Kenneth Harper v. C.R. England, Inc , 687 F.3d 297 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2975
K ENNETH H ARPER,
Plaintiff-Appellant,
v.
C.R. E NGLAND, INCORPORATED ,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:08-cv-00110-PRC—Paul R. Cherry, Magistrate Judge.
A RGUED F EBRUARY 10, 2012—D ECIDED JUNE 8, 2012
Before
R IPPLE and R OVNER, Circuit Judges, and
C OLEMAN, District Judge.Œ
R IPPLE, Circuit Judge. Kenneth Harper brought this
action in Indiana state court against his former
employer, C.R. England, Inc. (“C.R. England”), alleging
racial discrimination, harassment and retaliation in vio-
lation of 42 U.S.C. § 1981 and Title VII of the Civil Rights
Œ
The Honorable Sharon Johnson Coleman of the Northern
District of Illinois, sitting by designation.
2 No. 11-2975
Act of 1964, 42 U.S.C. § 2000e et seq. He also alleged that
C.R. England had retaliated against him for having filed a
workers’ compensation claim, in violation of Indiana
law. C.R. England removed the case to the district court.1
The magistrate judge, sitting by consent of the parties,2
granted summary judgment in favor of C.R. England,
and Mr. Harper timely appealed.3 He now asks that we
review the district court’s determination only with
respect to his retaliation claim. After examining the
record, studying the appellate briefs and hearing the
argument of counsel, we conclude that the district court
correctly decided that there is no genuine issue of triable
fact on the retaliation claim and that the defendant there-
fore is entitled to judgment as a matter of law. Accord-
ingly, we affirm the judgment of the district court.
I
BACKGROUND
A. Facts
From July 2005 until his termination on August 3, 2007,
Mr. Harper, an African-American, was employed as a
driving instructor for C.R. England, a trucking corpora-
1
See 28 U.S.C. § 1441(a). The district court had jurisdiction
over the federal claim under 28 U.S.C. §§ 1331 and 1343. It
had jurisdiction over the state claim under 28 U.S.C. § 1367(a).
2
See 28 U.S.C. § 636(c).
3
We have jurisdiction under 28 U.S.C. § 1291.
No. 11-2975 3
tion that operated a truck-driving school in Indiana.
Mr. Harper was one of approximately twelve road in-
structors at the driving school. In that capacity, he did
not provide any classroom instruction, but was
assigned a group of students for road instruction in
the operation of the trucks. He was expected to be
present and available to his students during the
weeks that they were assigned to him.
The road instructors’ immediate supervisor held the
title of “lead instructor” and reported to the director of
the school, Chris Kelsey. In January 2007, the lead instruc-
tor left the company, and Director Kelsey appointed
Mr. Harper, who had volunteered for the position, as
acting lead instructor until the company was able to
hire someone to fill the position on a permanent basis. In
early 2007, Mr. Harper, along with about twenty
other individuals, interviewed for the position of lead
instructor, but he was not hired for the permanent posi-
tion. The company instead selected Eric Metzler, also an
African-American, because of his prior management
experience in the trucking industry.4
4
There is some confusion in the record with respect to the job
title of the position that Mr. Harper was appointed to fill on a
temporary basis. At his deposition, Mr. Harper explained that
he was appointed to serve as “yard manager” and that the
lead instructor position was a different position entirely. R.36-1
at 8 (Harper Dep. 23-24). Director Kelsey stated in his deposi-
tion that Mr. Harper was appointed to serve as interim lead
(continued...)
4 No. 11-2975
As part of the daily routine, Lead Instructor Metzler
conducted morning meetings with his team of road
instructors inside their office trailer.5 Mr. Harper alleges
that, on March 9, 2007, while the instructors were
waiting for their meeting to start, another African-Ameri-
can instructor, Darnell Humphrey, called him a “mark
ass n----r.” 6 When Mr. Harper asked Humphrey
what he had just said, Humphrey again called Mr. Harper
a “n----r.” 7 Mr. Harper admitted, in his deposition testi-
mony, that Metzler was not in the room when
Humphrey used the racial slur, but maintains that
Metzler, who was in his adjacent office with the door
open, heard Humphrey’s comment. According to Mr.
Harper, Metzler came in the room shortly after Humphrey
called Mr. Harper a “n----r” for the second time and said
“quit it” or “cut it out.” 8 Metzler consistently has main-
tained that he was not in the room at the time of the
alleged incident and that he did not hear Humphrey use
any racial slur.
4
(...continued)
instructor until Metzler was hired to fill the permanent position.
R.36-4 at 4 (Kelsey Dep. 10). Metzler also stated that he was
employed as lead instructor at C.R. England’s truck-driving
school. R.36-11 at 1 (Metzler Aff.).
5
The road instructors operated out of a two-room trailer.
One room was used as an employee lounge and conference
area, and the other room served as Metzler’s office.
6
R.36-1 at 11 (Harper Dep. 37).
7
Id. (Harper Dep. 38).
8
Id. at 11, 14 (Harper Dep. 38, 47).
No. 11-2975 5
The day after the incident with Humphrey, a fellow
C.R. England employee who had heard about the con-
frontation contacted Mr. Harper and recommended that
he contact Carrie Johansen, Assistant Director of C.R.
England’s Human Resources Department, in Salt Lake
City, Utah, about the incident and provided him with
Johansen’s contact information. Mr. Harper spoke
briefly with Director Kelsey about his encounter with
Humphrey shortly after the alleged incident took place.9
Then, on April 18, 2007, Mr. Harper emailed Johansen
and provided a formal statement regarding the March 9,
2007 incident. In his email, Mr. Harper wrote, “I have
been angry, upset, hurt, stressed, and feel that I’m
working in a hostile environment.” 1 0
After receiving Mr. Harper’s email, Johansen contacted
Director Kelsey and instructed him to contact Metzler to
9
The record is not clear on this point. Mr. Harper stated in
his April 18, 2007 email to Johansen that he originally spoke
with Director Kelsey regarding the incident on March 16, 2007.
In his deposition, Mr. Harper testified that he spoke with
Director Kelsey regarding the incident “a few days” after it
took place. Id. at 13 (Harper Dep. 44). He explained that he
met with Director Kelsey and Metzler in Director Kesley’s
office and Metzler denied hearing Humphrey’s use of the
racial slur. Id. (Harper Dep. 45-46). Director Kelsey testified
that he was unaware of the incident until Johansen contacted
him in late April, after receiving Mr. Harper’s email. R.36-4
at 6 (Kelsey Dep. 16-17).
10
R.36-2 at 4.
6 No. 11-2975
“find out what had happened.” 1 1 According to Director
Kelsey, Metzler interviewed every individual that
Mr. Harper had said was in the room at the time of the
exchange between Mr. Harper and Humphrey.1 2 Metzler
then reported to Director Kelsey that he was unable to
determine what, if anything, Humphrey had said to
Mr. Harper.13 When Director Kelsey met with Metzler,
he made clear that, if the incident did happen, it had
better not happen again because such a remark would
warrant discharge.1 4 He also instructed Metzler to give
the same warning to Humphrey. Director Kelsey re-
ported to Johansen that he had handled the situation.
Mr. Harper met with Director Kelsey a second time to
discuss the Humphrey incident. Director Kelsey asked
Mr. Harper how they could “move past th[e] incident,”
and what the company could do to make the work en-
vironment more comfortable for him.1 5 Director Kelsey
offered Mr. Harper several options, including time off
and a transfer to another position within the company.
11
R.36-4 at 6 (Kelsey Dep. 18). In his April 18 email to Johansen,
Mr. Harper recounted a meeting with Director Kelsey and
Metzler, during which Director Kelsey instructed Metzler to
“handle” the situation. R.36-2 at 4.
12
R.36-4 at 9 (Kelsey Dep. 29).
13
Id. Mr. Harper disputes that any investigation into the
incident took place. R.36-1 at 14 (Harper Dep. 47).
14
Metzler was not called for a deposition and is no longer
an employee of C.R. England.
15
R.36-1 at 14 (Harper Dep. 48).
No. 11-2975 7
Mr. Harper also met separately with Metzler to
discuss, among other things, the email he had sent to
human resources. He claims that Metzler questioned
his reasons for sending the email and wanted to know
what he expected would come as a result of it. In addi-
tion, Metzler said that Mr. Harper’s “skin should not be
so thin.” 16
Mr. Harper further alleged that, on approximately
four or five occasions after March 9, 2007, he heard other
instructors use the slur “n----r” in workplace conversa-
tions. However, in his deposition, Mr. Harper testified
that these remarks were not directed at him and that
Metzler was not part of the conversations.1 7 Mr. Harper
was not able to provide the names of the instructors
who used the term.
Mr. Harper also informed Director Kelsey that the
word “asshole” had been written on his time card on one
occasion at some point after March 9, 2007.1 8 Director
Kelsey assured Mr. Harper that he would talk to
Metzler about it. Metzler responded to the incident by
moving the time clock and time cards inside his office.1 9
On June 24, 2007, Mr. Harper contacted Metzler to
tell him that he would not be able to report to work on
Monday, June 25, due to illness. Metzler left Mr. Harper
16
Id. at 16 (Harper Dep. 56); see also R.36-2 at 5.
17
R.36-1 at 16 (Harper Dep. 57).
18
Id. at 19 (Harper Dep. 70).
19
Id. at 20 (Harper Dep. 71-72).
8 No. 11-2975
a message telling him that he would have to assign his
truck group to another instructor and directed him to
stay at home for the rest of the week.
On Thursday of that same week, Metzler informed
Mr. Harper that he needed to meet with him the fol-
lowing day, Friday, June 29, 2007. During their Friday
meeting, Metzler administered three written warnings
to Mr. Harper, the most serious being for poor attendance.
Metzler told Mr. Harper that he was being placed on
probation for taking too much time off and warned him
not to take any more days off or leave work early for the
remainder of the year. Mr. Harper understood that,
pursuant to C.R. England policies, he could be terminated
if his attendance did not improve.2 0 Prior to this date,
Metzler had given Mr. Harper permission to leave
work early on Fridays to pick his son up from school.
Metzler previously had told Mr. Harper that “he had
20
Id. at 18 (Harper Dep. 63-64). The C.R. England policies and
procedures booklet states, in pertinent part:
In harmony with the company’s at-will status, C.R.
England reserves the right to discipline an employee
up to and including discharge for infractions of work
rules or any policies or conditions of employment
with the company. Discipline may include, but is
never guaranteed to include, verbal or written
warnings prior to discharge.
R.36-3 at 7. “Excessive absence” and “[p]oor job performance”
are among those matters listed that might result in an em-
ployee’s suspension and/or termination. Id.No. 11-2975 9
no problem with it.” 2 1 Yet, Metzler now made clear to
Mr. Harper that those kinds of early departures would
no longer be permitted because they had “exceeded
acceptable levels” and because Mr. Harper’s “absence
ha[d] now begun to affect [his] performance at work.” 2 2
In addition to the written warning for poor at-
tendance, Metzler also gave Mr. Harper a warning for
failing to report his mileage at the close of business on
Friday on four occasions and for not turning in the key to
his assigned truck. Metzler gave Mr. Harper a third
written warning for the poor rates of hire for students
that he had been assigned (“start-to-hire rate”).2 3
Mr. Harper spoke with Director Kelsey regarding
Metzler’s direction to take the week of June 25 off after
he had called in sick on Monday. Director Kelsey, after
evaluating the circumstances surrounding Metzler’s
decision, and Mr. Harper’s recent attendance record,
ultimately agreed with Metzler’s decision.
21
R.36-1 at 18 (Harper Dep. 63).
22
R.36-6 at 19.
23
Although Metzler administered three written warnings to
Mr. Harper on June 29, Mr. Harper was fired due to poor
attendance. There is no evidence in the record to indicate
that Mr. Harper was fired for failing to report his mileage,
failing to turn in his key or poor start-to-hire rates. Mr. Harper
himself verified at his deposition that Director Kelsey
had told him he was being terminated because of absenteeism.
R.36-1 at 26 (Harper Dep. 97).
10 No. 11-2975
After he was placed on probation, Mr. Harper took
several days off to attend his sister’s wedding and an
additional day off for a court appearance.2 4 On July 10,
2007, he emailed Johansen and asserted, among other
things, that he believed that the written warnings were
unwarranted and requested further clarification on C.R.
England’s policies “regarding attendance, employee
conduct, and harassment in the workplace.” 2 5 He also
recounted portions of his conversation with Metzler,
stating that Metzler had implied that his “skin shouldn’t
be so thin” and that Mr. Harper “should move on and
get over it, because [Metzler] grew up in the 60s and he
was called (N----R) many times.” 2 6 The email also set
forth a number of complaints about the treatment
Mr. Harper had received from his coworkers and, in
particular, from his supervisor, Metzler, after the
original email to human resources.
On or about July 13, 2007, Mr. Harper initiated a
“First Report of Injury or Illness,” prepared by the Man-
24
Mr. Harper contends that he had informed Metzler that he
needed to take some days off to attend his sister’s July wed-
ding. He maintains that Metzler told him in advance that
he could have the days off. The record makes clear that, fol-
lowing Mr. Harper’s being placed on probation, Metzler
told him that he could only take the time off if he had leave
available. The parties dispute whether Mr. Harper had any
leave available in July 2007.
25
R.36-2 at 5.
26
Id.No. 11-2975 11
ager of Workers’ Compensation, Darlene Niebuhr, in
which he stated that, beginning at the end of
March 2007, his health had started to decline. He specifi-
cally referred to experiencing headaches and high
blood pressure, which he believed were related to harass-
ment in the workplace. Mr. Harper never filed a work-
ers’ compensation claim.
On July 31, 2007, Mr. Harper again spoke with
Johansen on the telephone and reiterated his concerns
about the way that he was being treated by Metzler.
Shortly thereafter, Mr. Harper was terminated. Before
reaching the final decision to terminate Mr. Harper,
Director Kelsey consulted with Johansen about
Mr. Harper’s attendance records. Johansen verified
that Mr. Harper had exceeded his leave and agreed with
Director Kelsey’s decision to terminate Mr. Harper.2 7
27
R.36-5 at 11 (Johansen Dep. 36-38). Johansen testified at her
deposition that, in her opinion, the number of days that
Mr. Harper had missed, whether approved or not, “seemed
excessive.” Id. (Johansen Dep. 36). She explained that the
number of absences becomes excessive “[w]hen it impacts
[an employee’s] performance,” and that would “depend on
[the employee’s] job.” Id. (Johansen Dep. 37). Johansen verified
that C.R. England does not have a rule that governs absences
or leaving early, and that it is left to the discretion of the
supervisor to decide on a case-by-case basis. She explained
that the determination as to when the number of absences or
early departures is affecting an employee’s job performance
is ultimately the responsibility of the employee’s supervisor.
(continued...)
12 No. 11-2975
On August 3, 2007, Director Kelsey met with Mr. Harper
and told him he was being terminated for poor
attendance.28 Director Kelsey prepared a written Termina-
tion Evaluation Form that indicated as the explanation
of termination that Mr. Harper “ha[d] not been able to
do [his] job full time.” 2 9 At the time of his termination,
Mr. Harper had missed seventeen days since January 1,
2007. Although the record is not clear with respect to
the nature of these absences, this total includes four
sick days, two holidays and at least seven vacation
days prior to his probation. It also includes three
additional days after his probation: two for his sister’s
wedding and one to appear in court.3 0
27
(...continued)
Johansen verified that, in Mr. Harper’s case, this decision
would be left to the discretion of “Mr. Metzler in conjunction
with Mr. Kelsey.” Id. Although Mr. Harper provides an alternate
interpretation of Johansen’s statements with respect to the
decision to terminate him, we believe that, reading the testi-
mony in total, it is clear that the decision to terminate
Mr. Harper was not made by Metzler, but by Director Kelsey
with the concurrence of Johansen.
28
Metzler stated that Director Kelsey made the decision to
terminate Mr. Harper based on poor attendance. He also
noted that Director Kelsey did not consult him regarding the
decision to terminate Mr. Harper. R.36-11 at 3 (Metzler Aff.).
29
R.36-6 at 63.
30
See R.36-6 at 22.
No. 11-2975 13
B. Procedural History
Following the termination of his employment,
Mr. Harper filed a charge of racial discrimination with
the Equal Employment Opportunity Commission
(“EEOC”) against C.R. England. He alleged that he had
been terminated unlawfully in retaliation for com-
plaining of racial discrimination and a hostile work
environment. On March 6, 2008, after receiving a “right
to sue letter” from the EEOC, Mr. Harper filed a
complaint in the Porter County Superior Court, alleging
racial discrimination, harassment and retaliation under
42 U.S.C. § 1981 and Title VII, 42 U.S.C. § 2000e et seq. He
also alleged retaliation for filing a workers’ compensa-
tion claim in violation of Indiana law. C.R. England
removed the case to the United States District Court for
the Northern District of Indiana under 28 U.S.C. § 1441(a),
and, once removal was effected, moved for summary
judgment.
With respect to Mr. Harper’s retaliation claim, the
district court concluded that Mr. Harper had failed to set
forth a prima facie case, under either the direct or
indirect method of proof, to support his claim that C.R.
England had retaliated against him for reporting what
he believed to be unlawful racial discrimination. The
district court ultimately granted summary judg-
ment for the defendant on all five counts set forth in
Mr. Harper’s complaint. Mr. Harper now appeals only
the district court’s decision to grant summary judgment
with respect to his retaliation claim.
14 No. 11-2975
II
DISCUSSION
A. Standard of Review
We review the district court’s decision to grant
a motion for summary judgment de novo, construing
all the facts in the light most favorable to the nonmoving
party, Mr. Harper. See Darst v. Interstate Brands Corp.,
512 F.3d 903, 907 (7th Cir. 2008). Summary judgment is
proper where “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a). “However, our
favor toward the nonmoving party does not extend to
drawing ‘[i]nferences that are supported by only specula-
tion or conjecture.’ ” Argyropoulos v. City of Alton, 539 F.3d
724, 732 (7th Cir. 2008) (alteration in original) (internal
quotation marks omitted). Rather, “[a] genuine issue
of material fact arises only if sufficient evidence favoring
the nonmoving party exists to permit a jury to return a
verdict for that party.” Faas v. Sears, Roebuck & Co., 532
F.3d 633, 640-41 (7th Cir. 2008) (internal quotation
marks omitted).
B. Direct Method of Proof
A plaintiff may establish retaliation under either the
direct or indirect method of proof. See Weber v. Univs.
Research Ass’n, Inc., 621 F.3d 589, 592 (7th Cir. 2010). To
establish retaliation under the direct method, a plaintiff
must present evidence, direct or circumstantial, showing
that: (1) he engaged in a statutorily protected activity;
No. 11-2975 15
(2) he suffered a materially adverse action; and (3) a
causal connection exists between the two. Burks v. Wiscon-
sin Dep’t of Transp., 464 F.3d 744, 758 (7th Cir. 2006).
Here, it is undisputed that Mr. Harper’s complaint
of racial discrimination and harassment is a statutorily
protected activity. The parties also correctly agree that
Mr. Harper’s termination constitutes an adverse employ-
ment action. See Haywood v. Lucent Techs., Inc., 323 F.3d
524, 531 (7th Cir. 2003) (stating that an employee’s termina-
tion “certainly qualifies as an adverse employment ac-
tion”).31
31
On appeal, Mr. Harper does not challenge the district court’s
conclusion that ostracism by his coworkers and comments
made by his direct supervisor, Metzler, did not amount to an
adverse employment action within the meaning of Title VII.
However, Mr. Harper does challenge the court’s additional
determination that the three written warnings administered
to Mr. Harper in June 2007 by Metzler, which resulted in
Mr. Harper’s being placed on probation, did not amount to an
adverse employment action. Indeed, we have suggested that
placing an employee on probation, in some cases, may
constitute a materially adverse employment action, see Smart
v. Ball State Univ., 89 F.3d 437, 442 (7th Cir. 1996), but we do
not believe that is the case here.
The Supreme Court has construed Title VII’s anti-retaliation
provision broadly. See Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 67-68 (2006). Indeed, a materially adverse employ-
ment action is one that “well might have dissuaded a rea-
sonable worker from making or supporting a charge of dis-
crimination.” Id. at 68 (internal quotation marks omitted);
(continued...)
16 No. 11-2975
31
(...continued)
Lewis v. City of Chi., 496 F.3d 645, 655 (7th Cir. 2007). In other
words, “if the challenged action would discourage other em-
ployees from complaining about employer conduct that
violates Title VII, it constitutes an adverse employment action.”
Vance v. Ball State Univ., 646 F.3d 461, 473 (7th Cir. 2011).
We believe that, given the circumstances surrounding the
employer’s actions in this case, the district court correctly
concluded that the written warnings and the placement of
Mr. Harper on probationary status did not rise to the level of
a materially adverse employment action. Mr. Harper made
his complaint, at the very latest, on April 18, 2007, more than
two months before he was given the warnings and placed
on probation the week of June 25, 2007. We further note that
Mr. Harper was placed on probation only after calling in sick
on June 25, which resulted in his group being reassigned
to another instructor. We therefore do not believe that a reason-
able employee would be discouraged from filing a Title VII
complaint as a result of the actions taken against Mr. Harper.
Furthermore, even if we were to conclude that the warnings
constitute a materially adverse employment action, Mr. Harper
would be unable to show a connection between his com-
plaint, which he made, at the very latest on April 18, 2007, and
the administration of the warnings, which occurred more than
two months later, during the week of June 25, 2007. See, e.g.,
Argyropoulos v. City of Alton, 539 F.3d 724, 734 (7th Cir. 2008)
(holding that a seven-week interval between a sexual harass-
ment complaint and plaintiff’s termination “does not represent
that rare case where suspicious timing, without more, will carry
the day”); Amrhein v. Health Care Serv. Corp., 546 F.3d 854, 859
(7th Cir. 2008) (holding that timing was not enough, on its
(continued...)
No. 11-2975 17
On appeal, Mr. Harper challenges the district court’s
conclusion that his claim under the direct method
failed because he was unable to establish the third prong
of the analysis: that a causal connection exists between
his complaints to Director Kelsey and Johansen and his
subsequent termination.
Under the direct method of proof, Mr. Harper can rely
on either direct or circumstantial evidence to show
that C.R. England was motivated to terminate him
because of his protected activity. See Haywood, 323 F.3d at
529. Evidence of retaliation is direct when, “if believed
by the trier of fact, [it] will prove the particular fact in
question without reliance on inference or presump-
tion.” Pitasi v. Gartner Grp., Inc., 184 F.3d 709, 714 (7th
Cir. 1999) (internal quotation marks omitted). “Because
direct evidence . . . essentially requires an admission by
the employer,” such evidence “is rare.” Benders v. Bellows
& Bellows, 515 F.3d 757, 764 (7th Cir. 2008). Mr. Harper
has not produced any direct evidence of a causal link
between his complaints of racial discrimination and
his subsequent termination. He instead relies upon what
he considers to be “a convincing mosaic of circumstantial
31
(...continued)
own, to create a jury issue on retaliation where the plaintiff
had threatened to file an EEOC complaint three months and
then again six weeks before she was fired); Parkins v. Civil
Constructors of Ill., Inc., 163 F.3d 1027, 1039 (7th Cir. 1998)
(affirming summary judgment in favor of the employer where
the employee complained of sexual harassment in August and
was laid off in November of the same year).
18 No. 11-2975
evidence,” Rhodes v. Illinois Dep’t of Transp., 359 F.3d
498, 504 (7th Cir. 2004) (internal quotation marks omit-
ted), that would permit a jury to infer unlawful retalia-
tion on the part of his employer, C.R. England. In the
past, we have held that circumstantial evidence of retalia-
tion may include “suspicious timing, ambiguous state-
ments, behavior toward or comments directed at other
employees in the protected group, and other bits and
pieces from which an inference of discriminatory intent
might be drawn.” Boumehdi v. Plastag Holdings, LLC,
489 F.3d 781, 792 (7th Cir. 2007).3 2
Mr. Harper’s primary argument with respect to his
presentation of circumstantial evidence is based on the
proximity between his complaints to human resources
and his termination. It is well established that “mere
temporal proximity between [the statutorily protected
activity] and the action alleged to have been taken in
retaliation for that [activity] will rarely be sufficient in
and of itself to create a triable issue.” Stone v. City of
Indianapolis Pub. Utils. Div., 281 F.3d 640, 644 (7th Cir.
32
This court frequently has recognized two additional
categories of circumstantial evidence, which traditionally
have been associated with the indirect, rather than the direct
method of proof: (1) “evidence, but not necessarily rigorous
statistical evidence, that similarly situated employees were
treated differently”; and (2) “evidence that the employer
offered a pretextual reason for an adverse employment ac-
tion.” Coleman v. Donahoe, 667 F.3d 835, 860 (7th Cir. 2012)
(internal quotation marks and citations omitted); see discus-
sion infra pp. 31-33.
No. 11-2975 19
2002); see also Sauzek v. Exxon Coal USA, Inc., 202 F.3d
913, 918 (7th Cir. 2000) (“Speculation based on suspicious
timing alone . . . does not support a reasonable inference
of retaliation . . . .”). However, “together with other
facts, [suspicious timing] can sometimes raise an
inference of a causal connection.” Magyar v. Saint Joseph
Reg’l Med. Ctr., 544 F.3d 766, 772 (7th Cir. 2008).
Here, as is the often the case, “[w]e can measure the
time in several ways.” Id. The district court concluded
that, “[w]ithout any other evidence supporting a link
between the two occurrences, the several-month time
lag between [Mr. Harper’s] complaint of racial harass-
ment to his supervisor in March, 2007, or even the later
complaint to human resources on April 18, 2007, and his
August 3, 2007, termination is too great to support an
inference of retaliation.” 3 3 The district court also
rejected Mr. Harper’s contention that the proper time
period for the court to consider was the much closer
proximity between his contact with Johansen in human
resources via email on July 10, 2007, and via telephone
on July 31, 2007, and his termination on August 3, 2007.
Mr. Harper now renews this latter argument before us.
He also contends that his case may be distinguished
from the cases considered by the district court because
he has presented additional circumstantial evidence,
other than suspicious timing, to support an inference of
retaliation.
Even if we were to accept Mr. Harper’s contention
that we should consider the proximity between his
33
R.44 at 15.
20 No. 11-2975
contact with Johansen on several occasions in July and
his termination in early August, we agree with the
district court that Mr. Harper has not met his burden of
putting forth other evidence that suggests that his pro-
tected activities were in any way linked to his termina-
tion. In addition to the evidence of suspicious timing,
Mr. Harper offers the following circumstantial evidence:
(1) Director Kelsey and Metzler did not conduct a
proper investigation into Humphrey’s alleged derogatory
comments; (2) Metzler met with Mr. Harper after the
investigation was complete and asked him what he
hoped to gain by filing a complaint with human
resources; and (3) Metzler told him that he needed to
grow a thicker skin.
Mr. Harper provides no support for his assertion that
Metzler and Director Kelsey did not conduct a proper
investigation into the alleged incident. The only related
argument that Mr. Harper made is that Director Kelsey
and Metzler attempted to cover up Mr. Harper’s com-
plaint, but he does not dispute that Metzler and
Director Kelsey made clear to all of the road instructors
that the use of racial slurs would constitute a firing
offense. Such action on the part of management
certainly does not indicate that it was engaged in a
cover up. Mr. Harper also does not dispute that, shortly
after he complained to Director Kelsey that “asshole” had
been written on his time card, Metzler moved the time
cards inside his office to avoid any further incidents in
the future. Finally, he does not dispute that Director
Kelsey reported all information regarding the investiga-
tion and handling of Mr. Harper to human resources
No. 11-2975 21
and that human resources did not ask for any further
action.
Mr. Harper is correct in asserting that Metzler’s com-
ments in the aftermath of the investigation constitute
some circumstantial evidence of retaliation. However,
the record makes clear that Director Kelsey, and not
Metzler, made the decision to fire Mr. Harper. Further,
there is no evidence in the record to suggest that Director
Kelsey’s decision to fire Mr. Harper was in any way
influenced by Metzler. See Cook v. IPC Int’l Corp., 673
F.3d 625, 628 (7th Cir. 2012) (explaining that, under the
“cat’s paw” theory of liability, an employer may be held
liable if “an employee is fired or subjected to some
other adverse employment action by a supervisor who
himself has no discriminatory motive, but who has been
manipulated by a subordinate who does have such a
motive”). Rather, the evidence suggests that Director
Kelsey made the decision to terminate Mr. Harper only
after he had discussed the situation with Johansen. There-
fore, Metzler’s comments do not help to establish a
link between Mr. Harper’s complaint and the termina-
tion of his employment in August 2007.
Because evidence regarding suspicious timing,
without more, is generally insufficient to support a rea-
sonable inference of retaliation, we conclude that
Mr. Harper has failed to establish a prima facie case
of retaliation under the direct method of proof.
22 No. 11-2975
C. The Indirect Method of Proof
Under the indirect, burden-shifting approach,
Mr. Harper may establish a prima facie case of retalia-
tion by showing that: (1) he engaged in a statutorily
protected activity; (2) he met his employer’s legitimate
expectations, i.e., he was performing his job satis-
factorily; (3) he suffered a materially adverse action;
and (4) he was treated less favorably than some
similarly situated employee who did not engage in the
statutorily protected activity. See Tomanovich v. City of
Indianapolis, 457 F.3d 656, 663 (7th Cir. 2006). Once a
plaintiff has established a prima facie case, the burden
shifts to the defendant to articulate a non-discriminatory
reason for discharging the plaintiff. Id. If the defendant
meets its burden, the burden shifts back to the plaintiff
to show that a genuine issue of material fact exists as
to whether the defendant’s proffered reason was pre-
textual. Id.As we already have noted, it is not disputed that
Mr. Harper engaged in a statutorily protected
activity or that he suffered an adverse employment
action. However, Mr. Harper challenges the district
court’s findings with respect to (1) whether he was
meeting the legitimate expectations of C.R. England at
the time of his termination, and (2) whether similarly
situated employees who did not engage in the statutorily
protected activity were treated more favorably.
We agree, for the reasons that follow, with the district
court’s conclusion that Mr. Harper has not presented
sufficient evidence to satisfy either requirement and,
No. 11-2975 23
therefore, has failed to make a prima facie case for re-
taliation under the indirect method.
1. Similarly Situated Individuals
We first turn to Mr. Harper’s argument that he was
treated less favorably than other instructors who, he
claims, were similarly situated. A similarly situated
employee need not be in a situation identical to that of
the plaintiff. Nevertheless, a plaintiff must show not
only that the proffered comparators “dealt with the
same supervisor[ and] were subject to the same stan-
dards,” but also that they “had engaged in similar
conduct without such differentiating or mitigating cir-
cumstances as would distinguish their conduct or the
employer’s treatment of them.” Gates v. Caterpillar, Inc.,
513 F.3d 680, 690 (7th Cir. 2008) (internal quotation
marks omitted); see also Crawford v. Indiana Harbor Belt
R.R. Co., 461 F.3d 844, 846 (7th Cir. 2006) (holding that
a similarly situated employee is one who is “comparable
to the plaintiff in all material respects” (emphasis in
original)). In short, being “similarly situated” requires
“enough common features between the individuals to
allow [for] a meaningful comparison.” Humphries v. CBOCS
W., Inc., 474 F.3d 387, 405 (7th Cir. 2007).
We agree with the district court’s conclusion that
Mr. Harper has failed to identify any other C.R. England
instructor who had a comparable attendance record.
Mr. Harper provides the name of only one individual,
Kim Beckom, who he asserts received more favorable
treatment with respect to attendance issues. However,
24 No. 11-2975
as the district court pointed out, the documents
provided by Mr. Harper do not include Beckom’s atten-
dance records or indicate how much work Beckom
missed before he was discharged in May 2006 due to
his inability to work the required schedule. Here, we
believe that a meaningful comparison only may be made
by identifying those employees who received more favor-
able treatment while on probation for attendance is-
sues. See Nichols v. S. Ill. Univ.-Edwardsville, 510 F.3d 772,
786 (7th Cir. 2007) (requiring plaintiffs to identify an
employee who had engaged in similar misconduct in
order to satisfy the similarly situated requirement); see
also Argyropoulos, 539 F.3d at 735 (same). We therefore
agree with the district court’s conclusion that, with
respect to Beckom, Mr. Harper failed to demonstrate
that he “was a similarly situated employee suitable for
comparison.” 34
In addition, Mr. Harper provides a list of names and
asserts generally that “eight of the nine witnesses identi-
fied by Harper, who did not complain of or confirm use
of racial slurs by Darnell Humphrey—were treated more
favorably than Harper.” Appellant’s Br. 24. However,
Mr. Harper fails to point to any listed individual who
was treated more favorably with respect to his or her
attendance record. His contention that “[C.R.] England
produced no evidence that any employee other than
Harper had [h]olidays and vacation used against him
to create a history of attendance issues for which the
34
R.44 at 20.
No. 11-2975 25
employee was fired,” Appellant’s Br. 23, is hardly suffi-
cient to satisfy this requirement.
Because Mr. Harper has not demonstrated that any of
the coworkers listed had a “comparable set of failings,”
Haywood, 323 F.3d at 530 (applying the standard in
the discrimination context), he fails to establish that any
of these individuals were similarly situated for the pur-
poses of establishing a retaliation claim.
2. Work Performance and Employer’s Legitimate
Expectations
Next, we turn to Mr. Harper’s contention that he
was performing his job satisfactorily at the time of his
termination. In order to determine whether Mr. Harper
was meeting his employer’s legitimate expectations,
“[t]he proper inquiry mandates looking at [Mr. Harper’s]
job performance through the eyes of [his] supervisors at
the time of [his] . . . termination.” Gates, 513 F.3d at
689. Although Mr. Harper fails to develop fully this
argument, he seems to suggest that the alleged disparities
in C.R. England’s treatment of its employees with
respect to job performance standards, in addition to
the fact that he was appointed to act as interim lead
instructor from January 2007 to February 2007, serves as
evidence that he was meeting C.R. England’s legitimate
job expectations.
As we discussed earlier, Mr. Harper failed to identify
any other instructor who had a comparable attendance
record, and his argument with respect to the disparities
26 No. 11-2975
in C.R. England’s treatment of its employees is therefore
unsupported by the record. In addition, it is important to
note that, at the time of his termination, Mr. Harper was
on probation for attendance issues. In his deposition,
Mr. Harper testified that he was aware of C.R. England’s
expectations that the instructors be on time and present
for their students. He admitted that he had been aware
that he was placed on probation for attendance reasons
and acknowledged that he had known that he could be
terminated if he continued to take time off of work after
being on probation. It is also undisputed that, after being
placed on probation, Mr. Harper took several days off
to attend his sister’s wedding and one additional day
to appear in court. Although the parties dispute
whether Mr. Harper indeed had exceeded his number
of authorized leave days and whether certain of these
days off had been authorized, C.R. England’s policies
and procedures booklet makes clear that “[v]acation
time requests are subject to [m]anagement approval
based upon operating requirements, staffing consider-
ations, and business necessity.” 3 5 Furthermore, Mr. Harper
does not proffer any evidence to rebut C.R. England’s
criticism of his job performance, nor does he argue that
the cumulative effect of his absences did not in fact inter-
fere with his job performance. We therefore conclude
that Mr. Harper has not shown that he was performing
his job adequately at the time of his termination.
35
R.36-3 at 10.
No. 11-2975 27
3. Pretext
Because Mr. Harper has failed to make out a prima
facie case of retaliation under the indirect method, we
need not address the issue of pretext. See Volovsek v.
Wisconsin Dep’t of Agric., Trade & Consumer Prot., 344 F.3d
680, 692 (7th Cir. 2003). Nonetheless, in the interest of
completeness, we shall address Mr. Harper’s arguments
with respect to this issue.
C.R. England has offered a legitimate, nondiscriminatory
reason for terminating Mr. Harper: excessive absences.
In determining whether an employer’s stated reason is
pretextual, “[t]he question is not whether the em-
ployer’s stated reason was inaccurate or unfair, but
whether the employer honestly believed the reason it
has offered to explain the discharge.” O’Leary v. Accretive
Health, Inc., 657 F.3d 625, 635 (7th Cir. 2011). “[I]t is not
the court’s concern that an employer may be wrong
about its employee’s performance, or be too hard on its
employee. Rather, the only question is whether the em-
ployer’s proffered reason was pretextual, meaning that
it was a lie.” Ineichen v. Ameritech, 410 F.3d 956, 961 (7th
Cir. 2005). In short, to meet this burden, Mr. Harper
“must identify such weaknesses, implausibilities, incon-
sistencies, or contradictions” in C.R. England’s stated
reason “that a reasonable person could find [it] unworthy
of credence.” Boumehdi, 489 F.3d at 792 (applying this
standard in the discrimination context).
To begin, we address Mr. Harper’s argument
that C.R. England was inconsistent in its reasoning for
terminating him and that this inconsistency provides
28 No. 11-2975
additional evidence of pretext. Mr. Harper’s characteriza-
tion of the record with respect to the reasoning behind
his termination is inaccurate. Mr. Harper’s Termination
Evaluation Form states that he was being fired because
he “ha[d] not been able to do [his] job full time.” 3 6 Al-
though the form indicates that Mr. Harper had received
warnings in the past regarding absenteeism and poor
performance, nothing on the form indicates that he was
fired for any other reason than violating the terms of
his attendance probation. Furthermore, in his deposi-
tion, Mr. Harper testified that Director Kelsey told
him on August 3, 2007, that the reason he was
terminating his employment was because of absentee-
ism. 3 7 Mr. Harper further agreed that he did not know
of any evidence suggesting that he was being terminated
for some other reason.3 8 Similarly, Director Kesley testi-
fied at his deposition that he made the decision to fire
Mr. Harper because of “[m]ultiple attendance issues.” 3 9
It is clear from the record that, although Director Kelsey
looked at all three of Mr. Harper’s written warnings,
he relied upon Mr. Harper’s probation violation in con-
cluding that his employment should be terminated.
Mr. Harper’s argument that C.R. England shifted
its reason for terminating his employment is therefore
unsupported by the record, including his own testi-
36
R.36-6 at 63.
37
R.36-1 at 20, 26 (Harper Dep. 74, 97).
38
See id. at 26 (Harper Dep. 97).
39
R.36-4 at 13 (Kelsey Dep. 45).
No. 11-2975 29
mony regarding C.R. England’s explanation for his termi-
nation.
Mr. Harper also submits the following as evidence of
pretext: (1) he was disciplined for mileage and keys when
C.R. England had no policy concerning either; (2) C.R.
England changed the start-to-hire rate, and Metzler
did not discipline any other instructor for being below
the acceptable level; (3) C.R. England counted paid holi-
days and vacation days against Mr. Harper, but not
against any other employee; (4) he was not permitted to
take days off for his sister’s wedding when the leave
already had been approved prior to his being placed
on probation; (5) C.R. England tried to cover up the
Humphrey incident; and (6) he was given written
warnings after voicing complaints and then fired after
complaining about being singled out for unjust disci-
pline. We consider each of these arguments, in turn,
bearing in mind that the burden is on Mr. Harper to
establish that C.R. England’s proffered reason for his
termination is pretextual.
As we explained earlier, we need not address
Mr. Harper’s arguments with respect to his being disci-
plined for failing to report mileage or to turn in his
keys, nor must we address Mr. Harper’s arguments with
respect to the company’s start-to-hire rates; neither argu-
ment is germane to our discussion of whether C.R. Eng-
land’s stated reason for firing Mr. Harper, i.e., ex-
cessive absences, was pretextual. We therefore turn to
Mr. Harper’s argument that the evidence shows that C.R.
England improperly counted paid holidays and vacation
30 No. 11-2975
days against Mr. Harper as excessive leave. As we
already have noted, an issue of fact clearly exists as to
whether Mr. Harper had exceeded his authorized
number of leave days and whether C.R. England
impermissibly counted paid holidays and vacation
days against him. One also can debate whether it is
good policy to include paid leave or vacation days in
evaluating an employee’s total attendance record or
whether certain of Mr. Harper’s days off during 2007
indeed were authorized by Mr. Harper’s supervisors.
The fact remains, however, that C.R. England fired
Mr. Harper because it found that his cumulative
exercise of leave was excessive and that it was affecting
his performance as an instructor.
We need only briefly reiterate that Mr. Harper
provides no evidence to support his assertion that
Director Kelsey and Metzler tried to cover up the
incident with Humphrey. As we have discussed earlier,
Mr. Harper does not dispute that, in the aftermath of
the alleged incident, Metzler, at the direction of
Director Kelsey, warned the road instructors, including
Humphrey, that the use of racial slurs would not be
tolerated. In addition, Mr. Harper is unable to provide
evidence to support his claim that Metzler interviewed
only two of the nine witnesses to the incident. According
to Director Kelsey, Metzler confirmed that one in-
structor, Richard Ramos, verified Mr. Harper’s account
of the confrontation with Humphrey. However, Metzler
also reported that Humphrey denied using the racial
slur and at least one other instructor, whom Mr. Harper
identified as being present at the time of the incident, did
No. 11-2975 31
not hear Humphrey call Mr. Harper a “n----r.” Director
Kelsey reported the results of Metzler’s investigation
to Johansen in human resources, and she did not ask
for any further action. There is therefore no evidence
that Director Kelsey or Metzler in any way covered up
the incident.
Finally, Mr. Harper returns to his argument regarding
the timing of his complaints. He argues that the
proximity between his complaints to human resources
regarding the written warnings and other unfair dis-
cipline he received from Metzler via email on July 10,
2007, and by telephone around July 31, 2007, and his
subsequent termination on August 3, 2007, amounts to
evidence of pretext. As we have discussed above,
evidence of suspicious timing, without more, is
insufficient to support a claim of retaliation.
In short, Mr. Harper makes a number of assertions,
none of which could lead a reasonable jury to conclude
that C.R. England’s stated reason for firing him was
pretextual. Rather, as the district court aptly noted,
Mr. Harper argues that his termination was unfair, but
he does not provide any evidence to refute C.R.
England’s position that his cumulative exercise of leave
was excessive or to demonstrate that his absences did not
affect his job performance and ability to instruct. We
therefore conclude, in the alternative, that Mr. Harper
has failed to demonstrate that C.R. England’s stated
reason for terminating him is pretextual.
Finally, we note that under Judge Wood’s approach in
Coleman v. Donahoe, 667 F.3d 835, 862 (7th Cir. 2012) (Wood,
32 No. 11-2975
J., concurring), the same result obtains. In Coleman, our
colleague, joined by the other judges on the panel, sug-
gested in a special concurring opinion that our famil-
iarity with these kinds of discrimination and re-
taliation cases has evolved to the point where two
distinct methodologies, rather than clarifying or sim-
plifying our analysis of a particular case, has become
a complicating factor. Judge Wood suggested that we
would be better served at this time by “collaps[ing] all
these tests,” into a single, unified approach that distills
the core issue at the heart of these cases: whether “a
rational jury could conclude that the employer took
that adverse action on account of [the employee’s] pro-
tected class [or activity], not for any non-invidious rea-
son.” Id. at 863 (Wood, J., concurring); see also King v. Acosta
Sales & Mktg., Inc., No. 11-3617, 2012 WL 807199, at *3
(7th Cir. Mar. 13, 2012) (discussing briefly Judge Wood’s
concurring opinion in Coleman).
Certainly, cases such as this one demonstrate that
the line between circumstantial evidence under the
direct method and indirect evidence of discrimination
or retaliation under the burden-shifting approach
has been blurred by the gradual integration of these
methodologies. Furthermore, we believe that a stream-
lined evaluation of the evidence presented, including
the timing of Mr. Harper’s termination, his job perfor-
mance and ratings after he complained to Director Kelsey
and Johansen, his attendance record compared to those
of his coworkers, as well as C.R. England’s proffered
reason for termination, would yield the same conclusion,
without the “snarls and knots,” Coleman, 667 F.3d at 863
No. 11-2975 33
(Wood, J., concurring), created by the broad, and now
overlapping, approaches. The circumstantial evidence
in the record, construed in the light most favorable to
Mr. Harper, simply does not constitute a sufficient
basis for sustaining a jury verdict in his favor.
Conclusion
For the foregoing reasons, the judgment of the district
court is affirmed.
A FFIRMED
6-8-12