Everroad v. Scott Truck Systems, Inc.

In the

United States Court of Appeals

For the Seventh Circuit

No. 08-3311

D IANA E VERROAD,

Plaintiff-Appellant,

v.

S COTT T RUCK SYSTEMS, INC. and

S HERRY H ANTZIS, in her individual

capacity,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 1:06-CV-00770-RLY-JMS—Richard L. Young, Chief Judge.

A RGUED S EPTEMBER 22, 2009—D ECIDED M AY 10, 2010

Before E ASTERBROOK, Chief Judge, and B AUER and

R OVNER, Circuit Judges.

R OVNER, Circuit Judge. Diana Everroad sued her

former employer, Scott Truck Systems, Inc. (“Scott

Truck”), and Sherry Hantzis, the company’s general

manager, for gender and age discrimination, and for

retaliation for reporting gender and age discrimination.

The district court granted summary judgment in favor

of the defendants, and Everroad appeals. We affirm.

2 No. 08-3311

I.

Scott Truck is a family-owned commercial trucking

business. David Scott (“Scott”) is the owner and president

of the company, and his wife, Sherry Hantzis (“Hantzis”),

is the general manager. In the spring of 2004, Everroad,

who was fifty-one years old at the time, applied for a

job as a dispatcher at Scott Truck. On Hantzis’ recom-

mendation, Scott hired Everroad, selecting her over

three other candidates. The other applicants included

Tim Wilson, age forty; Dennis Wilder, age fifty; and Tina

Skadra, age twenty-four. The dispatcher job entailed

pairing customer loads with trucks and drivers, en-

suring that drivers turned in their required paperwork,

and helping the drivers. The dispatcher had extensive

contact with both drivers and customers.

Jim Moore was Everroad’s direct supervisor. Although

he was responsible for training Everroad, he failed to

do so over a two-month period, and Scott was forced to

train her while Moore was on vacation for two weeks.

Moore complained that Everroad did not understand

her job, and two of Scott Truck’s largest customers also

complained about their encounters with Everroad.

Everroad also experienced conflicts with other Scott

Truck employees. Tim Wilson, who had been passed over

for the dispatcher job, told Everroad that she was not a

good dispatcher and should not have been hired. Wilson

also told Everroad that he was unhappy that more

women were being hired at the company, and that the

male employees preferred the company when it was all

men. Wilson repeated that he did not think Everroad

No. 08-3311 3

should be working at the company within the hearing of

Moore, who simply told Everroad to “let it go.” Everroad

points to no evidence that Moore, Scott or Hantzis were

aware that Wilson had expressed any gender-based

comments to Everroad. Scott and Hantzis, in fact, heard

raised voices and asked Wilson and Everroad what had

happened. Everroad told them that Wilson said she

could not do her job and he did not want her to perform

the dispatch job. Scott and Hantzis told Wilson that he

was required to work with Everroad as long as she

was the dispatcher. During this meeting, Wilson asked

several times if he could leave, and Hantzis insisted

that he stay until the meeting was concluded.

Everroad had four run-ins with John Mulligan, a driver

for Scott Truck. The first two encounters were on the

telephone, and on each occasion, Mulligan yelled at

Everroad and insisted that he talk to either Moore

or Scott, declining to talk to Everroad about dispatch

matters. After those first two calls, Everroad left

Mulligan a voice mail asking to speak with him about

his manner on the phone and telling him she would not

allow him to scream at her again. The next time

Mulligan came into the office, he pounded on the office

door, which Everroad had locked because she was alone

in the office. When she unlocked the office door,

he slammed the door open in a manner she found physi-

cally intimidating. Everroad secretly recorded her fourth

confrontation with Mulligan. At that time, he made a

derogatory remark to Everroad that was gender-based,

attributing her demeanor to “PMS,” presumably meaning

premenstrual syndrome. Everroad told Scott and

4 No. 08-3311

Hantzis about this remark, but Everroad did not know

whether they did anything about it. Mulligan’s brusque

manner extended to his employer as well. Everroad’s

husband, who was a truck driver for Scott Truck, saw

Mulligan “verbally screaming at Dave Scott in a loud

and humiliating manner while employed at STS.” R. 72,

Ex. C. Hantzis acknowledged that Mulligan was a large

man with a booming voice and a sarcastic wit, who liked

to “tease” people. Hantzis also conceded that Mulligan

sometimes did not control his anger well. But Hantzis

and Scott both denied that Mulligan, whom they con-

sidered a friend, ever was insubordinate with them.

In August 2004, Scott and Hantzis moved Everroad

from the dispatcher position to a newly created “data

administrator” job. Everroad’s new duties included

filing, tracking information for payroll purposes, per-

forming data entry, and screening the public. Everroad

received the same pay and worked the same number of

hours as in the dispatch job. Hantzis told Everroad that

she could pick her own start time as long as she worked

a full day, and so the job was more flexible than the

dispatcher position. As data administrator, Everroad

shared an office with Jennifer Sasser. Sasser, a twenty-

eight year old hourly-wage employee, was responsible

for copying audiobooks onto compact disks for the com-

pany’s drivers to use on long trips. The shared office

had only one telephone and it was placed on Sasser’s

desk. Sasser had health and family issues and made

personal calls at work to address some of these problems.

Everroad found the calls distracting and disturbing,

and eventually complained to Hantzis about this issue.

No. 08-3311 5

Hantzis counseled Sasser to use a lobby phone or her

cell phone for extended calls, but Sasser fell back into

her old pattern after a few days of compliance with

Hantzis’ request.

Everroad found it especially difficult to listen to

Sasser’s health-related calls after the long-time boy-

friend of Everroad’s sister suffered a heart attack. When

she again complained to Scott and Hantzis about

Sasser’s excessive telephone use and the disturbing

content of the calls, Hantzis suggested that Everroad

take time off from work to address issues in her personal

life. Everroad took offense at this suggestion and later

compiled a written list of complaints about Sasser. She

presented this list to Hantzis and Scott, who then called

a meeting with Everroad and Sasser to resolve the con-

flict. The meeting did not go well. Everroad sur-

reptitiously recorded the first hour and a half of the

meeting. Both Everroad and Sasser denied there was a

conflict. Sasser was asked to leave the meeting at some

point and then rejoined it much later. By all accounts it

was a lengthy and tense meeting. Voices were raised,

accusations were exchanged, tears were shed, and eyes

were rolled. By the end of the meeting, the group com-

piled proposals that might allow Everroad and Sasser to

work peacefully in the same office. Plans were made to

reconvene the next day to discuss the proposals. Hantzis

and Scott, however, were disturbed by Everroad’s

conduct during the meeting and discussed that evening

whether she had been insubordinate. They concluded

she had been and began considering their options. The

next morning, when they arrived at work, Everroad

6 No. 08-3311

ignored Hantzis’ morning greeting, but acknowledged

Scott’s greeting in an exaggerated manner. Irritated

that Everroad had pointedly ignored Hantzis, and

given the previous days’ events, they decided to terminate

her for insubordination. After consulting their attorney,

Scott gave Everroad a termination letter and her final

paycheck at the end of the workday, and waited while

she gathered her belongings to leave. Everroad asked

Scott why she was being fired and he replied, “You

winked at Sherry.” Everroad took the opportunity to

tell Scott that Hantzis had been saying unflattering

things about him behind his back. By her own account,

she also told Scott that he and his wife were “nuts, crazy,

insane” and “sick.” Hantzis appeared a short while

later and told Everroad that they cared about her.

Everroad, by her own account, replied by telling Hantzis

to “fuck herself” and also called her a “fucking bitch.”

That evening, Everroad called Scott and asked for sever-

ance pay. Scott declined.

Everroad sued Scott Truck and Hantzis under federal

and state law. She contended that Scott Truck violated

Title VII by treating similarly situated male employees

more favorably and by retaliating against her when she

voiced opposition to this practice. She also alleged that

Scott Truck violated the Age Discrimination in Employ-

ment Act (“ADEA”) by treating younger employees

more favorably and by retaliating against her when she

objected to this practice. Everroad brought state law

claims against Scott Truck for wrongful termination and

negligent retention, and against Hantzis for assault and

intentional infliction of emotional distress. The district

No. 08-3311 7

court granted summary judgment in favor of the defen-

dants on Everroad’s federal claims and declined to

exercise supplemental jurisdiction over the remaining

state law claims. Everroad appeals.

II.

On appeal, Everroad complains that the district court

improperly refused to consider certified transcripts of

the two secretly recorded conversations. She also asserts

that the court erred in finding that she was not

similarly situated to Tim Wilson and John Mulligan for

the purposes of her Title VII claims. She maintains that

the court erred again when it found Everroad was not

similarly situated to Jennifer Sasser for the purpose of

her ADEA claims. She contends that she adequately

established that the non-discriminatory reason given by

Scott Truck for her termination was pretextual, and that

she also provided sufficient evidence to establish a

causal link between her protected activity and adverse

employment actions for the purpose of her retaliation

claims. Our review of the evidentiary decision is for

abuse of discretion and we review the court’s decision

to grant summary judgment de novo. Gunville v. Walker,

583 F.3d 979, 985 (7th Cir. 2009); George v. Walker, 535

F.3d 535, 538 (7th Cir. 2008).

A.

In the district court and on appeal, Everroad offered

transcripts of the conversations she recorded with John

8 No. 08-3311

Mulligan and with Scott and Hantzis. The transcripts

purport to be prepared by a “transcriptionist” and are

accompanied by statements attesting to the accuracy of

the transcription and the absence of any financial in-

terest in the outcome of the litigation by the preparer.1 In

the district court, in her response in opposition to the

defendants’ motion for summary judgment, Everroad

quoted these transcripts and dropped footnotes stating,

“Plaintiff’s counsel can make the actual recording

available for the Court’s review.” R. 72, at 5-6. In her

opening brief on appeal, she makes a similar offer. For

each transcript that she cites, she states, “Appellant’s

counsel can make the actual recording available for

this Court’s review.” Brief of Appellant, at 11 and 14. Yet

there is no “actual recording” in the certified record on

appeal and counsel appears to have never provided the

tapes to the district court either. Instead, Everroad

faults the district court for failing to ask to review the

tapes after she extended her offer.

The district court declined to consider the transcripts

as evidence in assessing the defendants’ motion for

summary judgment. The court found that a tape re-

cording rather than a transcript of a conversation consti-

1

The defendants point out that the certifications signed by the

transcriptionist and included in Everroad’s appendix on

appeal were not part of the record before the district court. We

generally will not consider evidence that was not presented

to the district court. Hernandez v. HCH Miller Park Joint Venture,

418 F.3d 732, 736 (7th Cir. 2005). We cite the information

from the certifications only to provide background.

No. 08-3311 9

tutes evidence of what was said. See Stringel v. Methodist

Hosp. of Indiana, Inc., 89 F.3d 415, 420 (7th Cir. 1996). See

also United States v. Howard, 80 F.3d 1194, 1198 (7th Cir.

1996) (the real evidence of who said what in a recorded

conversation is the tape itself rather than a transcript

of the tape). The court also found that the relevancy

and accuracy of the tapes and the transcripts were ques-

tionable because both recordings are largely inaud-

ible and because Everroad did not know whether the re-

cordings were complete recordings of the entire con-

versations. Stringel, 89 F.3d at 420 (a district court is

obliged to ascertain that a recording is sufficiently audible

to constitute reliable evidence of the conversation re-

corded). Indeed, as Everroad now concedes, the tape

recording of the meeting with Scott and Hantzis covers

only the first hour and a half of a meeting that she

claims went on for six and half hours.

Everroad nonetheless argues that the court erred in

concluding that the tapes were largely inaudible without

actually listening to the tapes. There are two problems

with this argument. First, Everroad did not submit the

tapes to the district court. She offered to submit the

tapes but she never actually submitted them. It is not the

district court’s responsibility to seek out relevant infor-

mation that a party has in its possession. She had an

opportunity to present the tapes and she did not. It is a

strange and unwise strategy for a party to advise a

court that it has relevant evidence without actually sub-

mitting the evidence. Summary judgment proceedings

provide the “put up or shut up” moment in litigation.

Offering to provide the tapes is not the same as providing

10 No. 08-3311

them, and the court was under no obligation to review

anything that was not part of the record. Even on appeal

Everroad makes this offer to provide the tapes to this

court if we wish to hear them. But we generally will not

consider evidence that was not before the district court,

and there is no doubt that the tapes were never pro-

vided to the district court. Hernandez v. HCH Miller Park

Joint Venture, 418 F.3d 732, 736 (7th Cir. 2005) (this court

may consider only evidence properly presented to the

district court). Everroad has never provided the tapes

to any court.

Second, the transcripts themselves prove the court’s

conclusion that the tapes are largely inaudible. The

transcriptionist hired by Everroad found significant

portions of the tapes inaudible. For example, the

transcript of the taped conversation between John

Mulligan and Diane Everroad begins:

(Voices far away—inaudible)

JOHN: (inaudible)

DIANE: (inaudible)

JOHN: (inaudible) I didn’t say you didn’t (inaudi-

ble)

DIANE: (inaudible)

JOHN: (inaudible) any time you see me go (inaudi-

ble)

DIANE: (inaudible) you always act like your [sic]

mad.

JOHN: You know what, that is your perception.

No. 08-3311 11

DIANE: I don’t . . .

JOHN: That is your perception and that is not my

problem. (inaudible) perception (inaudible)

stuffed animals, this is Dave’s stuff. I would

like to (inaudible)

DIANE: (inaudible)

JOHN: (inaudible)

R. 72, Ex. E. And so it goes. At times, it is more compre-

hensible but it is impossible to follow the thread of

the conversation at all. The transcript of the first

hour and a half of the meeting with Scott and Hantzis

is somewhat better but the first page includes the “inaudi-

ble” indicator nine times. R. 72, Ex. D. That conversation

also includes numerous indications of “talking over,”

presumably where two people were speaking at the

same time. There is no indication in the transcript re-

garding the length of the inaudible portions of the tran-

script. It could be a word, a phrase, a sentence or a

page. We have no way of knowing. And the district court

had no way of knowing, either, how much was missing.

The conversation between Everroad and Mulligan is

essentially incomprehensible. The conversation with

Scott and Hantzis is partly incomprehensible and con-

tains numerous omissions of unknown length, together

with an admission that the last five hours of the meeting

are missing. Given the circumstances, any argument that

the district court abused its discretion in refusing to

consider the transcripts is frivolous.

12 No. 08-3311

B.

We turn to Everroad’s claims for age and gender dis-

crimination, and for retaliation. For each of the discrim-

ination claims, Everroard lacks direct evidence of dis-

crimination and relies on the McDonnell Douglas burden-

shifting analysis to make her case. See McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802 (1973); Lucas v. PyraMax

Bank, FSB, 539 F.3d 661, 666 (7th Cir. 2008). To make out

a prima facie claim under McDonnell Douglas, a plaintiff

must demonstrate that (1) she is a member of a protected

class, (2) she met her employer’s legitimate job expecta-

tions, (3) she suffered an adverse employment action, and

(4) similarly situated employees outside of the pro-

tected class received more favorable treatment. Lucas, 539

F.3d at 666. If the plaintiff is able to establish a prima

facie case of discrimination, the burden then shifts to the

employer to offer a non-discriminatory reason for the

adverse employment action. If the employer does so, the

burden shifts back to the plaintiff to submit evidence

demonstrating that the employer’s explanation is a

pretext. Gates v. Caterpillar, Inc. 513 F.3d 680, 690 (7th

Cir. 2008).

For each claim, the parties agree that Everroad can

establish that she is a member of a protected class

because she is female and over forty years of age, and

that she suffered an adverse employment action when

she was terminated. They disagree on the state of the

record for the other two parts of the analysis. Everroad

argues that the evidence is undisputed that she was

meeting her employer’s legitimate job expectations and

No. 08-3311 13

that similarly situated male and younger employers

were treated more favorably. Scott Truck, of course,

contends that Everroad was not meeting the company’s

legitimate expectations because she was insubordinate.

The company also contends that Everroad has failed to

identify any male employees or younger employees

who were similarly situated because no one else had

engaged in insubordination.

Normally, we first determine whether a plaintiff has

established a prima facie case before putting the em-

ployer to the burden of demonstrating a non-discrim-

inatory reason for a termination and engaging in the

pretext analysis. Hague v. Thompson Distribution Co., 436

F.3d 816, 823 (7th Cir. 2006). In some cases, though, the

issue of satisfactory performance and the question of

pretext overlap. When the employer asserts as the non-

discriminatory reason for termination that the em-

ployee was not meeting legitimate job expectations, the

credibility of the employer’s assertion is at issue for

both the second element of the plaintiff’s prima facie case

and the pretext analysis. Hague, 436 F.3d at 823. See also

Bodenstab v. County of Cook, 569 F.3d 651, 657 (7th Cir. 2009)

(although the question of pretext arises only after the

plaintiff has established a prima facie case of discrim-

ination and the employer has countered with a legiti-

mate non-discriminatory reason for the adverse action,

we may skip over the initial burden-shifting of the

indirect method and focus on the question of pretext);

Adelman-Reyes v. Saint Xavier Univ., 500 F.3d 662, 665 (7th

Cir. 2007) (the prima facie case and pretext inquiry often

overlap; we may skip the analysis of the prima facie case

14 No. 08-3311

and proceed directly to the evaluation of pretext if the

defendant offers a non-discriminatory explanation for

its employment decision). There is a good deal of overlap

in this case between these key issues. Everroad was

not meeting her employer’s legitimate expectations

if she was insubordinate; insubordination is a non-dis-

criminatory reason for termination; and Everroad is

similarly situated only to other insubordinate employees.

Everroad essentially concedes in her brief that Scott and

Hantzis genuinely believed she had been insubordinate

at the lengthy meeting the day before her termination,

and also that she had been insubordinate the next

morning, immediately before Scott and Hantzis decided

to terminate her.2 Appellant’s Brief at 15 (“Scott and

Hantzis determined that Appellant was insubordinate

during the 6½-hour meeting and discussed their options

in dealing with Appellant. . . . As they walked away,

Scott and Hantzis agreed that Appellant pointedly

2

Everroad argues that a reasonable jury could conclude that her

conduct at the meeting did not constitute insubordination.

But that is not the relevant inquiry. The decisive question is

whether Scott and Hantzis genuinely believed that Everroad

had been insubordinate, and even Everroad concedes that

they did. That a jury might disagree with them or even find

that they erred in their assessment does not render their

termination decision discriminatory. So long as they genuinely

believed in the truth of their stated reason for the decision,

that reason is not pretextual. See Ptasznik v. St. Joseph Hosp., 464

F.3d 691, 696 (7th Cir. 2006) (an employer’s mistaken belief

that the plaintiff’s conduct merited termination is not

unlawful, so long as the belief was honestly held).

No. 08-3311 15

ignored Hantzis and, at that moment, they decided to

terminate her for insubordination.”). She does not

contest that she engaged in any of the behavior that led

Hantzis and Scott to conclude that she was insubordinate.

Among other things, during the lengthy meeting to

discuss the problem with Sasser, Everroad rolled her

eyes at Hantzis, and when Hantzis asked her not to, she

replied, “I’m allowed to have facial expressions.” She

threw up her arms and yelled, “Jeez!” in response to

something Hantzis said. When Hantzis tried to confirm

something Everroad said earlier in the meeting, Everroad

said, “I don’t need your confirmation.” She also told

Hantzis, “It doesn’t matter what I say. You’re going to

put a spin on it.” She also compared Sasser’s phone

calls about her father’s health problems to a scene in

the movie Forrest Gump, where the character Bubba ram-

bles on about the different ways to cook shrimp. Finally,

she refused to say hello to Hantzis the following morning.

All of this Scott and Hantzis found to be inappropriate and

insubordinate workplace behavior.

Everroad denies that this explanation accounts for

her termination, however, because she contends that

Mulligan, Wilson and Sasser also were insubordinate

but they faced no adverse employment action. In other

words, Everroad argues that because these similarly

situated employees were not terminated, the reason

given for her termination is a pretext. To demonstrate

pretext, Everroad must show that her employer did not

honestly believe in the reasons it gave for terminating

her. Krchnavy v. Limagrain Genetics Corp., 294 F.3d 871, 876

16 No. 08-3311

(7th Cir. 2002). “Pretext means a dishonest explanation,

a lie rather than an oddity or an error.” Bodenstab, 569

F.3d at 657. See also Filar v. Board of Educ. of Chicago, 526

F.3d 1054, 1063 (7th Cir. 2008) (demonstrating pretext

requires proof that the defendant’s explanation is unwor-

thy of credence). When a plaintiff claims to have been

disciplined more harshly than other, similarly situated

employees based on a prohibited reason, the plaintiff

typically must demonstrate that the other employees

“engaged in similar conduct without such differen-

tiating or mitigating circumstances as would distin-

guish their conduct or the employer’s treatment of

them.” Antonetti v. Abbott Labs., 563 F.3d 587, 592 (7th

Cir. 2009).

Everroad’s evidence that these other three employees

enagaged in similar conduct is thin to nonexistent. For

Wilson, Everroad claims only that he asked whether

he could leave a meeting before it was finished. She

concedes that Wilson complied when he was told he

could not leave. Sasser continued to make personal calls

related to family health matters in the office she shared

with Everroad after Hantzis and Scott asked her not to do

so. As a result of the ongoing conflict between Sasser and

Everroad, Scott and Hantzis called Sasser into the same

conflict-resolution meeting where Everroad engaged in

most of the conduct that led to her dismissal. There is

no evidence that Sasser behaved in an insubordinate

manner at that meeting. Sasser’s occasional noncompli-

ance with the new phone rule appears to have irritated

only Everroad; Scott and Hantzis did not consider

Sasser’s conduct to be insubordinate toward them. As

No. 08-3311 17

for Mulligan, Everroad’s husband averred that he wit-

nessed Mulligan “verbally screaming at Dave Scott in a

loud and humiliating manner.” R. 72, Ex. C. Mulligan, a

friend of Scott and Hantzis, was known at Scott Truck

for his booming voice and sarcastic wit. The only

evidence in the record defining insubordination at

Scott Truck was Hantzis’ testimony that she told

Mulligan it would be a major issue if he was inordinately

rude or if he refused to do something she asked him to

do. There is no evidence in the record that Scott or

Hantzis believed that Mulligan or any employee other

than Everroad had violated this standard.3 Although

3

The district court also found that Mulligan and Wilson

were not similarly situated because there was no evidence

they were treated more favorably than Everroad at the time

of her termination. In each case, any possibly insubordinate

acts by Mulligan and Wilson had occurred approximately a

year earlier. The district court cited Keri v. Board of Trs. of

Purdue Univ., 458 F.3d 620, 644 (7th Cir. 2006) for the proposi-

tion that “the Plaintiff must establish that the similarly situated

employees were treated more favorably at the time of the

alleged discrimination” against the plaintiff. D. Ct. Opinion at

17, quoting Keri, 458 F.3d at 644 (emphasis added by the

district court). This dictum in Keri cites to Jordan v. City of

Gary, Indiana, 396 F.3d 825, 834 (7th Cir. 2005). Jordan, in turn,

relies on Grayson v. City of Chicago, 317 F.3d 745, 748 (7th Cir.

2003). Both Jordan and Grayson were failure-to-promote cases,

and part of the prima facie case required the plaintiff to demon-

strate that the employer granted the promotion to someone

outside the protected group who was not better qualified than

(continued...)

18 No. 08-3311

Everroad’s husband perceived Mulligan’s speech as

“humiliating,” there is no evidence in the record that

Scott or Hantzis ever found that Mulligan was “inordi-

nately rude” or that he refused to do something after

being asked to comply.4 Without any evidence that these

3

(...continued)

the plaintiff. In the context of a failure-to-promote case, when

the comparator is the person who was promoted instead of the

plaintiff, the “same time” analysis is important to the consider-

ation of whether the comparator is similarly situated to the

plaintiff. Keri was not a failure-to-promote case but rather

involved a decision not to reappoint the plaintiff for another

term. The comparators were not similarly situated because

some were tenured employees to whom different standards

applied, some reported to different supervisors, and for some

the plaintiff was simply too vague about when and how the

other employees were treated in a more favorable manner. The

timing issue was not determinative. Because the instant case

does not involve a failure to promote, the analogy to these

cases is not particularly apt.

4

Jim Everroad, the plaintiff’s husband, averred that he

“personally witnessed John Mulligan verbally screaming at

Dave Scott in a loud and humiliating manner while employed

at STS. Mulligan’s speech included a substantial amount of

profanity.” The characterization of Mulligan’s speech as

“humiliating” is conclusory and unsupported by any

specific information in the affidavit. Payne v. Pauley, 337 F.3d

767, 773 (7th Cir. 2003) (conclusory allegations unsupported

by specific facts will not suffice to defeat summary judgment).

Jim Everroad had no personal knowledge of how Scott per-

(continued...)

No. 08-3311 19

other employees met Hantzis’ definition of insubordina-

tion, Everroad’s case fails on two levels. First, she has

failed to demonstrate that she was performing up to

her employer’s legitimate job expectations and has also

failed to identify any other employees at Scott Truck

who were similarly situated to her. She is thus unable

to make out a prima facie case of discrimination under

the McDonnell Douglas analysis. Second, she has failed to

present any evidence calling into question the sincerity

of her employer’s non-discriminatory reason for termi-

nating her, namely, that she was insubordinate. The

district court therefore correctly granted summary judg-

ment in favor of the defendants on Everroad’s claims

for age and gender discrimination.

Her claims for retaliation also fall short. On appeal,

Everroad makes no argument at all that Scott Truck

retaliated against her for complaining about age-related

discrimination. Instead she argues that she was

removed from her position as dispatcher because of her

complaint about Wilson’s sexually derogatory comments,

and that she was terminated for complaining about Mulli-

gan’s PMS comment. Her argument regarding her com-

4

(...continued)

ceived this incident. At most, it appears that Jim Everroad

concluded that Mulligan’s speech was humiliating because

it was generously laced with profanity. The definition of

insubordination employed by Hantzis did not disallow profane

speech. Profanity was apparently part of the environment

at Scott Truck, as evidenced by Everroad’s parting words to

her employer.

20 No. 08-3311

plaint about Wilson fails for three reasons. First, her

appeal is the first time that she claims that her transfer

from dispatch was an adverse employment action, and

she has thus waived that claim. Pole v. Randolph, 570

F.3d 922, 937 (7th Cir.), cert. denied, 130 S.Ct. 562 (2009)

(a party may not raise an issue for the first time on appeal).

Second, the move to the data administrator position was a

lateral move with no loss of pay, benefits, or significant

changes to working conditions. A purely lateral move to a

new position, a transfer that “does not involve a demotion

in form or substance,” cannot serve as an adverse employ-

ment action. Maclin v. SBC Ameritech, 520 F.3d 781, 788 (7th

Cir. 2008). Neither does a transfer involving no reduction

in pay and no more than a minor change in working

conditions qualify as an adverse employment action.

Maclin, 520 F.3d at 788. Finally, there is no evidence that

Everroad reported Wilson’s gender-based comments to

anyone at Scott Truck. Although Moore overheard Wilson

telling Everroad she should not be working for the com-

pany, there is no evidence that he overheard Wilson’s

gender-based comments, and Everroad did not report

Wilson’s comments to Scott or Hantzis.

Turning to her retaliation claim regarding Mulligan’s

PMS comment, Everroad argues that the district court

considered only the temporal relationship between

her report of the PMS comment and her termination.

Because there was a year-long gap between Everroad

telling Scott and Hantzis that Mulligan made this remark

and Everroad’s termination, the district court found that

timing would not help Everroad establish a causal link

between protected activity and the adverse employment

No. 08-3311 21

action. To survive summary judgment on her retaliation

claim, Everroad must present sufficient direct or circum-

stantial evidence for the trier of fact to infer that there

was a causal link between the protected activity and her

termination. Antonetti, 563 F.3d at 592. Under the direct

proof methodology, a plaintiff may establish a prima

facie case of retaliation by presenting direct evidence of

statutorily protected activity, an adverse employment

action, and a causal connection between the two.

Haywood v. Lucent Techs., Inc., 323 F.3d 524, 531 (7th Cir.

2003). A plaintiff may employ the indirect method by

showing that she engaged in statutorily protected

activity, performed her job to her employer’s legitimate

expectations, suffered an adverse employment action,

and was treated less favorably than similarly situated

employees who did not engage in that protected activity.

Dear v. Shinseki, 578 F.3d 605, 610-11 (7th Cir. 2009);

Haywood, 323 F.3d at 531. We will assume for the pur-

poses of the appeal that Everroad engaged in statutorily

protected activity when she mentioned Mulligan’s

PMS comment to Scott and Everroad.5 She clearly

suffered an adverse employment action when she was

terminated but her efforts on appeal to demonstrate a

causal link between the two are non-existent. Although

she criticizes the district court for addressing only tempo-

5

We assume without deciding that this report was sufficient

to alert Scott and Hantzis to the nature of Everroad’s com-

plaint. She was reporting to her employer only a single rude,

childish remark (albeit a gender-based one) made by a co-

worker who had no supervisory authority over her.

22 No. 08-3311

ral proximity, Everroad offers no other factual or legal

theory linking her report about the PMS comment to her

termination. Because we agree with the district court

that a year is too long in the absence of any other

evidence tying the protected activity to the adverse

action, we also conclude that Everroad has failed to

establish the requisite causal connection. Haywood, 323

F.3d at 532 (one-year delay between protected activity

and termination is far too long to establish a causal link

in the absence of any other evidence relating to causa-

tion). The court therefore correctly granted summary

judgment in favor of the defendants on the retaliation

claims.

A FFIRMED.

5-10-10