the employer “to articu-
late some legitimate, nondiscriminatory reason” for rejecting
the plaintiff’s application. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973). If the employer does so, then the bur-
den shifts back to the plaintiff to show that the employer’s ex-
planation was pretextual—that is, “a lie” or “phony reason”
designed to conceal unlawful discrimination. Ferrill v. Oak
Creek–Franklin Joint Sch. Dist., 860 F.3d 494, 500 (7th Cir. 2017).
Importantly, however, the legal standard in a Title VII case
is “simply whether the evidence would permit a reasonable
factfinder to conclude that the plaintiff’s race, ethnicity, sex,
religion, or other proscribed factor caused the discharge or
other adverse employment action.” Ortiz, 834 F.3d at 765. The
McDonnell Douglas framework is “merely one way of culling
the relevant evidence” to help answer this question. Johnson

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8 No. 23-1802
v. Advoc. Health & Hosps. Corp., 892 F.3d 887, 894 (7th Cir.
2018).
The evidence here permits only one reasonable conclu-
sion: the Merit Commission removed Burton from the certifi-
cation process because of his negative employment reference
from the Canadian National Railway. That is unquestionably
a legitimate, nondiscriminatory reason for the Commission’s
decision. See Lee v. Nat’l Can Corp., 699 F.2d 932, 937 (7th Cir.
1983) (“Title VII does not compel employers to hire unquali-
fied applicants with questionable employment histories.”).
And no evidence casts doubt on it.
So Burton’s case fails at two steps in the McDonnell Douglas
framework: he has not established that he was qualified for
the job (part of his prima facie case), and he has not estab-
lished that the reason for the Commission’s decision was a
pretextual cover for unlawful discrimination. See Barnes v. Bd.
of Trs. of Univ. of Ill., 946 F.3d 384, 389 (7th Cir. 2020) (explain-
ing that the prima facie and pretext inquiries often overlap).
Even when the record is reviewed more generally, unencum-
bered by the burden-shifting framework, there is nothing to
support a reasonable inference that Burton’s race caused the
Merit Commission to remove him from the certification pro-
cess.
Burton has several responses, but none is persuasive; one
is also new on appeal and thus waived. Burton first notes that
the Merit Commission did not disclose the negative employ-
ment reference until litigation began. He contends that the de-
lay casts suspicion on the Commission’s justification. This
argument is a nonstarter. A local ordinance prohibits the
Merit Commission from disclosing the reason for rejecting an

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No. 23-1802 9
applicant. WILL C OUNTY , I LL., C ODE § 33.004(B). The Commis-
sion’s compliance with local law raises no suspicion.
Burton also thinks it’s suspicious that the phrase “out per
board bad b/g” appears next to certain names in a chart of ap-
plicants—but not his. His theory is that if he were really re-
moved from the certification process because of a bad
background investigation, then this phrase would have been
written next to his name too. The Merit Commission responds
without contradiction that this notation on the chart refers to
applicants who were removed based on a “red flag” that arose
in their long-form application, not the formal background in-
vestigation that occurs later in the process after the candi-
date’s file is assigned to an investigator. The chart itself
supports this explanation. The phrase “out per board bad b/g”
always appears in the column titled “Long Ap.” But Burton
advanced beyond the long-application step in the certification
process, so it makes sense that this phrase does not appear in
this column next to his name.
Next, Burton highlights a comment made by a member of
the Merit Commission during his deposition. The commis-
sioner in question referred to a former member of the Com-
mission as “colored”—a reference that Burton argues is
evidence of bias against black applicants. This argument was
not raised in the district court and thus is waived. Bradley v.
Village of Univ. Park, 59 F.4th 887, 897 (7th Cir. 2023). Waiver
aside, this remark came nearly a decade after the Merit Com-
mission made the certification decision in Burton’s case and
had no connection to him. “[S]tray remarks that are neither
proximate nor related to the employment decision are insuf-
ficient to defeat summary judgment.” Sun v. Bd. of Trs. of Univ.
of Ill., 473 F.3d 799, 813 (7th Cir. 2007).

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10 No. 23-1802
Burton also argues that the red-flag process was con-
ducted abnormally in his case. He claims that according to
Taylor’s deposition testimony, she does not normally con-
sider a negative employment reference as a red flag. This ar-
gument misreads the record. One of the questions on the
printed “mail out” reference form is: “Would you recommend
this applicant for a position in Law Enforcement with the Will
County Sheriff’s Office?” The responding employer may
check the “yes” or “no” box. Taylor testified that if an appli-
cant’s current or former employer “just checked no” and pro-
vided “nothing else,” she would not necessarily consider the
answer a red flag.
That’s not what happened in Burton’s case. The Canadian
National Railway did not return the “mail out” reference
form. Instead, Ackerson obtained information about Burton
directly from Youngman, his supervisor, who said that the
railroad would not recommend him. Youngman also pro-
vided additional unfavorable information: he said that Burton
would not be rehired and was not dependable, did not work
well with others, and was off on a questionable work-related
injury that he had failed to report in a timely fashion. Taylor
testified that “all of that together combined is a red flag.” No
evidence suggests that Taylor handled the red-flag process in
Burton’s case any differently than she normally does.
Burton also tries to bolster his case with statistical data.
But statistical evidence can support a Title VII claim only if it
is paired with “evidence of specific discrimination against the
plaintiff” himself. Matthews v. Waukesha County, 759 F.3d 821,

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No. 23-1802 11
829 (7th Cir. 2014). There is no evidence of specific discrimi-
nation against Burton.1
Finally, Burton focuses on Ackerson’s role in the certifica-
tion process—more particularly, his failure to follow up on
the negative information he received from Youngman. This
argument rests loosely on a “cat’s paw” theory, which refers
to a scenario in which a lower-level employee manipulates the
ultimate decisionmaker into taking discriminatory action. See
Sinha v. Bradley Univ., 995 F.3d 568, 574 (7th Cir. 2021). To suc-
ceed on this theory, Burton must show that a “biased subor-
dinate actually harbored discriminatory animus against him
and that the subordinate’s scheme proximately caused the ad-
verse employment action.” Id. (quotation omitted).
Burton claims without evidence that Ackerson harbored
discriminatory animus and manipulated the Merit Commis-
sion. His only basis for this serious accusation is his own sub-
jective view that Ackerson should not have taken the
1 Moreover, as the district judge noted, Burton’s numerical analysis lacks
anything resembling statistical rigor. More than 280 applicants sought cer-
tification around the same time as Burton. His data set includes only 119
of these applicants. He then identifies 7 nonwhite applicants among the
119 and notes that only 2 of these 7 nonwhite applicants ultimately ob-
tained certification, reflecting a lower certification rate for this group than
the general applicant pool. There are several obvious shortcomings in this
analysis. The original sample is incomplete, and Burton has not shown
that his chosen group of 119 fairly represents the general applicant pool of
more than 280. Nor has he attempted to control for other variables that
may have affected the 7 nonwhite applicants in the certification process.
And only 3 of the nonwhite applicants that Burton identifies (aside from
himself) are black. One was struck after failing a polygraph test; the Merit
Commission certified the other two.

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12 No. 23-1802
information he obtained from Youngman at face value. That’s
not evidence of discriminatory intent.
In sum, a reasonable jury could not conclude that the Merit
Commission removed Burton from the certification process
because of his race. And there is no evidentiary basis for
Burton’s claim against the Sheriff’s Office and Will County.
The judge properly entered summary judgment for the
defendants.
A FFIRMED

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