Nazariy Lesiv v. Illinois Central Railroad Com

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-2496
NAZARIY LESIV,
Plaintiff-Appellant,
v.
ILLINOIS CENTRAL RAILROAD COMPANY,
doing business as CANADIAN NATIONAL RAILWAY,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:20-cv-00854 — Gabriel A. Fuentes, Magistrate Judge.
____________________
ARGUED JANUARY 13, 2022 — DECIDED JULY 13, 2022
____________________
Before HAMILTON, BRENNAN, and JACKSON-AKIWUMI, Cir-
cuit Judges.
HAMILTON, Circuit Judge. This appeal presents retaliation
claims under Title VII of the Civil Rights Act of 1964. Plaintiff-
appellant Nazariy Lesiv works for the Illinois Central Rail-
road Company. His brother, Lyubomir, had also worked
there but left shortly after he filed a discrimination and retal-
iation charge against Illinois Central. Lyubomir later filed a
2 No. 21-2496
discrimination suit in state court. As a witness in that suit,
plaintiff Nazariy Lesiv (whom we refer to as Lesiv in this
opinion) testified in a deposition in 2018. Then, almost three
months after Lesiv testified, his supervisors gave him a dan-
gerous work assignment and suspended him after he refused
to complete it.
Lesiv asserts that Illinois Central violated Title VII in two
ways. The first is a theory of direct individual retaliation: Le-
siv contends his supervisors subjected him to these adverse
actions because he testified in his brother’s lawsuit. See 42
U.S.C. § 2000e-3(a) (unlawful for employer to discriminate
against employee because he has “testified, assisted, or par-
ticipated in any manner in an investigation, proceeding, or
hearing under this subchapter”). The second is a theory of
third-party retaliation: Lesiv argues his supervisors also took
these actions against him as a way to harm his brother in re-
taliation for his brother’s filing of a charge against the com-
pany and later suing. See Thompson v. North American Stain-
less, LP, 562 U.S. 170 (2011) (recognizing third-party retalia-
tion claims under Title VII).
The district court granted summary judgment for Illinois
Central on both claims. We affirm, but without endorsing all
of the district court’s reasoning. A retaliation claim requires
proof that the employer took a “materially adverse” action
against an employee because he engaged in protected activity
or because another person close to him did so. A jury could
find here that both the dangerous work assignment and the
suspension amounted to materially adverse actions. But on
this record, a jury could not find retaliatory motives here. Le-
siv has not presented evidence that his supervisors took these
actions against him because of his or his brother’s protected
No. 21-2496 3
activities. Part I presents the material facts, summarizes the
proceedings in the district court, and explains the summary
judgment standard that we apply here. Part II addresses Le-
siv’s individual retaliation claim. Part III analyzes his third-
party retaliation claim.
I. Factual and Procedural Background
We present the facts that follow in the light reasonably
most favorable to Lesiv, giving him the benefit of conflicts in
the evidence and drawing all reasonable inferences in his fa-
vor. Palmer v. Franz, 928 F.3d 560, 565 (7th Cir. 2019), quoting
Stokes v. Board of Education of the City of Chicago, 599 F.3d 617,
619 (7th Cir. 2010).
A. Facts for Summary Judgment
Illinois Central employs Lesiv as a carman (a person who
repairs railcars, among other tasks). Lesiv’s brother Lyubomir
also worked for Illinois Central as a carman until sometime in
2016. Before leaving, however, Lyubomir filed with federal
and state agencies a charge against Illinois Central for dis-
crimination based on national origin, perceived sexual orien-
tation, and/or race, and for retaliation. After the state agency
dismissed the charge, Lyubomir filed a lawsuit in state court
in July 2017. Lesiv was a witness in that lawsuit and testified
in a deposition in April 2018. Critically, however, Lesiv has
not submitted evidence that his supervisors who took action
against him in the summer of 2018 were aware of his testi-
mony.
In July 2018, almost three months after his deposition, the
events that gave rise to this appeal occurred. To start, on July
6th, Lesiv and supervisor Anthony Grayer got into a heated
confrontation over work that was unfinished at the end of
4 No. 21-2496
Lesiv’s shift. By Lesiv’s account, Grayer jabbed Lesiv twice in
the chest, prompting Lesiv to tell Grayer to “keep his hands
off him.” Another employee intervened and separated the
two of them. That night, Grayer sat down to make work as-
signments for the next day, including Lesiv’s next shift.
Grayer assigned Lesiv to work the “RIP track.” Grayer ex-
plained later that he gave Lesiv the RIP track assignment be-
cause he “had an attitude the day before.” Working on the RIP
track can be dangerous. It entails heavy repairs, like wheel re-
placements on railcars, which can weigh over five tons and up
to a hundred tons if loaded. Most of the RIP track repairs re-
quire more than one carman to complete safely, so people are
assigned to work the RIP track in teams of two.
That day, Grayer assigned Lesiv to work the RIP track
alone. Illinois Central contends that Lesiv was never actually
scheduled to work the RIP track by himself. Its version is that
the partner he was supposed to work with called off work at
the last minute. Lesiv testified that he was aware that another
employee had called off work, but no one told him that that
other employee was assigned to work with him on the RIP
track. Moreover, Illinois Central agrees that the relief super-
visor told Lesiv that he still had to work the RIP track without
a partner. When Lesiv asked who his partner was, the super-
visor responded, “I have nobody,” and that “Anthony Grayer
told me that’s where you are going to work.” Illinois Central
further contends that Lesiv did not give the relief supervisor
the chance to give Lesiv a new partner or explain the situation.
But Lesiv asserted in his deposition that the relief supervisor
never clarified throughout their entire interaction that he
No. 21-2496 5
originally had a partner. On summary judgment, of course,
we must credit Lesiv’s evidence. 1
Lesiv refused to comply because he thought the assign-
ment was unsafe. He asked the relief supervisor to call Grayer
so that he could give Lesiv a different assignment. With
Grayer unavailable, Lesiv eventually spoke with Mechanical
Manager Dan Duggan and told him about the situation. Dug-
gan suggested Lesiv work the speedy track instead. (The
speedy track involves light repairs that one carman can safely
do alone.) Lesiv agreed, but that never happened.
Instead, during the call, Lesiv told Duggan about his in-
teraction with Grayer the day before. Lesiv then gave the tel-
ephone to the relief supervisor and left to retrieve his equip-
ment. But before he could actually start work on the speedy
track, the relief supervisor told him that Duggan wanted him
to write a statement about his confrontation with Grayer. Le-
siv complied with the request.
Duggan then spoke with Lesiv again and explained that
he was being removed from service for being insubordinate.
The supposed insubordination was Lesiv’s behavior toward
the relief supervisor when he refused to work the RIP track
by himself and his manner in speaking with Duggan on the
telephone. (Lesiv acknowledges that his voice may have been
“loud” during his initial conversation with Duggan.) At that
time, Lesiv understood the suspension to be without pay and
1 Lesiv’s account is also consistent with his statement to human re-
sources on July 8, 2018. In that email, he explained that when he asked the
relief supervisor who his partner was for the RIP track assignment, the
supervisor responded: “[L]ook this is not my call, Anthony Grayer or-
dered it, you will be working alone.”
6 No. 21-2496
for an indefinite time. Lesiv returned to work on July 12th af-
ter missing two days of work and received backpay to com-
pensate him for his lost wages. The parties do not indicate
whether the two days of missed pay actually came out of one
of Lesiv’s paychecks before he received the backpay. In the
district court, however, Illinois Central argued only that the
suspension did not amount to a materially adverse action be-
cause Lesiv received backpay, without offering evidence of
how quickly Lesiv received backpay. We will not speculate in
favor of the party who moved for summary judgment. It is
enough for the purposes of summary judgment that Illinois
Central agrees the suspension was for an indefinite period of
time, as it confirmed at oral argument, and that Lesiv later re-
ceived backpay, which means the suspension was not paid
from the outset. 2
Lesiv was not the only employee who refused a work as-
signment during these two days. On July 6th, the same day
Lesiv had his altercation with Grayer, Paul Barwan was as-
signed to work the “A yard” with a partner. (The A yard in-
volves both heavy and light repairs.) He objected immedi-
ately: “F*** you. I am not doing that job.” The relief supervisor
informed Duggan of this interaction a few days later. Unlike
in Lesiv’s case, Duggan did not suspend Barwan.
2 As part of the collective bargaining agreement between Illinois Cen-
tral and its employees’ union, Lesiv faced an investigation into these inci-
dents and his actions to determine whether he committed any rules viola-
tions. The investigative panel concluded that Lesiv should not face any
discipline.
No. 21-2496 7
B. Procedural History
After these events took place, Lesiv sued Illinois Central
for retaliation under Title VII and the Illinois Human Rights
Act. See 42 U.S.C. § 2000e–3(a); 775 ILCS 5/101 et seq. He al-
leged that Illinois Central retaliated against him for testifying
in his brother’s lawsuit by giving him a dangerous work as-
signment and suspending him. Lesiv also advanced a theory
of third-party retaliation. He asserted that Illinois Central also
acted against him to punish his brother for filing a discrimi-
nation charge and the later lawsuit against the company, and
that Lesiv had standing to bring such a claim under Thompson
v. North American Stainless, LP, 562 U.S. 170 (2011) (recogniz-
ing such third-party retaliation claims).
Illinois Central moved for summary judgment. The mag-
istrate judge, presiding by consent under 28 U.S.C § 636(c),
granted the motion. The judge found that a reasonable jury
could not conclude that Lesiv was subject to a materially ad-
verse action. The judge also found that even if a jury could
consider an action materially adverse, it could not find a
causal connection between Lesiv’s protected activity and any
of the actions taken against him by his supervisors. The judge
also rejected Lesiv’s third-party retaliation claim. Lesiv has
appealed on both theories of retaliation.
C. Standard of Review
We review de novo the grant of summary judgment to Il-
linois Central, and as stated, draw from the evidence all rea-
sonable inferences in favor of Lesiv. Palmer, 928 F.3d at 565.
“Summary judgment is appropriate when there is no genuine
dispute of material fact and the moving party is entitled to
judgment as a matter of law.” Poullard v. McDonald, 829 F.3d
8 No. 21-2496
844, 852 (7th Cir. 2016), citing Fed. R. Civ. P. 56(a). To survive
summary judgment, Lesiv “must be able to show that a rea-
sonable jury could return a verdict in [his] favor.” Benuzzi v.
Board of Education of City of Chicago, 647 F.3d 652, 662 (7th Cir.
2011). If Lesiv is not able to “‘establish the existence of an ele-
ment essential to [his] case, and on which [he] will bear the
burden of proof at trial,’ summary judgment must be
granted.” Id. (internal citation omitted), quoting Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986). We address Lesiv’s individ-
ual retaliation claim and then his third-party claim.
II. Individual Retaliation Claim
Title VII prohibits an employer from retaliating against an
employee “because he has made a charge, testified, assisted,
or participated in any manner in an investigation, proceeding,
or hearing.” Igasaki v. Illinois Dep’t of Financial and Professional
Regulation, 988 F.3d 948, 959 (7th Cir. 2021), quoting 42 U.S.C.
§ 2000e-3(a). To defeat summary judgment, Lesiv must offer
evidence from which a reasonable jury could find: “(1) he en-
gaged in an activity protected by the statute; (2) he suffered
an adverse employment action; and (3) there is a causal link
between the protected activity and the adverse action.” Lewis
v. Wilkie, 909 F.3d 858, 866 (7th Cir. 2018).
The evidence presented “must be considered as a whole,
rather than asking whether any particular piece of evidence
proves the case by itself …. Evidence is evidence. Relevant ev-
idence must be considered and irrelevant evidence disre-
garded.” Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 765 (7th
Cir. 2016). Ultimately, the inquiry comes down to one ques-
tion: “Does the record contain sufficient evidence to permit a
reasonable fact finder to conclude that retaliatory motive
caused” the materially adverse action? Lord v. High Voltage
No. 21-2496 9
Software, Inc., 839 F.3d 556, 563 (7th Cir. 2016). Lesiv engaged
in statutorily protected activity by testifying in his brother’s
discrimination lawsuit. Our analysis focuses on the require-
ments for a materially adverse action and causation. We ad-
dress each in turn. 3
A. Materially Adverse Action
For a retaliation claim, a materially adverse action is de-
fined as an action “that a reasonable employee would find to
be materially adverse such that the employee would be dis-
suaded from engaging in the protected activity.” Poullard, 829
F.3d at 856. That standard is easier to satisfy than the compa-
rable standard for Title VII discrimination claims, which is
“limited to discriminatory actions that affect the terms and
conditions of employment.” Burlington Northern and Santa Fe
Railway Co. v. White, 548 U.S. 53, 64 (2006). Still, even for a re-
taliation claim, the actions must rise above “trivial harms,”
such as “petty slights or minor annoyances that often take
place at work and that all employees experience,” which do
not qualify as materially adverse. Id. at 68. Context is often
key in distinguishing between material actions and petty
3 In Ortiz, we directed district courts to stop focusing on the difference
between direct and indirect evidence of employment discrimination and
to consider the evidence as a whole instead. 834 F.3d at 763–65. We have
since clarified that a plaintiff can still invoke the McDonnell Douglas frame-
work to evaluate circumstantial evidence. See Lewis, 909 F.3d at 867 (“We
did not reject or alter the McDonnell Douglas burden-shifting framework
in Ortiz; we simply clarified that there are not separate classifications of
evidence to be evaluated under different standards, and we eliminated
unhelpful surplus tests.”); see also, e.g., McDaniel v. Progress Rail Locomo-
tive, Inc., 940 F.3d 360, 370 (7th Cir. 2019) (plaintiff invoked the burden-
shifting framework of McDonnell Douglas to bring a retaliation claim). Le-
siv has not invoked McDonnell Douglas here.
10 No. 21-2496
slights. See id. at 69 (“[T]he significance of any given act of
retaliation will often depend upon the particular circum-
stances.”).
As we focus on this element of Lesiv’s claim, we must as-
sume the employer acted with a retaliatory motive. Illinois
Central is arguing that even if Lesiv could prove that it acted
because Lesiv testified in his brother’s lawsuit, assigning Le-
siv to work the RIP track alone and suspending him without
pay after he refused would not be actionable. The question is
whether a reasonable jury could find that either of those ac-
tions would dissuade a reasonable employee from engaging
in protected activity in the future. The answer is yes for each
action.
1. The Dangerous Assignment
Grayer assigned Lesiv to work the RIP track as punish-
ment. While the parties dispute whether Lesiv had a partner
when Grayer made the assignment, the parties agree that the
relief supervisor ordered Lesiv to work the RIP track alone.
And as Lesiv testified, the relief supervisor never clarified that
he had a partner originally as they tried to contact Grayer,
spoke with Duggan, or after he completed his statement about
his confrontation with Grayer. As noted above, carmen do not
work the RIP track by themselves, and doing so could be dan-
gerous. Putting these facts together and giving Lesiv the ben-
efit of conflicting evidence on summary judgment, the relief
supervisor directed Lesiv to work an unusual and inherently
dangerous assignment that Grayer himself described as puni-
tive.
Such an unusual and dangerous work assignment can
qualify as a materially adverse action. We have held that a
No. 21-2496 11
jury could find that retaliating against an employee by assign-
ing her unusually dangerous duty would deter a reasonable
employee from engaging in protected activity. In Lewis v. City
of Chicago, 496 F.3d 645 (7th Cir. 2007), a police officer sued for
retaliation. She offered evidence that after she complained of
discrimination, she was singled out for inherently more dan-
gerous work assignments. We reversed summary judgment
for the employer, finding that the dangerous assignments
could amount to materially adverse actions. Id. at 655. Simi-
larly here, by providing evidence that he was singled out for
an unusually dangerous work assignment, Lesiv met his bur-
den for defeating summary judgment on this issue. Accord,
Hicks v. Baines, 593 F.3d 159, 170 (2d Cir. 2010) (reversing sum-
mary judgment for employer; change in work schedule that
resulted in more dangerous work assignment could qualify as
materially adverse employment action). 4
Illinois Central’s attempt to distinguish Lewis is not per-
suasive. It points out that the Lewis plaintiff actually worked
the dangerous assignments while Lesiv never ended up com-
pleting his. The argument overlooks why Lesiv did not end
up working the RIP track by himself: he refused and was later
suspended for that refusal. Granted, Duggan ultimately sug-
gested that Lesiv work the light track, but that was not until
4 At the later trial in Lewis, the jury found for the employer on the
retaliation claim, and we affirmed. We determined that a reasonable jury
could conclude that the actions Lewis complained of were not inherently
more dangerous than her prior assignments and were “merely part of her
job.” Lewis v. City of Chicago Police Dep’t, 590 F.3d 427, 445 (7th Cir. 2009).
The fact that the jury later decided against Lewis has no bearing on
whether a reasonable jury also could have found in her favor. A disputed
fact is one that a jury could—but is not required to—find for the non-mov-
ing party, as Lewis illustrates.
12 No. 21-2496
after Lesiv refused to work the RIP track alone and demanded
to speak to someone other than the relief supervisor about the
situation. Illinois Central proposes a rule under which, if an
employee refuses a dangerous retaliatory assignment, the em-
ployer could avoid liability as a matter of law even if the em-
ployer then punished the employee for refusing the danger-
ous retaliatory assignment.
We reject that proposed rule. The Supreme Court has cau-
tioned against categorical rules for retaliation claims. See
Thompson, 562 U.S. at 175 (“Given the broad statutory text and
the variety of workplace contexts in which retaliation may oc-
cur, Title VII’s antiretaliation provision is simply not reduci-
ble to a comprehensive set of clear rules.”); Burlington North-
ern, 548 U.S. at 69 (“[A] legal standard that speaks in general
terms rather than specific prohibited acts is preferable, for an
act that would be immaterial in some situations is material in
others.” (internal citation and quotation marks omitted)).
Courts need to focus on whether, under the particular circum-
stances, a reasonable jury could find that the employer’s ac-
tions would dissuade reasonable employees from asserting
rights under Title VII. Having to choose between insubordi-
nation and an unreasonably dangerous assignment could
produce such dissuasion. At the very least, the question
should be left for a jury to decide. 5
5 To be sure, we have held that unfulfilled threats do not typically
constitute materially adverse actions. See, e.g., Poullard, 829 F.3d at 856–57
(threats of unspecified disciplinary action did not constitute adverse ac-
tions); see also Lewis, 909 F.3d at 870 (collecting cases). Those cases are
readily distinguishable from the facts here. First, in this case, it was the
employee—not the employer—who stopped the adverse action from ma-
terializing. Viewing the facts most favorable to Lesiv, we assume that
Grayer did not intend merely to threaten this assignment but instead
No. 21-2496 13
2. The Suspension
After Lesiv refused to work the RIP track, he was sus-
pended indefinitely without pay for insubordination. It is
well-established that unpaid suspensions can constitute ma-
terially adverse actions for retaliation claims. See, e.g., Bur-
lington Northern, 548 U.S. at 72–73 (jury made a reasonable
conclusion that an unpaid, indefinite suspension lasting
thirty-seven days was materially adverse); Whittaker v. North-
ern Illinois University, 424 F.3d 640, 647 (7th Cir. 2005) (“[A]
suspension without pay … would constitute an adverse em-
ployment action.”). 6
Illinois Central’s attempts to dismiss the suspension as im-
material are not persuasive. For one, it asserts Lesiv’s suspen-
sion was not materially adverse because he was suspended
for only two days. But to reiterate, all unpaid suspensions—
regardless of the length—could constitute adverse employ-
ment actions. Benuzzi, 647 F.3d at 665 (“[S]uspensions without
pay … undoubtedly satisfy the materially adverse
meant for Lesiv to work as ordered. Second, and critically, after Lesiv re-
fused the assignment, he was suspended, thus effectively trading one ad-
verse action for another. Finally, even if we thought this situation resem-
bled an “unfulfilled threat,” Poullard cautioned that threats can sometimes
qualify as materially adverse actions. See 829 F.3d at 856–57 & n.3. An un-
usually dangerous assignment that forces an employee to choose between
insubordination and the danger could qualify as one of those exceptions.
At least, we are not persuaded to hold as a matter of law that it could not.
6 Unpaid suspensions also qualify as adverse actions in Title VII dis-
crimination claims. E.g., Ellis v. CCA of Tennessee LLC, 650 F.3d 640, 650
(7th Cir. 2011) (three-day suspension could qualify as adverse employ-
ment action for discrimination claim); Russell v. Board of Trustees of the Uni-
versity of Illinois at Chicago, 243 F.3d 336, 341 (7th Cir. 2001) (same for five-
day suspension).
14 No. 21-2496
standard.”). Two days is not too short to qualify as a matter of
law. See Nagle v. Village of Calumet Park, 554 F.3d 1106, 1113,
1121 (7th Cir. 2009) (three-day unpaid suspension could sup-
port retaliation claim); Lloyd v. Swifty Transportation, Inc., 552
F.3d 594, 602 (7th Cir. 2009) (same); see also Appleton v. City of
Gary, Indiana, 781 F. App’x 501, 504 (7th Cir. 2019) (“Apple-
ton’s one-day suspension and her reduction in hours could
constitute adverse employment actions.”).
Illinois Central’s argument also misses the key fact that
courts evaluate suspensions for this purpose when they are
imposed on the employees, not after later internal or union
reviews are completed. Cf. Nagle, 554 F.3d at 1121 (rejecting
argument that suspension was not materially adverse because
it was later found to be improper: “[a]fter all, no one knew
whether the suspension would be reversed or upheld” when
first imposed and served). Here, Duggan told Lesiv “he was
being removed from service.” Lesiv reasonably understood at
the time that his suspension was without pay and for an in-
definite period. A jury could easily find that such a suspen-
sion would dissuade a reasonable employee from engaging in
protected activity even if it ultimately did not last very long.
Second, Illinois Central argues the suspension was not ma-
terially adverse because, after Lesiv was reinstated, he was
quickly paid for the time he missed. But an employer cannot
make an unpaid suspension “paid” after the fact to avoid lia-
bility under Title VII as a matter of law. Burlington Northern,
548 U.S. at 73 (“[A]n indefinite suspension without pay could
well act as a deterrent, even if the suspended employee even-
tually received backpay.”); Nagle, 554 F.3d at 1121 (explaining
that “reimbursement of lost pay” after an unpaid suspension
“is not sufficient to defeat [a plaintiff’s] Title VII retaliation
No. 21-2496 15
claim”); cf. Phelan v. Cook County, 463 F.3d 773, 780 (7th Cir.
2006) (“[W]e decline to endorse a rule that would allow em-
ployers to escape liability by merely reinstating the aggrieved
employee months after termination, whenever it becomes
clear that the employee intends to pursue her claims in
court.”), abrogated on other grounds by Ortiz, 834 F.3d 764–
65.
Again, we will not speculate that Lesiv’s paycheck was not
affected, especially since Illinois Central has not made the
case itself. In fact, Illinois Central argued in the district court
that a delay in pay does not constitute an adverse employ-
ment action. That argument presupposed that his pay was in-
deed delayed. As explained, an employer cannot avoid sum-
mary judgment by paying the employee retroactively for the
suspension. And as for the precise timing of the backpay, as
to which our record is silent, a party opposing a motion for
summary judgment needs to respond only to arguments the
moving party actually made, not others that the moving party
might have made but did not. See, e.g., Costello v. Grundon,
651 F.3d 614, 635 (7th Cir. 2011) (“The nonmovant is not re-
quired to present evidence on an issue not raised by the mo-
vant.”); Sublett v. John Wiley & Sons, Inc., 463 F.3d 731, 736 (7th
Cir. 2006) (“As a general matter, if the moving party does not
raise an issue in support of its motion for summary judgment,
the nonmoving party is not required to present evidence on
that point, and the district court should not rely on that
ground in its decision.”); Pourghoraishi v. Flying J, Inc., 449
F.3d 751, 765 (7th Cir. 2006) (“The party opposing summary
judgment has no obligation to address grounds not raised in
a motion for summary judgment.”). If Illinois Central thought
the timing of the backpay was material to its motion for sum-
mary judgment, it had a responsibility to offer specific
16 No. 21-2496
evidence about the timing and how it might have affected Le-
siv’s paycheck. 7
To summarize, for purposes of summary judgment, Le-
siv’s solo RIP track assignment and suspension satisfy the ma-
terially adverse action requirement. Whether a reasonable
employee would find these actions to be materially adverse in
this context such that the employee would be dissuaded from
engaging in the protected activity is at least a question for the
trier of fact.
B. Causation
We turn now to the causation element of the individual
retaliation claim. Here, we eliminate the assumption that Illi-
nois Central acted with a retaliatory motive and consider
whether Lesiv has presented enough evidence to survive
summary judgment on this issue. He has not. To meet his bur-
den on causation, Lesiv needed to offer evidence that a retal-
iatory motive was a “but-for cause of the challenged employ-
ment action.” Gracia v. SigmaTron International, Inc., 842 F.3d
1010, 1019 (7th Cir. 2016), quoting University of Texas South-
western Medical Center v. Nassar, 570 U.S. 338, 352 (2013). “This
requires proof that the unlawful retaliation would not have
7 Illinois Central relies on Nichols v. Southern Illinois University-Ed-
wardsville, 510 F.3d 772 (7th Cir. 2007), to argue that Lesiv’s suspension
was not materially adverse. That case is easily distinguishable. In Nichols,
after a violent encounter with a civilian, the employer placed the plaintiff
police officer on paid administrative leave pending a fitness-for-duty ex-
amination. We held that the action was not materially adverse as a matter
of law. Id. at 786–87. Such paid administrative leaves for police investiga-
tions are routine after many types of incidents. They are not comparable
to a disciplinary suspension of uncertain duration without pay.
No. 21-2496 17
occurred in the absence of the alleged wrongful action or ac-
tions of the employer.” Nassar, 570 U.S. at 360.
Lesiv has not met his burden on causation for one simple
reason: none of the relevant supervisors knew that Lesiv had
engaged in protected activity by testifying in his brother’s
lawsuit. Knowledge of the protected activity is necessary to
show causation for a retaliation claim. E.g., Eaton v. J.H.
Findorff & Son, Inc., 1 F.4th 508, 512–13 (7th Cir. 2021) (affirm-
ing summary judgment for employer; for a retaliation claim
to reach the jury, “the plaintiff must first produce evidence
that the defendant had actual knowledge of the protected ac-
tivity,” and it is “not sufficient that a decision-maker could
have or even should have known about the employee’s com-
plaint”). A supervisor simply cannot retaliate against an em-
ployee for engaging in protected activity if the supervisor was
not aware of the protected activity in the first place. Accord,
Tomanovich v. City of Indianapolis, 457 F.3d 656, 668–69 (7th Cir.
2006).
Lesiv correctly conceded at oral argument and in the dis-
trict court that the record does not indicate that Grayer or
Duggan knew that Lesiv had testified in a deposition as part
of his brother’s lawsuit three months before the materially ad-
verse actions took place. That concession resolves the issue.
E.g., Hamer v. Neighborhood Housing Services of Chicago, 897
F.3d 835, 841 (7th Cir. 2018) (affirming summary judgment for
employer because plaintiff did “not establish[] a genuine dis-
pute about the decisionmakers’ knowledge”); Nagle, 554 F.3d
at 1121–22 (affirming grant of summary judgment for em-
ployer; plaintiff failed to offer evidence decision-maker had
knowledge of his protected activity, which “doom[ed] his
claim”). Lesiv cannot meet his burden on causation to survive
18 No. 21-2496
summary judgment because he cannot offer evidence of
knowledge on the part of his supervisors. So while we disa-
gree with the district court on the issue of a materially adverse
action, in the end the district court correctly granted summary
judgment in favor of Illinois Central on this claim.
III. Third-Party Retaliation
We now address Lesiv’s third-party retaliation claim. On
this issue, he asserts that Illinois Central retaliated against his
brother Lyubomir by subjecting Lesiv to materially adverse
actions, and that he can sue for that retaliation under Thomp-
son, 562 U.S. 170. As an initial matter, the district court de-
clined to address Lesiv’s third-party claim because Lesiv was
“not a third party” and had an individual retaliation claim re-
lated to his own protected activity. Thus, in the court’s view,
Lesiv could not advance a third-party claim here.
The court did not cite any support for treating individual
and third-party claims as mutually exclusive. Neither does Il-
linois Central in repeating this position on appeal. We find no
support for this position and decline to adopt it. We instead
view the two claims as distinct but not mutually exclusive the-
ories of retaliation. Cf. Fogleman v. Mercy Hospital, Inc., 283
F.3d 561 (3d Cir. 2002) (addressing different theories of indi-
vidual and third-party retaliation under Americans with Dis-
abilities Act, among others, as distinct theories of retaliation);
see also George v. Republic Airways Inc., No. 1:20-cv-01702-SEB-
DLP, 2021 WL 1022428, at *3–6 (S.D. Ind. Mar. 17, 2021) (con-
sidering plaintiff’s individual and third-party claims under
Title VII as different theories of retaliation). There is no legal
barrier to Lesiv bringing both individual and third-party re-
taliation claims.
No. 21-2496 19
We next consider whether Lesiv falls within Title VII’s
zone of interests to bring a third-party retaliation claim re-
lated to Lyubomir’s protected activities. In its brief, Illinois
Central makes an additional threshold argument that Lesiv
does not meet those standards because he has not shown that
Illinois Central harmed a third party to retaliate against Lesiv.
But that argument inverts the standard for these types of
claims.
A. The Thompson Standard
We draw our understanding of third-party retaliation
claims from Thompson, 562 U.S. 170. In that case, plaintiff
Thompson and his fiancée both worked at the defendant com-
pany. His fiancée filed a charge of sex discrimination with the
Equal Employment Opportunity Commission. Three weeks
later, the company fired not her but Thompson. He then sued
the company, alleging that it fired him to retaliate against his
fiancée.
To determine whether Thompson could bring a third-
party retaliation claim despite not having engaged in pro-
tected activity himself, the Court first asked whether the fian-
cée could have sued for that retaliation. That question re-
quired determining whether the employer’s firing of Thomp-
son constituted unlawful retaliation. The Court concluded
with little difficulty that if Thompson’s version of the facts
was true, then the firing violated Title VII. The Court thought
it was “obvious” that, under the Burlington Northern standard,
“a reasonable worker might be dissuaded from engaging in
protected activity if she knew that her [fiancé] would be
fired.” 562 U.S. at 174. Thus, the fiancée could have sued for
the company’s action against Thompson as an unlawful act of
retaliation against her.
20 No. 21-2496
The Court then turned to the “more difficult question”
whether Thompson himself could also sue for that retaliation
even though, again, he did not engage in any protected activ-
ity. 562 U.S. at 175. The Court said yes. Thompson qualified
as a “person aggrieved” under Title VII. See 42 U.S.C.
§ 2000e–5(f)(1). He fell within the Act’s “zone of interests,” so
he had a claim for retaliation. 562 U.S. at 175–78. As the Court
explained, “the purpose of Title VII is to protect employees
from their employers’ unlawful actions,” and the statute ena-
bles “suit by any plaintiff with an interest ‘arguably [sought]
to be protected by the statute.’” Id. at 178 (alteration in origi-
nal), quoting National Credit Union Admin. v. First National
Bank & Trust Co., 522 U.S. 479, 495 (1998). Thompson was an
employee, thereby falling under Title VII’s general scope.
Equally important, Thompson was “not an accidental victim
of the retaliation;” rather, “injuring him was the employer’s
intended means of harming [his fiancée].” Id. Accordingly, the
Court held that Thompson fell within the Act’s zone of inter-
ests and was therefore “a person aggrieved with standing to
sue” under the statute. Id.B. The “Zone of Interests” Test
The next question is whether Lesiv falls within Title VII’s
zone of interests. Lesiv does if Lyubomir, Lesiv’s brother,
could have sued for the alleged retaliation here. If so, we ask
whether Lesiv could also sue because harming Lesiv, an em-
ployee, was the employer’s intended means of retaliating
against Lyubomir. Since we conclude that Lesiv has no evi-
dence to support this second element, we decline to address
whether Lyubomir could have brought a retaliation suit him-
self.
No. 21-2496 21
C. Causation
On this record, a reasonable jury could not conclude that
Illinois Central acted to retaliate against Lyubomir by harm-
ing Lesiv. 8 Like other circuits, we read this inquiry as a cau-
sation requirement. See, e.g., Threat v. City of Cleveland, 6 F.4th
672, 680–81 (6th Cir. 2021); Tolar v. Bradley Arant Boult Com-
mings, LLP, 997 F.3d 1280, 1293–94 (11th Cir. 2021). We thus
draw on our case law regarding causation for individual
claims under Title VII.
Here, Lesiv must offer evidence that his brother’s charge
or lawsuit was “a but-for cause of the alleged adverse action
by the employer.” Carlson v. CSX Transportation, Inc., 758 F.3d
819, 828 n.1 (7th Cir. 2014), quoting Nassar, 570 U.S. at 362.
“The requirement of but-for causation in retaliation claims
8 This issue, like many related to “statutory standing,” is a merits
question. See, e.g., Lexmark International, Inc. v. Static Control Components,
Inc., 572 U.S. 118, 140 (2014) (explaining that to fall under Lanham Act’s
zone of interests, “a plaintiff must plead (and ultimately prove) an injury
to a commercial interest in sales or business reputation proximately
caused by the defendant’s misrepresentations”); Steel Co. v. Citizens for a
Better Environment, 523 U.S. 83, 97 & n.2 (1998) (in zone-of-interests tests,
“the merits inquiry and the statutory standing inquiry often ‘overlap,’”
and in some cases, “it would be exceedingly artificial to draw a distinction
between the two” (internal citation omitted)). If a reasonable jury could
conclude that Illinois Central took action against Lesiv to harm his brother,
Lesiv would fall within Title VII’s zone of interests and would therefore
have a valid claim for that retaliation. Since a reasonable jury could not
come to that conclusion, Lesiv’s claim fails on the merits, not for lack of
jurisdiction. See Lexmark, 572 U.S. at 128 n.4 (clarifying that “statutory
standing” is “misleading, since the absence of a valid (as opposed to argu-
able) cause of action does not implicate subject-matter jurisdiction, i.e., the
court’s statutory or constitutional power to adjudicate the case” (internal
quotation marks and citations omitted)).
22 No. 21-2496
does not mean that the protected activity must have been the
only cause of the adverse action. Rather, it means that the ad-
verse action would not have happened without the activity.”
Id. This showing can be made with circumstantial evidence.
See Abrego v. Wilkie, 907 F.3d 1004, 1015 (7th Cir. 2018). Re-
gardless of the types of evidence Lesiv puts forward, we fol-
low the Ortiz directive to analyze all the evidence and ask
whether the evidence would permit a reasonable jury to find
that Lyubomir’s charge or lawsuit caused Lesiv to suffer the
adverse employment actions. See 834 F.3d at 765. 9
As discussed above, Lesiv offered evidence of two materi-
ally adverse actions: the dangerous work assignment and the
suspension. To meet his burden on causation and survive
summary judgment, he must offer evidence of a retaliatory
motive on the part of Grayer, who imposed the work assign-
ment, and/or Duggan, who imposed the suspension. Lesiv re-
lies on two pieces of circumstantial evidence to support those
inferences of causation: the different treatment he received
compared to a similarly situated employee and the timing of
the incidents. We address each in turn, beginning with Dug-
gan and the suspension.
9Unlike the evidence on Lesiv’s individual retaliation claim based on
his own protected activity, there is evidence that some of the relevant su-
pervisors knew of the brother’s protected activity. Duggan, for instance,
was named as a witness in the brother’s lawsuit and was in the process of
scheduling his deposition around the time of Lesiv’s dangerous assign-
ment and suspension. Lesiv also argues that Grayer was aware of the law-
suit because his name was in his brother’s complaint and he was a poten-
tial witness. As we explain in the text, however, Lesiv’s evidence cannot
meet the causation standard even if everyone involved was aware of his
brother’s protected activity.
No. 21-2496 23
1. Evidence of Duggan’s Motive
Turning to the comparator first, recall that another em-
ployee, Barwan, refused to work the “A yard” the day before
Lesiv refused to work the RIP track. (Both of those assign-
ments entail heavy repairs on railcars.) Barwan, however, was
not suspended for his insubordination. Lesiv contends this
disparity in treatment supports a reasonable inference of a re-
taliatory motive on the part of Duggan. We disagree.
Evidence that a “similarly situated employee[]” whose
close contact did not engage in protected conduct was
“treated differently may furnish circumstantial evidence of
retaliation or other unlawful motive.” Donley v. Stryker Sales
Corp., 906 F.3d 635, 639 (7th Cir. 2018). Whether a comparator
is similarly situated is often a question for the jury. Johnson v.
Advocate Health and Hospitals Corp., 892 F.3d 887, 895 (7th Cir.
2018). We ask whether the two employees are situated simi-
larly enough for a reasonable comparison. Id., citing Coleman
v. Donahoe, 667 F.3d 835, 846–47 (7th Cir. 2012). In a case chal-
lenging disciplinary action, the plaintiff and comparator ordi-
narily must have “dealt with the same supervisor, [been] sub-
ject to the same standards, and ha[ve] engaged in similar con-
duct without such differentiating or mitigating circumstances
as would distinguish their conduct or the employer’s treat-
ment of them.” Donley, 906 F.3d at 639 (alterations in original).
The congruence need not be perfect. Id.
Some similarities between Lesiv and Barwan are easy to
see. The two engaged in similar conduct: Both refused a work
assignment and both dealt with the same supervisor: Duggan.
And the supervisor, as the decision-maker, treated the two
differently: Duggan suspended Lesiv but not Barwan. Lesiv
thus asserts that the divergent treatment between the two
24 No. 21-2496
would support a reasonable inference of a retaliatory motive
on the part of Duggan. 10
To justify the different treatment of Lesiv and Barwan, Il-
linois Central argues first that the two engaged in different
conduct. One of its arguments is persuasive while the other is
not. To start, Illinois Central effectively contends that “this
was Barwan being Barwan,” whereas Lesiv’s reaction was out
of the ordinary for him and hostile, so that the relief supervi-
sor and presumably Duggan correctly viewed their behaviors
differently. That argument might be offered at trial, but “it is
not a winner on summary judgment.” Coleman, 667 F.3d at
851. Courts are not in the business of distinguishing compar-
ators in discipline cases by deciding on summary judgment
whether one person was joking around and the other was not.
“[A]t the summary judgment stage, the employer cannot de-
feat a plaintiff’s prima facie case of discrimination on the the-
ory that it applied its ‘no tolerance’ policy on threats to some
workers while dismissing dangerous acts of others as mere
‘horseplay.’” Id. We reiterate: “Such fact issues are the prov-
ince of the jury.” Id.
10At oral argument, Illinois Central disputed whether Lesiv and Bar-
wan had the same decision-maker. It argued that the relief supervisor in-
teracted with Barwan in the moment, whereas Duggan communicated
with Lesiv, so the two were subject to different supervisors. The distinc-
tion is not persuasive, at least as a matter of law on summary judgment.
Both employees told the relief supervisor they were refusing to work their
assignments. Duggan was made aware of Lesiv’s refusal immediately and
learned of Barwan’s later. Duggan decided to suspend Lesiv but not Bar-
wan. The different treatment occurred when Duggan learned of Barwan’s
actions and did not impose a similar penalty. For purposes of summary
judgment, we treat Lesiv and Barwan as subject to the same decision-
maker.
No. 21-2496 25
Illinois Central’s second argument is a winner, however,
and defeats the comparator here. It is true that Barwan and
Lesiv both refused a work assignment, but Lesiv’s actions
went further. The stated reasons for Lesiv’s suspension were
because of his attitude toward the relief supervisor in refusing
the RIP track assignment and his tone with Duggan during
their phone conversation. Barwan was not insubordinate to-
ward Duggan. Even viewing the facts most reasonably favor-
able to Lesiv, the altercation is a differentiating circumstance
that distinguishes Barwan and Lesiv and Duggan’s treatment
of them. Donley, 906 F.3d at 639. Thus, Lesiv’s comparator ev-
idence could not support a finding that Duggan acted with a
retaliatory motive.
If we had any doubts on that score, they are assuaged by
the other undisputed evidence in the record, which weighs
decisively against Lesiv here. Take, for instance, the timing of
the suspension. Duggan suspended Lesiv two and a half years
after Lyubomir filed a charge of discrimination and retaliation
and nearly a year after Lyubomir filed his lawsuit in state
court. While suspicious timing can support an inference of a
retaliatory motive, such a long gap between the protected ac-
tivity and adverse action “can weaken and eventually break
an inference of causation.” Baines v. Walgreen Co., 863 F.3d 656,
665 (7th Cir. 2017); see also Lalvani v. Cook County, 269 F.3d
785, 790 (7th Cir. 2001) (“As the time separating the protected
conduct and the adverse employment action grows, the
causal inference weakens and eventually time becomes the
plaintiff’s enemy.”). A two-and-a-half-year gap and near one-
year gap between the respective protected activities and ma-
terially adverse actions strongly suggest that the timing was
not suspicious and cast serious doubts on whether a jury
could find a retaliatory motive here. See id. (one-and-a-half-
26 No. 21-2496
year gap was “well beyond the time that would allow a rea-
sonable jury to conclude that [the materially adverse action]
was causally related to [the protected activity]”).
Lesiv points out correctly that a plaintiff can sometimes
establish causation despite a substantial delay between the
protected activity and the adverse action. See Baines, 863 F.3d
at 665 (“[A] long gap will [not] undermine a causal connection
that is otherwise supported by sufficient circumstantial evi-
dence.”). In such cases, we typically see evidence of pro-
longed antagonism against the plaintiff, evidence that, de-
spite a long gap, the alleged retaliation was the first oppor-
tunity for retaliation, or something similar. See Carlson, 758
F.3d at 829 (reversing dismissal; despite long gap between ad-
verse actions and protected activity, evidence of constant an-
tagonism supported inference of retaliatory motive); Malin v.
Hospira, Inc., 762 F.3d 552, 559–60 (7th Cir. 2014) (reversing
summary judgment; long gap was not fatal to retaliation
claim when evidence indicated defendant “had a long
memory,” repeatedly retaliated against plaintiff by denying
her promotions, and then effectively demoted her when first
given the opportunity). Lesiv has not produced comparable
evidence to support a jury verdict here. 11
11 Lesiv points to affidavits from co-workers saying that management
monitored him more closely and targeted him after the brother filed his
lawsuit. Plaintiffs are, of course, entitled to submit affidavits that contain
information based on witnesses’ personal knowledge and experiences. See
Hill v. Tangherlini, 724 F.3d 965, 967–68 (7th Cir. 2013). These affidavits,
however, are conclusory and do not offer evidence to support their con-
clusions, and some are not related to Lesiv’s or his brother’s protected ac-
tivities: “I believe Illinois Central placed a target upon the entire Lesiv
family due to the disciplinary issues related to Lyubomir,” and “I believe
Illinois Central placed a ‘bullseye’ on [Lesiv’s] … back as retaliation for
No. 21-2496 27
Nonetheless, Lesiv asserts that the timing is suspicious
and supports an inference of retaliation because Lyubomir’s
state lawsuit was still pending. In addition, Duggan had been
contacted about scheduling a deposition in that lawsuit
roughly two weeks before the adverse action against Lesiv.
Lesiv contends that Lyubomir’s lawsuit might have been on
Duggan’s mind when he suspended Lesiv, supporting an in-
ference of retaliatory motive. In the absence of other evidence
supporting the inference, this is too speculative. See, e.g., Iga-
saki, 988 F.3d at 960 (affirming summary judgment on retalia-
tion claim and rejecting arguments based on layers of “imper-
missible speculation”). Even viewing the evidence in the light
reasonably most favorable to Lesiv, the adverse actions here
came immediately after heated confrontations between Lesiv
and his supervisors, providing a ready explanation that had
nothing to do with his brother’s lawsuit.
At bottom, there simply is no evidence that Duggan was
responding to his brother’s protected activity by suspending
Lesiv. The record does not contain sufficient evidence to per-
mit a reasonable fact finder to conclude that a retaliatory mo-
tive caused the materially adverse action here, even on sum-
mary judgment.
Lesiv’s refusal to work the RIP track alone.” They do not include factual
details of Duggan’s motivations or actions toward Lesiv leading up to the
suspension to support those beliefs and that would lend support to an in-
ference of retaliation. These affidavits thus do not present a genuine issue
of material fact precluding summary judgment. Accord, Visser v. Packer
Engineering Associates, Inc., 924 F.2d 655, 659 (7th Cir. 1991) (en banc) (“Dis-
crimination law would be unmanageable if disgruntled employees—the
friends of the plaintiff and often people in the same legal position as the
plaintiff—could defeat summary judgment by affidavits speculating
about the defendant’s motives.”).
28 No. 21-2496
2. Evidence of Grayer’s Motive
Finally, we turn to Grayer and the solo RIP track assign-
ment. Lesiv’s evidence would not support a reasonable infer-
ence that a desire to retaliate against Lyubomir drove Grayer
to assign Lesiv to work the RIP track alone. All a jury would
have to support a finding of causation is the two-and-a-half-
year gap between Lyubomir’s charge of discrimination and
Lesiv’s solo RIP track assignment, and the nearly one-year
gap between the lawsuit and the assignment. That evidence is
not enough to pose a genuine dispute of fact and defeat sum-
mary judgment on causation. Accord, Igasaki, 988 F.3d at 959
(without more, evidence of two-month gap between pro-
tected activities and adverse action did not defeat summary
judgment on retaliation claim).
To sum up, Lesiv has not met his burden on causation to
support the reasonable inference that he faced materially ad-
verse actions because of his or his brother’s activities pro-
tected by Title VII. Illinois Central was entitled to summary
judgment on both claims.
AFFIRMED.