Tomanovich, George v. City of Indianapolis

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1653
GEORGE TOMANOVICH,
Plaintiff-Appellant,
v.
CITY OF INDIANAPOLIS and INDIANA DEPARTMENT
OF TRANSPORTATION,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 02 C 1446—Richard L. Young, Judge.
____________
ARGUED APRIL 12, 2006—DECIDED AUGUST 8, 2006
____________
Before POSNER, RIPPLE, and MANION, Circuit Judges.
MANION, Circuit Judge. George Tomanovich sued the City
of Indianapolis and the Indiana Department of Transporta-
tion, alleging that they retaliated against him for engaging
in protected activity in violation of Title VII. Tomanovich
also alleged that the City blacklisted him in violation of
Indiana Code 22-5-3-1. The district court granted the
defendants summary judgment. Tomanovich appeals. We
affirm.
2 No. 05-1653
I.
George Tomanovich first began working for the City of
Indianapolis (“the City”) in 1976. He left the City’s employ
in the 1990’s, but was rehired in March 2000 as the Natural
Resources Manager for the City’s Department of Parks and
Recreation. In July 2000, Tomanovich transferred to the
City’s Department of Asset Management, where he worked
as a Senior Project Engineer. Tomanovich again changed
jobs in July 2001, when he joined the City’s Department of
Public Works (“DPW”) Engineering Division as an Admin-
istrator of Construction Services.
In early 2002, Mona Salem became the Deputy Director of
the DPW and Tomanovich’s direct supervisor. A few
months after Salem took over as Tomanovich’s boss, he filed
an internal complaint against Salem because he believed
there was inequity between his salary and the salaries of
five other individuals in his section. The City denied the
grievance. Tomanovich then filed a second grievance
against Salem for harassment. The City also denied this
grievance.
On June 3, 2002, Salem issued Tomanovich a written
notice of unacceptable performance. In this notice, Salem
identified four areas of deficiency, specifically
Tomanovich’s (1) failure to perform his duties in a satis-
factory manner, including untimely completion of his
duties, canceling certain meetings, and failing to obtain pre-
approval for actions he had taken; (2) failure to conform to
established work standards or supervisory orders by not
submitting weekly reports; (3) failure to show courtesy and
respect to his supervisor and other DPW employees; and (4)
failure to exercise good judgment as a manager. Based on
these deficiencies, Salem placed Tomanovich on a Perfor-
mance Improvement Plan.
No. 05-1653 3
A little over a month later, on July 10, 2002, Tomanovich
filed his first charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”). In that
charge, Tomanovich alleged that the City was retaliating
against him for engaging in protected activity. On August
23, 2002, Salem issued an Updated Notice of Unacceptable
Performance to Tomanovich. This notice noted some
areas of improvement, but also identified five areas for
improvement in his management skills. The notice also
warned him that “failure to sustain the expected level of
performance may result in termination without additional
notice.”
While still working for the City, Tomanovich filed suit
under Title VII against the City, Salem, and three other
employees on September 18, 2002. Tomanovich later failed
to attend a November 4, 2002, meeting with Salem at
which Salem was to review his performance. Then, on
November 12, 2002, the City fired Tomanovich. Tomanovich
responded by filing a second charge of discrimination with
the EEOC alleging that after he filed his first charge of
discrimination, Salem “began intensifying her scrutiny of
my work.” He further claimed that the City retaliated
against him by refusing to consider him for other positions
within City government.
On February 4, 2003, Tomanovich applied for the position
of Construction Engineer Trainee with the State of Indiana
Department of Transportation (“INDOT”). To apply for the
position, Tomanovich had to complete a written application
which, among other things, required him to authorize
INDOT to contact his former employers. For work experi-
ence, Tomanovich listed, among other jobs, his most recent
employment as Administrator of Construction Services with
the City. He stated that the reason for leaving that position
4 No. 05-1653
was “separation of employment.” The “Work Experience”
section of the Application noted that “[e]xperience that
cannot be confirmed is not acceptable.”
At the time that Tomanovich applied for the Construction
Engineer Trainee position he was also a candidate for
Indianapolis City Council. Not knowing of his candidacy,
on March 13, 2003, Stephen Risch of INDOT’s Greenfield
District Office offered Tomanovich the job of Construction
Engineer Trainee. Once the candidacy was discovered,
however, INDOT’s Chief Legal Counsel Kelly Whiteman
concluded that Indiana law prohibited an INDOT employee
holding an engineering position from running for elected
office. As a consequence, on March 19, 2003, Whiteman
rescinded INDOT’s offer to Tomanovich by letter, informing
him of the statutory prohibition against INDOT engineers
running for elected office.
In response, Tomanovich withdrew his candidacy for City
Council and, on March 20, 2003, he faxed a copy of his
formal withdrawal to Whiteman. The next day INDOT
contacted the City to verify Tomanovich’s employment
history. INDOT’S Human Resources Division Chief, Jane
Trout, contacted Barbara Lawrence, whom Tomanovich had
listed as his Supervisor at the City, but Lawrence indicated
that she could not answer any of Trout’s questions about
Tomanovich due to pending litigation. Trout then contacted
the City’s Human Resources Division, but the City refused
to provide any information as to Tomanovich’s prior
employment, other than his dates of employment.
Around this same time, Vaneetta Kumar, a deputy
commissioner with INDOT, asked Trout whether INDOT
was “hiring someone by the name of Tomanovich.” Trout
answered in the affirmative and Kumar, who had previ-
ously worked for the City, then responded that “there
No. 05-1653 5
were some issues with that.” Trout then sent an email to
Risch telling him not to make an offer to Tomanovich,
stating “[t]here’s problems.” A couple of days later, Trout
told Risch “[w]e are not going to hire Mr. Tomanovich.”
On March 24, 2003, Tomanovich called Risch and Risch
told him his employment with INDOT was still “on hold.”
After additional attempts to obtain information on
Tomanovich’s employment with the City failed, on May 15,
2003, Whiteman sent Tomanovich a letter stating that
INDOT “performed a routine check of your employment
history. Your previous employer, the City of Indianapolis,
refused to provide any information other than your dates of
employment. Because we are unable to verify any informa-
tion regarding your job performance, we have decided that
no further offers will be forthcoming.”
Tomanovich responded by amending his discrimination
complaint. In his amended complaint, in addition to his
retaliation claim against the City, Tomanovich added a
claim against INDOT for retaliation. Tomanovich also
added a claim against the City, alleging that Indianapolis
blacklisted him in violation of Indiana Code 22-5-3-1.1 The
City and INDOT moved for summary judgment. The
district court granted their motions. Tomanovich appeals.
1
Tomanovich also alleged Salem (who is a Muslim from Egypt),
acting on behalf of the City, discriminated against him on the
basis of his ethnicity (he is Serbian) and on the basis of his age.
Before the district court, however, Tomanovich conceded that the
City was entitled to summary judgment on those claims, and
those claims are not before this court on appeal.
6 No. 05-1653
II.
On appeal, Tomanovich argues that the district court
erred in granting the defendants summary judgment on his
retaliation claims. We review a district court’s grant of
summary judgment de novo, viewing all of the facts and
drawing all reasonable inferences in favor of the nonmoving
party. Lim v. Trs. of Ind. Univ., 297 F.3d 575, 580 (7th Cir.
2002). Summary judgment is appropriate if there are no
genuine issues of material fact and the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).
Title VII makes it unlawful “for an employer to discrimi-
nate against any of his employees or applicants for employ-
ment . . . because he has opposed any practice made an
unlawful employment practice by [Title VII].” 42 U.S.C.
§ 2000e-3(a). This type of discrimination is commonly called
“retaliation.” “A plaintiff may prove retaliation by using
either the direct method or the indirect, burden-shifting
method.” Moser v. Ind. Dept. of Corr., 406 F.3d 895, 903 (7th
Cir. 2005). Under the direct method, a plaintiff must show
that “(1) he engaged in statutorily protected activity; (2) he
suffered an adverse action taken by the employer; and (3)
[there was] a causal connection between the two.” Id. To
prove retaliation under the “indirect method, the plaintiff
must establish a prima facie case of retaliation by showing
that: (1) [ ]he engaged in a statutorily protected activity; (2)
[ ]he met the employer’s legitimate expectations; (3) [ ]he
suffered an adverse employment action; and (4) [ ]he was
treated less favorably than similarly situated employees
who did not engage in statutorily protected activity.” Id. “If
the plaintiff establishes a prima facie case, the burden of
production shifts to the employer to present evidence of a
non-discriminatory reason for its employment action.”
Adusumilli v. City of Chicago, 164 F.3d 353, 362 (7th Cir.
No. 05-1653 7
1998). “If the employer meets its burden, the burden shifts
back to the plaintiff to demonstrate that the employer’s
reason is pretextual.” Moser, 406 F.3d at 904. Tomanovich
asserts on appeal that he presented sufficient evidence to
avoid summary judgment under both the direct and indirect
methods. We consider each defendant and each method
of proof in turn.
A. The City
1. The Direct Method
Tomanovich argues on appeal that he presented sufficient
evidence under the direct method that the City retaliated
against him so as to avoid summary judgment. As noted,
under the direct method, Tomanovich must prove that he
(1) engaged in a statutorily protected activity; (2) suffered
an adverse employment action; and (3) that a causal connec-
tion exists between the two. Id. at 903.
As to the first element, Tomanovich points to the three
charges of discrimination he filed with the EEOC, noting
“[o]bviously, the filing of a charge of discrimination satisfies
the first element . . . .” Of course, he is right. See Ajayi v.
Aramark Bus. Serv., Inc., 336 F.3d 520, 533 (7th Cir. 2003)
(holding that there is “no dispute that [the plaintiff] satisfied
the first element by filing her EEOC charge”). Therefore,
Tomanovich presented sufficient evidence to satisfy the first
prong of the direct method.
However, in his brief, in arguing that he presented
sufficient direct evidence of retaliation, Tomanovich also
focused on the internal grievance he filed with the City on
March 26, 2002, claiming “discriminatory treatment with
respect to his pay,” and a “second grievance regarding
sexual harassment” on April 25, 2002. Although filing an
8 No. 05-1653
official complaint with an employer may constitute statuto-
rily protected activity under Title VII, the complaint must
indicate the discrimination occurred because of sex, race,
national origin, or some other protected class. See Gleason v.
Mesirow Fin., Inc., 118 F.3d 1134, 1147 (7th Cir. 1997). Merely
complaining in general terms of discrimination or harass-
ment, without indicating a connection to a protected class or
providing facts sufficient to create that inference, is insuffi-
cient. Id. (holding that the plaintiff’s general complaint
about management style without raising the subject of
sexual harassment fails to constitute protected activity);
Sitar v. Indiana Dept. of Transp., 344 F.3d 720, 727 (7th Cir.
2003) (affirming the district court’s grant of summary
judgment to the employer on the plaintiff’s retaliation claim
because the plaintiff’s complaint to his employer “did not
invoke any action protected by Title VII”); Miller v. Am. Fam.
Mut. Ins., 203 F.3d 997, 1008 (7th Cir. 2000) (holding that the
plaintiff did not engage in a protected activity where “[h]er
complaints instead concerned a general displeasure with
being paid less than her co-workers given her longer tenure
and the fact that she had trained some of them . . .” and not
discrimination related to a protected class).
In this case, in complaining about pay discrimination,
Tomanovich did not claim that the discrimination resulted
from his national original or his membership in another
protected class. In fact, in his deposition, Tomanovich stated
that he did not believe his salary was tied to his national
origin or his relationship with Salem. Additionally, while in
his brief Tomanovich claims he complained about “sexual
harassment,” the record reference Tomanovich cites does
not support his characterization of this grievance as a
complaint about sexual harassment. Rather, Tomanovich
cites to a single page in his deposition, wherein he stated
that he spoke with the City regarding “issues of harass-
No. 05-1653 9
ment.” Tomanovich fails to point to any evidence that in
complaining to the City he indicated the alleged harassment
was based upon his sex or was sexual harassment. Accord-
ingly, neither the March 26, 2002, nor the April 25, 2002,
grievance constitutes “protected activities” for purposes of
Title VII’s anti-retaliation provisions. See, e.g., Gleason, 118
F.3d at 1147; Sitar, 344 F.3d at 727; Miller, 203 F.3d at 1008.
As to the second element, Tomanovich points to numer-
ous events that he claims constitute adverse actions, includ-
ing his placement on a Performance Improvement Plan on
June 3, 2002; his updated notice of unacceptable perfor-
mance on August 23, 2002; his firing on November 12, 2002;
the City’s subsequent refusal to rehire Tomanovich; and the
City’s refusal to provide INDOT with details of his perfor-
mance record with the City.
Tomanovich, however, did not file his first charge of
discrimination with the EEOC until July 10, 2002, and, thus,
the City’s prior decision to place Tomanovich on a perfor-
mance plan on June 3, 2002, could not have been retaliatory
for the later EEOC filings.2 (And as noted, the internal
complaints failed to constitute “protected activities.”) On
August 23, 2003, several weeks after Tomanovich filed this
first charge with the EEOC, Salem issued to Tomanovich an
Updated Notice of Unacceptable Performance. It is ques-
2
In his brief, Tomanovich claims that Salem wanted to terminate
him in June 2002, and that around that time Salem directed that
Tomanovich’s office telephone and office computer network be
disconnected. Tomanovich then claims that on June 3, 2002, he
felt he “had already been terminated.” However, if Tomanovich
was, in fact, terminated on June 3, 2002, that would be before he
filed his first EEOC claim, and thus his retaliation claim for his
discharge would fail.
10 No. 05-1653
tionable whether updating Tomanovich’s Notice of Unac-
ceptable Performance constituted “a materially adverse
action.” See Burlington Northern and Santa Fe Ry. Co. v. White,
126 S.Ct. 2405, 2415 (2006) (holding that to state a retaliation
claim, “a plaintiff must show that a reasonable employee
would have found the challenged action materially adverse,
which in this context means it well might have dissuaded a
reasonable worker from making or supporting a charge of
discrimination”) (internal quotations omitted). Firing
Tomanovich, however, clearly constituted a materially
adverse action, and the City fired Tomanovich on Novem-
ber 12, 2002, which was after Tomanovich filed his com-
plaint with the EEOC on July 10, 2002, and filed suit on
September 18, 2002. The question then is whether
Tomanovich satisfied the third prong under the direct
method, namely, whether Tomanovich presented direct or
circumstantial evidence that a causal connection exists
between his filing of the complaint and his later termina-
tion. Moser, 406 F.3d at 903.
Tomanovich claims that the timing of his firing constitutes
circumstantial evidence to establish the requisite causal
connection, pointing to the proximity between his filing a
complaint with the EEOC on July 10, 2002, and filing a
lawsuit against the City under Title VII, on September 18,
2002, and his termination on November 12, 2002. However,
“suspicious timing alone rarely is sufficient to create a
triable issue.” Moser, 406 F.3d at 905. Moreover, while
“[t]here is no bright-line rule as to the amount of evidence
necessary to survive summary judgment under the direct
method, . . . it is clear that mere temporal proximity is not
enough to establish a genuine issue of material fact.”
Wyninger v. New Venture Gear, Inc., 361 F.3d 965, 981 (7th
Cir. 2004).
No. 05-1653 11
Here, more than four months elapsed between the time
that Tomanovich filed his complaint with the EEOC and his
firing. This court has held a temporal connection of
four months failed to establish a causal connection between
a protected activity and an adverse action. See, e.g.,
Longstreet v. Ill. Dep’t. of Corr., 276 F.3d 379, 384 (7th Cir.
2002) (holding that even had plaintiff shown an adverse
action, a four-month proximity was insufficient to establish
a causal connection); see also Sauzek v. Exxon Coal USA, Inc.,
202 F.3d 913, 919 (7th Cir. 2000) (holding that a three-month
gap alone could not reasonably support a causal connection
for a retaliation claim). Although only two months expired
between Tomanovich’s lawsuit and his firing, in this case
the City had placed Tomanovich on a performance plan in
June, noting several performance problems. While the City
updated Tomanovich’s performance problems in August,
which is after he filed his first complaint with the EEOC,
there is nothing suspicious about this timing. Before
Tomanovich filed his complaint with the EEOC, the City
informed Tomanovich that it would update the Notice,
indicating areas of notable improvement as well as areas
which still required attention. Under these circumstances,
this is not the rare case in which temporal proximity,
without more, established a causal connection. See Moser,
406 F.3d at 905 (explaining that “numerous incidents
brought [employee’s] professionalism and ability . . . into
question” and thereby undermined any inference of suspi-
cious timing); Juarez v. Ameritech Mobile Commc’n, Inc., 957
F.2d 317, 321-22 (7th Cir. 1992) (holding that the “timing of
the complaints, standing alone, d[id] not create a genuine
issue as to a causal connection” when plaintiff “presents no
evidence to suggest that [those] who complained of her
deficient performance were lying or that their motives in
12 No. 05-1653
making those complaints were improper”).3
Tomanovich also claims that the City retaliated against
him by refusing to re-hire him and then by failing to
provide INDOT with details concerning his employment
at the City, thus preventing him from obtaining a job
with INDOT. Again, Tomanovich relies solely on the timing
as evidence of a causal connection. In addition to the July
10, 2002, complaint, Tomanovich filed two additional
discrimination charges with the EEOC on January 22, 2003,
and April 11, 2003. Tomanovich does not specify the date on
which he attempted to obtain another position with the City,
but it was towards the end of March 2003 when the City
refused to provide information on Tomanovich’s perfor-
mance to INDOT. This timing alone, however, is insufficient
to create a factual issue under the direct method. See, e.g.,
Moser, 406 F.3d at 905; Wyninger, 361 F.3d at 981. Moreover,
where pending litigation indicates that an employee
disputes the reason his employer gives for firing him, an
employer acts prudently, and not retaliatorily, in limiting
the information provided to inquiring employers to objec-
tive facts, such as the dates of employment, the job title, etc.
3
Moreover, even if the internal complaints Tomanovich filed on
March 26, 2002, and April 25, 2002, constituted “protected
activities,” Tomanovich still failed to establish a causal connec-
tion between those complaints and his firing in November, 2002.
See Adusumilli, 164 F.3d at 363-64 (holding that plaintiff failed
to establish causal connection where plaintiff complained about
co-worker’s sexual harassment in January, plaintiff was placed in
the Behavior Alert program in March and terminated in Septem-
ber, because the sequence of events did not raise the inference of
a causal connection, and the plaintiff failed to show that she was
fired in retaliation for her complaint rather than for her inability
to do her job well).
No. 05-1653 13
Cf. Dranchak v. Akzo Nobel Inc., 88 F.3d 457, 460-61 (7th Cir.
1996) (rejecting plaintiff’s retaliation claim, noting that an
employer did not have an obligation to provide glowing
recommendation of former employee).
2. The Indirect Method
Alternatively, Tomanovich asserts that he presented
sufficient evidence of retaliation under the indirect method.
As noted above, to prove retaliation under the “indirect
method, the plaintiff must establish a prima facie case of
retaliation by showing that: (1) [ ]he engaged in a statutorily
protected activity; (2) [ ]he met the employer’s legitimate
expectations; (3) [ ]he suffered an adverse employment
action; and (4) [ ]he was treated less favorably than similarly
situated employees who did not engage in statutorily
protected activity.” Moser, 406 F.3d at 903.
The district court concluded that Tomanovich failed to
establish a prima facie case of discrimination under the
indirect method because he did not show that he was
treated less favorably than others who had not engaged in
statutorily protected activity. On appeal, the City argues
that Tomanovich also failed to establish a prima facie case of
retaliation because Tomanovich was not meeting the City’s
legitimate expectations. The evidence supports both conclu-
sions. First, the City presented evidence that Tomanovich
did not meet its legitimate expectations in several respects,
including through his insubordinate conduct. For instance,
the City points out that Tomanovich was insubordinate by
refusing to stay for the entire meeting Salem held on June 3,
2002, to review his performance. Tomanovich does not claim
otherwise. Tomanovich also admits that he refused to attend
a November 4, 2002, meeting with Salem to review his
14 No. 05-1653
performance. Tomanovich claims he decided it was best not
to attend the meeting so as to avoid a confrontation. That,
however, was not Tomanovich’s decision to make, and his
admission to the conduct at issue prevents him from
establishing that he was meeting the City’s legitimate
expectations. See, e.g., Hague v. Thompson Distrib. Co., 436
F.3d 816, 824 (7th Cir. 2006) (holding that the defendant is
entitled to summary judgment because the plaintiff admit-
ted the conduct which the employer proffered as its reason
for terminating the plaintiff).
To establish a prima facie case of retaliation, Tomanovich
also needed to present evidence that a similarly situated
employee who had not engaged in statutorily protected
activity was treated more favorably. Moser, 406 F.3d at 903.
On appeal, Tomanovich points to Mario Mazza, who
worked for the City’s DPW engineering division and
who was terminated in October 2001, only to be re-hired
two months later. Conversely, Tomanovich claims that
when he sought to reapply with the City, the City refused to
consider his application because it had a policy of not re-
hiring a terminated employee within a year of the termina-
tion. Tomanovich argues that because Mazza did not file
a charge of discrimination and was rehired, that shows
that a similarly situated individual was treated differently.
There are two problems with Tomanovich’s argument. First,
he did not point to any evidence on appeal concerning the
other positions for which he attempted to apply, and thus,
he cannot show that he was qualified for those positions. See
Hasan v. U.S. Dep’t. of Labor, 400 F.3d 1001, 1004 (7th Cir.
2005) (explaining that the plaintiff’s burden “is to show that
after filing the charge that he claims provoked the retalia-
tion, only he, and not any similarly situated job applicant
who did not file a charge, was not hired even though he was
qualified for the job for which he was applying”) (emphasis
No. 05-1653 15
added); Volovsek v. Wis. Dep’t. of Agr., Trade & Consumer
Prot., 344 F.3d 680, 692 (7th Cir. 2003) (noting that the
indirect method of proving retaliation requires, among other
things, the plaintiff to establish that she was qualified for
the position). Second, Tomanovich did not present evidence
establishing that Mazza had engaged in similar misconduct,
or that he was fired by the same individual, or that the
individual or department that refused to rehire Tomanovich
had rehired Mazza.4 See Snipes v. Illinois Dept. of Corr., 291
F.3d 460, 463 (7th Cir. 2002) (explaining that the prima facie
case requires a plaintiff to “show that he is similarly situated
with respect to performance, qualifications and conduct, . . .
and had engaged in similar conduct without such differenti-
ating or mitigating circumstances as would distinguish their
conduct or the employer’s treatment of them”) (internal
quotation omitted). Accordingly, Tomanovich did not
present sufficient evidence that Mazza was similarly
situated. Tomanovich also did not point to any other
employee (much less a similarly situated employee) who
was put on a performance plan or a revised performance
plan, was terminated, or was refused a reference for another
job. As a result, Tomanovich did not present a prima facie
case of retaliation under the indirect method for any of these
claimed materially adverse actions.
4
The evidence instead showed that Mazza was fired in October
2001 and subsequently rehired by the DPW operations division
on December 31, 2001. Salem, however, did not become the
Deputy Director of the DPW Engineering Division until early
2002, and therefore from the record it does not appear that Salem
fired Mazza and then rehired him. See Timms v. Franks, 953 F.2d
281, 287 (7th Cir. 1992) (holding that a similarly situated em-
ployee must have been disciplined by the same decisionmaker
who imposed an adverse employment action on the plaintiff).
16 No. 05-1653
3. State Blacklisting Claim
Tomanovich also sued the City for blacklisting under
Indiana Code 22-5-3-1, which provides:
(a) A person who, after having discharged any em-
ployee from his service, prevents the discharged em-
ployee from obtaining employment with any other
person commits a Class C infraction and is liable in
penal damages to the discharged employee to be
recovered by civil action; but this subsection does not
prohibit a person from informing, in writing, any
other person to whom the discharged employee has
applied for employment a truthful statement of the
reasons for the discharge.
(b) An employer that discloses information about a
current or former employee is immune from civil
liability for the disclosure and the consequences proxi-
mately caused by the disclosure, unless it is proven by
a preponderance of the evidence that the information
disclosed was known to be false at the time the disclo-
sure was made.
Ind. Code 22-5-3-1(a)(b).
The district court granted the City summary judgment on
this supplemental state law claim, concluding that
Tomanovich failed to present any admissible evidence that
the City had provided INDOT with false information. On
appeal, Tomanovich does not claim that the City pro-
vided INDOT with false information; instead he merely
incorporates the arguments he made for reversal of his Title
VII retaliation claim. However, without evidence that the
City provided INDOT with false information, the City was
entitled to summary judgment on Tomanovich’s blacklisting
claim.
No. 05-1653 17
B. INDOT
Tomanovich also sued INDOT for retaliation, claiming
that INDOT refused to hire him in retaliation for filing
EEOC charges against his former employer, the City. As
with his claim against the City, Tomanovich attempts to
establish his retaliation claim against INDOT under both the
direct and indirect methods.
1. Direct Method
Tomanovich argues that he presented sufficient evidence
to avoid summary judgment on his retaliation claim under
the direct method because he established a causal connec-
tion between his Title VII complaint and INDOT’s refusal to
hire him. As proof, Tomanovich points to the state-
ments made by Lawrence (who worked for the City) that the
City could not answer any of INDOT’s questions beyond
Tomanovich’s dates of employment, due to pending
litigation. Lawrence, however, never indicated that the
pending litigation involved Title VII, and Title VII only
prohibits retaliation for opposing a practice made unlawful
under Title VII. 42 U.S.C. § 2000e-3(a). Tomanovich also
argues that statements made by Kumar (the Deputy Com-
missioner with INDOT) to INDOT’s Human Resources
Division Chief, Trout, that there were “some issues” with
INDOT hiring Tomanovich constitutes direct evidence of
retaliation. There is no evidence, however, that “some
issues” meant that Tomanovich had filed a charge of
discrimination against the City. Tomanovich failed to
present any evidence showing that INDOT knew that he
had filed a complaint under Title VII. “It is not sufficient
that [an employer] could or even should have known about
[an employee’s] complaint; [the employer] must have had
18 No. 05-1653
actual knowledge of the complaints for [its] decisions to be
retaliatory.” Luckie v. Ameritech Corp., 389 F.3d 708, 715 (7th
Cir. 2004). Because these statements do not indicate that
INDOT knew of Tomanovich’s Title VII complaints,
Tomanovich cannot succeed on his retaliation claim against
INDOT under the direct method.
2. Indirect Method
Tomanovich also argues that he presented sufficient
evidence under the indirect method. Again, to establish a
prima facie case of retaliation under the indirect method,
Tomanovich must show that he: (1) engaged in a statutorily
protected activity; (2) met the employer’s legitimate expecta-
tions; (3) suffered a materially adverse action; and (4) was
treated less favorably than similarly situated employees
who did not engage in statutorily protected activity. Moser,
406 F.3d at 903. However, proof of retaliation under the
indirect method presupposes that the decision-maker knew
that the plaintiff engaged in a statutorily protected activity,
because if an employer did not know the plaintiff made any
complaints, it “cannot be trying to penalize him for making
them.” Shafer v. Kal Kan Foods, Inc., 417 F.3d 663, 664 (7th
Cir. 2005). See Durkin v. City of Chicago, 341 F.3d 606, 614 n.4
(7th Cir. 2003) (noting that an employer’s knowledge of the
protected activity is implicit in the first element of the
indirect method). Because, as noted, there is no evidence
that INDOT knew that Tomanovich had filed Title VII
complaints against the City, Tomanovich also cannot
proceed under the indirect method.
Moreover, even had Tomanovich presented evidence that
INDOT knew of his EEOC complaint, he nonetheless failed
to establish a prima facie case. Specifically, Tomanovich did
No. 05-1653 19
not establish that a similarly situated employee who did not
engage in statutorily protected activity was treated more
favorably. Tomanovich argues otherwise, pointing to a
statement by INDOT’s Legal Counsel, Kelly Whiteman, that
she had never encountered problems gaining information
from an applicant’s previous employer. This evidence,
however, does not show that INDOT treated Tomanovich
differently than applicants who had not filed a charge of
discrimination. Rather, this evidence shows that INDOT
made several attempts to verify Tomanovich’s employment
record. Tomanovich also argues that Risch’s testimony that,
in thirty years of working for INDOT, he had never been
required to withdraw an offer of employment, shows that he
was treated less favorably than similarly situated employ-
ees. This testimony, however, does not establish that the
other applicants were similarly situated. Moreover, in this
case, INDOT presented evidence that it withdrew its offer to
Tomanovich because it only learned after having made the
offer that Tomanovich was a candidate for City Council and
under Indiana law could not be hired as an engineer.
Tomanovich did not identify any other applicant who
was barred by Indiana law from holding a position, but was
nonetheless hired. Tomanovich also failed to present
evidence of other applicants who were hired by INDOT
even though INDOT could not confirm details of their
prior employment. Therefore, Tomanovich did not show
that INDOT treated a similarly situated applicant, who had
not engaged in protected activity, more favorably.
Furthermore, even if Tomanovich had established a prima
facie case, INDOT presented evidence of legitimate non-
discriminatory reasons for withdrawing its job offer and not
hiring Tomanovich. Specifically, INDOT presented evidence
that it withdrew its employment offer only after learning
that Tomanovich was a candidate for public office and
20 No. 05-1653
barred by state law from working as an engineer. INDOT
further presented evidence that after Tomanovich withdrew
his candidacy for city council, it did not hire him because it
was unable to confirm details about his job performance in
his previous position. Tomanovich failed to present any
evidence that these proffered reasons were pretextual.
Accordingly, Tomanovich’s retaliation claim against INDOT
cannot succeed under the indirect method, and the district
court properly granted INDOT summary judgment.
III.
Although the City fired Tomanovich after he had filed a
complaint with the EEOC, Tomanovich failed to present
sufficient evidence under the direct method of a causal
connection between Tomanovich’s protected activities and
his firing, or the City’s subsequent refusal to provide
INDOT details on Tomanovich’s work history. Tomanovich
also failed to establish retaliation under the indirect method
because he failed to present evidence that he was meeting
the City’s legitimate business expectations or that someone
who was similarly situated, but who had not engaged in
protected activity, was treated more favorably. Addition-
ally, Tomanovich’s state law blacklisting claim against the
City fails because Tomanovich failed to present evidence
that the City provided INDOT with false information.
Finally, Tomanovich’s retaliation claim against INDOT fails
under both the direct and indirect methods, because, among
other reasons, Tomanovich failed to present sufficient
evidence that INDOT knew of Tomanovich’s protected
activities. Accordingly, the district court properly granted
the defendants summary judgment. For these and the
foregoing reasons, we AFFIRM.
No. 05-1653 21
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-8-06