author: BAUER, Circuit Judge.

text:
    Germill D. MURDOCK, Petitioner-Appellant, v. Stephanie DORETHY, Respondent-Appellee.
    No. 15-1660
    United States Court of Appeals, Seventh Circuit.
    Argued November 3, 2016
    Decided January 3, 2017

      Tyler Johannes, Attorney, Winston & Strawn LLP, Chicago, IL, for Petitioner-Appellant.
    Matthew P. Becker, Attorney, Office of the Attorney General, Chicago, IL, for Respondent-Appellee.
    Before BAUER, MANTON, and HAMILTON, Circuit Judges.
   BAUER, Circuit Judge.

In 2003, Petitioner Germill Murdock was convicted in Illinois state court of first degree murder and aggravated battery with a firearm. In the context of his post-conviction claim of ineffective assistance of counsel, a suppression hearing was held to determine whether statements Petitioner made to the police were voluntary, given that Petitioner was 16 years old and gave the statements without an attorney or other adult present. The trial court held that his statements were voluntary and denied the motion to suppress. Both the Illinois Appellate Court and the Illinois Supreme Court affirmed that judgment. Petitioner then filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. The district court denied the petition, finding that the Illinois Supreme Court’s decision was not unreasonable. We affirm.

I. BACKGROUND

In October 2001, Petitioner was charged with first degree murder, aggravated battery with a firearm, and aggravated discharge of a firearm for his role in the death of Eric Eppinger and the wounding of Sam Clark, Jr. After two mistrials due to deadlocked juries, a third jury convicted Petitioner of the murder and aggravated battery charges.

A. Trial and Petitioner’s Statements to Police

The evidence presented by the state established that on September 4, 2001, Petitioner drove Shereaf Fleming and Cortez Trapps to a park in Peoria, Illinois, where Fleming and Trapps shot and killed Ep-pinger and wounded Clark. The principal issue was whether Petitioner knew about or was a part of Fleming’s and Trapps’ plan to shoot Eppinger when he agreed to drive them to the park.

Detective Michael Mushinsky of the Peoria Police Department gave the following testimony at trial: Approximately two weeks after the shooting, Petitioner, who was 16 years old, was involved in a traffic stop. Upon learning his identity, the officers brought him to the police station to question him about the shooting. When they arrived at the station, Mushinsky informed Petitioner that he was investigating Eppinger’s murder and advised Petitioner of his Miranda rights. Petitioner stated that he understood his rights and agreed to speak with Mushinsky.

Mushinsky told Petitioner what he knew about the case and asked Petitioner to tell him exactly what happened. Petitioner said that Trapps and Fleming told him that Eppinger was at Logan Park and that they wanted Petitioner to drive them there because they were going to shoot Eppinger. Petitioner told them he did not want to drive them, but he did so anyway. As they approached Logan Park, they saw Eppinger’s car, and Fleming told Petitioner to park in a nearby alley. After Petitioner parked, Trapps and Fleming pulled their shirts over their faces, pulled out guns, and walked in the direction of Eppinger’s car. After a minute, Petitioner heard gunshots and saw Trapps and Fleming running back to the van. Trapps and Fleming got back in the van and told Petitioner to drive away. As they drove, Trapps said he had killed Eppinger.

After the initial interview with Mushin-sky, Petitioner gave a written statement, which provided essentially the same information that Petitioner had told Mushinsky. Petitioner wrote that he initially told Trapps and Fleming not to “go after” Ep-pinger, but that he drove them anyway. The written statement was entered into evidence at trial.

After providing the statement, Petitioner signed a video release form and agreed to give a videotaped statement, which was also entered into evidence and played for the jury. Mushinsky testified that he read Petitioner his Miranda rights again before recording the statement. On the recording, Mushinsky read Petitioner his Miranda rights once more and Petitioner stated that he understood and waived his rights. Petitioner stated that he was answering Mushinsky’s questions voluntarily. He agreed that he had not been struck, abused, or threatened by anyone to obtain his statement and that no officer had made him any promises of immunity or leniency. He also stated that he had been allowed to go to the bathroom, eat, and drink if he needed.

The recorded statement differed slightly from the written statement. On the recording, Petitioner said that when Trapps and Fleming asked him to drive them, they told him to “come on” and “not to worry about” where they were going. As they drove, Fleming stated that he knew that Eppinger was at Logan Park. As they approached the park and saw Eppinger parked in his car, Fleming said “we fixing to get him.” Petitioner stated that prior to arriving at the park, neither Fleming nor Trapps said anything about shooting Ep-pinger. He stated that he saw the guns for the first time when he parked in the alley. Petitioner suspected that Trapps and Fleming brought the guns into the van without his knowledge by hiding them under their shirts. Petitioner recounted the rest of the events as he had in the written statement.

Petitioner did not testify at trial. The jury convicted him of first degree murder and aggravated battery with a firearm. He was sentenced to consecutive terms of 24 years for the murder and eight years for the aggravated battery.

B. Postconviction Proceedings

Petitioner filed a direct appeal arguing that his trial counsel was ineffective for failing to file a motion to suppress his statements to police as involuntary. In an unpublished opinion, the Illinois Appellate Court affirmed his conviction and advised that his ineffective assistance claim was better suited for postconviction proceedings.

Petitioner filed a pro se postconviction petition in the circuit court on May 24, 2005. He again claimed that his statements were involuntary and should have been suppressed, noting that there was no juvenile officer present and that he was not given the opportunity to speak with a guardian or concerned adult. The circuit court appointed counsel and held an evi-dentiary hearing on May 4,2007.

At the hearing, Petitioner’s grandmother, Dottie Robinson, testified that Petitioner was living with her at the time of his arrest in 2001. She testified that Petitioner called her and told her to come to the police station on the day he gave the statements to Mushinsky. When she arrived at the station, she told the receptionist that she wanted to see Petitioner. She was told to wait and sometime later, a detective came out and told her that he was questioning Petitioner. She asked again, but was not allowed to see Petitioner. On cross-examination, she admitted that she was not Petitioner’s legal guardian. She also expressed uncertainty as to whom she spoke with at the police station. Petitioner testified that upon arriving at the police station, he asked to call his grandmother and Mushinsky said no. Petitioner testified that he was not allowed to make a phone call. Mushinsky testified that Petitioner never asked to speak with his grandmother and that Mushinsky never saw or spoke with Petitioner’s grandmother. The circuit court denied the postconviction petition, finding that Petitioner could not have prevailed on a motion to suppress the statements.

The appellate court reversed. It held that, based on the totality of the circumstances, there was a reasonable probability that Petitioner would have succeeded in quashing the statements. It remanded to the circuit court with instructions to conduct a complete suppression hearing.

The suppression hearing was held on January 21, 2010. The state’s only witness was Mushinsky. Mushinsky testified that he first encountered Petitioner on September 21, 2001, during the traffic stop. Prior to that time, Mushinsky had interviewed other witnesses and had probable cause to believe that Petitioner was involved in the shooting at Logan Park. He testified that hé and another officer brought Petitioner to the police station and had him wait in an interview room. Petitioner was not handcuffed, but was not free to leave. Mushin-sky asked Petitioner if he wanted anything to eat or drink, but Petitioner declined. 'He read Petitioner the Miranda warnings from a printed card, and Petitioner said he understood and agreed to speak with Mushinsky.

Mushinsky testified that he called Petitioner’s grandfather to inform him that Petitioner was at the station. Mushinsky stated that Petitioner’s grandfather came to the station, but never asked to speak with Petitioner. Mushinsky said that Petitioner never asked to see or speak to either of his grandparents, never asked to see an attorney, and did not refuse to speak with Mushinsky at any point during the interview. Mushinsky testified that he did not make any promises to Petitioner, nor did he threaten or coerce him in any way. He gave Petitioner a Miranda waiver form before the video interview, read it to him, and Petitioner signed it. According to Mushinsky, Petitioner never seemed to be in distress. ■

On cross-examination, Mushinsky said that if Petitioner had asked, he would have been allowed to see a parent or guardian. He stated that, during the interview, he was acting as both the investigating officer and the juvenile officer. Mushinsky denied that he told Petitioner he would not be charged if he gave up the “trigger man.”

Petitioner testified that he was handcuffed during the traffic stop and taken to the police station. He stated that Mushin-sky began to ask him about the shooting without first reading his Miranda rights. He testified that Mushinsky told him that if he gave up the “trigger man,” he would be allowed to go home. Petitioner stated that he made requests to see a parent or guardian to both Mushinsky and another officer at the station. He agreed that Mushinsky read the Miranda warnings before the video statement, but said that he did not fully understand them. Petitioner testified that he felt tired and scared while making the video statement.

On January 28, 2010, the circuit court denied the motion to suppress in an oral ruling. The court held that, although he was a juvenile, Petitioner “had the mental capacity to understand his situation, [the] proceedings, his rights, and to make a voluntary decisions and statements.” The court found that the officers did not threaten or coerce the Petitioner and that his testimony that he was scared was belied by his demeanor in the video. The court was concerned by the fact that an adult was not present for the interview, but also noted that there was no evidence that Petitioner’s grandfather requested to see Petitioner and was denied that opportunity. The court held, based on the totality of the circumstances, that Petitioner’s statements were voluntary.

The appellate court affirmed, holding that the circuit court’s findings were not against the manifest weight of the evidence. The Illinois Supreme Court granted leave to appeal and also affirmed, with three justices dissenting. The Illinois Supreme Court first made clear that it was reviewing only the evidence from the suppression hearing held on January 21, 2010, declining Petitioner’s request to consider his grandmother’s testimony from the 2007 evidentiary hearing. The Illinois Supreme Court relied on the circuit court’s factual findings, agreeing that Mushinsky was more credible than Petitioner. The court considered Petitioner’s age and the absence of a parent or attorney, but found that “the absence of a concerned adult did not create a coercive atmosphere so as to render [Petitioner’s] statements involuntary.” The court noted that Petitioner seemed to understand and waive his Miranda rights; that he was not threatened or coerced; that he was given access to food, drink, and restrooms; and that he did not appear to be under distress. The court held, based on the totality of the circumstances, that Petitioner “made his statements freely and voluntarily and absent any compulsion of inducement.”

Petitioner then filed a petition in federal court seeking relief under 28 U.S.C. § 2254. The district court denied the petition. It held that the Illinois Supreme Court’s decision that his statements were voluntary was not unreasonable. This appeal followed.

II. DISCUSSION

We review a district court’s denial of a habeas petition de novo. Gonzales v. Mize, 565 F.3d 373, 379 (7th Cir. 2009) (citation omitted). Where a state court has adjudicated a habeas petitioner’s claim “on the merits,” the Antiterrorism and Effective Death Penalty Act (AEDPA) limits the circumstances under which a federal court can grant a habeas petition. See 28 U.S.C. § 2254(d).

As an initial matter, Petitioner argues that the AEDPA does not apply here because his core claim was not “adjudicated on the merits” by the Illinois Supreme Court. Petitioner’s postconviction ineffective assistance claim was denied by the circuit court after the evidentiary hearing in May 2007. On appeal, the case was remanded for a full suppression hearing without directly addressing the ineffective assistance claim under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Because what followed was an appeal from the circuit court’s denial of the motion to suppress on remand, Petitioner now argues that the Illinois Supreme Court did not adjudicate his Strickland claim “on the merits,” and therefore, the AEDPA does not apply.

We disagree. Petitioner’s ineffective assistance claim was premised on his counsel’s failure to file a motion to suppress his statements prior to his trial. Under Strickland’s two-pronged analysis, a defendant must first show that his counsel’s performance was deficient. Id. at 687, 104 S.Ct. 2052. Then, the defendant must show that, but for counsel’s failure, the result of the proceeding would have been different. Id. at 694, 104 S.Ct. 2052. In this case, the second prong requires a determination of whether Petitioner would succeed on a motion to suppress his statements .as involuntary. That is precisely the question that the circuit court answered—and that the Illinois Supreme Court reviewed—after the January 21, 2010 suppression hearing. Therefore, regardless of whether the Illinois courts analyzed his claim explicitly under the Strickland framework or as a standalone suppression issue, Petitioner’s claim has been “adjudicated on the merits” and AEDPA deference applies.

.Where, as here, a state court adjudicates a prisoner’s claim for postconviction relief, the AEDPA mandates that a federal court may grant a habeas petition only if the state court decision was “contrary to, or involved an unreasonable application of, clearly established Federal.law, as determined by the Supreme Court of the United States;” or if it “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court.proceeding.” 28 U.S.C. § 2254(d). We apply these standards to the decision of the Illinois Supreme Court as that was the last state court that substantively adjudicated Petitioner’s claim. Gonzales, 565 F.3d at 379.

We must first -set forth the “clearly established Federal law” at issue. The voluntariness of a confession is determined by analyzing “the totality of all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation.” Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). “Special caution” is required when evaluating a confession made by a juvenile. In re Gault, 387 U.S. 1, 45, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). “In juvenile cases, the totality approach requires an ‘evaluation of the juvenile’s age, experience, education, background, and intelligence’ as well as the circumstances regarding the confession.” Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002) (quoting Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979)). Those circumstances include the length of the interrogation and whether the juvenile had a parent, lawyer, or other adult present. Etherly v. Davis, 619 F.3d 654, 661 (7th Cir. 2010) (citation omitted); see also Gallegos v. Colorado, 370 U.S. 49, 55, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962). The voluntariness determination, though, does not turn on the presence or absence of a single factor, but instead requires “careful scrutiny of all the surrounding circumstances.” Schneckloth, 412 U.S. at 226, 93 S.Ct. 2041; see also Hardaway, 302 F.3d at 766 (“[T]he mere fact that [petitioner] was 14 and questioned without an adult present does not by itself render his confession involuntary, but it does require that a court conduct a searching review of the facts....”).

We find, and Petitioner does not dispute, that the Illinois Supreme Court applied the correct governing law to determine whether Petitioner’s statements were voluntary. Thus, Petitioner’s main argument on appeal is that the Illinois Supreme Court unreasonably applied that governing law. Under the AEDPA, “an unreasonable application of federal law is different from an incorrect application of federal law.” Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). “A state court decision must be more than incorrect from the point of view of the federal court....” Hardaway, 302 F.3d at 762. It must also be unreasonable, “which means something like lying well outside the boundaries of permissible differences of opinion.” Id. (citing Williams, 529 U.S. at 411, 120 S.Ct. 1495). “If this standard is difficult to meet, that is because it was meant to be.” Harrington v. Richter, 562 U.S. 86, 102, 181 S.Ct. 770, 178 L.Ed.2d 624 (2011),

In support of his argument, Petitioner attempts to analogize the facts of his case to cases in which this Court and the Supreme Court of the United States found the confessions of juveniles to be involuntary. Specifically, Petitioner points to Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948), Gallegos v. Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962), and A.M. v. Butler, 360 F.3d 787 (7th Cir. 2004).

In Haley, a 15-year-old confessed to a murder after he was questioned by police from midnight until 5:00 a.m., without an attorney or other adult present, and without being advised of his right to counsel. 332 U.S. at 598, 68 S.Ct. 302. In Gallegos, a 14-year-old confessed to an assault and robbery after being held in a juvenile facility for five days, during which time he did not see a lawyer or other “friendly adult.” 370 U.S. at 49-50, 82 S.Ct. 1209. In Butler, a 10-year-old boy confessed to murdering his neighbor after he was interrogated multiple times without his mother or another friendly adult present. 360 F.3d at 792-94. In all three cases, the courts evaluated the totality of the surrounding circumstances and determined that the confessions were involuntary. See Gallegos, 370 U.S. at 55, 82 S.Ct. 1209 (citing the factors that weighed in favor of involuntariness); Haley, 332 U.S. at 600-601, 68 S.Ct. 302 (same); Butler, 360 F.3d at 800-801 (same).

Petitioner argues that, based on the analysis and outcome of these three cases, the Illinois Supreme Court reached the wrong outcome in his case. Under the AEDPA, however, that is not the relevant inquiry. See Williams, 529 U.S. at 410, 120 S.Ct. 1495 (Under the AEDPA, “an unreasonable application of federal law is different from an incorrect application of federal law”). The fact that some of the factors cited by the Haley, Gallegos, and Butler decisions may also have been present in this case does not mean that the Illinois Supreme Court was bound to come to the same conclusion. A different conclusion in light of similar facts does not render the Illinois Supreme Court’s application of the law unreasonable. See Etherly, 619 F.3d at 662 (citation omitted) (“How much weight to assign each, factor on facts similar to those in [Petitioner’s] case may differ from court to court, and reasonable jurists may certainly disagree.”).

What is important is that the court applied the correct test in a reasonable manner. The court clearly considered, and afforded some weight, to Petitioner’s age, as well as the fact that he did hot have an attorney or other adult present when he gave his statements. It also found, however, that Petitioner was able to understand and provide an adequate waiver of his rights. Mushinsky read him those rights, and ' Petitioner waived them, multiple times. The Court considered the fact that Petitioner was detained for approximately seven hours on the day he gave his statements. However, it also noted that the interview lasted only three hours and that Petitioner was given the opportunity to eat and use the restroom throughout his detention. There was no evidence that the officers threatened Petitioner or otherwise created a coercive environment. The court found that Petitioner did not appear to be under distress or-frightened on the video recording. Though Petitioner’s grandfather was present at the police station, he never requested to speak with Petitioner. Despite the absence of a concerned adult, the court found that the totality of the circumstances indicated that Petitioner gave his statements voluntarily.

The Illinois Supreme Court correctly applied the totality-of-the-eircumstances test and considered the appropriate factors. No one factor is determinative in this analysis, Schneckloth, 412 U.S. at 226, 93 S.Ct. 2041, and reasonable minds can differ on the results of such a balancing test. Etherly, 619 F.3d at 662. In our view, the court’s application of the totality of the circumstances test was not unreasonable because it does not lie “well outside the boundaries of permissible differences of opinion.” Hardaway, 302 F.3d at 762.

Finally, we address Petitioner’s argument that the Illinois Supreme Court based its decision on an unreasonable, determination of the facts, an argument that requires little analysis. Petitioner argues that the court improperly relied on his demeanor as it appears on the video recording to make findings about his condition throughout the entire interview. This is simply not true. The portions of the Illinois Supreme Court’s decision that Petitioner cites in support of this argument clearly indicate that the court was discussing Petitioner’s demeanor only during the period of time that was recorded. The court did find that Petitioner was “in good physical condition during his detention and interview,” but it made clear that this finding was based on both the videotape and the testimony from the suppression hearing. It is also true that the court gave considerable weight to the video recording in its overall balancing of factors. However, as we have demonstrated, we cannot quarrel with that balancing, given that it was not unreasonable under the AEDPA’s standards. Therefore, we do not find the court’s factual determinations based on the video to be unreasonable.

Petitioner has failed to .demonstrate that the decision of the Illinois Supreme Court involved an unreasonable application of clearly established federal law or an unreasonable determination of the facts. Therefore, under the AEDPA’s deferential standard of review, we are compelled to accept the decision of the Illinois Supreme Court.

III. CONCLUSION

For the foregoing reasons, the judgment of the district court is AFFIRMED.

      . Petitioner’s trial, the 2007 evidentiary hearing, and the 2010 suppression hearing were held in front of three different judges. Petitioner's grandmother did not testify at the 2010 hearing, and the presiding judge was not otherwise made aware of her previous testimony.

      . We note here that Petitioner argues that the Illinois Supreme Court erred in declining to consider the testimony of Petitioner's grandmother from the 2007 hearing. We disagree. On his initial appeal from that hearing, Petitioner specifically requested, and received, a new suppression hearing. Petitioner offers no explanation for why his grandmother did not testify again and he does not contend that he w.as prevented in any way from presenting her testimony at the 2010 hearing. Because it was not presented to the fact finder at the 2010 hearing, the Illinois Supreme Court determined it could not consider the testimony in its review on appeal. We find no support, and Petitioner offers none, for finding error in that determination.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jennifer DZIK, Plaintiff-Appellant, v. BAYER CORPORATION, et al., Defendants-Appellees.
    No. 16-1333
    United States Court of Appeals, Seventh Circuit.
    Argued October 5, 2016
    Decided January 13, 2017

      Marvin B. Berke, Attorney, BERKE, BERKE & BERKE, Chattanooga, TN, for Plaintiff-Appellant.
    John Edward Galvin, III, Attorney, FOX GALVIN, St. Louis, MO, Kaspar J. Stoffelmayr, Attorney, BARTLIT, BECK, HERMAN, PALENCHAR & SCOTT LLP, Chicago, IL, for Defendants-Appel-lees.
    Before BAUER, FLAUM, and KANNE, Circuit Judges.
   PER CURIAM.

Jennifer Dzik challenges the dismissal of her personal-injury suit after the law firm she retained (which continues to represent her in this appeal) ignored a legitimate discovery request for more than a year, flouted the requirements of a case-management order, and failed to respond to a motion to dismiss. Given these lapses, we conclude that the district court acted well within its discretion in dismissing the action.

This lawsuit is one of thousands consolidated for pretrial proceedings as part of multidistrict litigation in the Southern District of Illinois. Dzik alleges that she suffered a venous thromboembolism (or “VTE,” a blood clot in a deep vein) because she was using the drug Yasmin, a prescription birth control pill marketed by the defendants, a group of related pharmaceutical companies collectively known as Bayer. But medical records Dzik disclosed during discovery revealed that she last had filled a Yasmin prescription ten months before her injury. When Bayer began probing the ten-month gap, Dzik’s counsel of record (Chattanooga, Tennessee, attorneys Marvin Berke and Megan England) “suggested” that her doctor had provided samples of Yasmin shortly before Dzik suffered the VTE. Bayer then requested additional medical records or even an affidavit from Dzik’s doctor substantiating her use of the drug near the time of her injury.

That was in May 2014, but Dzik’s counsel simply ignored Bayer’s discovery request over the next fifteen months. Meanwhile, Bayer settled many of the other cases in the consolidated litigation, prompting the district court to enter a case-management order in August 2015 to resolve those still pending. That order created two tracks: Section II governed cases in which the parties could agree that further negotiations might prove fruitful, and Section III applied to all other cases. Under Section II, “counsel for any plaintiff who believes additional efforts to settle a particular VTE case may be productive” had sixty days to notify Bayer that the party wished to continue negotiations; Bayer then had thirty days to' respond, and, if the parties were in agreement, the case would be stayed for sixty to ninety days to facilitate settlement. For all other cases—including VTE cases in which settlement efforts had stalled—Bayer was tasked with notifying the plaintiffs counsel within fifty days that her lawsuit was subject to Section III. Absent a timely objection prompting movement of the case to the settlement track, a plaintiff subject to Section III had 120 days to provide Bayer with a Plaintiff Fact Sheet, certain medical and pharmacy records, and a report from an expert addressing whether Yasmin caused the plaintiffs injury. The order also specified that, for any plaintiff who failed to comply, Bayer should promptly move to dismiss with prejudice after the deadlines lapsed. Finally, the order provided for automatic dismissal with prejudice should any plaintiff fail to oppose, within fourteen days, a properly filed motion to dismiss.

' Dzik’s attorneys did not invoke Section II of the case-management order by telling Bayer that settlement talks could be productive. Instead, in September 2015 (seven weeks after entry of the case-management order) Bayer sent an e-mail notifying attorneys Berke and England that Dzik’s case was subject to Section III, which obligated her either to dispute that classification or else comply with the discovery requirements in the case-management order. Berke and England did not respond.

Then on December 18, 2015, Bayer moved to dismiss several dozen cases, including Dzik’s. Dzik failed to respond to that motion within the fourteen days allotted by the case-management order, and on January 11, 2016, the district court entered judgment dismissing her suit with prejudice.

Attorney Berke, who at that point had taken no action in the case for nearly two years, responded to the dismissal by filing—the very next day—a motion to set aside the dismissal. England, his co-counsel of record, is not named in that filing; instead a new lawyer, Charles Flynn, is listed with Berke as counsel. Berke asserted that Bayer had mistakenly treated Dzik’s case as one subject to Section III of the case-management order, even though, the lawyer insisted, she should be in the Section II track to allow for further settlement discussions. Moreover, Berke- continued, his failure to oppose the motion to dismiss should be deemed “excusable ne-gleet” because he had missed seeing Bayer’s motion while traveling to celebrate his fiftieth wedding anniversary. Berke said nothing at all about why he had failed to oppose the Section III designation when Bayer sent its e-mail three months before the motion to dismiss was filed. Neither did he explain why the lawsuit had not been monitored in his absence by England or Flynn (or anyone else at the firm). Bayer opposed Dzik’s effort to reinstate her lawsuit, and the district court denied her motion.

In this appeal the parties address the ruling on Dzik’s postjudgment motion and the underlying dismissal of her lawsuit as if those two decisions present distinct issues, but really they do not. We address that inquiry by evaluating both rulings together, and start by noting that the affidavits submitted by Dzik’s attorneys with their postjudgment motion directly contradict the sworn account provided by Bayer’s counsel. Along with the anniversary-trip excuse, Berke attests in his affidavit: “Attorneys from Affiant’s office have been in contact with liaison counsel within the last 90 days. After these discussions Affiant determined that an additional medical record was needed and has proceeded to try to obtain that.” Flynn (the other attorney whose name appears on the postjudgment motion) likewise attests in his affidavit that “attorneys” from his office had negotiated the case within the previous ninety days, and that he “did not receive” an electronic notice that Bayer’s motion to dismiss had been filed (the second representation undoubtedly is true, since even now Flynn has not entered an appearance in the district court).

An attorney with Shook Hardy & Bacon, Bayer’s settlement counsel, responded with an affidavit recounting that Dzik’s lawyers never responded after Bayer had requested additional medical records or an affidavit from her physician substantiating Dzik’s use of Yasmin. The lawyer gave a precise date in May 2014—nearly two years before the case was dismissed— when communication with Dzik’s lawyers last occurred. Bayer’s lawyer also named the attorney at his firm who had sent Berke the e-mail requesting evidence that Dzik used Yasmin after filling the final prescription. And the lawyer swore that his firm had not received “further communication of any kind from plaintiffs prior to the fifing of their motion for relief from the judgment.” Moreover, Bayer’s lawyer attested that, before submitting his affidavit, he had “reviewed our records and discussed the matter with other attorneys at my firm to confirm my recollection of the history of negotiations.” Berke replied to Bayer’s response but said nothing further in the district court about his sworn representation that his firm’s “attorneys” had communicated with Bayer’s defense team within ninety days of dismissal. Yet at oral argument when we pressed Berke to tell us whether his firm had taken any action in Dzik’s lawsuit in the eighteen months preceding its dismissal, he l’evived his assertion that communications had taken place between the parties’ lawyers, though he did not name any lawyer for either side who supposedly had participated. Instead he told us that there is “no question” that negotiations had taken place within ninety days of dismissal, and he even went so far as to assert that both sides’ affidavits say so. Plainly, the affidavit from Bayer’s lawyer says no such thing.

We are troubled by the degree to which these accounts directly contradict. And though it is possible that Bayer’s lawyer is mistaken, we see no reason to draw that conclusion. For one thing, Berke’s firm presently has only four attorneys (two named Berke, and two named Flynn), so his inability to name the “attorneys” at the firm who purportedly negotiated with Bayer’s lawyer is a red flag. It also seems that, after Megan England (Berke’s original co-counsel) left the firm, Flynn never entered an appearance in the district court. Conversely, Bayer provided the district court with a detailed timeline, including the date and name of the attorney who last communicated with anyone representing Dzik. While we can’t be certain that “attorneys” from Berke’s firm didn’t try to contact Bayer within ninety days of dismissal, the vagueness of the affidavits from plaintiffs counsel and Berke’s misrepresentation at oral argument about the affidavit from Bayer’s lawyer leads us to think it more likely that the case slipped through the cracks, with no attorney (or paralegal or secretary) monitoring it, leaving Berke and Flynn scrambling to salvage what their motion for reconsideration concedes was “neglect” by the firm.

What is more, the affidavits from Dzik’s lawyers say nothing relevant to excuse the inattention that led to the dismissal. Berke and Flynn do not challenge Bayer’s version of events, including that their firm ignored the company’s May 2014 request for evidence that Dzik took Yasmin shortly before her injury. (Indeed, this discovery request never was fulfilled.) Nor have Dzik’s lawyers denied that they failed to comply with the requirements of the case-management order under either Section II (to affirmatively notify Bayer and engage in active negotiations) or under Section III (to provide discovery and expert reports in preparation for trial). Rather, counsel argue that Dzik’s case never should have been placed in the Section III “track” because she alleges a VTE. And, they continue, the district court erred in denying the motion for relief in light of Berke’s contention that his vacation constituted “excusable neglect” exonerating the law firm’s inaction when Bayer moved to dismiss.

Dzik’s argument that her case belonged in Section III rests on a misreading of the district court’s case-management order. Dzik’s lawyers assert that Section II governs all cases alleging VTE injuries and that Section III applies only to lawsuits alleging that Yasmin caused other types of injuries. But nothing in the language of the court’s order could lead to this reading. Both sections of the order govern plaintiffs alleging VTE injuries; the separate “tracks” distinguish between those plaintiffs still in active negotiations and those whose cases should move toward trial because efforts were not fruitful. Dzik’s argument that no case alleging a VTE injury should be subject to dismissal under Section III contradicts the unambiguous language of the order. Berke’s insistence at argument that “all the lawyers” in his office have now read the case-management order but still cannot understand how Dzik’s case “became” subject to Section III is preposterous—the order is crystal clear.

More disturbing is Dzik’s repeated assertion to us that Bayer told the district court that she “did not suffer a VTE despite actual knowledge that she did.” This representation is unfounded. Bayer never told the district court that Dzik “did not endure a VTE,” as her counsel allege. Rather, Bayer correctly represented that Dzik had not complied with the court’s case-management order. Dzik’s counsel had ample opportunity to dispute the “Section III” classification and, indeed, to satisfy Bayer’s request—more than a year earlier—for evidence that Dzik took Yasmin near the time of her injury.

Dzik’s remaining argument fares no better. She contends that her lawyers “acted in good faith towards bringing this case to a resolution” and, for that reason, the dismissal should be set aside even if we conclude that Section III of the case-management order applied. Dzik reasons that, because Berke was out of state when Bayer moved for dismissal, the firm’s failure to respond resulted from surprise or excusable neglect. Dzik’s lawyers—Berke and Flynn—explain that the job of a plaintiffs lawyer “consists of mostly nothing, sprinkled in with the occasional update to the client.” Less should be expected of them, they infer, in contrast with Bayer’s lawyers, who have “lived and breathed these cases.”

This argument is absurd. By focusing on the three weeks during which they ignored Bayer’s motion to dismiss, Berke and Flynn gloss over their failure to do anything to advance Dzik’s case over the previous eighteen months, including not providing discovery. We have explained that “attorney inattentiveness to litigation is not excusable, no matter what the resulting consequences the attorney’s somnolent behavior may have on a litigant.” Harrington v. City of Chicago, 433 F.3d 542, 546 (7th Cir. 2006) (quoting Easley v. Kirmsee, 382 F.3d 693, 698 (7th Cir. 2004)). And counsel have not even suggested that, if the lawsuit had not been dismissed, Dzik could have complied with Bayer’s discovery demand and substantiated their firm’s representation that, despite not filling a Yasmin prescription for nearly a year preceding her injury, Dzik was still taking the drug. Their brief also fails to explain why Flynn (who, presumably, was not vacationing with Berke and his wife) was not watching the case while Berke was away. Furthermore, nearly four months elapsed between Bayer’s e-mail to Dzik’s counsel identifying her case as subject to Section III and the court’s dismissal, yet counsel took no (documented) action during that period.

District courts handling complex, multidistrict litigation “must be given wide latitude with regard to case management” in order to achieve efficiency. In re Asbestos Prods. Liab. Litig. (No. VI), 718 F.3d 236, 243, 246-48 (3rd Cir. 2013); accord In re Guidant Corp. Implantable Defibrillators Prods. Liab. Litig., 496 F.3d 863, 867-68 (8th Cir. 2007); In re Phenylpro-pano-lamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1252-53 (9th Cir. 2006). That discretion extends to dismissing individual suits for noncomplianee with the court’s orders, including discovery orders. In re Guidant Corp., 496 F.3d at 867-68; In re PPA Prods. Liab. Litig., 460 F.3d at 1252-53. Considering that Dzik’s lawyers—in their own words—did “mostly nothing” after filing this lawsuit, the district court did not abuse its discretion by dismissing the case with prejudice.

The judgment of the district court is AFFIRMED.


author: RIPPLE, Circuit Judge.

text:
    Celeste DAVID, Plaintiff-Appellant, v. BOARD OF TRUSTEES OF COMMUNITY COLLEGE DISTRICT NO. 508, doing business as City Colleges of Chicago, Defendant-Appellee.
    No. 15-2132
    United States Court of Appeals, Seventh Circuit.
    Argued January 14, 2016
    Decided January 13, 2017

      Jemelle D. Cunningham, Attorney, Lad Law Group, P.C., Chicago, IL, for Plaintiff-Appellant.
    Valerie Harper, Attorney, City Colleges of Chicago, Chicago, IL, for Defendant-Appellee.
    Before FLAUM and RIPPLE, Circuit Judges, and PETERSON, District Judge.

       Of the Western District of Wisconsin, sitting by designation.

   RIPPLE, Circuit Judge.

Celeste David, an African-American woman over the age of forty, was an employee of the City Colleges of Chicago (“CCC”) from 1980 until 2012. She announced in August 2011 that she planned to retire in June of the following year. After her announcement, she requested a change in title and an increase in salary because she was performing additional responsibilities related to the implementation of a software system; she was not awarded either. Following her retirement, her job duties were performed by Christopher Reyes, an Asian man under the age of forty, who was paid substantially more than Ms. David.

Ms. David subsequently brought this action alleging that she was denied a pay increase on the basis of her race, sex, and age, in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.; Title VII of the Civil Rights Act of 1964, 42 U.S.C, § 2000e et seq.; and the Equal Pay Act, 29 U.S.C, § 206(d). The district court granted summary judgment to CCC. Because we believe that the record, assessed in its entirety, does not contain sufficient evidence to permit a verdict for Ms. David on any of the counts, we now affirm the judgment of- the district court.

I

BACKGROUND

A..

Ms. David began working for CCC in October 1980. She held different positions throughout her career, but her final position at CCC was Manager of End-User Services in CCC’s Office of Information Technology (“OIT”). In that position, Ms. David worked in computer support: she oversaw staff at the help desk and compiled internal reports of student data and external reports of staffing, building, and salary data required by the Illinois Community College Board and the Illinois Board of Higher Education. According to the job description for the Manager of End-User Services position, the qualifications include a “Bachelor’s Degree in Computer Science, Information Science, Computer Information Systems, Data Processing, or an appropriate related field.” The job description also provides, however, that “[a] combination of educational and work experience may be taken into consideration at the discretion of the administration.” Ms. David’s salary at the time of her retirement in 2012 was $75,594.67.

In 2001, “CCC implemented a new web application!,] PeopleSoft[,] for the collection and retention of [CCC’s] educational, personnel, and financial data.” PeopleSoft has several “pillars” directed toward different aspects of school administration: student administration, human resources, and financials. When CCC began implementing the PeopleSoft application, Ms. David “was assigned to handle the security-function of the application,” which “included: acting upon requests to give or remove a CCC employee or student’s access to various levels of the PeopleSoft pillars and creating reports detailing which individuals had what levels of access to the system.” From the time PeopleSoft was implemented in 2001 until October 11, 2011, CCC contracted with a company called Sync Solutions “to provide staff augmentation services to the OIT.” During this time, a Sync Solutions IT consultant, Christopher Reyes, assisted Ms. David with her PeopleSoft security duties.

In 2011, due to the expiration of the contract with Sync Solutions, OIT made an effort to hire internally former Sync Solutions consultants to support PeopleSoft and other key applications. One of those individuals was Reyes. In October 2011, Reyes applied for, and received, the position of “Functional Applications Analyst,” which required a Bachelor’s Degree in a relevant field. In that position, he “was responsible for configuring the PeopleSoft Student Administration pillar” and reported directly to Valerie Davis, District Director of PeopleSoft Student Systems. Initially, Reyes continued to assist Ms. David with her PeopleSoft security duties, specifically generating required reports. Once he had taught Ms. David his methods for performing these tasks, she began performing these functions on her own, and Reyes focused exclusively on the People-Soft student administration application.

On August 1, 2011, prior to CCC’s hiring Reyes, Ms. David had announced her intention to retire on June 30, 2012. Approximately one month later, Ms. David met with Craig Lynch, the Vice Chancellor for OIT, who had the authority to make promotion recommendations to the Chancellor. Ms. David asked Lynch for a new job title and more pay because she was performing additional tasks related to People-Soft security. Lynch told Ms. David to complete a Job Analysis Questionnaire (“JAQ”), a form that CCC employees can fill out to request more pay or a different title. Lynch also said that he would look into her job description and pay level. At some point during the meeting, Lynch inquired of Ms. David, “aren’t you about to retire!?]”

Lynch reviewed Ms. David’s job description and acknowledged that it did not include a description of Ms. David’s Peo-pleSoft security duties. However, he con-eluded that, even if some change should be made in job description or job title, it was a lateral move that did not require additional compensation because the additional duties were “transactional in nature and did not involve analysis, critical thinking [or] problem solving.” Lynch did send an email to CCC’s Executive Director of Compensation and Staffing, Jane Barnes, which stated: “Celeste David is working in a position that is not in alignment with her description.... Does it make sense to re-title her (not sure if she would need additional compensation)? Let me know. I need to update her on what the possibilities are.”

In her deposition, Barnes testified that she does not recall specifically responding to Lynch, but believes that she spoke to him. It is undisputed, however, that she would have been disinclined to seek a raise for Ms. David because giving her a raise over a certain amount would have resulted in a fíne by the State University Retirement System (“SURS”). Moreover, Barnes did not believe that Ms. David’s position should be retitled or that she should receive a raise “because the creation and approval of a new position and salary would take several months, and [Ms. David] was retiring in June 2012.”

As Lynch had instructed, Ms. David filled out a JAQ. The questionnaire never was processed, and Ms. David remained at her same pay level, $75,594.67, and in her position of Manager of End-User Services, until her retirement.

In February 2012, Ms. David filed an internal Equal Employment Opportunity Complaint. On that form, Ms. David claims that she met with Lynch on three different occasions to discuss her pay and title. On each occasion, according to Ms. David, Lynch referenced her impending retirement. CCC’s internal EEO office confirmed receipt of Ms. David’s complaint form on February 3, 2012, but was unable to resolve the complaint before Ms. David retired in June.

When Ms. David retired at the end of June 2012, the PeopleSoft security functions reverted back to Reyes. He did not receive any increase in pay for taking on these additional duties. However, after Reyes’s position was claimed by the union, he received a mandatory pay increase to $85,280 pursuant to the collective bargaining agreement.

Six months after Ms. David retired, Reyes applied for the newly created, nonunion position of Senior Systems Security Analyst. During his interview, he told the committee that he would like to retain his job duties as a Functional Applications Analyst as well. Reyes was hired into the position of Senior Systems Security Analyst on December 10, 2012, with an annual salary of $93,808. “At that time, it was [CCC’s] practice to grant a 10% pay increase to CCC employees who were internally promoted into positions designated in Salary Schedule N (non-Union).”

In April 2013, CCC hired Rosane Rodriguez, a Hispanic female over forty, to the position of Technical Applications Developer with an annual salary of $85,000. Rodriguez has a Bachelor of Science degree in Computer Information Services, which is a requirement of the position. She was hired into that position to develop an “interaction hub portal” and also to assist Reyes with the PeopleSoft security duties.

B.

Ms. David filed a four-count complaint alleging that she had been discriminated against on the basis of her age, gender, and race, in violation of the ADEA, Title VII, and the Equal Pay Act. CCC moved for summary judgment on all counts. Ms. David claimed that Lynch’s comments about her impending retirement, his failure to process her JAQ, and CCC’s slow response to her EEO complaint demonstrated both age discrimination and pretext. She further maintained that Reyes and Rodriguez performed equivalent work but were compensated at a much higher level. The disparities, she maintained, evidenced gender, race, and age discrimination. Finally, she contended that Lynch’s and Barnes’s explanations for failing to accord her a new title or higher pay were unworthy of credence.

The district court ruled in favor of CCC. It turned first to isolating the adverse employment actions of which she complained. It first noted that Ms. David had to establish that she suffered an adverse employment action on the basis of her gender, race, or age, and observed that the only materially adverse actions that Ms. David alleged were unequal pay and failure to reclassify her position. Although Ms. David had argued that Lynch’s and Barnes’s failure to properly process her JAQ and CCC’s failure to attend promptly to her EEO complaint were materially adverse actions, the court disagreed. It observed that neither action affected “the claimant’s employment status such as hiring, discharge, denial of promotion, reassignment to a position with significantly different job responsibilities, or an action that causes a substantial change in benefits.” “Instead those failures [we]re, at most, the vehicles by which CCC did engage in materially adverse employment actions—that is, CCC’s denial of David’s request for a better job title and more pay.”

The court then concluded that Ms. David had not come forward with a similarly situated employee who was treated more favorably than she was treated. The court noted that, in order to be similarly situated, the employee had to be similar “in all material respects.” Ms. David’s proposed comparators, however, did not meet this requirement. With respect to Reyes, the court explained that, when CCC hired Reyes from Sync Solutions as a full-time Functional Applications Analyst, he had a Bachelor of Science degree in Computer Information Systems, a qualification that Ms. David did not have. Moreover, in his position, Reyes performed “totally different” duties than what he performed while working for CCC as a Sync Solutions consultant; specifically, he worked on Peo-pleSoft Administration—a pillar on which Ms. David never worked. Later Reyes applied for, and was given, the position of Senior Systems Security Analyst. In sum, the district court rejected Ms. David’s claim that Reyes simply was doing her old job, but with higher pay than she received. The district court noted that the new position filled by Reyes required a Bachelor of Arts or Science degree in Computer Science, with seven years of related experience in systems analysis, design, software support and application of security controls. Ms. David’s job description, however, did not require a bachelor’s degree, or the same kind of software experience.

Ms. David fared no better in comparing herself to Rodriguez. The district court noted that Rodriguez’s position, like Reyes’s, required a college degree. Additionally, Rodriguez’s position centered on the development of “the interaction hub,” which admittedly was not part of Ms. David’s responsibilities. The district court therefore concluded that neither employee was sufficiently similar to Ms. David to serve as a comparator.

With respect to her age claim, the district court also concluded that Lynch’s remarks concerning Ms. David’s impending retirement, without more, did not establish that Lynch was motivated by Ms. David’s age in denying her a new title or more pay.

Turning to Ms. David’s Equal Pay Act claim, the court noted that, in order to establish a prima facie case, the plaintiff first “must show that different wages are paid to employees of the Opposite sex. Second, plaintiff must show that she did equal work which requires equal skill, effort and responsibility. Third, plaintiff must show that the employees have similar working conditions.” If Ms. David were to establish this, the court continued, the burden would then shift to CCC to show that the pay disparity was due to “(1) a seniority system, (2) a merit system, (3) a system which measures earnings by quantity or quality of production or (4) any other factor other than sex.” The district court concluded that, even if Ms. David had established a prima facie case under the Equal Pay Act, “that claim must fail based on the facts that doom [Ms.] David’s Title VII and ADEA claims,” namely that the disparity in pay is attributable to Reyes’s college degree.

Ms. David timely appealed.

II

DISCUSSION

A.

“We review de novo a district court’s grant of summary judgment. Summary judgment is appropriate when, after construing the record in the light most favorable to the nonmoving party, we conclude that no reasonable jury could rule in favor of the nonmoving party.” Bagwe v. Sedgwick Claims Mgmt. Servs., Inc., 811 F.3d 866, 879 (7th Cir. 2016) (citation omitted).

After the district court had issued its decision in this case and after the case was briefed on appeal, we decided Ortiz v. Werner Enterprises, Inc., 834 F.3d 760 (7th Cir. 2016). Ortiz explicitly instructed district courts to “stop separating ‘direct’ from ‘indirect’ evidence and proceeding as if they were subject to different legal standards.” Id. at 765. Instead, the test “is simply whether the evidence would permit a reasonable factfinder to conclude that the plaintiffs race, ethnicity, sex, religion, or other proscribed factor caused the discharge or other adverse employment action.” Id. Ortiz, however, did not alter “[t]he burden-shifting framework created by McDonnell Douglas Corp v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).” Id. at 766 (parallel citations omitted). As we have explained, both before and after Ortiz, McDonnell Douglas is a means of organizing, presenting, and assessing circumstantial evidence in frequently recurring factual patterns found in discrimination cases. See, e.g., Volling v. Kurtz Paramedic Servs., Inc., 840 F.3d 378, 383 (7th Cir. 2016) (observing that a “prima facie case in Title VII litigation ... refers to a common, but not exclusive, method of establishing a triable issue of intentional discrimination” (emphasis added) (internal quotation marks omitted)); Morgan v. SVT, LLC, 724 F.3d 990, 997 (7th Cir. 2013) (explaining that “the original purpose of McDonnell Douglas ... was to outline a series of steps that, if satisfied, would support a plaintiffs right to reach a trier of fact”). As Ortiz and our other case law make clear, however, McDonnell Douglas is not the only way to assess circumstantial evidence of discrimination. In adjudicating a summary judgment motion, the question remains: has the non-moving party produced sufficient evidence to support a jury verdict of intentional discrimination? Morgan, 724 F.3d at 997 (“The central question at issue is whether the employer acted on account of the plaintiffs race (or sex, disability, age, etc.).”).

Because the McDonnell Douglas framework survived Ortiz, and because Ms. David has presented her argument in those terms, we will begin our assessment of the evidence by employing that construct and addressing first whether Ms. David has established a prima facie case of discrimination. We will then, however, assess cumulatively all the evidence presented by Ms. David to determine whether it permits a reasonable factfinder to determine that her smaller salary was attributable to her age, race, or sex.

B. Title VII and ADEA Disparate Pay Claims

Ms. David’s Title VII and ADEA claims are essentially disparate pay claims: she claims that employees who were younger, non-African-American, or male were paid more than she was paid for equivalent work, or, at the very least, were compensated for taking on additional work when she had not been compensated.

1.

Generally speaking, under McDonnell Douglas, the plaintiff has the initial burden of establishing that “(1) she is a member of a protected class, (2) she performed reasonably on the job in accord with her employer[’s] legitimate expectations, (3) despite her reasonable performance, she was subjected to an adverse employment action, and (4) similarly situated employees outside of her protected class were treated more favorably by the employer.” Andrews v. CBOCS West, Inc., 743 F.3d 230, 234 (7th Cir. 2014) (internal quotation marks omitted), overruled on other grounds by Ortiz, 834 F.3d at 765. “If the plaintiff satisfies that burden, then the employer must articulate a legitimate, nondiscriminatory reason for the adverse employment action, at which point the burden shifts back to the plaintiff to submit evidence that the employer’s explanation is pretextual.” Id. Although previously we have noted that “[i]t is somewhat unclear what standard guides the determination of a prima facie case of disparate pay under Title VII,” Cardoso v. Robert Bosch Corp., 427 F.3d 429, 433 (7th Cir. 2005) (emphasis in original), in a more recent case, we have applied the standard McDonnell Douglas framework for evaluating disparate pay claims under Title VII and the ADEA, see Warren v. Solo Cup Co., 516 F.3d 627, 630 (7th Cir. 2008). Consequently, that will provide the basis for analyzing Ms. David’s pay claims under Title VII and the ADEA.

There is no question that Ms. David is a member of a protected class, that she was performing her job in an acceptable manner, and that she was being paid less than Reyes and Rodriguez. We must focus therefore on whether Reyes and Rodriguez were similarly situated to Ms. David. We have observed that whether employees are similarly situated is a “flexible, common-sense, and factual” inquiry. Coleman v. Donahoe, 667 F.3d 835, 841 (7th Cir. 2012). Relevant factors include “whether the employees (i) held the same job description, (ii) were subject to the same standards, (iii) were subordinate to the same supervisor, and (iv) had comparable experience, education, and other qualifications—provided the employer considered these latter factors in making the personnel decision.” Warren, 516 F.3d at 631 (quoting Bio v. Fed. Express Corp., 424 F.3d 593, 597 (7th Cir. 2005)).

Turning first to Reyes, Ms. David claims that the position that Reyes ultimately was hired into, the Senior Systems Security Analyst position, essentially was her old job. She relies on statements by her supervisor, Robin Jackson, and by Reyes that CCC was looking to fill Ms. David’s “old position.” Regardless of how the position is referenced in conversation, however, Ms. David must establish that she and Reyes were “directly comparable ... in all material respects.” Alexander v. Casino Queen, Inc., 739 F.3d 972, 981 (7th Cir. 2014) (internal quotation marks omitted).

Looking first to the job descriptions, it is clear that Ms. David’s position—“Manager, End-User Services,”—bears little resemblance to Reyes’s position—“Senior Systems Security Analyst.” Ms. David’s position was focused on developing policies and supervising staff related to the delivery of services. It required a Bachelor’s Degree in Computer Science or a related field, but also allowed for “[a] combination of educational and work experience [to] be taken into consideration at the discretion of the administration.” It required technical expertise in DOS and Windows, previous experience installing and/or administering other operating programs, and proficiency in basic software applications. The Senior Systems Security Analyst, by contrast, was responsible for “[d]efin[ing], configur[ing], and administering]” the PeopleSoft system; “[e]n-sur[ing]” the security of the systems; and “[e]valuat[ing], testing], monitoring], and maintaining] Oracle security configurations and security administration policies.” In short, the focus of the Senior Systems Security Analyst position was the development, implementation, and servicing of the computer systems themselves. The position required a Bachelor’s Degree in Computer Science, seven years of experience in “systems analysis, design, software support and application of security controls,” and “[experience working with PeopleSoft applications.”

Ms. David does not maintain that she had the qualifications or the skills to perform the Senior Systems Security Analyst position. Instead, she maintains that “Reyes ... testified, that as a Senior Security Analyst, he performs the exact same duties that David performed before she retired.” Reyes’s deposition testimony, however, does not support this assertion. Reyes testified that, when he was hired into the Senior Systems Security Analyst position, he was “perform[ing] the same job duties that [Ms. David] had previously performed” along with the duties of “the functional application analyst position that I had before in addition to the senior security analyst.” In short, when he was hired into the Senior Systems Security Analyst position, he was performing Ms. David’s old job duties, the job duties from his own prior position (Functional Application Analyst), and the new responsibilities of the Senior Systems Security Analyst position. There simply is no evidence in the record that Reyes, in his position of Senior Systems Security Analyst, was performing only duties equivalent to that which Ms. David had performed.

Ms. David also maintains that she was similarly situated to Rodriguez because Rodriguez “also performed PeopleSoft security duties.” The fact that one of Ms. David’s job duties eventually found its way to Rodriguez, who was hired over one year after Ms. David retired, does not establish that they were similarly situated for purposes of pay. Again, even a cursory comparison of Ms. David’s job duties with those of a Technical Applications Developer—the position held by Rodriguez—establishes that Rodriguez’s job was focused on software installation, testing, documentation, and maintenance. Ms. David does not maintain that she had the qualifications—a Bachelor’s Degree in Computer Science—or skills to perform these functions.

The core duties of Reyes’s and Rodriguez’s positions focused on the development, installation, and monitoring of software programs that Ms. David did not, and could not, perform. Neither person is similarly situated to Ms. David for purposes of her disparate pay claim, and she has failed to establish a prima facie case of discrimination under Title VII.

2.

In assessing cumulatively all the record evidence without the assistance of the McDonnnell Douglas paradigm, it is clear that a reasonable jury could not conclude that any pay disparity was the result of Ms. David’s age, race, or sex.

In addition to the evidence concerning the responsibilities and pay of Reyes and Rodriguez, Ms. David believes several other pieces of evidence point to an illicit motive: (1) CCC’s failure to process her JAQ and complete its EEO investigation prior to her retirement; (2) Lynch’s reference to Ms. David’s retirement when she inquired about a change in title and raise; and (3) Lynch’s and Barnes’s lack of credible reasons for not retitling her position or awarding her a raise.

Neither Lynch, the head of the OIT department, nor Barnes, recalled receiving a JAQ from Ms. David. In light of Ms. David’s request for a new title and increase in pay, however, Lynch did review her job description and concluded that it did not reflect the PeopleSoft security duties that she had been performing. In November 2011, Lynch sent an email to Barnes noting that Ms. David’s PeopleSoft security duties were “not in alignment with her description” and inquiring if CCC should “retitle her” and “if she would need additional compensation.” Barnes, who was the person to whom Ms. David’s JAQ would have been directed, “did not believe that CCC should retitle Plaintiff into a new position because the creation and approval of a new position and salary would take several months, and Plaintiff was retiring in June 2012.” Additionally, Barnes was concerned that CCC would incur a penalty by SURS if it increased Ms. David’s pay more than six percent in the year prior to her retirement. Thus, despite CCC’s failure to process the JAQ, Ms. David nevertheless received a review of her request.

Ms. David notes that it would not have been impossible to complete the review, retitle her position, and give her a raise before retirement. She notes that, because the Senior Security Systems Analyst position was approved at approximately the time that she retired, her position also could have been evaluated and upgraded before her retirement.

The timing of the approval of the Senior Security Systems Analyst position, however, confirms rather than undermines Barnes’s rationale. It took the CCC ten months, from the time of Ms. David’s announcement of her retirement in August 2011 until June 2012, to assess its OIT needs and approve the Senior Security Analyst position. Ms. David has not presented any evidence that the review of her position could have been accomplished in a shorter period of time.

More importantly, however, there simply is no reason to believe that Lynch, who was responsible for making recommendations, believed that Ms. David’s performance of PeopleSoft security functions warranted a promotion or a pay increase. Indeed, Ms. David admitted that Lynch believed that she was not entitled to a pay increase and that, if her job title was re-written, it “would be a lateral move, with no change in pay.”

Ms. David now claims that Lynch should not be believed because he was not her immediate supervisor and, therefore, would not have known whether her job functions warranted a pay increase. It is undisputed, however, that Lynch was responsible for the OIT department and had the authority to make promotion recommendations. Ms. David’s argument, at bottom, is simply that Lynch did not have sufficient first-hand knowledge to make an informed promotion recommendation. This is an attack on the wisdom of Lynch’s decision—or, more accurately, on the wisdom of CCC’s decision to bestow on Lynch the responsibility for making promotion recommendations—not on the honesty of Lynch’s explanation. Our role, however, is not to inquire into the wisdom of an employment decision, but simply to determine if “the employer is dissembling to cover up a discriminatory purpose.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). Ms. David has not come forward with any evidence that this is the case.

Finally, Ms. David notes that Lynch, during at least one of the meetings concerning her desired promotion and increase in pay, mentioned her impending retirement. Ms. David would like us to construe those pomments as age-related. The Supreme Court rejected such an approach in Hazen Paper Co. v. Biggins, 507 U.S. 604, 611, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993). In that case, the employer had terminated the employment of a sixty-two-year-old man to prevent his pension plan from vesting. The Court observed that pension plans typically vest “once the employee completes a certain number of years of service with the employer.... Because age and years of service are analytically distinct, an employer can take account of one while ignoring the other, and thus it is incorrect to say that a decision based on years of service is necessarily ‘age based.’ ” Id.

Similarly, eligibility for retirement may be based on age, years of service, or a combination of the two. Ms. David has not identified any record evidence that explains how retirement eligibility is determined at CCC. We therefore cannot equate retirement eligibility with age.

Moreover, Ms. David was not simply eligible for retirement when she had her initial meeting with Lynch about upgrading her position and pay; she had announced her intention to retire several months earlier. Thus, when Lynch referenced her impending retirement, he was not making any assumptions about retirement eligibility based on Ms. David’s age; he merely was referencing her current employment status as a “short timer.”

Indeed, all of the evidence of “discrimination” points to this conclusion. Ms. David had made clear that, as of June 2012, she no longer would be an employee of CCC. Having made that announcement, CCC had little motivation to expend time and resources retitling or reclassifying her position. That may not have been an enlightened decision. But there simply is nothing in the record to support an inference that the decisions were based on Ms. David’s age, sex, or race, rather than her announcement of her voluntary retirement.

Because the evidence does not permit a reasonable factfinder to conclude that Ms. David’s age, sex, or race was the cause of her lower pay, see Ortiz, 834 F.3d at 765, the district court properly granted summary judgment to CCC on Ms. David’s Title VII and ADEA claims.

C. Equal Pay Act Claim

“The Equal Pay Act forbids employers from paying different rates to men and women for the same work at the same establishment.” Jaburek v. Foxx, 813 F.3d 626, 632 (7th Cir. 2016) (internal quotation marks omitted). In order to establish a prima facie case under the Equal Pay Act, a plaintiff must show: “(1) higher wages were paid to a male employee, (2) for equal work requiring substantially similar skill, effort and responsibilities, and (3) the work was performed under similar working conditions.” Merillat v. Metal Spinners, Inc., 470 F.3d 685, 695 (7th Cir. 2006) (internal quotation marks omitted). In determining whether two jobs are equal, “we look to whether the jobs have a ‘common core of tasks, i.e., whether a significant portion of the two jobs is identical.’ Once a plaintiff establishes a ‘common core’ of tasks, we ask whether any additional tasks make the jobs ‘substantially different.’ ” Id. (citation omitted) (quoting Cullen v. Ind. Univ. Bd. of Trs., 338 F.3d 693, 698 (7th Cir. 2003)). In making this determination, the court “Iook[s] to the actual job duties performed by each employee, not to his or her job description or title.” Id.

Ms. David maintains that Reyes was paid a higher salary for, essentially, performing her old job functions. According to Ms. David, “Reyes testified that his posit[i]on as Senior Security Analyst was the exact same job as David before she retired.” This does not reflect accurately Reyes’s testimony. Reyes testified that, in the Senior Systems Security Analyst position, he performed Ms. David’s PeopleSoft security responsibilities, along “with the functional application analyst position that I had before in addition to the senior security analyst.” He also testified that the duties listed in the Functional Analyst and Senior Systems Security Analyst Job descriptions “accurately reflect the duties” that he performed in those positions. As explained in some detail above, those duties involve the development, implementation, and servicing of the computer systems. The record reveals that Ms. David did not perform similar duties in her position or that she had the skills to perform these functions. Reyes’s position, therefore, included responsibilities that were “substantially different” from those performed by Ms. David and that Ms. David could not perform. She therefore has not established a prima facie case under the Equal Pay Act.

Conclusion

For the reasons set forth in this opinion, the judgment of the district court is affirmed.

AFFIRMED

      . R. 18-26 at 2.

      . Id. at 3.

      . R.28 ¶ 19.

      . R.29-12 (Reyes Dep.) at 10.

      . R.28 ¶ 25.

      . Id. ¶ 21.

      . Reyes previously had been employed at CCC as a student intern and, in 1999, was promoted to the position of Customer Services Coordinator. He was hired by Sync Solutions in June 2001 and earned a salary of approximately $60,000.

      . Reyes has a Bachelor of Science degree in Computer Information Systems.

      . R.28 ¶ 57.

      . Lynch is both African-American and over forty.

      . R.29 ¶ 4 (internal quotation marks omitted).

      . R.28 ¶ 33.

      . Barnes also is African-American and over forty.

      . Id. ¶ 34.

      . See id. ¶ 36.

      . Id. ¶ 37.

      . The job description reflects that the position was “[alpproved by [cllassification & [c]ompensation” on June 1, 2012. R.18-20 at 2.

      . Ms. David disputes that this is actually a new position. She claims it is her old position, retitled and with greater qualification requirements.

      .His duties and responsibilities in the Functional Application Analyst position included: ‘‘[t]est[ing] all PeopleSoft customizations, enhancements, interfaces and reports”; “[w]rit[ing] documentation of system designs, functional specifications and test results”; "[p]erform[ing] unit and system tests and functional regression testing of developed code”; and ''[d]esign[ing], documenting] and testing] interfaces and transactions with other systems using application programming interfaces.” R.18-18 at 1.

      . See R.28. ¶ 64.

      . Id.

      . R.29-12 (Reyes Dep.) at 9.

      . The district court's jurisdiction was premised on 28 U.S.C. § 1331.

      . The district court employed, throughout its opinion, the lexicon and methodology common at the time it ruled. As we discuss at some length later in the opinion, see infra at 224, the terms “direct” and “indirect” evidence no longer retain the significance they were once thought to have in the analysis of discrimination cases. See Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016).

      . R.40 at 6 (quoting Rhodes v. Ill. Dep’t of Transp., 359 F.3d 498, 504 (7th Cir. 2004), overruled on other grounds by Ortiz, 834 F.3d at 765).

      . Id. at 6-7 (emphasis in original).

      . Id. at 12 (emphasis in original) (quoting Warren v. Solo Cup Co., 516 F.3d 627, 630-31 (7th Cir. 2008)).

      . Id. at 14 (internal quotation marks omitted).

      . Id. at 16 (internal quotation marks omitted).

      . Id. at 18-19 (internal quotation marks omitted).

      . Id. at 19 (internal quotation marks omitted).

      . Id. at 19-20.

      . Our jurisdiction is premised on 28 U.S.C. § 1291.

      . See also Pearson v. Ill. Bell Tel. Co., No. 15 C 653, 2016 WL 7374235, at *6 (N.D. Ill. Dec. 20, 2016) (“McDonnell Douglas identifies one pattern that the evidence might fit that would enable a reasonable juror to find discrimination. ... ”).

      . Ms. David also claims that CCC’s failure to process her JAQ and its delay in investigating her EEO (pay) complaint constituted actionable adverse employment actions. Title VII protects an employee from discriminatory actions with respect to "compensation, terms, conditions, or privileges of employment.” 42 U.S.C. § 2000e-2(a)(l). "To be actionable,” therefore, "there must be a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. In other words, the adverse action must materially alter the terms and conditions of employment.” Stutler v. III. Dep't of Con., 263 F.3d 698, 703 (7th Cir. 2001) (citation omitted) (internal quotation marks omitted). Neither the failure to process the JAQ nor the failure to complete the EEO investigation affected the terms and conditions of Ms. David's employment. Instead, as the district court noted, the questionnaire and the complaint process simply were means to an end: they were the methods by which Ms. David was attempting to secure a new title and a raise. It was the failure to receive a new title and the raise that is at the heart of her complaint.
      Ms. David relies on Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S, 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006), for the proposition that "[a]n employment action is materially adverse[] if it would deter a reasonable worker from complaining of discrimination,” Appellant’s Br. 14, and further argues that CCC’s failure to process the JAQ or the EEO complaint would have this effect. The standard that Ms. David invokes, however, relates to Title VII's antiretaliation protection, which incorporates a broader definition of materiality than Title VII’s protection against discrimination. Burlington N. & Santa Fe Ry. Co., 548 U.S. at 64, 126 S.Ct. 2405 (observing that the “antiretaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment”). Ms. David’s claims, however, do not include retaliation, only discrimination.

      . See Appellant's Br. 16-17.

      . Compare R. 18-26 (Manager, End-User Services Job Description), with R. 18-20 (Senior Systems Security Analyst Job Description).

      . R.18-26 at 2-3.

        .See id. at 3.

      . R. 18-20 at 1.

      . Id. at 2.

      . Appellant’s Br. 17 (quoting R.29 ¶ 37).

      . R.29-12 (Reyes Dep.) at 8 (emphasis added).

      . Appellant’s Br. 12.

      . See R. 18-13 (Technical Applications Developer Job Description).

      . Ms. David also makes a slightly different argument. She claims that she was treated differently on the basis of her age, race, and . sex because when younger, non-African-American, male employees were assigned additional duties, they were provided assistance or greater pay, but she was not provided either when she assumed responsibilities related to PeopleSoft security. The record simply does not bear this out. Ms. David began performing the PeopleSoft security responsibilities on her own in November 2011 and did not receive any assistance or extra pay for those responsibilities prior to her retirement in June 2012. In June 2012, after Ms. David retired, Reyes took back those responsibilities, but “no one assisted him” until Rodriguez was hired in April 2013. R.29-11 (Jackson Dep.) at 24. Reyes, therefore, performed the PeopleSoft security responsibilities without assistance for even longer than Ms. David did. Moreover, Ms. David does not dispute that "Reyes did not receive any increase in pay for taking on these additional duties”; rather, she admits that his subsequent pay increase was due to the union claiming his position. R.28 ¶¶ 60-61.

      . R.28 ¶ 33.

      . Id. ¶ 34 (internal quotation marks omitted).

      . Id. ¶ 37.

      . See id. ¶ 36. Ms. David argues that this rationale is unworthy of credence because, among other reasons, the statute on which CCC "rests this position ... makes no mention of a 'fine' or penalty.” Appellant’s Br. 27. This is a nonstarter. Section 5/7—172(lc) of Chapter 40 of the Illinois Compiled Statutes provides that,
      [i]f the amount of a participating employee's reported earnings for any of the 12-month periods used to determine the final rate of earnings exceeds the employee’s 12 month reported earnings with the same employer for the previous year by the greater of 6% or 1,5 times the annual increase in the Consumer Price Index[ ], ... the participating ... instrumentality ... shall pay to the Fund, in addition to any other contributions required under this Article, the present value of the increase in the pension resulting from the portion of the increase in salary that is in excess of the greater of 6% or 1.5 times the annual increase in the Consumer Price Index[ ]....
      Thus, Illinois law clearly imposes an additional monetary burden on an employer who raises the salary of an employee during his or her last year of employment in excess of six percent or one-and-one-half times the increase in the Consumer Price Index.

      . It was another six months before the position actually was filled by Reyes.

      . R.29-2 (Lynch Dep.) at 5.

      . R.28 ¶ 33.

      . Appellant's Br. 31.

      . R.29-12 (Reyes Dep.) at 8 (emphasis added).

      . Id. at 13-14.

      . See supra note 19 and at 17-18.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Steven SYMS, Defendant-Appellant.
    No. 15-3067
    United States Court of Appeals, Seventh Circuit.
    Argued September 27, 2016
    Decided January 17, 2017

      Laura Reppert, Attorney, Alex Boykin, Attorney, Office of the United States Attorney, Criminal Division, Fairview Heights, IL, for Plaintiff-Appellee.
    LaToya M. Berry, Attorney, Law Offices of LaToya M. Berry, Belleville, IL, for Defendant-Appellant.
    Before BAUER, ROVNER, and HAMILTON, Circuit Judges.
   BAUER, Circuit Judge.

This case involves a conspiracy to distribute cocaine in St. Louis, Missouri, and the surrounding area. One of the conspirators, Steven Syms, pleaded guilty to conspiracy to distribute and possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(l)(A)(ii), and 846. The district court sentenced Syms to 151 months’ imprisonment. On appeal, Syms argues that the mandatory minimum sentence contained in 21 U.S.C. § 841(b)(l)(A)(ii) violates the separation-of-powers doctrine. He also argues that the district court improperly based its drug-quantity calculation and sentencing enhancement on speculative and unreliable evidence, and further contends that he qualified for a safety valve reduction in his sentencing, and that his sentence violates the Eighth Amendment. For the reasons that follow, we affirm Syms’ sentence.

I. BACKGROUND

Beginning in April 2011, multiple law enforcement agencies, including the Drug Enforcement Administration, Internal Revenue Service, and United States Marshals Service, began investigating a drug-trafficking operation based on information that Tyrone Carraway of St. Louis, Missouri, was supplying cocaine to brothers Cortez and Richard Yarbough of East St. Louis, Illinois. During the course of the investigation, agents gathered information and collected evidence through confidential informants, controlled buys of cocaine, witness interviews, surveillance, and searches. The investigation revealed that Carraway and coconspirator Richard Graham distributed cocaine to the Yarbough brothers, and other defendants and unidentified individuals.

The ultimate source of Carraway and Graham’s supply was Huey Jones of Houston, Texas. The intermediaries between Jones, Carraway, and Graham were Syms and coconspirator Antoine Meeks. Syms, Meeks, and an unindicted coconspirator, traveled to Houston to obtain cocaine from Jones. Syms also recruited Keith Harris to transport drugs and money between Houston and St. Louis; Hands transported the cocaine and money in the gas tank of the vehicles he drove to retrieve the drugs.

On April 27, 2012, Harris’ vehicle was searched during a traffic stop. The search revealed 40 packages that each contained around .5 kilograms of cocaine, for a total of 19.91 kilograms. A fingerprint analysis of the packages showed latent prints belonging to Syms, Meeks, Jones, and others.

On October 14, 2012, agents conducted surveillance on Syms, Meeks, and another individual. Syms drove to a residence in St. Louis, at which time agents searched the vehicle, residence, and garage and recovered two packages that contained 982 grams of cocaine. At a post-arrest interview, Meeks revealed that he and Syms had traveled to Houston to obtain the drugs.

On June 18, 2013, a grand jury charged Syms with conspiracy to distribute, and possession with intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(l)(A)(ii), and 846. On June 27, 2013, Syms was arrested and released on a $10,000 unsecured appearance bond. In a September 6, 2013, interview, Jones implicated Syms in-several additional trips to Houston throughout 2011 obtaining a total of 41 kilograms of cocaine. Jones advised that the final shipment of cocaine was 19.91 kilograms that was seized by law enforcement, a shipment that Syms helped to deliver. Jones also stated that Syms sought to increase his role in the conspiracy and the amount of cocaine that was being transported so that he could sell it in St. Louis.

Agents interviewed Harris on September 10, 2013, who described how Syms recruited him to be a courier for the drug-trafficking operation, and of Syms’ involvement in the trips to Houston to obtain cocaine.

Syms pleaded guilty to the one-count charge against him on August 28, 2014. The United States Probation Office prepared Syms’ Presentence Investigation Report. It detailed the interview notes from Jones and Harris. Syms’ PSR determined that he was responsible for conspiring with multiple defendants and others to possess and/or distribute 61.8 kilograms of cocaine. Although the amount contained in the indictment was 5 kilograms or more, the PSR, relying in part on statements from coconspirators, determined that Syms’ relevant conduct was 61.8 kilograms of cocaine.

Using the 2013 Guidelines Manual, the PSR recommended a base offense level of 36. The PSR applied a three-level enhancement, pursuant to U.S.S.G. § 3Bl.l(b), for being a manager or supervisor of a criminal activity involving five or more participants. Syms was credited for acceptance of responsibility, pursuant to U.S.S.G. §§ 3El.l(a) and (b). Accordingly, his total offense level was 36.

Syms filed a written objection to the PSR, challenging the inclusion of the uncharged drug amounts and the manager/supervisor enhancement. He complained that the statements taken from coconspira-tors used to increase the drug amount and apply the manager/supervisor enhancement were self-serving and unreliable. The government filed its response outlining the basis for the information used in the PSR, and Syms withdrew his objections. Syms then filed a sentencing memorandum which did not raise any of the constitutional claims he raises before us but requested that the district court impose the statutory minimum sentence of ten years.

At sentencing, the district court accepted the PSR. The court calculated Syms’ base offense level at 34 using the 2014 Guidelines, which contained a change from the 2013 Guidelines that decreased Syms’ base offense level by two. After applying the manager/supervisor enhancement and crediting Syms with acceptance of responsibility, the district court calculated Syms’ total offense level to be 34. The court found that the statutory minimum sentence was ten years, and the maximum was a life sentence. The court determined the Sentencing Guidelines range to be from 151 to 188 months. Before sentencing Syms, the court specifically asked Syms’ counsel if there were any other arguments made in mitigation that he had not fully addressed, to which counsel replied, “No.” The court then ordered Syms to pay a $500 fine and sentenced him to 151 months in prison with five years of supervised release. This appeal followed.

II. DISCUSSION

Syms first argues that mandatory minimum sentences violate the separation-of-powers doctrine by granting prosecutors sole discretion in deciding whether to pursue charges that carry mandatory minimum sentences and stripping the judicial branch of discretion in sentencing.

We flatly rejected a similar argument in United States v. Nigg, 667 F.3d 929, 934 (7th Cir. 2012). We held that mandatory minimum sentences did not violate the separation-of-powers doctrine, recognizing that “determinate sentences were found in this country’s penal codes from its inception[.]” Id. (internal alteration omitted) (quoting Chapman v. United States, 500 U.S. 453, 467, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991)); see also United States v. Brucker, 646 F.3d 1012, 1019 (7th Cir. 2011) (‘We have rejected separation of powers challenges to mandatory minimum sentences, and we see no reason to revisit that holding here.”). We decline Syms’ invitation to upend well-settled precedent in this case.

We also note that the district court went above the mandatory minimum sentence of ten years, sentencing Syms to twelve years and seven months. The district court determined the Guidelines range and then used the factors set forth in 18 U.S.C. § 3553(a) in fashioning Syms’ sentence. Contrary to Syms’ contention, the district court did use its discretion in sentencing him. Syms’ sentence did not violate the separation-of-powers doctrine.

Next, Syms contends that the district court violated his rights under the Fifth and Sixth Amendments when it sentenced him based upon uncharged conduct contained in the PSR. Specifically, Syms argues that the district court’s conclusion that he was involved in distributing 61.8 kilograms of cocaine in the operation was based upon unreliable information provided by his coconspirators. He further argues that the Probation Department’s recommendation that Syms receive .a leadership role enhancement was similarly based upon unreliable information from coconspirators.

The government counters that Syms waived this argument by withdrawing his objections to the PSR, and we agree. Prior to sentencing, Syms objected to the PSR, challenging the drug quantity calculation and the manager/supervisor enhancement on the basis that they were based on unreliable coconspirator statements. He later withdrew these objections and did not renew them at sentencing. We have repeatedly found that a withdrawal of an objection generally results in a waiver of that argument on appeal, see, e,g., United States v. Venturella, 585 F.3d 1013, 1019 (7th Cir. 2009) (collecting cases), and Syms has not put forth any argument warranting a deviation from that holding.

In addition, the district court judge specifically asked Syms’ counsel whether he had considered all arguments in mitigation of the sentence, to which she replied in the affirmative. The judge took this step in order to ensure that any countervailing factors had been appropriately considered, a practice that in our view is to be commended. In United States v. Garcia-Segura, we admonished defendants that if defense counsel answered this question in the affirmative during sentencing, subsequent challenges to the defendant’s sentence for failure to address a principal mitigation argument would be waived. 717 F.3d 566, 569 (7th Cir. 2013). Accordingly, we find that Syms has waived his challenges to the district court’s fact-finding at sentencing.

Syms also argues that the district court erred by not applying the “safety valve” provision in U.S.S.G. § 5C1.2 of the Sentencing Guidelines in order to reduce his sentence. The government argues that Syms failed to qualify for the safety valve according to the plain language of the Guidelines.

The Mandatory Minimum Sentencing Reform Act of 1994 includes a safety valve provision that created more flexibility in sentencing by permitting courts to sentence below the minimum sentences fixed by statute. See 18 U.S.C. § 3553(f). The Sentencing Commission added an analogous provision to the Guidelines. See U.S.S.G. § 5C1.2. The safety valve is intended to benefit “first-time, non-violent drug offenders who were not organizers of criminal activity and who have made a good-faith effort to cooperate with the government.” United States v. Arrington, 73 F.3d 144, 147 (7th Cir. 1996); see also United States v. Thompson, 76 F.3d 166, 171 (7th Cir. 1996) (discussing legislative history of the statute and guideline).

In order to apply the safety valve, the court must find that:

(1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines;
(2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense; (3) the offense did not result in death or. serious bodily injury to any person; (4) the. defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in section 408 of the Controlled Substances Act; and (5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.

18 U.S.C. § 3553(f); see also U.S.S.G. § 5C1.2.

The defendant bears the burden of proving by a preponderance of the evidence his eligibility for safety valve relief. United States v. Ramirez, 783 F.3d 687, 692 (7th Cir. 2015). Generally, we review the district court’s factual findings concerning a defendant’s eligibility for the safety valve for clear error. United States v. Rebolledo-Delgadillo, 820 F.3d 870, 879 (7th Cir. 2016). However, Syms raises this issue for the first time on appeal, which impacts the standard of review. Consequently, he has either forfeited or waived the argument. We will generously assume that Syms’ silence on this issue until this point is the result of a “failure to make a timely assertion of a right” rather than an “intentional relinquishment[.]” Ramirez, 783 F.3d at 693 (quoting United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)), Accordingly, we assume Syms merely forfeited his safety valve request, which permits plain error review. See id. at 694 n.5 (noting that, in addition to our circuit, other circuits have applied plain error review where the defendant failed to request safety valve consideration before the district court).

In any case, it is clear that Syms is not entitled to relief. The district court determined that Syms was a manager/supervisor of the operation, which precludes his qualifying for the safety valve. Indeed, providing Syms with relief under the safety valve would run counter to the purpose of the statute, which is to reward those who have cooperated with the government and did not organize the criminal activity. See Arrington, 73 F.3d at 147; see also United States v. Marin, 144 F.3d 1085, 1095 (7th Cir. 1998). There was no plain error by the district court.

Finally, Syms argues that his 151-month sentence is so grossly disproportionate to his crime that it constitutes cruel and unusual punishment under the Eighth Amendment. The crux of Syms’ argument is that his sentence is disproportionate because it is the same as that of coconspirator Meeks, who has a more extensive criminal history than Syms.

The Supreme Court has recognized that “[t]he Eighth Amendment, which forbids cruel and unusual punishments, contains a narrow proportionality principle that applies to noncapital sentences.” Ewing v. California, 538 U.S. 11, 20, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (citation and quotation marks omitted). But “narrow” does not equate to strict proportionality. Id. at 23, 123 S.Ct. 1179. Only extreme sentences that are “grossly disproportionate” to the crime will be deemed cruel and unusual. Id. (citation omitted). Additionally, “eighth amendment challenges to sentences that are both prescribed by the guidelines, and within the statutory máximums established by Congress, are looked on with disfavor.” United States v. Saunders, 973 F.2d 1354, 1365 (7th Cir. 1992) (citation omitted).

In determining whether a sentence is grossly disproportionate, the Supreme Court has outlined a three-factor test, which considers: “(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.” Solem v. Helm, 463 U.S. 277, 292, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). The first factor is a threshold factor; if an inference of gross disproportionality is not established, we need not conduct any comparative analysis within and between jurisdictions. United States v. Gross, 437 F.3d 691, 692-93 (7th Cir. 2006).

In examining the first factor, the Supreme Court has found that “[possession, use, and distribution of illegal drugs represent ‘one of the greatest problems affecting the health and welfare of our population.’ ” Harmelin v. Michigan, 501 U.S. 957, 1002, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (quoting Nat’l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 668, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989)). The Court further detailed the violence, crime, and social displacement that is attendant to the possession and distribution of drugs in this country. Id. at 1002-04, 111 S.Ct. 2680. Thus, we recognize the serious nature of the offense that Syms committed.

Regarding the harshness of Syms’ sentence, we note that he was sentenced within the statutory range, and at the lowest end of the Guidelines range. “We have not in the past looked very favorably upon Eighth Amendment challenges to sentences that are prescribed under the guidelines and are within the statutory máximums established by Congress.” United States v. Jones, 950 F.2d 1309, 1317 (7th Cir. 1991).

We have also permitted lengthier sentences for similar crimes. See Saunders, 973 F.2d at 1365-66 (defendant’s 262-month sentence for conspiring to distribute and intent to distribute 13 ounces of cocaine was not grossly disproportionate); United States v. Washington, 109 F.3d 335, 338 (7th Cir. 1997) (“The cruel and unusual punishments clause of the eighth amendment permits life imprisonment for a single drug crime.” (citation omitted)). Therefore, we conclude that Syms’ sentence does not give rise to an inference of gross disproportionality. As a result, we need not conduct any comparative analysis with Meeks’ sentence, or within and between jurisdictions.

III. CONCLUSION

For the reasons stated above, we AFFIRM Syms’ sentence.