Daniel Dove v. Indiana Department of Correction

promotions within IDOC at both Pendleton and another facility, Chain O'Lakes. The Department declined to promote him and instead promoted other longer-tenured employees deemed better-qualified to supervise correctional officers. Dove—who is white—complained to Department leadership that these promotion decisions were driven by racial discrimination against him as a white person. Dove ultimately spent over six months in IDOC's temporary housing without securing his own housing in Indiana. After repeated reminders that the Department housing had been offered to him only on a short-term and temporary basis, IDOC asked Dove to move out. He did. But two weeks later, he resigned, citing the long commute from Michigan and unpleasant work environment in the prison's restrictive housing unit (the "A-Unit"). He then sued IDOC under Title VII of the Civil Rights Act of 1964, claiming the Department discriminated against him as a white person, constructively discharged him, and retaliated against him for raising complaints of race-based discrimination. The district court granted summary judgment to IDOC on all three claims, and we affirm.

The district court's grant of summary judgment to IDOC is reviewed de novo. Fuller

v. McDonough, 84 F.4th 686, 690 (7th Cir. 2023). We construe all facts and draw all justifiable inferences in the light most favorable to Dove. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). We affirm summary judgment where, as here, "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).

Dove contends that IDOC violated Title VII because it discriminated against him based on his race when it did not promote him from correctional officer trainee to sergeant within his first few months in the Department. Title VII protects employees against unlawful employment practices, including an employer's race-based discrimination. 42 U.S.C. § 2000e-2(a)(1).

To defeat IDOC's motion for summary judgment on his employment

discrimination claim, Dove must present evidence that "would permit a reasonable fact- finder to conclude that [Dove] was subjected to an adverse employment action based on"

his race. McCurry v. Kenco Logistics Servs., LLC, 942 F.3d 783, 788 (7th Cir. 2019) (citing Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016)). We evaluate the evidence holistically. Ortiz, 834 F.3d at 766. On his failure-to-promote claim, Dove proceeds under the McDonnell Douglas framework, which at the initial step requires him to show: (1) he is a member of a protected class; (2) he was qualified for the position; (3) he was rejected for the position; and (4) the position was given to a person outside the protected class

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who was similarly or less qualified than Dove. Logan v. City of Chicago, 4 F.4th 529, 536 (7th Cir. 2021). "If the plaintiff was not qualified for any reason, then [he] falls short of establishing a prima facie case and there is no inference of discrimination." Pafford v. Herman, 148 F.3d 658, 669 (7th Cir. 1998) (citation omitted).

The parties agree that Dove meets elements (1) and (3). We conclude his claim fails at elements (2) and (4). Dove sought the job of supervisor before he had experience performing the job he would be expected to supervise. Nothing in the record suggests that IDOC promotes anyone, regardless of race, who lacks such experience. Because Dove was not qualified for the promotion to sergeant and because he identifies no non-white employees who were promoted with similar or lower qualifications, no reasonable juror could conclude that Dove was denied a promotion because he is white.¹ First, as to whether Dove was qualified: When Dove applied to be promoted to sergeant, he had been with IDOC as a correctional officer trainee for less than four months, and he had never responded to a medical or assault call in a non-training setting. Nor had Dove ever worked in a correctional setting before taking the job. Dove's lack of Department-specific experience alone justifies IDOC's determination that he lacked the qualifications for promotion to a role that would require him to supervise other correctional officers. "[C]ourts do not sit as super personnel departments, second- guessing an employer's facially legitimate business decisions." Ajayi v. Aramark Bus. Servs., Inc., 336 F.3d 520, 532 (7th Cir. 2003) (citation omitted). Dove posits that a reasonable jury could view his active-duty military experience and deployment to Iraq as sufficient qualifications for a correctional sergeant position. We agree that Dove's military service could certainly prove useful in his performance as a correctional officer. But on this record, given Dove's minimal experience in a correctional setting, insufficient familiarity with Department policy, and short time on the job in a trainee role, no reasonable juror could conclude that he was qualified to

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supervise other correctional officers at the time he applied. Moreover, the record shows that when IDOC interviewed Dove for a sergeant position, the Department evaluated his performance as poor. For a reasonable juror, that assessment would further support the Department's decision not to promote Dove to the rank he sought. Second, as to the qualifications of those who were promoted: The sergeant promotions that Dove applied for went to Christopher Wilson (white); Marcus Cole (African American); and Adriana Jacho (Hispanic). Wilson is irrelevant here because he and Dove are both white; with Title VII discrimination claims, we compare the plaintiff to similarly situated employees outside of the plaintiff's protected class. Ineichen v. Ameritech, 410 F.3d 956, 961 (7th Cir. 2005). And Dove presented no evidence on Cole's qualifications, though the record shows he was a correctional officer (not a trainee, as Dove was) at the time of his promotion.

Dove focuses his appellate arguments on Jacho, but the undisputed facts show that she was more qualified than Dove, supplying a legitimate explanation for her promotion. When Jacho was promoted, she had 18 months of service with IDOC, was detailed to certain specialized units in the Department, and had participated in IDOC-specific firearms training. The record shows the Department promoted Jacho based on her interview performance, her leadership role within her unit, and documented leadership qualities. The warden testified that in comparison with Jacho, Dove's six-month tenure with IDOC was insufficient to familiarize him adequately with the many procedures, rules, and statutes governing correctional officers—materials that supervisors must understand well. Dove contends in an affidavit that Jacho told him that she performed poorly in the interview and believed she was promoted because of her race. But the record contains no evidence that decision-makers who promoted Jacho shared that assessment of her performance. Simply put, undisputed facts show that Jacho had more IDOC-specific qualifications than Dove, a legitimate, non-discriminatory basis justifying her promotion over his.

Because Dove fails to establish his prima facie case under the McDonnell Douglas framework, we proceed no further. We do not question IDOC's "legitimate, nondiscriminatory reason for the adverse employment action." Lewis v. Indiana Wesleyan University, 36 F.4th 755, 760 (7th Cir. 2022). Nor need we consider whether these reasons were pretextual. Id.

Dove's second claim is that IDOC constructively discharged him because of his race. To demonstrate constructive discharge, a plaintiff must show that he was forced to resign because his working conditions would be unbearable to a reasonable employee.

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EEOC v. University of Chicago Hospitals, 276 F.3d 326, 331-32 (7th Cir. 2002). One way a plaintiff can do so is to show he resigned due to discriminatory—here, race-based— harassment. Id. Dove advances this theory on appeal, requiring him to "demonstrate a discriminatory work environment even more egregious than the high standard for hostile work environment." Fischer v. Avanade, Inc., 519 F.3d 393, 409 (7th Cir. 2008) (cleaned up). The district court noted Dove's failure at summary judgment to address the necessary element of whether the alleged constructive discharge was caused by his race.² Ortiz, 834 F.3d at 765. It set aside that failure and nonetheless proceeded to dispose of the claims on the merits. We decline to do the same. We have repeatedly stressed that

"perfunctory and undeveloped arguments, as well as arguments that are unsupported by pertinent authority, are waived." Rock Hemp Corp. v. Dunn, 51 F.4th 693, 704 (7th Cir. 2022) (quoting White v. United States, 8 F.4th 547, 552 (7th Cir. 2021)). "A party waives any argument that it does not raise before the district court." Williams v. REP Corp., 302 F.3d 660, 666 (7th Cir. 2002) (quoting Hojnacki v. Klein-Acosta, 285 F.3d 544, 549 (7th Cir. 2002)). Dove's failure to develop any argument before the district court that his racial identity caused his alleged discharge—a required element of this claim—results in waiver we will not excuse on appeal.

Dove's third claim is that IDOC retaliated against him for submitting complaints of race-based discrimination. Title VII's anti-retaliation provision proscribes discrimination against an employee who has "opposed any practice" prohibited by Title

VII. 42 U.S.C. § 2000e-3(a). To overcome summary judgment on his Title VII retaliation claim, Dove "must produce evidence from which a reasonable jury could find that: (1) he engaged in a statutorily protected activity; (2) he suffered an adverse employment action; and (3) there was a causal link between the protected activity and the adverse action."

Galvan v. Indiana, 117 F.4th 935, 946 (7th Cir. 2024) (citation omitted). All agree that Dove's submitting racial-discrimination complaints was statutorily protected activity. We focus on the adverse-employment-action and causation elements, and we conclude that Dove cannot meet either.

In considering an adverse action for purposes of a Title VII retaliation claim, "the harm threshold is higher than that of direct discrimination claims." Estate of Harris v. City of Milwaukee, 141 F.4th 858, 869 (7th Cir. 2025). An adverse action in this context must be

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"materially adverse, meaning that it causes significant harm" that would dissuade a reasonable worker from making or supporting a charge of discrimination. Id. (citations omitted).

Here, Dove identifies the following purportedly adverse actions: (1) his transfer to A-Unit; (2) the warden's refusal to transfer him to another facility closer to Michigan; (3) the Chain O'Lakes facility's denial of his transfer; (4) IDOC revoking his temporary housing; and (5) his constructive discharge. But none of these episodes are adverse actions sufficient to support a Title VII retaliation claim.

First, Dove's posting in A-Unit, unpleasant as it may have been, was part of his job duties and thus not an adverse action. Wince v. CBRE, Inc., 66 F.4th 1033, 1042 (7th Cir. 2023). It's not atypical for an employer to place entry-level employees with short tenure in less-desired postings. That this assignment made Dove unhappy is insufficient to make it an adverse action within Title VII's meaning. Poullard v. McDonald, 829 F.3d 844, 857 (7th Cir. 2016). And there is no evidence in the record to suggest Dove was ever forced to work in A-Unit for a longer period or under worse conditions than other similarly situated employees. Moreover, to the extent Dove sought to supervise other correctional officers, he would surely have needed experience in one of their toughest assignments. Second, the record (including Dove's own testimony) shows that the warden and others offered to assist Dove in transferring to a different facility, which he acknowledged in his resignation email. Moreover, that offer was always contingent on the existence of an open position at a different facility and Dove's successful application; there is no evidence that the Department thwarted any transfer attempt by Dove that would have otherwise succeeded.

Third, Dove argues that the Chain O'Lakes facility denied him a transfer after he complained. But he offers no evidence that facility had an open position for which he was qualified.

Fourth, Dove accepted the position with IDOC with full knowledge that IDOC's housing was temporary and that he needed to secure his own living arrangements as soon as possible. IDOC never agreed to give Dove permanent housing as a term of his employment. "[T]he denial of a … perk, such as a bonus or reimbursement of certain expenses, does not constitute an adverse employment action if it is wholly within the employer's discretion to grant or deny and is not a component of the employee's salary."

Tyler v. Ispat Inland Inc., 245 F.3d 969, 972 (7th Cir. 2001). Dove stayed in IDOC housing for nearly seven months and was reminded on several occasions that he needed to secure

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permanent housing. IDOC communicated with Dove about finding permanent housing long before he first complained about discrimination.

Fifth, Dove's contention that he was forced out of his job and constructively discharged is not supported by the record. The difficulty he faced was of his own making, not IDOC's: He sought employment out of state, and had an unsustainable commute due to his own choice to commute more than three hours after failing to secure local housing. He fails to cite any severe race-based harassment—as is required to show constructive discharge—that he faced in retaliation for his complaints.

As to causation, Dove needed to offer evidence that a retaliatory motive was a

"but-for cause of the challenged employment action." Lesiv v. Illinois Central R.R., 39 F.4th 903, 915 (7th Cir. 2022) (citation omitted). "This requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer." University of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360

(2013).

Here, as previewed above, Dove fails to make the requisite showing of causation. For the housing-related theories, Dove was told both before and after he complained of discrimination that IDOC housing was available to him only temporarily and he needed to secure his own accommodations. Regardless of whether Dove complained, IDOC would have required him to move out of the temporary housing eventually. Jokich v. Rush University Med. Ctr., 42 F.4th 626, 634 (7th Cir. 2022) ("[A]ny inference of causation supported by temporal proximity may be negated by circumstances providing an alternative explanation for the challenged action.").

Dove also fails to show causation on his desire to transfer facilities: There is no evidence that anyone at Chain O'Lakes even knew of Dove's complaints, much less denied him a transfer because of his claims of discrimination. "Knowledge of the protected activity is necessary to show causation for a retaliation claim." Lesiv, 39 F.4th at 915. Nor is there any evidence Dove's warden or any other decision-maker meddled with his attempts to transfer; rather, Dove himself acknowledged his supervisors offered to assist him in transferring facilities.

AFFIRMED

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