Anthony Jordan v. TIMOTHY C. EVANS, Chief Judge of the Circuit Court of Cook County

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 17, 2024 *
Decided May 20, 2024
Before
THOMAS L. KIRSCH II, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 22-1316
ANTHONY JORDAN, et al.,
Plaintiffs-Appellants,
v.
TIMOTHY C. EVANS, Chief Judge of
the Circuit Court of Cook County,
Defendant-Appellee.
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division.
No. 15-cv-5907
Sara L. Ellis,
Judge.
O R D E R
Anthony Jordan, Theodis Chapman, and Patrick Nelson are current and former
juvenile probation officers at the probation department of the Circuit Court of Cook
County. They have accused their employer of treating them differently because of their
race (African American) in violation of Title VII of the Civil Rights Act of 1964 and state
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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law. See 42 U.S.C. § 2000e-2; 740 ILL . C OMP. STAT . 23/5. The district court entered
summary judgment against Jordan, reasoning that no evidence suggested that the
department fired or disciplined him because of his race. Later, a jury found that the
department did not transfer Chapman and Nelson to less desirable positions to retaliate
for their past charges of discrimination. All three appeal. We affirm across the board.
We begin with Jordan, reviewing the summary judgment de novo and the facts
in the light most favorable to him. See Reives v. Illinois State Police, 29 F.4th 887, 891
(7th Cir. 2022). Beginning in 2007, about ten years after Jordan joined the department,
Jordan was disciplined almost annually, receiving suspensions for charges of criminal
and sexual misconduct. Jordan reached a “last chance” agreement with the county in
2011 under which he had to follow all departmental rules and expectations or face
discharge.
After entering this last-chance agreement, Jordan faced discipline again. At the
time, he worked in a division where he had to monitor up to 20 probationers and file
reports of their probation violations. In September 2014, a probationer under Jordan’s
supervision violated the terms of his probation by committing rape. Jordan reported the
incident two days late and never reported two other violations by the probationer. The
department investigated Jordan’s conduct as well as the actions of his immediate
supervisor, Brian Modjeski. It placed Jordan on a temporary suspension and decided
that Modjeski was not at fault. Then, after conducting a hearing, it concluded that
Jordan had not adequately explained his failure to file the violation reports and
discredited his contention that a supervisor told him he had discretion not to file them.
Citing Jordan’s “failure to discharge [his] duties as a Probation Officer” and his last-
chance agreement, the department fired him, and he launched this suit.
In response to the defendant’s motion for summary judgment, Jordan argued
that three grounds supported his claim that the department discharged him, and
disciplined him more harshly, because he is an African American officer. First, Jordan
cited statistics. These statistics show that African Americans comprised 40% of the
department’s probation officers from 2014 to 2016, and from 2008 to 2013 African
American officers received 75% of the most severe discipline (suspensions and firings).
Second, Jordan cited testimony about racial bias: A union representative testified that
the department had once attributed a disciplinary meeting with a white officer to
complaints from the union about anti-Black discrimination. And Avic Das (who fired
Jordan) testified that from 2000 to 2012 the department had received meritorious race-
discrimination claims. Third, Jordan cited two white employees whom, he argued, the

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No. 22-1316 Page 3
department treated more favorably. He pointed to his immediate supervisor, Modjeski,
with whom Jordan shared the same deputy chief supervisor, the same bargaining unit,
and the same probationers, but who was not disciplined after the rape-reporting
incident. Jordan also identified Joseph Wozniak, whom the department did not fire
despite his excessive absenteeism while under a last-chance agreement.
The district court entered summary judgment against Jordan. It explained that
the statistics and race-bias testimony did not suggest disparate treatment in Jordan’s
case and the two comparators did not imply race discrimination: Modjeski was Jordan’s
supervisor, was not on a last-chance agreement, and did not have a history of discipline
like Jordan; Wozniak did not report to the same supervisor or engage in similar
misconduct. Later, after Jordan moved for reconsideration, the court also ruled that the
statistics did not suggest that any departmental policy produced an unlawful disparate
impact on Jordan. First, the data did not purport to control for nondiscriminatory bases
for discipline (such as misconduct). Second, the demographic data (taken from 2014 to
2016) did not match the time frame of the discipline records (spanning 2008 to 2013).
Third, the data preceded Jordan’s discharge in 2014.
On appeal, Jordan maintains that he provided sufficient evidence for a rational
jury to find that the department fired him because of his race. Jordan first relies on the
familiar framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–03
(1973), under which a prima facie case of discrimination requires evidence that (1) he is
a member of a protected class, (2) he was meeting the department’s legitimate
expectations, (3) he suffered an adverse employment action, and (4) similarly situated
employees outside of his protected class were treated more favorably. See also Reives,
29 F.4th at 891. Jordan has met the first and third elements, because he is African
American and was fired. Because Jordan argues that he was disciplined more severely
than white probation officers, the second and fourth elements merge. See Orton-Bell v.
Indiana, 759 F.3d 768, 777 (7th Cir. 2014). We thus ask whether he supplied evidence that
the department treated similarly situated white employees more favorably. Id.
Jordan’s comparators do not support a prima facie case. Comparators need not
be identical to the plaintiff, but they must be similar “in all material respects,” such as
position and supervisor. Reives, 29 F.4th at 892; Coleman v. Donahoe, 667 F.3d 835, 849
(7th Cir. 2012). Jordan points to Modjeski because they both oversaw probationers and
reported to the department’s chief deputy. But as the district court observed, Modjeski
was Jordan’s supervisor, and supervisors are ordinarily not comparable to subordinates
because of their differing job duties. Rodgers v. White, 657 F.3d 511, 517–18 (7th Cir.

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2011). To compare himself to his supervisor, Jordan had to supply evidence that they
made “similar mistakes” and “were equally responsible for avoiding those mistakes.”
Id. at 518. But, although Jordan accuses Modjeski of not reporting the violations of the
probationer accused of rape, Jordan did not provide evidence that Modjeski had that
responsibility. Jordan also points to Wozniak, who was not discharged despite
disciplinary issues after entering a last-chance agreement. But Wozniak is not
comparable because he is not a probation officer and he reported to a different
supervisor. Last, Jordan argues that the district court overlooked evidence of four other
white employees. Although Jordan mentioned these employees in his complaint, he did
not identify them as comparators at summary judgment; thus, his argument about them
is waived on appeal. Poullard v. McDonald, 829 F.3d 844, 855 (7th Cir. 2016).
Without a prima facie case under McDonnell-Douglas, Jordan turns to what he
argues is other evidence of racial animus, see Ortiz v. Werner Enters., Inc., 834 F.3d 760,
765–66 (7th Cir. 2016), but it too is insufficient. He points to Das’s testimony from the
trial that the department received valid race-discrimination complaints in the past and
that he used a racial slur at a staff meeting when he quoted and condemned the use of it
by others. Neither statement, however, bolsters Jordan’s claim. Das stated that he knew
of meritorious complaints up to 2012, and Jordan was fired in 2014. In any case,
evidence that other probation officers faced discrimination is not by itself evidence that
Jordan did so. See Alston v. City of Madison, 853 F.3d 901, 907 (7th Cir. 2017). And Das’s
condemnation of a racial slur is not by itself evidence of his racial hostility.
Finally, Jordan maintains that his statistical evidence of disparities in discipline
would allow a reasonable jury to infer that the department fired him because it treated
him differently, or used criteria that had a disparate impact, by race. We disagree. With
respect to a disparate-treatment claim, the fact that African American officers more
frequently received harsher discipline does not, without controlling for possible
explanatory variables, suggest that racial hostility motivated the discipline. See Chi.
Tchrs. Union v. Bd. of Educ. of City of Chi., 14 F.4th 650, 657–58 (7th Cir. 2021). Further, the
statistics do not permit an inference of disparate impact on Jordan because the
demographic and disciplinary data do not cover the same time frame and the data
predated Jordan’s discharge. See Alston, 853 F.3d at 907. Thus, the district court rightly
entered summary judgment on Jordan’s claims.
We turn now to Chapman and Nelson. Recall that they went to trial on their
claim that the department retaliated against them for filing discrimination charges.
Before trial, the department filed motions in limine. It sought to exclude evidence about

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dismissed claims, settlement negotiations, and other proceedings. The court reserved
ruling and invited the parties to make relevant objections at trial. The department also
sought to bar the plaintiffs from calling as a witness the Chief Judge of the Circuit
Court, because he was sued only in his official capacity. The parties later stipulated to a
statement for the jury, explaining why the judge was not called.
Because the officers seek review of a judgment upon a jury verdict for the
department, we recount the facts from the trial in the light most favorable to that
verdict. Matthews v. Wis. Energy Corp., 642 F.3d 565, 567 (7th Cir. 2011). For about ten
years, Nelson and Chapman taught juvenile probationers in one of the department’s
education programs. Over the years, attendance in the program dropped significantly,
and in November 2015, the department eliminated Nelson and Chapman’s roles during
a restructuring. As a result of the restructuring, the department transferred Chapman
and Nelson into the roles of field probation officers. The department assigned them to
these positions using a random lottery, rather than the department’s typical seniority
bidding system. Their pay remained unchanged, but Chapman and Nelson considered
their new positions a demotion, and they yielded more stress and required more work.
Both officers attributed their transfer to retaliation for having filed charges of race
discrimination with the Equal Employment Opportunity Commission over a year
earlier. After the trial, the jury found in favor of the department. Chapman and Nelson
did not file any post-verdict motions.
On appeal, Chapman and Nelson first argue that the district court erred in ruling
on the motions in limine. To prevail on this argument, the officers must identify the
rulings, explain how the court abused its discretion, and demonstrate that any error
prejudiced their substantial rights. Stegall v. Saul, 943 F.3d 1124, 1128 (7th Cir. 2019).
Although the absence of a post-trial verdict motion does not preclude them from
attacking the district court’s pretrial and trial rulings, see Fuesting v. Zimmer, Inc.,
448 F.3d 936, 939–41 (7th Cir. 2006), their briefs do not develop a legal argument or
analysis that responds to any pretrial or trial rulings, as our appellate rules require.
See FED. R. A PP. P. 28(a)(8). These arguments are thus forfeited. Hicks v. Avery Drei, LLC,
654 F.3d 739, 744 (7th Cir. 2011). Further, because we “discern neither extraordinary
circumstances nor a risk of miscarried justice,” we do not conduct a full plain-error
analysis of these rulings. Id.
Next, Chapman and Nelson argue that a new trial is warranted because, in their
view, the district judge was biased. At trial, the judge said that she was “getting slightly
frustrated” during Chapman’s cross examination, and the judge disagreed with the

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officers’ attorney over the relevance of some questions. But a judge’s “ordinary efforts
at courtroom administration,” such as ruling on the relevance of evidence, and remarks
that are “critical or disapproving of, or even hostile to counsel, the parties, or their
cases,” do not by themselves show bias. United States v. Barr, 960 F.3d 906, 920 (7th Cir.
2020) (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)).
Chapman and Nelson also contend that the jury’s verdict is against the weight of
the evidence. (They present this argument in a motion they filed after the department
filed its brief; we construe the motion as the officers’ reply brief.) But we cannot reach
this issue because the appellants did not preserve this argument by filing a post-trial
motion under Rule 50 of the Federal Rules of Civil Procedure. See Collins v. Lochard,
792 F.3d 828, 831 (7th Cir. 2015). Without such a post-trial motion, which gives the
district court the necessary opportunity to review the asserted concerns, we may not
review an appellate contention that the evidence at trial was insufficient to support the
verdict. Dupree v. Younger, 598 U.S. 729, 734–35 (2023).
Finally, Chapman and Nelson contend that the conduct of their lawyer and the
jury entitle them to a new trial. They argue their own attorney ineffectively represented
them because he prepared for trial at the last minute and antagonized the judge by
pursuing a misguided line of questioning. But we do not overturn civil jury verdicts
based on ineffective assistance of counsel at trial. Stanciel v. Gramley, 267 F.3d 575, 581
(7th Cir. 2001). Chapman and Nelson also argue that the jury “rushed” to judgment
after one juror tested positive for COVID and was dismissed before closing arguments.
But the court ensured that the remaining jurors were comfortable finishing the trial.
Nothing in the record suggests that the judge improperly allowed the trial to continue
after the jurors gave this reassurance and, after the dismissal of the one juror, at least six
remained. See FED. R. C IV. P. 48(a).
AFFIRMED

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