RIPPLE, Circuit Judge.
Kenneth Harper brought this action in Indiana state court against his former employer, C.R. England, Inc. ("C.R. England"), alleging racial discrimination, harassment and retaliation in violation of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. He also alleged that C.R. England had retaliated against him for having filed a workers' compensation claim, in violation of Indiana law. C.R. England removed the case to the district court.
From July 2005 until his termination on August 3, 2007, Mr. Harper, an African-American, was employed as a driving instructor for C.R. England, a trucking corporation that operated a truck-driving school in Indiana. Mr. Harper was one of approximately twelve road instructors at the driving school. In that capacity, he did not provide any classroom instruction, but was assigned a group of students for road instruction in the operation of the trucks. He was expected to be present and available to his students during the weeks that they were assigned to him.
The road instructors' immediate supervisor held the title of "lead instructor" and reported to the director of the school, Chris Kelsey. In January 2007, the lead instructor left the company, and Director Kelsey appointed Mr. Harper, who had volunteered for the position, as acting lead instructor until the company was able to hire someone to fill the position on a permanent basis. In early 2007, Mr. Harper, along with about twenty other individuals, interviewed for the position of lead instructor, but he was not hired for the permanent position. The company instead selected Eric Metzler, also an African-American, because of his prior management experience in the trucking industry.
The day after the incident with Humphrey, a fellow C.R. England employee who had heard about the confrontation contacted Mr. Harper and recommended that he contact Carrie Johansen, Assistant Director of C.R. England's Human Resources Department, in Salt Lake City, Utah, about the incident and provided him with Johansen's contact information. Mr. Harper spoke briefly with Director Kelsey about his encounter with Humphrey shortly after the alleged incident took place.
After receiving Mr. Harper's email, Johansen contacted Director Kelsey and instructed him to contact Metzler to "find out what had happened."
Mr. Harper met with Director Kelsey a second time to discuss the Humphrey incident. Director Kelsey asked Mr. Harper how they could "move past th[e] incident," and what the company could do to make the work environment more comfortable for him.
Mr. Harper also met separately with Metzler to discuss, among other things, the email he had sent to human resources. He claims that Metzler questioned his reasons for sending the email and wanted to know what he expected would come as a result of it. In addition, Metzler said that Mr. Harper's "skin should not be so thin."
Mr. Harper further alleged that, on approximately four or five occasions after March 9, 2007, he heard other instructors use the slur "n____r" in workplace conversations. However, in his deposition, Mr. Harper testified that these remarks were not directed at him and that Metzler was not part of the conversations.
Mr. Harper also informed Director Kelsey that the word "asshole" had been written on his time card on one occasion at some point after March 9, 2007.
On June 24, 2007, Mr. Harper contacted Metzler to tell him that he would not be able to report to work on Monday, June 25, due to illness. Metzler left Mr. Harper a message telling him that he would have to assign his truck group to another instructor and directed him to stay at home for the rest of the week.
On Thursday of that same week, Metzler informed Mr. Harper that he needed to meet with him the following day, Friday, June 29, 2007. During their Friday meeting, Metzler administered three written warnings to Mr. Harper, the most serious being for poor attendance. Metzler told Mr. Harper that he was being placed on probation for taking too much time off and warned him not to take any more days off or leave work early for the remainder of the year. Mr. Harper understood that, pursuant to C.R. England policies, he could be terminated if his attendance did not improve.
In addition to the written warning for poor attendance, Metzler also gave Mr. Harper a warning for failing to report his mileage at the close of business on Friday on four occasions and for not turning in the key to his assigned truck. Metzler gave Mr. Harper a third written warning for the poor rates of hire for students that he had been assigned ("start-to-hire rate").
Mr. Harper spoke with Director Kelsey regarding Metzler's direction to take the week of June 25 off after he had called in sick on Monday. Director Kelsey, after evaluating the circumstances surrounding Metzler's decision, and Mr. Harper's recent attendance record, ultimately agreed with Metzler's decision.
After he was placed on probation, Mr. Harper took several days off to attend his sister's wedding and an additional day off for a court appearance.
On or about July 13, 2007, Mr. Harper initiated a "First Report of Injury or Illness," prepared by the Manager of Workers' Compensation, Darlene Niebuhr, in which he stated that, beginning at the end of March 2007, his health had started to decline. He specifically referred to experiencing headaches and high blood pressure, which he believed were related to harassment in the workplace. Mr. Harper never filed a workers' compensation claim.
Shortly thereafter, Mr. Harper was terminated. Before reaching the final decision to terminate Mr. Harper, Director Kelsey consulted with Johansen about Mr. Harper's attendance records. Johansen verified that Mr. Harper had exceeded his leave and agreed with Director Kelsey's decision to terminate Mr. Harper.
Following the termination of his employment, Mr. Harper filed a charge of racial discrimination with the Equal Employment Opportunity Commission ("EEOC") against C.R. England. He alleged that he had been terminated unlawfully in retaliation for complaining of racial discrimination and a hostile work environment. On March 6, 2008, after receiving a "right to sue letter" from the EEOC, Mr. Harper filed a complaint in the Porter County Superior Court, alleging racial discrimination, harassment and retaliation under 42 U.S.C. § 1981 and Title VII, 42 U.S.C. § 2000e et seq. He also alleged retaliation for filing a workers' compensation claim in violation of Indiana law. C.R. England removed the case to the United States District Court for the Northern District of Indiana under 28 U.S.C. § 1441(a), and, once removal was effected, moved for summary judgment.
With respect to Mr. Harper's retaliation claim, the district court concluded that Mr. Harper had failed to set forth a prima facie case, under either the direct or indirect method of proof, to support his claim
We review the district court's decision to grant a motion for summary judgment de novo, construing all the facts in the light most favorable to the nonmoving party, Mr. Harper. See Darst v. Interstate Brands Corp., 512 F.3d 903, 907 (7th Cir. 2008). Summary judgment is proper where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "However, our favor toward the nonmoving party does not extend to drawing `[i]nferences that are supported by only speculation or conjecture.'" Argyropoulos v. City of Alton, 539 F.3d 724, 732 (7th Cir.2008) (alteration in original) (internal quotation marks omitted). Rather, "[a] genuine issue of material fact arises only if sufficient evidence favoring the nonmoving party exists to permit a jury to return a verdict for that party." Faas v. Sears, Roebuck & Co., 532 F.3d 633, 640-41 (7th Cir.2008) (internal quotation marks omitted).
A plaintiff may establish retaliation under either the direct or indirect method of proof. See Weber v. Univs. Research Ass'n, Inc., 621 F.3d 589, 592 (7th Cir.2010). To establish retaliation under the direct method, a plaintiff must present evidence, direct or circumstantial, showing that: (1) he engaged in a statutorily protected activity; (2) he suffered a materially adverse action; and (3) a causal connection exists between the two. Burks v. Wisconsin Dep't of Transp., 464 F.3d 744, 758 (7th Cir.2006).
Here, it is undisputed that Mr. Harper's complaint of racial discrimination and harassment is a statutorily protected activity. The parties also correctly agree that Mr. Harper's termination constitutes an adverse employment action. See Haywood v. Lucent Techs., Inc., 323 F.3d 524, 531 (7th Cir.2003) (stating that an employee's termination "certainly qualifies as an adverse employment action").
Under the direct method of proof, Mr. Harper can rely on either direct or circumstantial evidence to show that C.R. England was motivated to terminate him because of his protected activity. See Haywood, 323 F.3d at 529. Evidence of retaliation is direct when, "if believed by the trier of fact, [it] will prove the particular fact in question without reliance on inference or presumption." Pitasi v. Gartner Grp., Inc., 184 F.3d 709, 714 (7th Cir.1999) (internal quotation marks omitted). "Because direct evidence ... essentially requires an admission by the employer," such evidence "is rare." Benders v. Bellows & Bellows, 515 F.3d 757, 764 (7th Cir.2008). Mr. Harper has not produced any direct evidence of a causal link between his complaints of racial discrimination and his subsequent termination. He instead relies upon what he considers to be "a convincing mosaic of circumstantial evidence," Rhodes v. Illinois Dep't of Transp., 359 F.3d 498, 504 (7th Cir.2004) (internal quotation marks omitted), that would permit a jury to infer unlawful retaliation on the part of his employer, C.R. England. In the past, we have held that circumstantial evidence of retaliation may include "suspicious timing, ambiguous statements, behavior toward or comments directed at other employees in the protected group, and other bits and pieces from which an inference of discriminatory intent might be drawn." Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 792 (7th Cir.2007).
Here, as is the often the case, "[w]e can measure the time in several ways." Id. The district court concluded that, "[w]ithout any other evidence supporting a link between the two occurrences, the several-month time lag between [Mr. Harper's] complaint of racial harassment to his supervisor in March, 2007, or even the later complaint to human resources on April 18, 2007, and his August 3, 2007, termination is too great to support an inference of retaliation."
Even if we were to accept Mr. Harper's contention that we should consider the proximity between his contact with Johansen on several occasions in July and his termination in early August, we agree with the district court that Mr. Harper has not met his burden of putting forth other evidence that suggests that his protected activities were in any way linked to his termination. In addition to the evidence of suspicious timing, Mr. Harper offers the following circumstantial evidence: (1) Director Kelsey and Metzler did not conduct a proper investigation into Humphrey's alleged derogatory comments; (2) Metzler met with Mr. Harper after the investigation was complete and asked him what he hoped to gain by filing a complaint with human resources; and (3) Metzler told him that he needed to grow a thicker skin.
Mr. Harper provides no support for his assertion that Metzler and Director Kelsey did not conduct a proper investigation into the alleged incident. The only related argument that Mr. Harper made is that Director Kelsey and Metzler attempted to cover up Mr. Harper's complaint, but he does not dispute that Metzler and Director Kelsey made clear to all of the road instructors that the use of racial slurs would constitute a firing offense. Such action on the part of management certainly does not indicate that it was engaged in a cover up. Mr. Harper also does not dispute that, shortly after he complained to Director Kelsey that "asshole" had been written on his time card, Metzler moved the time
Mr. Harper is correct in asserting that Metzler's comments in the aftermath of the investigation constitute some circumstantial evidence of retaliation. However, the record makes clear that Director Kelsey, and not Metzler, made the decision to fire Mr. Harper. Further, there is no evidence in the record to suggest that Director Kelsey's decision to fire Mr. Harper was in any way influenced by Metzler. See Cook v. IPC Int'l Corp., 673 F.3d 625, 628 (7th Cir.2012) (explaining that, under the "cat's paw" theory of liability, an employer may be held liable if "an employee is fired or subjected to some other adverse employment action by a supervisor who himself has no discriminatory motive, but who has been manipulated by a subordinate who does have such a motive"). Rather, the evidence suggests that Director Kelsey made the decision to terminate Mr. Harper only after he had discussed the situation with Johansen. Therefore, Metzler's comments do not help to establish a link between Mr. Harper's complaint and the termination of his employment in August 2007.
Because evidence regarding suspicious timing, without more, is generally insufficient to support a reasonable inference of retaliation, we conclude that Mr. Harper has failed to establish a prima facie case of retaliation under the direct method of proof.
Under the indirect, burden-shifting approach, Mr. Harper may establish a prima facie case of retaliation by showing that: (1) he engaged in a statutorily protected activity; (2) he met his employer's legitimate expectations, i.e., he was performing his job satisfactorily; (3) he suffered a materially adverse action; and (4) he was treated less favorably than some similarly situated employee who did not engage in the statutorily protected activity. See Tomanovich v. City of Indianapolis, 457 F.3d 656, 663 (7th Cir.2006). Once a plaintiff has established a prima facie case, the burden shifts to the defendant to articulate a non-discriminatory reason for discharging the plaintiff. Id. If the defendant meets its burden, the burden shifts back to the plaintiff to show that a genuine issue of material fact exists as to whether the defendant's proffered reason was pretextual. Id.
As we already have noted, it is not disputed that Mr. Harper engaged in a statutorily protected activity or that he suffered an adverse employment action. However, Mr. Harper challenges the district court's findings with respect to (1) whether he was meeting the legitimate expectations of C.R. England at the time of his termination, and (2) whether similarly situated employees who did not engage in the statutorily protected activity were treated more favorably.
We agree, for the reasons that follow, with the district court's conclusion that Mr. Harper has not presented sufficient evidence to satisfy either requirement and, therefore, has failed to make a prima facie case for retaliation under the indirect method.
We first turn to Mr. Harper's argument that he was treated less favorably than other instructors who, he claims, were similarly situated. A similarly situated employee need not be in a situation identical to that of the plaintiff. Nevertheless,
We agree with the district court's conclusion that Mr. Harper has failed to identify any other C.R. England instructor who had a comparable attendance record. Mr. Harper provides the name of only one individual, Kim Beckom, who he asserts received more favorable treatment with respect to attendance issues. However, as the district court pointed out, the documents provided by Mr. Harper do not include Beckom's attendance records or indicate how much work Beckom missed before he was discharged in May 2006 due to his inability to work the required schedule. Here, we believe that a meaningful comparison only may be made by identifying those employees who received more favorable treatment while on probation for attendance issues. See Nichols v. S. Ill. Univ.-Edwardsville, 510 F.3d 772, 786 (7th Cir.2007) (requiring plaintiffs to identify an employee who had engaged in similar misconduct in order to satisfy the similarly situated requirement); see also Argyropoulos, 539 F.3d at 735 (same). We therefore agree with the district court's conclusion that, with respect to Beckom, Mr. Harper failed to demonstrate that he "was a similarly situated employee suitable for comparison."
In addition, Mr. Harper provides a list of names and asserts generally that "eight of the nine witnesses identified by Harper, who did not complain of or confirm use of racial slurs by Darnell Humphrey — were treated more favorably than Harper." Appellant's Br. 24. However, Mr. Harper fails to point to any listed individual who was treated more favorably with respect to his or her attendance record. His contention that "[C.R.] England produced no evidence that any employee other than Harper had [h]olidays and vacation used against him to create a history of attendance issues for which the employee was fired," Appellant's Br. 23, is hardly sufficient to satisfy this requirement.
Because Mr. Harper has not demonstrated that any of the coworkers listed had a "comparable set of failings," Haywood, 323 F.3d at 530 (applying the standard in the discrimination context), he fails to establish that any of these individuals were similarly situated for the purposes of establishing a retaliation claim.
Next, we turn to Mr. Harper's contention that he was performing his job satisfactorily at the time of his termination. In order to determine whether Mr. Harper was meeting his employer's legitimate expectations, "[t]he proper inquiry mandates looking at [Mr. Harper's] job performance through the eyes of [his] supervisors at the time of [his] ... termination." Gates, 513 F.3d at 689. Although
As we discussed earlier, Mr. Harper failed to identify any other instructor who had a comparable attendance record, and his argument with respect to the disparities in C.R. England's treatment of its employees is therefore unsupported by the record. In addition, it is important to note that, at the time of his termination, Mr. Harper was on probation for attendance issues. In his deposition, Mr. Harper testified that he was aware of C.R. England's expectations that the instructors be on time and present for their students. He admitted that he had been aware that he was placed on probation for attendance reasons and acknowledged that he had known that he could be terminated if he continued to take time off of work after being on probation. It is also undisputed that, after being placed on probation, Mr. Harper took several days off to attend his sister's wedding and one additional day to appear in court. Although the parties dispute whether Mr. Harper indeed had exceeded his number of authorized leave days and whether certain of these days off had been authorized, C.R. England's policies and procedures booklet makes clear that "[v]acation time requests are subject to [m]anagement approval based upon operating requirements, staffing considerations, and business necessity."
Because Mr. Harper has failed to make out a prima facie case of retaliation under the indirect method, we need not address the issue of pretext. See Volovsek v. Wisconsin Dep't of Agric., Trade & Consumer Prot., 344 F.3d 680, 692 (7th Cir.2003). Nonetheless, in the interest of completeness, we shall address Mr. Harper's arguments with respect to this issue.
C.R. England has offered a legitimate, nondiscriminatory reason for terminating Mr. Harper: excessive absences. In determining whether an employer's stated reason is pretextual, "[t]he question is not whether the employer's stated reason was inaccurate or unfair, but whether the employer honestly believed the reason it has offered to explain the discharge." O'Leary v. Accretive Health, Inc., 657 F.3d 625, 635 (7th Cir.2011). "[I]t is not the court's concern that an employer may be wrong about its employee's performance, or be too hard on its employee. Rather, the only question is whether the employer's proffered reason was pretextual, meaning that it was a lie." Ineichen v. Ameritech, 410 F.3d 956, 961 (7th Cir. 2005). In short, to meet this burden, Mr. Harper "must identify such weaknesses, implausibilities, inconsistencies, or contradictions" in C.R. England's stated reason "that a reasonable person could find [it] unworthy of credence." Boumehdi, 489 F.3d at 792 (applying this standard in the discrimination context).
Mr. Harper also submits the following as evidence of pretext: (1) he was disciplined for mileage and keys when C.R. England had no policy concerning either; (2) C.R. England changed the start-to-hire rate, and Metzler did not discipline any other instructor for being below the acceptable level; (3) C.R. England counted paid holidays and vacation days against Mr. Harper, but not against any other employee; (4) he was not permitted to take days off for his sister's wedding when the leave already had been approved prior to his being placed on probation; (5) C.R. England tried to cover up the Humphrey incident; and (6) he was given written warnings after voicing complaints and then fired after complaining about being singled out for unjust discipline. We consider each of these arguments, in turn, bearing in mind that the burden is on Mr. Harper to establish that C.R. England's proffered reason for his termination is pretextual.
As we explained earlier, we need not address Mr. Harper's arguments with respect to his being disciplined for failing to report mileage or to turn in his keys, nor must we address Mr. Harper's arguments with respect to the company's start-to-hire rates; neither argument is germane to our discussion of whether C.R. England's stated reason for firing Mr. Harper, i.e., excessive absences, was pretextual. We therefore turn to Mr. Harper's argument that the evidence shows that C.R. England improperly counted paid holidays and vacation days against Mr. Harper as excessive leave. As we already have noted, an issue of fact clearly exists as to whether Mr. Harper had exceeded his authorized number of leave days and whether C.R. England impermissibly counted paid holidays and vacation days against him. One also can debate whether it is good policy to include paid leave or vacation days in evaluating an employee's total attendance record
We need only briefly reiterate that Mr. Harper provides no evidence to support his assertion that Director Kelsey and Metzler tried to cover up the incident with Humphrey. As we have discussed earlier, Mr. Harper does not dispute that, in the aftermath of the alleged incident, Metzler, at the direction of Director Kelsey, warned the road instructors, including Humphrey, that the use of racial slurs would not be tolerated. In addition, Mr. Harper is unable to provide evidence to support his claim that Metzler interviewed only two of the nine witnesses to the incident. According to Director Kelsey, Metzler confirmed that one instructor, Richard Ramos, verified Mr. Harper's account of the confrontation with Humphrey. However, Metzler also reported that Humphrey denied using the racial slur and at least one other instructor, whom Mr. Harper identified as being present at the time of the incident, did not hear Humphrey call Mr. Harper a "n____r." Director Kelsey reported the results of Metzler's investigation to Johansen in human resources, and she did not ask for any further action. There is therefore no evidence that Director Kelsey or Metzler in any way covered up the incident.
Finally, Mr. Harper returns to his argument regarding the timing of his complaints. He argues that the proximity between his complaints to human resources regarding the written warnings and other unfair discipline he received from Metzler via email on July 10, 2007, and by telephone around July 31, 2007, and his subsequent termination on August 3, 2007, amounts to evidence of pretext. As we have discussed above, evidence of suspicious timing, without more, is insufficient to support a claim of retaliation.
In short, Mr. Harper makes a number of assertions, none of which could lead a reasonable jury to conclude that C.R. England's stated reason for firing him was pretextual. Rather, as the district court aptly noted, Mr. Harper argues that his termination was unfair, but he does not provide any evidence to refute C.R. England's position that his cumulative exercise of leave was excessive or to demonstrate that his absences did not affect his job performance and ability to instruct. We therefore conclude, in the alternative, that Mr. Harper has failed to demonstrate that C.R. England's stated reason for terminating him is pretextual.
Finally, we note that under Judge Wood's approach in Coleman v. Donahoe, 667 F.3d 835, 862 (7th Cir.2012) (Wood, J., concurring), the same result obtains. In Coleman, our colleague, joined by the other judges on the panel, suggested in a special concurring opinion that our familiarity with these kinds of discrimination and retaliation cases has evolved to the point where two distinct methodologies, rather than clarifying or simplifying our analysis of a particular case, has become a complicating factor. Judge Wood suggested that we would be better served at this time by "collaps[ing] all these tests," into a single, unified approach that distills the core issue at the heart of these cases: whether "a rational jury could conclude that the employer took that adverse action on account of [the employee's] protected class [or activity], not for any non-invidious reason." Id. at 863 (Wood, J., concurring); see also King v. Acosta Sales & Mktg., Inc., 678 F.3d 470, 473-74 (7th Cir.2012)
Certainly, cases such as this one demonstrate that the line between circumstantial evidence under the direct method and indirect evidence of discrimination or retaliation under the burden-shifting approach has been blurred by the gradual integration of these methodologies. Furthermore, we believe that a streamlined evaluation of the evidence presented, including the timing of Mr. Harper's termination, his job performance and ratings after he complained to Director Kelsey and Johansen, his attendance record compared to those of his coworkers, as well as C.R. England's proffered reason for termination, would yield the same conclusion, without the "snarls and knots," Coleman, 667 F.3d at 863 (Wood, J., concurring), created by the broad, and now overlapping, approaches. The circumstantial evidence in the record, construed in the light most favorable to Mr. Harper, simply does not constitute a sufficient basis for sustaining a jury verdict in his favor.
For the foregoing reasons, the judgment of the district court is affirmed.
AFFIRMED
R.36-3 at 7. "Excessive absence" and "[p]oor job performance" are among those matters listed that might result in an employee's suspension and/or termination. Id.
The Supreme Court has construed Title VII's anti-retaliation provision broadly. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). Indeed, a materially adverse employment action is one that "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Id. at 68, 126 S.Ct. 2405 (internal quotation marks omitted); Lewis v. City of Chi., 496 F.3d 645, 655 (7th Cir.2007). In other words, "if the challenged action would discourage other employees from complaining about employer conduct that violates Title VII, it constitutes an adverse employment action." Vance v. Ball State Univ., 646 F.3d 461, 473 (7th Cir.2011).
We believe that, given the circumstances surrounding the employer's actions in this case, the district court correctly concluded that the written warnings and the placement of Mr. Harper on probationary status did not rise to the level of a materially adverse employment action. Mr. Harper made his complaint, at the very latest, on April 18, 2007, more than two months before he was given the warnings and placed on probation the week of June 25, 2007. We further note that Mr. Harper was placed on probation only after calling in sick on June 25, which resulted in his group being reassigned to another instructor. We therefore do not believe that a reasonable employee would be discouraged from filing a Title VII complaint as a result of the actions taken against Mr. Harper.
Furthermore, even if we were to conclude that the warnings constitute a materially adverse employment action, Mr. Harper would be unable to show a connection between his complaint, which he made, at the very latest on April 18, 2007, and the administration of the warnings, which occurred more than two months later, during the week of June 25, 2007. See, e.g., Argyropoulos v. City of Alton, 539 F.3d 724, 734 (7th Cir.2008) (holding that a seven-week interval between a sexual harassment complaint and plaintiff's termination "does not represent that rare case where suspicious timing, without more, will carry the day"); Amrhein v. Health Care Serv. Corp., 546 F.3d 854, 859 (7th Cir.2008) (holding that timing was not enough, on its own, to create a jury issue on retaliation where the plaintiff had threatened to file an EEOC complaint three months and then again six weeks before she was fired); Parkins v. Civil Constructors of Ill., Inc., 163 F.3d 1027, 1039 (7th Cir.1998) (affirming summary judgment in favor of the employer where the employee complained of sexual harassment in August and was laid off in November of the same year).
