DURHAM v. FRESHREALM, LLC

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

SHAD DURHAM, )

)

Plaintiff, )

)

v. ) Case No. 1:19-cv-04902-TWP-TAB

)

FRESHREALM, LLC, )

)

Defendant. )

ENTRY ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

This matter is before the Court on a Motion for Summary Judgment filed pursuant to

Federal Rule of Civil Procedure 56 by Defendant FreshRealm, LLC ("FreshRealm") (Filing No.

22). Plaintiff Shad Durham ("Durham"), a forty-two year old White man, initiated this action

following termination of his employment with FreshRealm. Durham asserts claims of reverse

racial discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title

VII") and 42 U.S.C. § 1981 ("Section 1981"), and age discrimination and retaliation in violation

of the Age Discrimination in Employment Act of 1967 ("ADEA") (Filing No. 1). For the following

reasons, the Motion is granted.

I. BACKGROUND

The following facts are not necessarily objectively true, but as required by Federal Rule of

Civil Procedure 56, the facts are presented in the light most favorable to Durham as the non-

moving party. See Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009); Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986).

FreshRealm manages a "national supply of freshly prepared food products and ingredients"

and assists "customers in the development of recipes, convenient delivery formats, and order

management." (Filing No. 23-1 at 2.) Across the country, FreshRealm facilities manufacture and

delivery of product to its Indiana customers FreshRealm opened a plant in Indianapolis, in 2017

(the "Indianapolis Plant").

FreshRealm hired Durham as an Assistant Plant Manager at the Indianapolis Plant

sometime between July 2017 and August 2017 (Filing No. 23-1 at 3; Filing No. 23-2 at 5).

Durham, a self-described "bigger guy" who sports a shaved head and multiple tattoos, is a White

male, former Marine Corps veteran, in his early forties (Filing No. 23-2 at 4, 10, 42). When he

was hired by FreshRealm, his starting salary was $80,000.00 per year (Filing No. 23-1 at 3).

In November 2018, Adam Williams ("Williams"), a Black man in his twenties (Filing No.

23-2 at 14), was hired at the Indianapolis Plant. While employed by FreshRealm, Williams

received multiple promotions: from Supervisor to Manager to being made an Assistant Plant

Manager on November 28, 2019. (Filing No. 23-1 at 3.) Each promotion was accompanied by a

salary increase for Williams starting at $48,000.00 per year as a Supervisor, $55,000.00 per year

as a Manager, and finally $65,000.00 per year as Assistant Plant Manager. Id. Durham and

Williams both reported directly to the Plant Manager, Dallas Wait ("Wait").

In February 2019, Wait was promoted to "Director of Regional Operations – East." (Filing

No. 23-3 at 2.) Wait's promotion resulted in both Durham and Williams taking on more

responsibilities overseeing the Indianapolis Plant; however, they continued to report directly to

Wait. (Filing No. 23-2 at 17.) While Durham and Williams held the same job title and essentially

the same duties, Williams was called on more often to handle specific assignments and functions

concerning the FreshRealm warehouse management system (known as "SAP"). Id. SAP computer

software was integral to inventory allocation and product management at the Indianapolis Plant

and other FreshRealm facilities. Id. At times, there were challenges for the workers in other sister

sites and plants using SAP. Id. Williams was asked by FreshRealm to travel to other facilities to

assist with SAP because of his extensive knowledge of the software and systems. Id.

Following Wait's promotion to Director of Regional Operations – East, FreshRealm "did

not backfill" the Plant Manager position for the Indianapolis Plant and did not post the Plant

Manager position as open (Filing No. 23-3 at 3). Nonetheless, Durham sent a letter to Wait, Senior

Vice President of Operations Neill King ("King"), and the Chief Executive Officer of FreshRealm,

expressing interest in the Plant Manager position (Filing No. 26-2 at 1). Durham also requested a

development plan and guidance if his superiors decided he was not ready to assume the Plant

Manager position. Id. Based on conversations with Wait, Durham believed he was being

"groomed for the role." (Filing No. 23-2 at 20.) Although Durham was often referred to as the

"acting Plant Manager" by the support staff, FreshRealm never designated him as such and never

filled the role of Plant Manager at the Indianapolis Plant. Id. at 11.

For the first 14 months of his employment, Durham received no discipline, whether formal

or informal. Id. at 9. However, some members of FreshRealm's senior management and Human

Resources Department ("HR") later "took issue" with what they deemed as Durham's

"unprofessional communications and misconduct" on different occasions (Filing No. 23-1 at 3).

In February 2018, the Senior HR Manager Lisa Jackson ("Jackson") emailed Wait to

inform him that "Durham had communicated with her in an inappropriate manner." Id. Jackson's

email noted that it was "the second time that [Durham's] emails have been borderline hostile

against FreshRealm and myself." Id. at 8. Jackson advised Wait to memorialize the incident for

his records as it was "a coaching and development opportunity for [Durham]." Id.

In another episode on March 10, 2019, Durham was reported for theft of FreshRealm

property by an IT Support Specialist named Charlie Nguyen ("Nguyen") (Filing No. 23-3 at 4).

Nguyen is of East Asian descent (Filing No. 23-2 at 10). While reviewing surveillance tape of the

Indianapolis Plant, Nguyen observed footage that appeared to show Durham taking equipment out

of the facility and placing it into his car. Id. In a meeting with Wait and FreshRealm's Vice

President of People, Dawn Batey ("Batey"), following this incident, Durham demonstrated that he

was, in fact, not stealing equipment. Id. at 11. During the meeting, Durham became frustrated

about the false accusation and raised his voice, stated "this is bullshit" and used other

"inappropriate language." Id. at 10. Durham does not recall "if… or how much more colorful it

got," but he thinks that he "made his point." Id. While Wait acknowledged that Durham had not

stolen any equipment, Durham was given a written warning for insubordination for his vocal and

profanity-laced reaction in the meeting. Id. at 9.

Around the time of the false accusation of theft, FreshRealm lost its contract to do business

with one of its largest grocery store customers, Kroger. (Filing No. 23-3 at 2.) The loss of this

business substantially decreased the volume of work at the Indianapolis Plant. Id. This decline

led FreshRealm to conduct a reduction in force ("RIF") of its employees at the Indianapolis Plant—

a reduction from around 100 employees to approximately 20. (Filing No. 23-2 at 6.) Moreover,

the Indianapolis Plant moved from running two shifts to one. Id. Wait consulted with Durham to

"assess which individuals the company should attempt to retain." (Filing No. 23-3 at 3.) Although

Durham "was not responsible . . . for the ultimate RIF layoff decisions or informing employees of

the company's RIF layoff decisions", Durham held an unapproved meeting with employees at the

Indianapolis Plant. Id. In this unapproved meeting, Durham made unauthorized and inaccurate

comments to employees about the RIF process. Id. After discovering this, Wait spoke with

Durham and "discussed the risk that Durham's indiscretion and lapse of judgment in having RIF-

related discussions with employees had caused the company." Id. at 3. Wait also discussed "a few

occurrences during the last 2–3 weeks" wherein Durham's conduct was "received as disrespectful,

aggressive and unprofessional." Id. at 8–9. Wait informed Durham that such conduct would not

be tolerated. Id. at 9.

Williams was valuable to the company because of his technology skills—and "he had never

given FreshRealm reason for concern with respect to his interactions with his coworkers"—and

FreshRealm sought to retain Williams against competition from other employers. (Filing No. 23-

3 at 4). On April 5, 2019, FreshRealm offered Williams the opportunity to relocate to its

Swedesboro, New Jersey Plant. Williams declined the offer and in June 2019 resigned from his

Assistant Plant Manager position and accepted an employment opportunity with another employer.

Id.

Also in June 2019, Wait sent Durham an email about deficiencies at the Indianapolis Plant

following an internal audit and requested that Durham "review and advise." Id. at 14. Durham

responded with a point-by-point refutation of the audit's findings. Id. at 12–14. Following

Durham's response, a temporary employee assisting with the internal audit reported to Wait and

Batey that "Durham had approached her and engaged her in a rude, unprofessional manner about

the audit's findings." (Filing No. 23-1 at 4.)

On July 8, 2019, Durham participated in a "daily Operations Department conference call"

(the "July 8 Call"). Id. The entire FreshRealm "senior management team" was on this conference

call (Filing No. 23-2 at 24). Durham, "EHS Manager, Robert Henry" ("Henry"), and

"Replenishment Buyer, Abby Bormann" ("Bormann") were in a conference room together at the

Indianapolis Plant for the July 8 Call. (Filing No. 23-1 at 4.) During the call, King, the Vice

President of Operations, began to "pepper [Durham] and ask question after question" about issues

at the Indianapolis Plant (Filing No. 23-2 at 32). Durham asked King for permission to speak

about the issues "offline" with him and not in front "of [an] audience." Id. King refused and

continued with his questioning. Id. at 33. Durham became "more and more aggravated with each

question he was asked." (Filing No. 23-1 at 10.) Durham then stood up and, before leaving the

call and the room, said "I'm not doing this. I'm done. I'm out." (Filing No. 23-2 at 33.) Durham

described his exit from the conference call and room as "graciously bow[ing] out from the

meeting." Id. Henry and others present in the room described Durham as standing up and

"cussing" while still on the call and as he left the room, they allege he was "yelling and screaming

profanities."1 (Filing No. 23-1 at 10.) After leaving the room, Durham was in the breakroom and

Henry heard Durham continue screaming profanities, including yelling, "fuck this place, fuck

them". Id. at 11. Henry attempted to calm Durham, but Durham refused and continued using

profanity to express his frustrations. Id. Durham then received a call about his son and began

gathering his belongings to leave the Indianapolis Plant (Filing No. 23-2 at 38).

Durham came across Nguyen, the IT Support Specialist that reported him for theft, as he

was leaving the building. Id. Durham confronted the apologetic Nguyen, telling him, "I want you

to know a lot of this I believe is firmly directed . . . from . . . the fact that I was allegedly accused

of theft from you." Id. at 37. Durham did not consider himself "hot and heavy" in his interaction

with Nguyen. Id. However, during the investigation of the incident, Nguyen stated that Durham

"cornered him in the server room" and was "cussing and yelling at him and it made him feel

threatened and uncomfortable." (Filing No. 23-1 at 14.)

The EHS Manager, Henry, reported the incident to Batey, the FreshRealm Vice President

of People, who then initiated an investigation of Durham's conduct on the July 8 Call and his

interaction with Nguyen afterwards. Id. at 4. Batey informed Durham that he was being placed

on "Administrative Leave Pending Investigation." Id.

On July 10, 2019, Batey sent Durham a text message "requesting to set up a phone call to

receive his statement" for her investigation. Id. Durham informed Batey that his attorney would

get "in touch or in contact with next steps or any … response". (Filing No. 23-2 at 35.) Batey

1 In his notes concerning the July 8 call, Robert Henry reports that as he walked out of the conference room Durham

"was still yelling. I asked him to breath and calm down. He said "fuck calming down. I am not calming down. What

do they want?" (Filing No. 23-1 at 10.)

stated that she "did not know the identity of Durham's attorney at that time and Durham did not

provide" her with "his attorney's contact information upon request." (Filing No. 23-1 at 5.) Batey

informed Durham that "as an employee on an administrative leave," there would be "no need for

[Batey] to speak with his attorney and [Durham's] failure to participate in the investigation would

lead to its conclusion without his statement." Id. Durham declined to provide Batey with any

information or statement about his version of the events of July 8, 2019 (Filing No. 23-2 at 35).

Batey interviewed "multiple witnesses as part of the investigation, including [Henry],

[Nguyen], and [Bormann]", and each witness interviewed "corroborated that Durham had acted

unprofessionally and inappropriately" during the "July 8[] [ ] Call and afterwards." (Filing No. 23-

1 at 5.) Batey concluded her investigation on July 10, 2019, and notified Wait and King that she

would be "recommending FreshRealm terminate Durham's employment for his misconduct on July

8, 2019, coupled with his prior performance and behavioral issues." Id. Wait and King agreed

with Batey's recommendation to terminate Durham's employment "absent any new information

Durham might provide in his statement." Id. By July 12, 2019, Batey "still had not received any

information from Durham" and sent him a text message "about obtaining his statement" and

Durham "responded that his attorney would be reaching out that day." Id. at 5–6.

Three days later, on July 15, 2019, attorneys for Durham sent Batey a letter informing her

that Durham was alleging discrimination "on the basis of his age and race" and attached a copy of

an Equal Employment Opportunity Commission ("EEOC") Charge of Discrimination. Id. at 17.

FreshRealm "proceeded with its previous decision to terminate" Durham's employment "effective

July 18, 2019," because, according to Batey, FreshRealm had "not received any additional

information from Durham or his attorney" about the misconduct allegations against Durham. Id.

at 6.

Durham filed a Complaint on December 12, 2019, alleging violations of Title VII, Section

1981, and the ADEA for racial and age discrimination and retaliatory termination (Filing No. 1).

FreshRealm moved for summary judgment of all claims (Filing No. 22).

II. LEGAL STANDARD

The purpose of summary judgment is to "pierce the pleadings and to assess the proof in

order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986). Federal Rule of Civil Procedure 56 provides that summary

judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, show that there is no genuine issue as to any material

fact and that the moving party is entitled to a judgment as a matter of law." Hemsworth v.

Quotesmith.com, Inc., 476 F.3d 487, 489–90 (7th Cir. 2007). In ruling on a motion for summary

judgment, the court reviews "the record in the light most favorable to the nonmoving party and

draw[s] all reasonable inferences in that party's favor." Zerante, 555 F.3d 582, 584 (7th Cir. 2009)

(citation omitted). "However, inferences that are supported by only speculation or conjecture will

not defeat a summary judgment motion." Dorsey v. Morgan Stanley, 507 F.3d 624, 627 (7th Cir.

2007) (citation and quotation marks omitted). Additionally, "[a] party who bears the burden of

proof on a particular issue may not rest on its pleadings, but must affirmatively demonstrate, by

specific factual allegations, that there is a genuine issue of material fact that requires trial."

Hemsworth, 476 F.3d at 490 (citation omitted). "The opposing party cannot meet this burden with

conclusory statements or speculation but only with appropriate citations to relevant admissible

evidence." Sink v. Knox County Hosp., 900 F. Supp. 1065, 1072 (S.D. Ind. 1995) (citations

omitted).

"In much the same way that a court is not required to scour the record in search of evidence

to defeat a motion for summary judgment, nor is it permitted to conduct a paper trial on the merits

of [the] claim." Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001) (citations and quotation

marks omitted). "[N]either the mere existence of some alleged factual dispute between the parties

nor the existence of some metaphysical doubt as to the material facts is sufficient to defeat a motion

for summary judgment." Chiaramonte v. Fashion Bed Grp., Inc., 129 F.3d 391, 395 (7th Cir. 1997)

(citations and quotation marks omitted).

The Court views the designated evidence in the light most favorable to Durham, as the non-

moving party and draws all reasonable inferences in his favor. Griffin v. City of Milwaukee, 74

F.3d 824, 827 (7th Cir. 1996). However, employment discrimination cases are "extremely fact-

intensive, and neither appellate courts nor district courts are obliged in our adversary system to

scour the record looking for factual disputes." Greer v. Bd. of Educ. of City of Chicago, Ill., 267

F.3d 723, 727 (7th Cir. 2001) (citation and quotation marks omitted).

III. DISCUSSION

In Counts I, II, and III of his Complaint, Durham asserts that FreshRealm discriminated

against him and terminated his employment due to his race and age in violation of Title VII,

Section 1981, and the ADEA (Filing No. 1 at 4–5). In Count IV, Durham asserts that he was

wrongfully terminated in retaliation for engaging in protected activity, which violates Title VII,

Section 1981, and the ADEA. Id. at 5. FreshRealm moves for summary judgment, maintaining

that each of Durham's claims fails as a matter of law (Filing No. 22). The Court will address each

claim in turn.

A. Discrimination

1. Title VII

Title VII commands that it is "unlawful . . . for an employer to fail or refuse to hire or to

discharge any individual, or otherwise to discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment, because of such individual's race,

color, religion, sex, or national origin." 42 U.S.C. § 2000e–2(a)(1); see Bostock v. Clayton Cty.,

Georgia, 140 S. Ct. 1731, 1738 (2020). In 1991, Congress amended Title VII, adding that "an

unlawful employment practice is established when the complaining party demonstrates that race

…was a motivating factor for any employment practice, even though other factors also motivated

the practice." Boyd v. Illinois State Police, 384 F.3d 888, 895 (7th Cir. 2004); see also 42 U.S.C.

§2000e–2(m).

As held by the Seventh Circuit, "all discrimination cases present the same basic legal

inquiry: At the summary-judgment stage, the proper question to ask is 'whether the evidence would

permit a reasonable factfinder to conclude that the plaintiff's race, ethnicity, sex, religion, or other

proscribed factor caused the [plaintiff's] discharge or other adverse employment action.'" Ferrill

v.Oak Creek-Franklin Joint Sch. Dist., 860 F.3d 494, 499 (7th Cir. 2017) (quoting Ortiz v. Werner

Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016)) (emphasis and alteration in original).

In Ortiz, the Seventh Circuit overruled a series of cases that divided evidence in

discrimination claims into "direct" and "indirect" categories and designated different legal

standards to each. See 834 F.3d at 765 ("Evidence is evidence. Relevant evidence must be

considered and irrelevant evidence disregarded, but no evidence should be treated differently from

other evidence because it can be labeled 'direct' or 'indirect.'"). When reviewing the facts under

the framework established by Ortiz, the evidence "must be considered as a whole, rather than

asking whether any particular piece of evidence proves the case by itself." Id. at 765.

Importantly, Ortiz made clear that its holding did not supplant the well-known burden

shifting analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),

sometimes referred to as an "indirect" means of determining discrimination cases. Durham

concedes he has no proof of direct admissions of discrimination by FreshRealm and, thus, invokes

the burden shifting framework of McDonnell Douglas (Filing No. 26 at 14).

According to the McDonnell Douglas framework, a plaintiff must first show that "(1) he is

a member of a protected class; (2) he performed his job to his employer's expectations; (3) he

suffered an adverse employment action; and (4) one or more similarly situated individuals outside

his protected class received better treatment." Ferrill, 860 F.3d at 500 (7th Cir. 2017) (citation

omitted). If the plaintiff demonstrates these elements, "the burden shifts to the employer to come

forward with a legitimate, nondiscriminatory reason for the challenged employment action." Id.

"If the employer does this, then the burden shifts back to the plaintiff to produce evidence

establishing a genuine dispute of fact about whether the employer's reason was a pretext for

discrimination." Id.

In reverse discrimination cases like this, the McDonnell Douglas framework is modified.

See Mills v. Health Care Serv. Corp., 171 F.3d 450, 455 (7th Cir. 1999) ("[C]ircuits have modified

the prima facie test and added various substitutes (referred to as 'background circumstances') for

the burden imposed on minority or women plaintiffs to show that they are members of a protected

class.") (internal citations omitted). To survive summary judgment in a reverse discrimination case

under the modified McDonnell Douglas framework, Durham must show that (1) "background

circumstances exist to show an inference that the employer has reason or inclination to

discriminate invidiously against whites or evidence that there is something 'fishy' about the facts

at hand"; (2) he was meeting his employer's legitimate performance expectations; (3) he suffered

an adverse employment action; and (4) he was treated less favorably than similarly situated

individuals who are not members of his protected class. Formella v. Brennan, 817 F.3d 503, 511

(7th Cir. 2016) (internal citations omitted).

FreshRealm proffers several arguments to support its request for summary judgment on

Durham's discrimination claims. FreshRealm asserts that Durham cannot establish a prima facie

case that FreshRealm discriminated against him based on race because Durham cannot provide

"similarly situated non-white individuals" that received better opportunities and pay (Filing No.

23 at 20). FreshRealm contends that Durham cannot demonstrate background circumstances

showing an inference that FreshRealm had reason to discriminate invidiously against whites or

"evidence there is something 'fishy' about the facts." Id. at 22. FreshRealm also argues that

Durham cannot demonstrate that he was "meeting FreshRealm's legitimate performance

expectations." Id. at 23. Additionally, FreshRealm maintains that even if Durham was able "to

establish a prima facie case of reverse race discrimination, he fails under the remainder of the

burden shifting framework." Id. at 27.

Durham responds that he suffered adverse actions such as "failure to promote, lack of

opportunities," and the "botched investigation, planned termination, and spreading of rumors".

(Filing No. 26 at 17.) He contends the investigation following his reported theft of company

equipment was "racially" motivated and that he was meeting the legitimate performance

expectations of FreshRealm as evinced by the lack of any formal or informal discipline he received

prior to that incident. Id. at 18. Durham contends that because he was never informed of the

February 2018 email from the Senior HR Manager, Jackson—informing Wait of Durham's

"inappropriate manner" in communicating with her and his "borderline hostile" emails (see Filing

No. 23-1 at 3, 8)—the "court could conclude . . . [FreshRealm] did not seriously consider it a failure

to meet performance expectations." (Filing No. 26 at 19.) Durham asserts that the discipline he

received after the theft investigation, consisting of the written warning for his profanity-laced

outburst after being falsely accused, "was pretext" and "motivated by discriminatory intent." Id.

Durham further contends that he has provided evidence that a similarly situated, non-white

employee, Williams, received more favorable treatment than him in the form of "better

opportunities at training and advancement" even though "Durham had requested opportunities

directly." Id. at 20. Durham asserts that "fishy circumstances" exist and that the theft allegation

reported by Nguyen was racially motivated, and he was "targeted for discrimination because his

appearance fit a certain stereotype about large, tattooed white men" Id at 22.

FreshRealm replies that its investigation into allegations of theft against Durham is not an

adverse action (Filing No. 27 at 6). FreshRealm asserts Durham's alleged facts supporting "fishy"

circumstances related to his reverse discrimination claim are "not actually facts, but his own

speculative and conclusory beliefs." Id. at 8. And Durham's opinion of his job performance is

irrelevant as to whether he was meeting FreshRealm's legitimate performance expectations. Id. at

10. FreshRealm further maintains that reasonable factfinders cannot infer that Williams was

similarly situated to Durham. Id. at 11. Additionally, Durham's response does not demonstrate that

the legitimate, nondiscriminatory explanation FreshRealm posited for Durham's termination was

pretext for discrimination. Id. at 14.

Based on the Court's analysis under the modified McDonnell Douglas framework, and

taking the evidence presented as a whole, as established by Ortiz, the Court agrees with

FreshRealm.

a. The McDonnell Douglas Analysis

i. Prong 1

The first prong of the modified McDonnell Douglas inquiry requires evidence that

background circumstances exist to show an inference that the employer has reason or inclination

to discriminate invidiously against whites or evidence that there are fishy facts at hand. See 817

F.3d at 511. Durham points to the theft report made by Nguyen and Durham's subjective belief

that he was "targeted for discrimination because his appearance fit a certain stereotype about large,

tattooed white men" as evidence of the required background circumstances or fishy facts to

establish the first prong of the modified inquiry (Filing No. 26 at 22). Accepting as true the

background circumstances offered by Durham, the necessary inference that FreshRealm had

reason or inclination to discriminate against white people or that there is evidence of something

suspicious about the facts at hand does not exists.

As noted by a sister court in this Circuit, "evidence that those running the company are

under pressure from affirmative action plans, customers, public opinion, the EEOC, a judicial

decree, or corporate superiors imbued with belief in diversity to increase the proportion of

[minorities] in the company's workforce[] would satisfy the modified McDonnell Douglas

standard." Jones v. City of Springfield, Ill., 540 F. Supp. 2d 1023, 1032 (C.D. Ill. 2008), aff'd, 554

F.3d 669 (7th Cir. 2009) (quoting Hague v. Thompson Distribution Co., 436 F.3d 816, 822 n. 5

(7th Cir. 2006) (noting background circumstances which might apply in cases involving white

decision-makers favoring minorities)) (internal quotations and citation omitted). Durham's

superiors and senior management at FreshRealm (Wait, King, and Batey), are all White (see Filing

No. 23-1 at 6), and Durham presents no evidence to support that they were under pressure of any

kind to increase the proportion of minorities at FreshRealm. Durham does not contest that his

actions during and immediately after the July 8 Call were unprofessional (see Filing No. 26 at 10),

and he does not contest his non-participation in the ensuing investigation conducted by Batey. Id.

at 11. Durham presents no evidence, aside from his own speculation, that he was targeted for

discrimination based on supposed stereotypes about large, tattooed white men. See Fischer v.

Avanade, Inc., 519 F.3d 393, 401 (7th Cir. 2008) ("[I]nferences that are supported by only

speculation or conjecture will not defeat a summary judgment motion.").

Similarly, Durham's contention that Nguyen (who is neither a supervisor nor the employer)

and his report of suspected theft was motivated by "differences" in their race amounting to a

necessary background circumstance is not supported by any evidence offered by Durham. The fact

that Nguyen is non-white—of East Asian descent—is insufficient by itself to qualify as a

background circumstance or evidence of something suspicious. Id. at 22; see Mills, 171 F.3d at

457 (“[A] plaintiff in a reverse discrimination case must show at least one of the background

circumstances these other courts have alluded to.") (emphasis added).

Thus, Durham fails the first prong of the prima facie test under the McDonnell Douglas

framework for reverse discrimination because has not presented sufficient evidence that

background circumstances exist to show an inference that FreshRealm had reason or inclination to

discriminate invidiously against whites or that there were suspicious facts involved.

ii. Prong 2

Regarding the second prong, Durham fails to demonstrate that he was meeting the

legitimate employment expectations of FreshRealm at the time of his termination when he abruptly

ended his participation in the July 8 Call with senior management, cursed repeatedly, made his

colleague Nguyen feel threatened, and refused to participate in the investigation of his conduct

afterwards. Id. at 10; Hague, 436 F.3d at 824 (determining that warehouse manager in reverse

discrimination suit did not meet employer's expectations by repeatedly cursing and yelling at

subordinates among other actions).

Durham does not contest that Wait had previously discussed "a few occurrences" with him

about Durham's conduct towards coworkers that was "received as disrespectful, aggressive and

unprofessional." (Filing No. 23-3 at 8–9.) Durham does not contest that he was informed by Wait

at that time that such conduct would not be tolerated. Id. at 9. A legitimate expectation of

employee conduct was clearly established, and Durham has not demonstrated that he was meeting

FreshRealm's performance expectations during and after the July 8 Call preceding his termination.

See Peele v. Country Mut. Ins. Co., 288 F.3d 319, 328 (7th Cir. 2002) ("If a plaintiff fails to

demonstrate that she was meeting her employer's legitimate employment expectations at the time

of her termination, the employer may not be 'put to the burden of stating the reasons for [her]

termination.'") (quoting Coco v. Elmwood Care, Inc., 128 F.3d 1177, 1179 (7th Cir. 1997)).

The Court finds no genuine issue of material fact in dispute about Durham's failure to meet

FreshRealm's employment expectations, so he cannot move onto the next step of the inquiry

requiring FreshRealm to present reasons for his termination. See Coco, 128 F.3d at 1180 (holding

that plaintiff was obliged to present evidence he satisfied his burden of showing he was meeting

employer's legitimate expectations to demonstrate existence of a genuine issue of material fact).

iii. Prong 3

While Durham claims that FreshRealm's failure to promote him, alleged lack of

opportunities, and the "botched investigation, planned termination, and spreading of rumors"

constitute adverse actions satisfying the third prong of the inquiry, the Court disagrees (Filing No.

26 at 17). Aside from a mere mention in his response, Durham fails to develop an argument that

FreshRealm's alleged failure to promote him and his alleged lack of opportunities were adverse

actions. See Kochert v. Adagen Med. Int'l, Inc., 491 F.3d 674, 679 (7th Cir. 2007) ("[U]ndeveloped

arguments are waived.").

To support his contention that the alleged "botched investigation, planned termination, and

spreading of rumors" (see Filing No. 26 at 17) constitute adverse actions, Durham asserts that the

investigation into the alleged theft was motivated by his race and age. Id. at 18. However, Durham

provides no evidence, beyond his personal belief, demonstrating the investigation into his alleged

theft was racially motivated or otherwise motivated by his age. See Johnson v. Nordstrom, Inc.,

260 F.3d 727, 733 (7th Cir. 2001) (noting that the plaintiff's personal belief carries no weight in

summary judgment analysis).

Durham's assertions that the investigation left a "black mark on his reputation" and a

reasonable juror "could conclude that, given the investigation was motivated by an employee's

invidious beliefs, Defendant's actions in prematurely assuming Durham's guilt was an adverse

employment" action "because it subjected [Durham] to a humiliating workplace environment," is

without merit (Filing No. 26 at 18). Similarly, Durham contends that the circumstances in this

case are like the facts in Nagle v. Village of Calumet Park, 554 F.3d 1106, 1116 (7th Cir. 2009),

which he cites in support. The Court disagrees.

First, Durham provides no evidence (direct or circumstantial) that Nguyen reported the

alleged theft incident because of Durham's race or age. Second, Durham provides no evidence

that he was subjected to a humiliating workplace environment or that there was negative impact to

his reputation after the investigation into the theft allegation. Finally, Durham's reliance on Nagle

is misplaced as the facts in that case involved a job transfer which the Seventh Circuit affirmed

did not constitute an adverse employment action, see id., 554 F.3d at 1116 (holding that materially

adverse employment actions includes cases where work conditions subject an employee to

humiliating, degrading, or otherwise significantly negative alteration of the workplace

environment). The Court finds that the investigation into the theft allegations does not constitute

an adverse employment action and there is no genuine issue of material fact in dispute.

It is undeniable, however, that Durham suffered an adverse employment action when he

was terminated, establishing the third prong of the modified McDonnell Douglas inquiry. See

Bagwe v. Sedgwick Claims Mgmt. Servs., Inc., 811 F.3d 866, 889 (7th Cir. 2016) ("[A] termination

is undoubtedly an adverse employment action.").

iv. Prong 4

As for the fourth prong, Durham fails because he has not proffered evidence showing that

Williams—who was always paid less than Durham (see Filing No. 23-1 at 3) — and who "had never

given FreshRealm reason for concern with respect to his interactions with coworkers" (Filing No.

23-3 at 4), was similarly situated to Durham and received better treatment. In addition, Williams

was not employed by FreshRealm at the time of the July 8 Call. See Henry v. Jones, 507 F.3d 558,

564 (7th Cir. 2007) ("[W]e have explained that 'similarly situated' means only that members of the

comparison group are comparable to the plaintiff 'in all material respects.'") (quoting Crawford v.

Indiana Harbor Belt R.R. Co., 461 F.3d 844, 846 (7th Cir. 2006)) (emphasis in original). While

the Seventh Circuit notes that "the similarly situated inquiry is a flexible one," the Court

nevertheless requires that the inquiry examine "whether there are sufficient commonalities on the

key variables between the plaintiff and the would-be comparator to allow the type of comparison

that, taken together with the other prima facie evidence, would allow a jury to reach an inference

of discrimination or retaliation." Humphries v. CBOCS W., Inc., 474 F.3d 387, 405 (7th Cir. 2007),

aff'd, 553 U.S. 442 (2008). Here, Durham has not presented evidence to show that there are

sufficient commonalities with his would-be comparator, Williams. Williams was paid a lesser

wage for the same role as Durham, Williams never gave FreshRealm a reason to question his

communication with his colleagues, and he was not employed by FreshRealm at the time of the

July 8 Call, rendering him an unsuitable comparator to Durham.

Viewing the evidence in a light most favorable to Durham, the Court finds that he has not

raised a triable issue as to whether his termination was based on his race, has not demonstrated

that his race was a motivating factor in his termination, and has failed the prima facie test for

determining discrimination under the indirect method of proof. Even after considering whether

the totality of the evidence submitted demonstrates discrimination or discriminatory intent, the

designated evidence shows that Durham's race played no role in his termination.

Therefore, the Court grants FreshRealm summary judgment on Durham's Title VII race

discrimination claim.

2. Section 1981

Section 1981 provides equal rights under the law and states that, "All persons within the

jurisdiction of the United States shall have the same right . . . to make and enforce contracts . . . to

the full and equal benefit of all laws and proceedings for the security of persons and property as is

enjoyed by white citizens." 42 U.S.C. § 1981.

Like Title VII discrimination claims, to succeed on a race discrimination claim under

Section 1981, plaintiffs may proceed under the direct or indirect (i.e., McDonnell Douglas)

method. Dandy v. United Parcel Serv. Inc., 388 F.3d 263, 272 (7th Cir. 2004). As discussed

above, Durham has proceeded under the indirect method so the Court applies the modified

McDonnell Douglas test for reverse discrimination claims under Title VII given that these "same

principles apply in the context of a [Section] 1981 action." Hague, 436 F.3d at 822 (quoting

Bennett v. Roberts, 295 F.3d 687, 697 (7th Cir. 2002)) ("The same standards governing liability

under Title VII apply to § 1981 claims.") (internal citation omitted).

In a Section 1981 claim, "a plaintiff bears the burden of showing that race was a but-for

cause of [his] injury. And, while the materials the plaintiff can rely on to show causation may

change as a lawsuit progresses from filing to judgment, the burden itself remains constant."

Comcast Corp. v. Nat'l Ass'n of Afr. Am.-Owned Media, 140 S. Ct. 1009, 1014–15 (2020); see

Bachman v. St. Monica's Congregation, 902 F.2d 1259, 1262–63 (7th Cir. 1990) ("To be

actionable, racial prejudice must be a but-for cause."). The heightened standard of proof,

established by Comcast Corp., 140 S. Ct. at 1015, for plaintiffs bringing discrimination claims

under Section 1981 means that Durham is obliged to plead and demonstrate that but for his race,

FreshRealm would not have terminated his employment.

The Court finds that while Durham sufficiently pleads the "but-for causation" standard

because he succinctly alleges in his Complaint "Defendant took adverse employment actions

against Durham when it terminated his employment because of his race", (Filing No. 1 at 4

(emphasis added)), he fails to demonstrate that his race was the "but-for" cause of his termination

or raise a genuine issue of material fact in dispute to allow his race discrimination claim under

Section 1981 to go forward.

As discussed above in the Title VII context, Durham fails the first, second, and fourth

prongs of the modified McDonnell Douglas burden shifting framework to determine racial

discrimination. After careful review of the summary judgment record, the Court finds that the

collective evidence proffered by Durham, taken as a whole, would not allow a reasonable

factfinder to conclude that Durham's race was the "but-for" cause of his termination.

Therefore, the Court grants FreshRealm summary judgment on Durham's claim of

intentional racial discrimination under Section 1981.

3. ADEA

The ADEA prohibits employers from discriminating against employees who are forty

years or older based on their age. 29 U.S.C. §§ 623(a), 631(a); Tubergen v. St. Vincent Hosp. &

Health Care Ctr., Inc., 517 F.3d 470, 473 (7th Cir. 2008) ("The ADEA seeks to protect those over

the age of forty from age discrimination in the workplace.").

Durham notes the "but-for" standard in age discrimination cases wherein the Seventh

Circuit has instructed that "[t]o recover under a theory of disparate treatment in the ADEA context,

'it's not enough to show that age was a motivating factor. The plaintiff must prove that, but for his

age, the adverse action would not have occurred.'" Tyburski v. City of Chicago, 964 F.3d 590, 598

(7th Cir. 2020) (quoting Wrolstad v. Cuna Mut. Ins. Soc'y, 911 F.3d 450, 454 (7th Cir. 2018)).

As with Durham's Title VII and Section 1981 claims, Durham has not presented direct

admissions by FreshRealm of age discrimination, so he proceeds with his ADEA claim under the

burden shifting analysis of McDonnell Douglas (see Filing No. 26 at 14). In so proceeding under

the indirect method of proof, the Court still considers "all admissible evidence to decide whether

a reasonable jury could find that the plaintiff suffered an adverse action because of [his] age."

Carson v. Lake Cty., Indiana, 865 F.3d 526, 533 (7th Cir. 2017); see Ortiz, 834 F.3d at 765 ("Th[e]

legal standard . . . is simply whether the evidence would permit a reasonable factfinder to conclude

that the plaintiff’s [age] caused the discharge or other adverse employment action.")

As the Court has also determined in its analysis of Durham's race discrimination claims,

Durham fails to establish a prima facie case under the burden shifting framework. In the context

of his ADEA claims, while Durham satisfies prongs one and three of the inquiry because he was

forty-three at the time of his adverse employment action (termination) (see Filing No. 23-2 at 10),

he still fails prongs two and four. Durham has not demonstrated he was meeting FreshRealm's

legitimate expectations when he was terminated, and he has not identified a similarly situated

younger employee who was treated more favorably.

Durham's argument that "the lack of discipline prior to the investigation into theft could

allow a reasonable juror to conclude that the alleged performance deficiencies raised after the

investigation were colored by it and therefore motivated by discriminatory intent" (see Filing No.

26 at 19), is without merit. As noted by FreshRealm, there is no supported evidence in the record

that Wait, King, or Batey "ever considered the accusations of theft . . . made against … Durham

again in any decision" that was made about Durham's employment after initially discussing it in

March 2019 (Filing No. 27 at 11). Durham's attempt to skip the full prima facie inquiry of

discrimination under McDonnell Douglas and proceed directly to an argument that FreshRealm's

legitimate, nondiscriminatory reason for his termination is pretextual is improper. Durham must

first meet each element of the prima facie case before the burden shifts to FreshRealm, and Durham

is unable to satisfy each element because he has not provided evidence showing that he was

meeting FreshRealm's legitimate employee expectations when he was terminated.

Durham alleges that FreshRealm offered Williams, the younger, Black Assistant Plant

Manager, "more opportunities and training because he did not have a similar discipline history."

(Filing No. 26 at 21.) Durham's attempt to frame Williams as a similarly situated younger

comparator who received better treatment fails for the same reasons the Court has analyzed in the

race discrimination context: Williams and Durham are not meaningfully similarly situated. See

Humphries, 474 F.3d at 405 ("As to the relevant factors, an employee need not show complete

identity in comparing himself to the better treated employee, but he must show substantial

similarity."). Moreover, Durham concedes that he "cannot point to any similarly situated employee

that had engaged in the same or similar conduct as he was alleged by FreshRealm to have engaged

in on the" July 8 Call, dooming his claim that Williams is a viable comparator (Filing No. 26 at

21). Thus, Durham fails to establish a prima facie case under the McDonnell Douglas framework

for his age discrimination claim.

The Court notes that Durham mischaracterizes the applicable standard here by asserting

that "given that the Ortiz decision instructed courts to look at all the evidence together, abandoning

the previous strict burden shifting framework," his age discrimination claim "could still survive

given that he has also proffered evidence of pretext." Id. at 22 (emphasis added). The Court

disagrees with the assertion that the Seventh Circuit has abandoned the burden shifting framework.

The Seventh Circuit continues to recognize the McDonnell Douglas burden shifting framework as

a method for presenting evidence. See Ortiz, 834 F.3d at 765 ("[A]ll evidence belongs in a single

pile and must be evaluated as a whole. That conclusion is consistent with McDonnell Douglas and

its successors.").

Even in evaluating the evidence presented as a whole and viewing such evidence in a light

most favorable to Durham, the Court finds that Durham has not demonstrated that but-for his age,

he would not have been terminated. Therefore, the Court grants FreshRealm summary judgment

on Durham's age discrimination claim under the ADEA.

B. Retaliation

The Court reviews Title VII, Section 1981 and ADEA retaliation claims under the same

framework. As with employment discrimination cases, the Court looks to determine whether the

evidence presented would allow a reasonable factfinder to decide that the plaintiff's age or race

"caused the discharge or other adverse employment action." Ortiz, 834 F.3d at 765.

Employees can prove retaliation claims in two ways: either through the direct method or

the indirect method. "The direct method requires the plaintiff to simply present evidence satisfying

the elements of the retaliation claim: (1) he engaged in a protected activity, (2) he suffered an

adverse action, and (3) a causal connection exists between the activity and the adverse action."

Lewis v. Wilkie, 909 F.3d 858, 866 (7th Cir. 2018) (citation omitted). Alternatively, the indirect

method of proof in a retaliation claim uses the burden-shifting McDonnell Douglas framework.

As the Seventh Circuit has held, the primary question for a retaliation claim should always

be, "[d]oes the record contain sufficient evidence to permit a reasonable factfinder to conclude that

retaliatory motive caused the discharge?" Igasaki v. Illinois Dep't of Fin. & Pro. Regul., 988 F.3d

948, 959 (7th Cir. 2021) (quoting Lord v. High Voltage Software, Inc., 839 F.3d 556, 563 (7th Cir.

2016)); see Ortiz, 834 F.3d at 765. The Court has already determined that Durham cannot establish

a prima facie case under the McDonnell Douglas indirect method of proof; however, here, Durham

proceeds under the direct method of proof to establish his retaliation claim.

Regarding the causal connection element of the retaliation inquiry, the Seventh Circuit has

instructed that "either direct or circumstantial evidence" can be used under the direct method of

proof to show that an employer was motivated to terminate an employee because of his protected

activity. Harper v. C.R. England, Inc., 687 F.3d 297, 307 (7th Cir. 2012). The Seventh Circuit

has 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.'" Id. at 307

(quoting Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 792 (7th Cir. 2007)).

It is undisputed that Durham's submission of a copy of a proposed EEOC Charge of

Discrimination to FreshRealm is protected activity. See Greengrass v. Int'l Monetary Sys. Ltd.,

776 F.3d 481, 485 (7th Cir. 2015) (holding that the plaintiff's EEOC charges was the most obvious

form of statutorily protected activity). Likewise, FreshRealm does not dispute that a termination

is an adverse employment action. FreshRealm's argument against Durham's retaliation claim

centers on its assertion that Durham has presented "no evidence demonstrating a causal link

between his termination and his attorney's communication regarding an EEOC Charge." (Filing

No. 23 at 33.)

FreshRealm contends that Batey, Wait, and King decided to terminate Durham for his

conduct following the July 8 Call before they received the draft EEOC Charge from Durham's

attorney. Id. The sworn declarations of Batey and Wait, along with a copy of the Investigation

Report of the July 8 Call, corroborates FreshRealm's contention that the recommendation and

decision to terminate Durham occurred before FreshRealm received the letter from Durham's

attorney on July 15, 2019. Id. FreshRealm argues that Durham has not "set forth any evidence

questioning the basis articulated by FreshRealm for its decision to terminate Durham," and he "has

posited no evidence of pretext." Id. Finally, FreshRealm maintains that "leaving aside the timing

of Durham's protected activity following the decision to terminate him," Durham cannot "point to

any similarly situated individuals who did not engage in protected activity that FreshRealm treated

more favorably." Id. FreshRealm asserts that Williams "is not a proper comparator," and Williams

"resigned his employment prior to the time FreshRealm terminated [Durham's] employment." Id.

Durham responds that circumstantial evidence shows a causal connection exists between

his termination and his "engagement in protected conduct" (Filing No. 26 at 25), and he cites

Silverman v. Bd of Educ., 637 F.3d 729 (7th Cir. 2011), in support. In Silverman, the Court

outlined "three broad types of circumstantial evidence" that a plaintiff, using the now-defunct

"'convincing mosaic' approach," could use to prove discrimination, see id., 637 F.3d at 734

("Finally, the third type of circumstantial evidence is evidence that the plaintiff suffered an adverse

employment action and that the employer's justification is pretextual."); see also Ortiz, 834 F.3d

at 766 ("Today we reiterate that 'convincing mosaic' is not a legal test."). Durham asserts that he

can "rely on the same evidence of pretext that he argued to prove his discrimination claim." (Filing

No. 26 at 25.)

The evidence of pretext Durham refers to consists of (1) his contention that the nature of

the July 8 Call "differs greatly" from FreshRealm's characterization and "this creates a material

issue of fact at the core of [FreshRealm's] proffered reason for termination," (2) FreshRealm's

alleged "previous failure to actually discipline Durham" for his "tone" which, according to

Durham, calls "into question whether or not [FreshRealm] was truly upset with Durham's alleged

behavior," and (3) the fact that FreshRealm "never obtained a statement from Durham." Id. at 23.

Durham also contends that "the timing of [FreshRealm's] decision supports a finding of retaliatory

intent. Id. at 25.

In reply, FreshRealm argues that Durham "presents no evidence to counteract" its

supporting evidence of the timeline of its decision to terminate Durham "other than (arguably) odd

timing." (Filing No. 27 at 15.) FreshRealm asserts that alleged "odd timing . . . does not create a

triable issue as a matter of law, and summary judgment is appropriate." Id.

The Court agrees with FreshRealm: Durham has not provided evidence necessary to

demonstrate a causal connection exists between Durham's July 15, 2019 letter that included a draft

EEOC Charge, and his termination which was recommended on July 10, 2019, prior to FreshRealm

receiving the letter. Durham's evidence of pretext is generally better suited under the burden-

shifting McDonnell Douglas indirect method of proof framework; however, it is still insufficient

as circumstantial evidence to establish a causal connection between Durham's protected activity

and his termination. To show pretext, a plaintiff bears the burden of demonstrating that the

employer's "ostensible justification for its decision is unworthy of credence." Gordon v. United

Airlines, Inc., 246 F.3d 878, 888 (7th Cir. 2001). If the employer has "honestly described the

motivation behind its decision," the decision is not pretext. Roberts v. Separators, Inc., 172 F.3d

448, 453 (7th Cir. 1999).

Durham has not presented evidence demonstrating that FreshRealm's decision was a lie or

not honestly held, which means the termination decision was not based on a pretextual

justification. See Bahl v. Royal Indemnity Company, 115 F.3d 1283, 1292 (7th Cir.1997) (in

pretext analysis, "only issue is whether management honestly held these views, not whether it was

mistaken.").

The Court disagrees with Durham's contention that differing characterizations of the July

8 Call create a material issue of fact because Durham has not provided evidence that either disputes

the essential facts of the incident or disproves that FreshRealm honestly described its motivation

for its termination decision. Durham acknowledges in his response brief that he prematurely ended

the call with his superiors while he was being questioned and he does not dispute that he "allegedly

cursed after existing the room." (Filing No. 26 at 10.) Durham provides no evidence to counter

FreshRealm's Investigative Report about the July 8 Call and acknowledges that Nguyen "testified

that he felt threatened by Durham" during their interaction on July 8, 2019. Id. The Court finds

no genuine issue of material fact in dispute.

Durham's argument that FreshRealm's failure to discipline him before his termination calls

into question whether FreshRealm "truly was upset" with Durham's behavior is irrelevant and not

evidence of pretext. The Seventh Circuit has "set a high evidentiary bar for pretext" that Durham

does not meet. Riley v. Elkhart Cmty. Sch., 829 F.3d 886, 894 (7th Cir. 2016). Durham merely

providing his speculative and conclusory belief about FreshRealm's termination decision is not

evidence of pretext. See Sanchez v. Henderson, 188 F.3d 740, 746 (7th Cir. 1999) (citing Russell

v. Acme–Evans Co., 51 F.3d 64, 68 (7th Cir.1995)) ("The pretext analysis seeks to uncover the true

intent of the defendant, not the belief of the plaintiff.").

Durham's assertion that "a reasonable juror could conclude that [FreshRealm's] failure to

follow up with Durham's attorney or further contact Durham evinced a shoddy investigation,

calling into question its seriousness," is without merit and is not evidence of pretext (Filing No. 26

at 24). Batey's sworn declaration states that Durham was contacted on July 10, 2019, for his

statement and, without providing a statement, Durham informed her that his attorney would be in

contact (see Filing No. 23-1 at 4). Durham does not dispute that Batey informed him that "as an

employee on an administrative leave, there was no need" for Batey to "speak with [Durham's]

attorney and [Durham's] failure to participate in the investigation would lead to its conclusion

without his statement." Id. at 5. Durham does not provide evidence disputing Batey's declaration

or his non-participation in the investigation which fatally undermines his claim that FreshRealm's

proffered reason for his termination was not the real motivation. See Sanchez, 188 F.3d at 747

("To conclude that retaliation was the real motive based on this evidence borders on pure

speculation, and as we have stated '[s]peculation does not create a genuine issue of fact; instead, it

creates a false issue, the demolition of which is a primary goal of summary judgment.'") (quoting

Tyler v. Runyon, 70 F.3d 458, 469 (7th Cir. 1995)).

The Court also disagree with Durham's contention that the timing of FreshRealm's decision

to terminate him supports a finding of retaliatory intent. Suspicious timing alone is not enough to

overcome a motion for summary judgment. See Kidwell v. Eisenhauer, 679 F.3d 957, 966 (7th

Cir. 2012). The designated evidence is that FreshRealm management made the decision and

submitted the recommendation to terminate Durham on July 10, 2019, before it received Durham's

attorney's draft EEOC Charge (Filing No. 23-1 at 5). Durham provides no evidence to disprove

FreshRealm's timeline of its decision to terminate him before it received his draft EEOC Charge

and instead merely hypothesizes that a reasonable juror could conclude that FreshRealm's stated

timing is false. Durham's conjecture without evidence is insufficient to demonstrate there was

suspicious timing between Durham's protected activity and his termination. See McCann y.

Badger Mining Corp., 965 F.3d 578, 592 (7th Cir. 2020) (holding that suspicious timing alone is

rarely enough to survive summary judgment especially when there are non-suspicious explanations

for the timing of the termination); see also Malin v. Hospira, Inc., 762 F.3d 552, 562 (7th Cir.

2014) (noting that there could not be a causal connection in a retaliation claim if an employer's

ostensible adverse employment action came before an employee's protected activity).

Durham has not established a causal connection between his protected activity and his

termination to prevail on his retaliation claim. The record does not contain sufficient evidence to

permit a reasonable factfinder to conclude that retaliatory motive caused Durham's termination.

Accordingly, summary judgment is granted on Durham's Title VII and ADEA retaliation claims.

IV. CONCLUSION

For the reasons discussed above, the Court GRANTS FreshRealm's Motion for Summary

Judgment (Filing No. 22). Durham's claims are dismissed with prejudice. Final Judgment will

be entered in a separate order.

SO ORDERED.

Date: 7/22/2021 )

WV

Hon. Tanya Walton Pratt, Chief Judge

United States District Court

Southern District of Indiana

28

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