In the

United States Court of Appeals
               For the Seventh Circuit

No. 08-1647

S COTT A NTONETTI, JERALD F UHRER and C INDY N ADIGER,

                                                Plaintiffs-Appellants,
                                  v.

A BBOTT L ABORATORIES,
                                                 Defendant-Appellee.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
              No. 1:07-cv-00768—David H. Coar, Judge.



     A RGUED D ECEMBER 4, 2008—D ECIDED A PRIL 21, 2009




 Before B AUER, P OSNER and W ILLIAMS, Circuit Judges.
  B AUER, Circuit Judge. After their termination from
employment with Abbott Laboratories, plaintiffs Scott
Antonetti, Jerald Fuhrer, and Cindy Nadiger sued their
former employer, claiming that they were terminated
on account of their race and national origin. Nadiger
also claimed that her termination constituted unlawful
retaliation in response to her complaints of sex discrim-
2                                                No. 08-1647

ination. The district court granted summary judgment
in favor of Abbott, which Plaintiffs appeal and we affirm.


                    I. BACKGROUND
  Plaintiffs worked as Instrument Technicians for Abbott
Laboratories. During a typical eight-hour shift, Abbott
allows hourly employees like Plaintiffs to take two ten
minute paid breaks, which may be combined, and one
thirty minute unpaid meal break. Employees clock in and
out of work and also manually fill out a time card. The
time-keeping program that Abbott uses automatically
deducts thirty minutes from the time an employee was
clocked in each day as an unpaid meal break.
  On June 10, 2006, Plaintiffs, who are each Caucasian,
worked a Saturday overtime shift with Marvin Gloria, who
is Filipino, and Juan Luna, of Hispanic descent. During
their shift, the group decided to leave Abbott’s facilities
for a sit-down breakfast at Little Nick’s restaurant.1
Although the precise timing of the event is disputed, the
break lasted approximately thirty to forty-five minutes.
Because of a technical problem, the group was not able
to complete their project that day and only worked
about five or six hours instead of the scheduled eight
hours.



1
  Plaintiffs now claim that the breakfast was a working break-
fast because they used the time to discuss their strategy for
accomplishing the day’s tasks. This explanation for the break-
fast was never presented to management and cannot be con-
sidered now.
No. 08-1647                                                3

  On Monday, Plaintiffs and Gloria each told their group
leader, Brian Gravander, who was in charge of their time
cards, that they did not take a lunch break during the
Saturday shift.2 Accordingly, Gravander wrote “NL” on
those four time cards to indicate that the employees took
no lunch. Luna did not work on Monday so he did not
tell Gravander that he took no lunch break during the
Saturday shift. Gravander asked the other employees
collectively if Luna had taken a lunch break and one of
them reported that he did not. Gravander did not write
“NL” on Luna’s card. However, he manually overrode
the time-keeping program so that all five employees
were paid as if they had not taken any unpaid breaks.
  In late July or early August 2006, Luna’s former super-
visor, Larry Adams, approached Luna and asked if he
knew of any incidents where employees went to breakfast
during a weekend shift. Luna told Adams that his group
ate an off-site breakfast on June 10, 2006 and also reported
a similar off-site meal that Luna participated in with
Antonetti. Although Luna asked Adams to keep the
information in confidence, Adams relayed the June 10
incident to more senior management.
  Managers Mike Patterson and Ray Hess, both Caucasian,
subsequently began an investigation into the June 10
overtime shift. On August 23, 2006, they met with



2
  Fuhrer admits that he told Gravander that he did not take a
lunch break. Antonetti and Nadiger do not remember, but do
not dispute Gravander’s testimony that they told him they
did not take a lunch break.
4                                                 No. 08-1647

Antonetti, Fuhrer, Nadiger, and Gloria individually,
showed each individual his or her time card from June 10
bearing the “NL” notation, and asked about the events of
that day. When asked if the group went off-site that day
and where they went to breakfast, Antonetti could not
remember where they had gone to breakfast and said
that sometimes they would go to McDonald’s. Fuhrer did
not remember going off-site for breakfast during the
June 10 shift. Nadiger did not remember whether they
had taken a break that day. Gloria did not recall where
the technicians went or how long they were gone during
their break on June 10.
  That same day, Hess interviewed Luna by phone
because Luna was on an assignment in Mexico. Luna told
Hess that the group went out for breakfast and that they
were gone thirty to forty-five minutes. Although Luna
could not remember the name of the restaurant, he told
Hess where the restaurant was located.3
  Plaintiffs and Gloria conferred after their interviews and
remembered the breakfast at Little Nick’s. Patterson met
with Antonetti a second time that same day and



3
   Plaintiffs’ argument that Luna was given preferential treat-
ment because he was first confronted by Adams instead of
Patterson and Hess, as well as their argument that Luna had
an unfair advanced notice of the investigation so that Plain-
tiffs did not have an equal opportunity to explain what hap-
pened, are both presented to this Court for the first time in
this litigation and are therefore waived. They are also unper-
suasive.
No. 08-1647                                                 5

Antonetti told Patterson about the incident, supposedly
on behalf of all three Plaintiffs. At his deposition,
Antonetti confirmed Patterson’s summary notes of the
investigation by admitting that he may have told
Patterson something like, “I’m taking a risk by telling you
the truth or changing my story,” though he later denied
memory of such a statement.
  Patterson found it implausible that the technicians did
not remember going off-site for breakfast during the
Saturday overtime shift, since it was unusual to work on a
Saturday, and unusual to leave Abbott’s premises for a
meal in the middle of a shift. Patterson also found the
technicians’ inability to remember the break implausible
because during the interviews they did recall other
details about the shift.
 Plaintiffs and Gloria were subsequently terminated; Luna
was not. Patterson made these decisions in consultation
with others in management.


                     II. DISCUSSION
  On appeal, Plaintiffs claim that the district court erred
by granting summary judgment for Abbott on the discrimi-
nation and retaliation actions. Abbott argues that the
district court acted properly because Plaintiffs could not
establish a prima facie case of race or national origin
discrimination, and had no evidence of retaliation. We
review a district court’s grant of summary judgment de
novo. Darst v. Interstate Brands Corp., 

, 907 (7th
Cir. 2008). Summary judgment is appropriate when
6                                                 No. 08-1647

there is no genuine issue as to any material fact and the
moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c). “We view the record in the light
most favorable to the non-moving party and draw all
reasonable inferences in that party’s favor.” 

(citation omitted).


    A. Race and National Origin Discrimination
  Title VII of the Civil Rights Act of 1964 forbids an
employer “to discriminate against any individual with
respect to his compensation, terms, conditions, or privi-
leges of employment, because of such individual’s race,
color, religion, sex, or national origin.” 42 U.S.C. § 2000e-
2(a)(1).4 A plaintiff may prove illegal discrimination
either directly or indirectly. In this case, Plaintiffs rely on
the indirect burden-shifting method of proof explained
in McDonnell Douglas Corp. v. Green, 

(1973).
Under this approach, Plaintiffs must first establish a
prima facie case of discrimination by proving that:
“(1) [they are] member[s] of a protected class; (2) [they
were] performing [their] job[s] satisfactorily; (3) [they]
suffered an adverse employment action; and (4) similarly
situated employees outside of [their] protected class were
treated more favorably.” Goodwin v. Bd. of Trustees of
the Univ. of Ill., 

, 617 (7th Cir. 2006).


4
   Plaintiffs brought this action under Title VII as well as 42
U.S.C. § 1981. However, because both authorities require a
plaintiff to prove the same elements to make out a prima facie
case, the claims rise or fall together. Lalvani v. Cook County,
Ill., 

, 789 (7th Cir. 2001).
No. 08-1647                                                7

  If Plaintiffs can demonstrate these four elements, the
burden “shift[s] to the employer to articulate some legiti-
mate, nondiscriminatory reason for the” adverse em-
ployment action. McDonnell Douglas 

.
If Abbott satisfies this burden of production, Plaintiffs
“must then establish that there is an issue of material
fact as to whether the employer’s proffered reasons
are merely pretext for unlawful discrimination or re-
taliation, in order to survive summary judgment.” Hudson
v. Chicago Transit Authority, 

, 561 (7th Cir.
2004) (citing McDonnell Douglas 

).
  The district court granted summary judgment on this
claim because Plaintiffs could not satisfy the fourth
element of their prima facie case—identifying a similarly
situated employee outside of their protected class who
was treated more favorably than they. Plaintiffs claim
that Luna qualified as a similarly situated employee
because he worked the same job, in the same depart-
ment, and under the same supervisors as Plaintiffs, and
because he worked the same June 10 overtime shift, took
the same break, did not report the break, and was paid
for the entire shift. Abbott argues that Luna was not
similarly situated to Plaintiffs in the two areas that
prompted Plaintiffs’ terminations: (1) he did not tell
Gravander that he took no lunch break during the June 10
overtime shift; and (2) he admitted to the breakfast
when questioned by Adams.
  When “a plaintiff claims that he was disciplined . . . more
harshly than a similarly situated employee based on some
prohibited reason—a plaintiff must [typically] show
8                                               No. 08-1647

that . . . the two employees . . . engaged in similar conduct
without such differentiating or mitigating circumstances
as would distinguish their conduct or the employer’s
treatment of them.” Radue v. Kimberly-Clark Corp., 

, 617-18 (7th Cir. 2000). The similar conduct to be
examined must be material to the cause of the discipline.
See 

(“In determining whether two employees
are similarly situated a court must look at all relevant
factors . . . .” (emphasis added)).
  In this case, Plaintiffs were fired for time card fraud:
saying that they took no break when they did and then
suspiciously failing to remember the off-site meal when
confronted. Luna did not engage in either of these
material actions. Patterson’s summary notes of the in-
vestigation make this distinction between the em-
ployees abundantly clear:
    Basic issue is the 4 techs documented “no lunch” on
    their time cards although they did go off site for a
    meal. . . .
    In addition, when questioned by Ray Hess, 4/5 techs
    either lied about or did not recall going off site for
    the breakfast. One technician, Scott Antonetti
    changed his story later in the day and admitted the
    truth.
    One technician, Juan Luna came forward during a
    discussion with Larry Adams to bring the situation
    to light in the first place. Juan also did not request a
    “no lunch” on his timecard but was apparently paid
    for the entire duration regardless. . . . Juan also was
    the only technician interviewed who told the truth
    during the initial discussion.
No. 08-1647                                                     9

Therefore, Luna was not similarly situated.5
  Without a similarly situated employee, Plaintiffs cannot
present a prima facie case and their claim must fail.6




5
   Plaintiffs argue that the relevant conduct to be compared in
this case is taking and not reporting the break—not affirmatively
lying about it to Gravander, or lying or failing to remember
it when questioned by management. Patterson’s investigation
notes do not support this theory, but, even if Plaintiffs are
correct, Luna was not similarly situated because he did not
tell Gravander that he took no lunch, and he was honest about
the incident when questioned—mitigating circumstances
that differentiate his conduct and Abbott’s treatment of him.

. In other words, whether the fact that
Luna did not personally lie to Gravander and told the truth
when confronted by Adams are the relevant factors to con-
sider in the first place, or mitigating factors distinguishing
the degree of Luna’s misconduct from that of the other em-
ployees who took the break and did not report it, Luna was
not similarly situated to Plaintiffs.
6
   Many of Plaintiffs’ arguments address the issue of pretext;
because Plaintiffs cannot survive the first step in the McDonnell
Douglas analysis, we do not need to consider the third. See Peele
v. Country Mut. Ins. Co., 

, 331 (7th Cir. 2002) (under
indirect method, failure to offer comparable employee
dooms Title VII claim).
10                                                   No. 08-1647

  B. Retaliation
  Nadiger also claimed that she was terminated in re-
taliation for her past and imminently approaching com-
plaints of sex discrimination in relation to being denied
a promotion in February 2006. Title VII protects em-
ployees “from retaliation for complaining about the types
of discrimination it prohibits.” Miller v. Am. Family Mut.
Ins. Co., 

, 1007 (7th Cir. 2000); 42 U.S.C.
§ 2000e-3(a). Like other discrimination claims, a plaintiff
may prove retaliation through the direct or indirect
method. In this case, Nadiger relies on the direct method.
  To survive summary judgement, Nadiger must present
sufficient direct or circumstantial evidence for the trier
of fact to infer that there was a “causal link” between
her complaints of sex discrimination and her termina-
tion. Culver v. Gorman & Co., 

, 545-46 (7th Cir.
2005); Sylvester v. SOS Children’s Vills. Ill., Inc., 

,
902 (7th Cir. 2006) (direct method requires plaintiff to
prove “that he engaged in protected activity (filing a
charge of discrimination) and as a result suffered the
adverse employment action” (quoting Stone v. City of
Indianapolis Public Utilities Div., 

, 644 (7th
Cir. 2002))). If she could produce this inference, but her
evidence is contradicted, which it is, then “the case must
be tried unless [Abbott] presents unrebutted evidence
that [it] would have taken the adverse employment
action against [Nadiger] even if [it] had no retaliatory
motive; in that event [Abbott] is entitled to summary
judgment because [it] has shown that [Nadiger] wasn’t
harmed by retaliation.” 

.
No. 08-1647                                             11

  In this case, even if Abbott was partially motivated by
Nadiger’s complaints in its termination decision, it would
have fired Nadiger without such motivation. Abbott
terminated Antonetti, Fuhrer, and Gloria for time card
fraud and Nadiger makes no attempt to, nor can she,
distinguish herself from those employees, other than
stating that unknown factors besides time card fraud
could have partially motivated the decision to terminate
those employees. Nadiger does not deny her participa-
tion in the June 10 breakfast or reporting that she took no
lunch. Neither does Nadiger dispute that Patterson
found her lack of memory implausible when questioned
about the incident. Therefore, Abbott had a legitimate
and independent justification for terminating Nadiger,
would have terminated her even without any retaliatory
motive, and is entitled to summary judgment. 

  For the reasons discussed above, we A FFIRM the
district court’s grant of summary judgment.




                          4-21-09