Jerome Cole v. Board of Trustees of Northern

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-2305
JEROME COLE,
Plaintiff-Appellant,
v.
BOARD OF TRUSTEES OF NORTHERN ILLINOIS UNIVERSITY, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13 C 3969 — Frederick J. Kapala, Judge.
____________________
ARGUED APRIL 14, 2016 — DECIDED SEPTEMBER 27, 2016
____________________
Before POSNER, KANNE, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. Plaintiff Jerome Cole has worked
for Northern Illinois University in the Building Services De-
partment since 1998. He is African-American, and he alleges
that beginning in 2009, he experienced race discrimination, re-
taliation, and a hostile work environment, including the dis-
covery of a hangman’s noose in his newly assigned work-
space. He sued the university’s board of trustees and eleven
individual university employees asserting violations of Title
2 No. 15-2305
VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2, –3,
and the Equal Protection Clause of the Fourteenth Amend-
ment. The district court granted summary judgment to the de-
fendants.
We affirm. The hostile work environment claim presents
the closest question, but Cole has not shown a basis for em-
ployer liability for the alleged harassment. Cole also has not
offered evidence that would allow a reasonable trier of fact to
find that he was subjected to disparate treatment based on his
race. His retaliation claim fails because he has not offered ev-
idence that he engaged in protected activity.
I. Factual and Procedural Background
Plaintiff Cole began working for the Building Services De-
partment at Northern Illinois University in 1998. In 2009, he
became a sub-foreman, a non-union position. In 2011, Cole
says, he was promoted to foreman. (Defendants dispute the
point, saying that Cole was actually an acting sub-foreman
who was improperly paid foreman-level wages, but for pur-
poses of summary judgment we accept Cole’s version of the
facts.) At all relevant times, Cole was the only African-Amer-
ican foreman or sub-foreman in the department.
A. Alleged Discriminatory Treatment
Cole’s promotion to sub-foreman marked the start of what
he terms a “laundry list of events” amounting to unfair and
discriminatory treatment. It began with his own privileges as
a sub-foreman. As far as Cole knew, he did not have a budget
to order supplies for his assigned work areas, and unlike
other foremen, he did not have the authority to place com-
modity orders. He also believed that friends and family of su-
pervisors in the department were making more money than
No. 15-2305 3
they should have. He spoke about those concerns repeatedly
with Brian Hart, the assistant superintendent for the depart-
ment, and with Steven Wilhelm, a Building Services supervi-
sor, and with Jesse Perez, the university’s director of admin-
istration and labor relations.
In addition to these more general, ongoing complaints,
Cole points to some specific events that he argues showed
race discrimination. For example, Cole complains that on one
occasion, some of his student-athlete workers were required
to load scrap metal from areas outside of Cole’s responsibility
onto salvage trucks. He was concerned that he might be ac-
cused of wrongdoing after overhearing that some of the prof-
its from the scrap metal might be missing. He notified Perez
of the incident. He also spoke to Sara Cliffe, who was the as-
sistant director of compliance at the university. In another in-
cident, Cole learned of a substantial paper towel purchase
made in his name. Concerned that someone might have been
using his name without his permission, he reported the inci-
dent to Wilhelm and Hart. They assured him they would take
care of it. (As far as we can tell, no further trouble ever re-
sulted from either of these incidents.)
On several occasions after 2009, Cole was accused of un-
authorized key possession by a number of Building Services
supervisors, including Wilhelm, Rhonda Richards, Charlotte
Marx, and Tammie Pulak. Cole testified that he never actually
had the keys he was accused of possessing, though once he
was required to search for a key in the snow when he says
Richards knew it was already accounted for. 1 Eventually, Bill
1 Cole testified that Richards also called some of his African-American
students “worthless.” We discuss below why this remark, as cruel and ill-
4 No. 15-2305
Nicklas, who was the acting superintendent of the depart-
ment until he took over as vice president of public safety and
community relations in November 2012, advised Cole not to
go to key control because Marx had threatened to call the po-
lice on him. 2 Cole also testified that he had been told that Pu-
lak instructed the university police to watch him for no legit-
imate reason. He reported the surveillance to Hart. Afterward
he arrived at work one day to find that his door had been
kicked in, his office cleaned out, and his supplies placed on a
cart, all without his knowledge or approval. Cole complained
about the incident to Perez and Cliffe.
In August 2012, Cole filed an ethics complaint with the
university about an array of alleged unethical practices. Ac-
cording to Cliffe, who conducted the investigation, Cole com-
plained that:
• Employees with connections to supervisors were
being paid more than the standard salaries.
• Employees were supervising their own children.
• Supplies had been ordered under Cole’s name
without his knowledge or authorization.
• Cameras had been recording Cole and his crew.
• Police had called on Cole due to past complaints.
founded as we assume it was, does not constitute evidence of race dis-
crimination.
2 There is some dispute over Nicklas’s exact title, but it is immaterial.
There is no doubt that Nicklas eventually began supervising the univer-
sity police.
No. 15-2305 5
• A retired university employee still possessed and
used his university cell phone.
• There were recording devices in foremen’s offices.
Cliffe investigated, and she substantiated three of Cole’s com-
plaints: supervisors had supervised their own children, em-
ployees’ friends and family received special consideration for
assignment to special projects, and the retired employee did
indeed still have his university cell phone. She found that the
rest of Cole’s allegations were unfounded.
B. Demotion and Later Discipline
In addition to the specific complaints outlined above, Cole
was demoted in 2012. In August of that year, Nicklas became
the acting superintendent of the Building Services Depart-
ment. He learned that a hiring freeze was in place. He also
became aware that Cole and Ruth Stone, an acting sub-fore-
man in the same department, had been promoted without at-
tention to proper procedures. 3 Because Cole and Stone were
in an unusual situation, Nicklas testified, he tried to ensure
proper procedures going forward while being as “fair as pos-
sible” to those who would be affected by the changes. For
Cole and Stone, this meant placing them on the hiring register
regardless of their test scores but requiring them to interview
for sub-foreman positions along with other candidates. Cole
and Stone completed the hiring process as modified. Both ac-
cepted jobs as sub-foremen beginning November 1, 2012.
They received the sub-foreman pay rate and were subject to
3 Nicklas also testified that Cole and Stone were receiving unjustified
salaries, paid at the foreman level for non-foreman work. For summary
judgment purposes, we must assume that Cole actually was promoted to
foreman and that foreman-level pay was justified.
6 No. 15-2305
the normal six-month probationary period. Since this case is
before us on appeal from summary judgment, we assume this
hiring process constituted a demotion. It is undisputed, how-
ever, that Stone, a white woman, was demoted at the same
time Cole was, and on the same grounds.
Following his six-month probationary period, Cole was
disciplined twice. On July 25, 2013, he received a written
warning for non-compliance with instructions and “border-
line insubordination” based on his failure to follow directives
and poor job performance. On September 17, 2013, Cole re-
ceived a recommendation for a three-day suspension for dis-
ruptive behavior in the workplace, failing to obtain supervi-
sors’ approval when he could not work a scheduled shift, and
“using improper employee evaluation protocol.” Cole has not
presented additional evidence relating to those disciplinary
actions or provided details to put into dispute the reasons the
defendants have offered for the discipline.
C. Noose Incidents
The most troubling incident Cole describes occurred in
mid-November 2012, when he discovered a hangman’s noose
in his new work area. Cole threw the noose away, but inexpli-
cably, the next day he discovered the same or possibly a sec-
ond noose outside the building. A department sub-foreman,
John Holmes, told Cole that Holmes, Richards, and non-de-
fendant Rich Carter had found the noose earlier in an office
on the other side of Cole’s new work area. Holmes was incon-
sistent about what had happened to the noose after that ear-
lier discovery. He first said he had left the noose with Richards
and Carter but later claimed he had thrown it out.
No. 15-2305 7
Cole called two police officers he knew for advice. Both
advised him to “keep his cool” to try to “smoke out” the per-
petrator. Cole took the noose to the university police depart-
ment. He later e-mailed Richards and told her that he had dis-
covered a noose and taken it to the police. The e-mail followed
the advice Cole had received from his acquaintances. He told
Richards that he thought nothing of the incident; that he as-
sumed Fred Warning, a former employee, had left the noose
in his workspace and was just “being silly;” that he was not
offended; and that he hoped nothing came of it because to him
it was “no big deal.” Because we must resolve factual disputes
in Cole’s favor at this point, we accept his testimony that he
was privately offended by the noose and that he was main-
taining a nonchalant façade in the hope of leading the perpe-
trator to identify himself.
On November 20, Cole spoke with Richards about the
noose. Cole stuck to his plan, telling Richards that he was not
upset. Richards, however, was upset. She asked Cole why he
had not gotten rid of the noose after he found it the first time.
Cole was offended that she appeared to blame him for finding
the noose at all. Cole later spoke to Cliffe about the matter. He
told her that he was not offended by the noose but that Rich-
ards had offended him by her reaction. For her part, Richards
took Cole’s e-mail to the police station and turned it in to
Nicklas along with her own handwritten notes on the inci-
dent. She also spoke to Perez and Daurer about the incident.
Perez in turn told Cliffe, prompting the conversation she
eventually had with Cole.
By February 2013, the university police had begun an in-
vestigation. Detective Dan Mojica interviewed Holmes, who
repeated his story about how he, Richards, and Carter had
8 No. 15-2305
found the noose in October 2012. Holmes also told Mojica that
nooses had been found in the work area for years. 4 After the
interview, Holmes told Richards that he had spoken to police.
Richards and then-department head Daurer were upset that
they had not been informed of the impending interview be-
fore it actually happened.
During his investigation, Detective Mojica also spoke to
Cole, who once again said that the noose had not upset him.
Mojica would have continued his investigation, but for rea-
sons he did not know, his supervisor eventually directed him
to stop the investigation. The person who left the noose in the
break room was never identified. It is unclear what became of
the noose. Around the same time that Mojica was told to halt
his investigation, he learned that the noose was “gone.”
The police investigation, which ultimately proved fruit-
less, was the only substantial step the university took after the
noose incident. As noted, Richards told Nicklas of the inci-
dent, and she notified Perez and Daurer about it. But she
never conducted any meetings with Building Services work-
ers to discuss the incident or how inappropriate it was to
bring a noose on the premises, nor did she ask Pulak to hold
a seminar about hate crimes or race discrimination. In fact, it
is undisputed that once the police began their investigation,
Richards and Daurer did nothing further to investigate or
remedy the incident at all, leaving it in law enforcement’s
hands. Cliffe, too, let the matter drop after interviewing Cole
because he had said he was not offended.
4 Cole may offer this statement for the truth of the matter asserted as
the statement of the agent of a party opponent. See Fed. R. Evid. 801(d)(2).
No. 15-2305 9
Nothing in the record suggests that the noose incident has
been repeated. In fact, there is no evidence of subsequent ra-
cial tension in the Building Services Department in this rec-
ord, with one exception. Cole testified that at some point, one
of his crew members told him that he had discovered a sign
reading “No blacks allowed past this point.” Cole did not ex-
plain where or when the sign was discovered, nor did he ever
see it firsthand. We have no further details on this incident.
D. District Court Proceedings
Cole brought claims for race discrimination in violation of
Title VII and the Equal Protection Clause of the Fourteenth
Amendment alleging a hostile work environment, disparate
treatment, and retaliation. The district court granted defend-
ants’ motion for summary judgment. The court rejected the
hostile work environment claim, holding that (1) most of the
hostile events were not based on Cole’s race; (2) Cole had not
produced evidence that the noose was intentionally left for
him to find; and (3) Cole had not shown a basis for employer
liability. On the Title VII claim of disparate treatment, the
court held that Cole had failed to present direct or circumstan-
tial evidence permitting a reasonable jury to infer discrimina-
tory intent. Nor had he presented evidence of a similarly sit-
uated employee outside his protected class who was treated
more favorably, undermining his ability to prove his claim by
circumstantial evidence. On the retaliation claim, the court
held that Cole had not engaged in activity protected by Title
VII because he had not complained of racial discrimination.
The district court then turned to Cole’s equal protection
claims under 42 U.S.C. § 1983. With the exception of Nicklas,
none of the individual defendants was personally involved in
causing any alleged violations of Cole’s constitutional rights,
10 No. 15-2305
as required to collect damages from an individual under
§ 1983. See Matz v. Klotka, 769 F.3d 517, 528 (7th Cir. 2014).
Cole’s claim against Nicklas failed for the same reasons that
his Title VII claims failed against the university. See Smith v.
Bray, 681 F.3d 888, 899 (7th Cir. 2012). Cole has appealed. We
have jurisdiction under 28 U.S.C. § 1291. 5
II. Analysis
We review de novo the district court’s decision to grant
summary judgment. Boston v. U.S. Steel Corp., 816 F.3d 455, 462
(7th Cir. 2016). The question on summary judgment is
whether defendants showed that there is no “genuine dispute
as to any material fact” and they are entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a). In our analysis, we construe
all factual disputes and draw all reasonable inferences in fa-
vor of Cole, the non-moving party. Woods v. City of Berwyn, 803
F.3d 865, 869 (7th Cir. 2015).
Cole has asserted claims of racially disparate treatment,
retaliation, and hostile work environment, in violation of Title
VII of the Civil Rights Act of 1964. He has also brought a claim
for race discrimination against each of the individual defend-
ants pursuant to 42 U.S.C. § 1983, invoking the Equal Protec-
tion Clause of the Fourteenth Amendment since the univer-
sity and its employees are state actors. We address his theories
in turn, beginning with the hostile environment theory to
which he devotes most of his attention.
5Cole had also asserted claims under 42 U.S.C. § 1981, but the district
court correctly held that § 1981 does not create a private right of action
against state actors. See Campbell v. Forest Preserve District, 752 F.3d 665,
671 (7th Cir. 2014). Cole has not pursued the § 1981 claims on appeal.
No. 15-2305 11
A. Hostile Work Environment
Harassment sufficiently severe or pervasive to alter the
terms and conditions of employment is actionable under Title
VII as a claim of hostile work environment. Porter v. Erie Foods
Int’l, Inc., 576 F.3d 629, 634 (7th Cir. 2009), citing Meritor Sav-
ings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). To prove a claim
for hostile work environment based on race, an employee
must show that: “(1) he was subject to unwelcome harass-
ment; (2) the harassment was based on his race; (3) the harass-
ment was severe or pervasive so as to alter the conditions of
the employee’s work environment by creating a hostile or
abusive situation; and (4) there is a basis for employer liabil-
ity.” Id. (footnote omitted), quoting Williams v. Waste Manage-
ment of Illinois, Inc., 361 F.3d 1021, 1029 (7th Cir. 2004). 6
The crux of Cole’s claim is his discovery of the noose in
November 2012. The first and second prongs of the analysis
are easily met. The noose undoubtedly qualifies as “unwel-
come harassment.” Given its disturbing history and status as
a symbol of racial terror, we have no difficulty assuming that
the harassment could be treated as based on race. Erie Foods,
576 F.3d at 635–36; see also Dobbey v. Illinois Dep’t of Correc-
tions, 574 F.3d 443, 445 (7th Cir. 2009) (in Eighth Amendment
6 We have sometimes phrased the test differently, replacing the first
prong—that the employee was subject to unwelcome harassment—with
the requirement that the work environment was “both subjectively and
objectively offensive.” Yancick v. Hanna Steel Corp., 653 F.3d 532, 544 (7th
Cir. 2011). In the Erie Foods phrasing, however, that question is subsumed
by the question whether the harassment was severe or pervasive enough
to rise to the level of a hostile work environment. See, e.g., Turner v. The
Saloon, Ltd., 595 F.3d 679, 685 (7th Cir. 2010). In the end, the inquiry is the
same.
12 No. 15-2305
context, recognizing “the ugly resonance of the noose” and
referring to its display as “racial harassment”).
Before turning to the third and fourth prongs of the anal-
ysis, we briefly address an important nuance of the require-
ment that the harassment be based upon race. It was on that
basis that the district court pared down Cole’s hostile work
environment claim to encompass only the discovery of the
noose, finding insufficient evidence that the other incidents
were racially motivated. Although a connection between the
harassment and the plaintiff’s protected class need not be ex-
plicit, “there must be some connection, for ‘not every per-
ceived unfairness in the workplace may be ascribed to dis-
criminatory motivation merely because the complaining em-
ployee belongs to a racial minority.’” Zayas v. Rockford Memo-
rial Hospital, 740 F.3d 1154, 1159 (7th Cir. 2014), quoting Bea-
mon v. Marshall & Ilsley Trust Co., 411 F.3d 854, 863 (7th Cir.
2005).
Nevertheless, forms of harassment that might seem neu-
tral in terms of race (or sex or other protected status) can con-
tribute to a hostile work environment claim if other evidence
supports a reasonable inference tying the harassment to the
plaintiff’s protected status. See Landrau-Romero v. Banco Popu-
lar de Puerto Rico, 212 F.3d 607, 614 (1st Cir. 2000) (“Alleged
conduct that is not explicitly racial in nature may, in appro-
priate circumstances, be considered along with more overtly
discriminatory conduct in assessing a Title VII harassment
claim.”); Hardin v. S.C. Johnson & Son, Inc., 167 F.3d 340, 345
(7th Cir. 1999) (“[W]e underscore that [the co-worker’s] con-
duct need not have been explicitly sexual or racial in order to
create a hostile environment … . The complained of conduct
No. 15-2305 13
must have either a sexual or racial character or purpose to sup-
port a Title VII claim.”) (emphasis in original). Evidence that
a workplace is tainted by overt racial hostility can support an
inference that other harassment that at first seems race-neu-
tral also has an undercurrent of racial animus. See, e.g., Hen-
derson v. Irving Materials, Inc., 329 F. Supp. 2d 1002, 1010 (S.D.
Ind. 2004). A harasser’s actions or remarks that do not seem
based on unlawful animus may be “sufficiently intertwined”
with discriminatory remarks to conclude that discriminatory
animus motivated all of them. Shanoff v. Illinois Dep’t of Human
Services, 258 F.3d 696, 705 (7th Cir. 2001). Whether the infer-
ence is appropriate depends on the circumstances of the case;
if so, the superficially neutral events are properly considered
as part of “the entire context of the workplace.” Cerros v. Steel
Technologies, Inc., 288 F.3d 1040, 1046 (7th Cir. 2002).
That said, we agree with the district court that the record
in this case does not support a reasonable inference that most
of the hostility Cole encountered was connected to his race.
There is almost no evidence of racial animus in the record: no
hostile or ambiguous remarks, no racial slurs, nothing beyond
the notable exception of the noose itself and the later
secondhand report of a racist sign posted somewhere, at some
unknown time by some unknown person. The other events on
Cole’s list—the paper towel order, the scrap metal, and so
on—are connected to race only insofar as they happened to
Cole and Cole alone, and he was the only African-American
foreman on staff. As Zayas and Beamon suggest, that by itself
is not enough to raise a genuine factual dispute as to whether
those events constitute race-based harassment. The same is
true of the remarks Richards made about Cole’s student work-
ers. Calling them “worthless” may have been reprehensible
but without more did not amount to race discrimination
14 No. 15-2305
solely because they were African-American. Zayas, 740 F.3d at
1159.
The hostile environment claim thus depends on the dis-
covery of the noose and the ineffectual investigation. The ab-
sence of further instances does not necessarily defeat Cole’s
claim. “One instance of conduct that is sufficiently severe may
be enough.” Jackson v. County of Racine, 474 F.3d 493, 499 (7th
Cir. 2007). An assault, for example, may create an objectively
hostile environment even if it is an isolated occurrence. Lapka
v. Chertoff, 517 F.3d 974, 983 (7th Cir. 2008). In addition to the
questions of severity and pervasiveness, in determining
whether an environment is sufficiently abusive to be action-
able, we are guided by factors such as whether conduct is
“physically threatening or humiliating or merely offensive,
and whether it unreasonably interferes with an employee’s
work performance.” Porter v. City of Chicago, 700 F.3d 944, 956
(7th Cir. 2012), quoting Scruggs v. Garst Seed Co., 587 F.3d 832,
840 (7th Cir. 2009).
The district court concluded that the environment was not
actionable because Cole could not produce evidence that the
noose had been displayed or intentionally left for him to find.
We hesitate to conclude that a single factor like this is dispos-
itive, particularly because the evaluation of hostile work en-
vironment claims depends so much on the facts and circum-
stances of a particular case. Lapka, 517 F.3d at 982 (citation
omitted). Given the status of the hangman’s noose as “a vis-
ceral symbol of the deaths of thousands of African-Americans
at the hand of lynch mobs,” Erie Foods, 576 F.3d at 636, we do
not flatly reject as “insufficiently severe” an entire set of cases
involving such claims. On the other hand, evidence that a
noose was displayed or directed toward a particular person
No. 15-2305 15
or group could certainly prove relevant. A noose on display is
generally likely to have more of an impact on employees than
one hidden away in a co-worker’s desk. Likewise, a noose di-
rected at a particular employee or group would fall more to-
ward the “physically threatening” end of the scale than the
“merely offensive” end and is thus more likely to be action-
able.
These cautions aside, we need not and do not lay down
here firm rules for when a noose in the workplace is or is not
severe enough to be actionable. Cole failed to present evi-
dence to support the fourth element of his claim: a basis for
employer liability. Employers are strictly liable for supervisor
harassment, Williams, 361 F.3d at 1029, but when a plaintiff
claims that co-workers are responsible for the harassment,
“he must show that his employer has ‘been negligent either in
discovering or remedying the harassment,’” id., quoting Ma-
son v. Southern Illinois University, 233 F.3d 1036, 1043 (7th Cir.
2000). There is no evidence that a supervisor was involved in
leaving the noose, so Cole must instead present evidence al-
lowing a reasonable jury to find that the university was neg-
ligent—which means in this context that it failed to take
“prompt and appropriate corrective action reasonably likely
to prevent the harassment from recurring,” Erie Foods, 576
F.3d at 636, quoting Tutman v. WBBM-TV, Inc./CBS, Inc., 209
F.3d 1044, 1048 (7th Cir. 2000).
A prompt investigation is the first step toward a reasona-
ble corrective action. See Erie Foods, 576 F.3d at 636, citing
Lapka, 517 F.3d at 984. The undisputed facts here show that
once Cole notified Richards of the discovery of the noose, she
spoke to him about it (albeit insensitively, we must assume)
and delivered her own notes on the incident to the university
16 No. 15-2305
police. She also reported the incident to Nicklas, then vice
president of public safety and community relations, as well as
Perez and Daurer. She did nothing more after that, but in
these circumstances it was reasonable for the administration,
having involved the university police, to leave the investiga-
tion to them.
To be clear, we do not hold that an employer necessarily
fulfills its responsibility to take appropriate corrective action
if it has reported an incident to some other party. The question
is whether the employer took corrective action “reasonably
likely” to prevent harassment from recurring. In some cases—
perhaps many cases—turning a matter over to someone else
and taking no further action may not be enough. But under
the circumstances shown by undisputed facts here, the uni-
versity was not negligent. When Cole informed Richards that
he had discovered the noose, he also told her that he had
taken it to the police; that he believed it was intended as a joke
by an employee who had since retired; that he was not of-
fended; and that he hoped nothing would come of the matter.
When Cliffe investigated the matter, Cole told her the same
thing. Under those circumstances—faced with an incident
that lacked any other threatening overtones and that Cole
himself characterized as a joke by someone no longer em-
ployed in the department—it was reasonable for Richards to
leave the matter to university police once she had reported it
and to forgo additional action within the Building Services
Department.
Cole suggests that this holding would undermine an em-
ployee’s ability to recover for a hostile work environment if
the employee downplays the effects of that environment on
himself. We do not endorse such a rule. An employer may be
No. 15-2305 17
negligent in failing to take reasonable measures to prevent ad-
ditional harassment even if the victim feigns unconcern about
an incident or asks the employer not to pursue it. Such re-
quests could come out of fear of retaliation or escalation. The
employer’s responsibility is to protect its employees from hos-
tile, abusive situations, regardless of how distraught (or not)
an employee may appear about a given incident. We hold
only that under these circumstances, the university was not
negligent when it allowed the university police to handle the
investigation. That Richards reacted badly when Holmes was
questioned, that the investigation ended without identifying
the perpetrator, and that the noose was later lost have no bear-
ing on that conclusion. Those facts have no effect on whether
the steps taken to prevent future harm were reasonable. Erie
Foods, 576 F.3d at 637. To the extent Cole means to suggest a
conspiracy to protect the perpetrator, we see no evidence of
that in this record.
Cole also points out that, according to Detective Mojica,
Holmes said during his interview that Richards had been pre-
sent in October when the noose was first discovered and that
nooses were “not uncommon” in the department. But there
was no follow-up by Cole. How “common” is “not uncom-
mon”? What if anything did Richards do if she was in fact
present when the noose was discovered in October 2012? A
reasonable jury could not find that the university was negli-
gent by failing to do more to prevent the later discovery of the
noose based solely on that vague testimony. The same is true
of the “No blacks allowed” sign. We know nothing about
where it was, when it was discovered, who put it there, and
what steps if any were taken in response.
18 No. 15-2305
Bad “joke” or not, the presence of a hangman’s noose in
the workplace is not acceptable. But based on the circum-
stances here, including Cole’s reaction and the fact that the
Building Services Department turned the matter over to the
police for investigation—a reasonable maneuver instigated
by Cole himself—we see no basis for employer liability in this
case. Accordingly, the district court correctly granted sum-
mary judgment on Cole’s hostile work environment claim.
B. Disparate Treatment
Cole next contends that he was subjected to disparate
treatment based on his race in violation of Title VII and the
Equal Protection Clause when he was demoted from foreman
to sub-foreman in 2012, with his pay reduced accordingly. See
42 U.S.C. § 2000e-2(a)(1). The same requirements for proving
race discrimination apply to claims under Title VII and the
Equal Protection Clause, so we consider them together. Swear-
nigen-El v. Cook County Sheriff’s Dep’t, 602 F.3d 852, 860 n.6 (7th
Cir. 2010); see also Lavalais v. Village of Melrose Park, 734 F.3d
629, 635 (7th Cir. 2013) (analyzing constitutional race discrim-
ination claim under same standards as Title VII claim).
We look past the “ossified direct/indirect paradigm,” see
Hitchcock v. Angel Corps, Inc., 718 F.3d 733, 737 (7th Cir. 2013),
to address the critical question, which is simply “whether a
reasonable jury could infer prohibited discrimination,” Perez
v. Thorntons, Inc., 731 F.3d 699, 703 (7th Cir. 2013) (collecting
cases); see also Ortiz v. Werner Enterprises, Inc., No. 15-2574, —
F.3d —, —, 2016 WL 4411434, at *4 (7th Cir. Aug. 19, 2016)
(“Evidence must be considered as a whole, rather than asking
whether any particular piece of evidence proves the case by
itself—or whether just the ‘direct’ evidence does so, or the ‘in-
No. 15-2305 19
direct’ evidence.”). Cole offers no direct evidence of racial mo-
tivation in any adverse employment actions. He points to the
“laundry list” of events he experienced—the scrap metal inci-
dent, the repeated accusations of unauthorized key posses-
sion, et cetera—and the discovery of the noose in his work-
space. But none of these events, with the notable exception of
the noose, has even an arguable connection to Cole’s race.
There is no evidence that Nicklas, the decision-maker in the
demotion, had anything to do with the noose incident. There
simply is no direct evidence that racial animus motivated
Cole’s demotion. See Darchak v. City of Chicago Board of Educa-
tion, 580 F.3d 622, 631 (7th Cir. 2009) (direct evidence is essen-
tially an “admission by the decisionmaker that the adverse
employment action was motivated by discriminatory ani-
mus” and is “understandably rare”); Lim v. Trustees of Indiana
University, 297 F.3d 575, 580 (7th Cir. 2002) (direct evidence of
discrimination “should ‘prove the particular fact in question
without reliance upon inference or presumption’” (emphasis
removed), quoting Markel v. Board of Regents of the University
of Wisconsin System, 276 F.3d 906, 910 (7th Cir. 2002)).
Cole also offers no circumstantial evidence of racially dis-
criminatory animus. He has not pointed to any ambiguous
statements, suspicious timing, or evidence that the reason
given for his demotion was pretextual. See Good v. University
of Chicago Medical Center, 673 F.3d 670, 675 (7th Cir. 2012) (list-
ing typical categories of circumstantial evidence), overruled in
part on other grounds, Ortiz,—F.3d at—. He suggests that the
fact that his demotion and the discovery of the noose followed
close on the heels of his ethics complaint constitutes suspi-
cious timing, but that would be relevant to his retaliation
claim, if at all.
20 No. 15-2305
Cole argues that only he had the “laundry list” of negative
experiences and that he was the only African-American fore-
man in the department, which he suggests should be enough
to show that people outside his protected class “received sys-
tematically better treatment.” Different treatment can be cir-
cumstantial evidence of discrimination, but the experiences
Cole has identified do not “point directly to a discriminatory
reason for the employer’s action” in demoting or suspending
him, Adams v. Wal-Mart Stores, Inc., 324 F.3d 935, 939 (7th Cir.
2003). Simply being a member of a protected class, without
something more to link that status to the action in question, is
not enough to raise a reasonable inference of discriminatory
animus. Cf. Beamon, 411 F.3d at 863 (for purposes of evaluat-
ing a hostile work environment claim, “not every perceived
unfairness in the workplace may be ascribed to discrimina-
tory motivation merely because the complaining employee
belongs to a racial minority”).
In fact, Cole was demoted at the same time and for the
same reason as a white employee, Ruth Stone. Nicklas’s affi-
davit is unrebutted: when he became acting superintendent
of the Building Services Department, he learned of irregular-
ities in the way some employees had been promoted, includ-
ing Cole and Stone. As a compromise remedy, Nicklas al-
lowed both to interview for sub-foreman positions without
regard to their test scores, and both Cole and Stone accepted
positions as sub-foremen beginning November 1, 2012. The
undisputed facts show that Cole was treated exactly the same
as a similarly situated employee outside his protected class.
(We have few details regarding the 2013 disciplinary inci-
dents, but Cole has not cited anything about these incidents
that suggests he was treated less favorably than other non-Af-
rican-American workers in his position.)
No. 15-2305 21
Cole argues that Stone was not in fact similarly situated
because she did not endure the “laundry list of events” that
he did. The argument is not persuasive. First, even if Stone
were not a proper comparator, that fact could not remedy
Cole’s own lack of evidence of discriminatory motive. As
plaintiff, Cole has the burden to respond to a proper motion
for summary judgment by offering enough evidence to allow
a reasonable jury to find in his favor on the issues raised. His
argument also fails on the merits. We have often said that sim-
ilarly situated employees need to be directly comparable only
“in all material aspects,” not “identical in every conceivable
way.” Langenbach v. Wal-Mart Stores, Inc., 761 F.3d 792, 802 (7th
Cir. 2014), quoting Coleman v. Donahoe, 667 F.3d 835, 846 (7th
Cir. 2012). To assess whether Cole’s demotion was motivated
by race, it is hard to imagine a better comparator than Stone.
She was demoted at the same time by the same person with
the same offered justification. Cole also argues that he and
Stone did not have the same supervisor, a fact that can fre-
quently though not always undermine an argument that two
employees are similarly situated. But here the decision-maker
was the same, so the fact that Cole and Stone had different
immediate supervisors at some point does not undercut the
comparison. E.g., Good, 673 F.3d at 676 (employees with dif-
ferent immediate supervisors were still meaningful compara-
tors where “a common decision-maker decided to demote
them”).
Without direct or circumstantial evidence of disparate
treatment based on race, no reasonable jury could find that
Cole was demoted or disciplined because of his race. The dis-
trict court properly granted summary judgment on these
claims.
22 No. 15-2305
C. Retaliation
Finally, Cole contends that the university retaliated
against him for filing the ethics complaint in August 2012. Ti-
tle VII prohibits discriminating against an employee “because
he has opposed any practice made an unlawful employment
practice by” Title VII. 42 U.S.C. § 2000e-3(a). To succeed on
such a claim, Cole must show that he engaged in a statutorily
protected activity. Orton-Bell v. Indiana, 759 F.3d 768, 776 n.6
(7th Cir. 2014). This requires more than simply a complaint
about some situation at work, no matter how valid the com-
plaint might be. To be protected under Title VII, his complaint
must have indicated “the discrimination occurred because of
sex, race, national origin, or some other protected class. …
Merely complaining in general terms of discrimination or har-
assment, without indicating a connection to a protected class
or providing facts sufficient to create that inference, is insuf-
ficient.” Id. at 776, quoting Tomanovich v. City of Indianapolis,
457 F.3d 656, 663 (7th Cir. 2006).
Nothing in Cole’s ethics complaint suggested that he was
complaining of race discrimination. The grievances he listed
had no overt connection to race. He raised allegations of in-
correct pay, employees’ supervision of their own children,
commodity orders under his name, improper use of univer-
sity supplies, the break-in at his office, the scrap metal inci-
dent, and unjustified police surveillance. He did not mention
race or race discrimination in his complaint at all. His argu-
ment is that he was implicitly complaining of race discrimina-
tion because he was the only African-American foreman or
sub-foreman in the department and the only subject of the
conduct of which he complained. But his membership in a
protected class, without anything more, is not enough to
No. 15-2305 23
transform his general complaint about improper workplace
practices into a complaint opposing race discrimination. See,
e.g., Tomanovich, 457 F.3d at 664 (complaint of pay discrimina-
tion was not protected activity where employee “did not
claim that the discrimination resulted from his national origin
or his membership in another protected class”); Gleason v. Me-
sirow Financial, Inc., 118 F.3d 1134, 1147 (7th Cir. 1997) (com-
plaints about “management style, in general terms” were not
protected activity under Title VII). The district court correctly
granted defendants summary judgment on the retaliation
claim.
The judgment of the district court is AFFIRMED.