Montgomery v. American Airlines, Inc.

In the

United States Court of Appeals

For the Seventh Circuit

No. 08-3951

A NTHONY M ONTGOMERY,

Plaintiff-Appellant,

v.

A MERICAN A IRLINES, INCORPORATED ,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 07 C 5924—Samuel Der-Yeghiayan, Judge.

A RGUED S EPTEMBER 8, 2010—D ECIDED N OVEMBER 19, 2010

Before E ASTERBROOK, Chief Judge, and B AUER and

K ANNE, Circuit Judges.

K ANNE, Circuit Judge. Anthony Montgomery sued his

employer, American Airlines, Incorporated (“American”),

alleging two civil rights violations relating to his race.

First, Montgomery claimed that American allowed a

hostile work environment to persist in a maintenance

shop to which he was briefly assigned as a probationary

employee. Second, he claimed that his demotion at the

2 No. 08-3951

end of his probationary period was an adverse action

motivated by racial discrimination. After discovery,

American Airlines moved for summary judgment. The

district court granted summary judgment in favor of

American on all counts, and Montgomery timely ap-

pealed. Because the record on appeal supports sum-

mary judgment in favor of American, we will affirm

the decision below.

I. B ACKGROUND

Montgomery began working for American in December

1989 as a Fleet Service Clerk at O’Hare International

Airport; he is still employed by American in that position.

The events leading to this suit occurred during Montgom-

ery’s five-month stint as a probationary mechanic in

American’s Automotive Shop (“Auto Shop”) at O’Hare.

Montgomery is and—at all times relevant to this suit—was

a member of the Transport Workers Union of America

AFL-CIO (“TWU”).

A. The Probationary Period

Montgomery requested a transfer into the Auto Shop

as a ground support equipment mechanic in the fall of

2006. After vetting his application for sufficient experi-

ence, education, or training, American granted Mont-

gomery’s request. Montgomery began his probationary

period on December 9, 2006.

The collective bargaining agreement (“CBA”) between

American and the TWU established the probationary

No. 08-3951 3

period and its qualification requirements. On his

first day, a supervisor met with Montgomery and ex-

plained the on-the-job training and familiarization Mont-

gomery would undergo during his probationary period.

The supervisor further explained that Montgomery

needed to pass a tool inspection and a qualification test

near the end of the period in order to remain in the Auto

Shop. The CBA also required that probationary em-

ployees become regular mechanics if they are not given

the qualification test within 180 days of starting in the

Auto Shop.

Montgomery was one of only three African-Americans

working in the Auto Shop during his probationary pe-

riod. The two others—Clifton Shay (supervisor) and

Dwain Wooley (a crew chief and union representa-

tive)—did not work on the Auto Shop floor with Mont-

gomery during his shifts. Montgomery allegedly began

experiencing harassment and hostility from mechanics

and crew chiefs soon after beginning his probationary

period. Montgomery concluded that their actions re-

sulted from his race, though it appears he never artic-

ulated that belief to his supervisors during his probation-

ary period.

Montgomery worked with three other probationary

mechanics—Tim Nguyen, Bill Romano, and Dave Hilt—at

some point during his probationary period. Their proba-

tionary periods did not wholly coincide with his own.

Because Montgomery believed that, in contrast to him,

they did not have to take and pass the qualification test

at the end of their probationary periods, he complained

4 No. 08-3951

to Brian Schaefer in late February or early March 2007.

Schaefer had been named as Manager of Ground Opera-

tions, a position that had been unfilled since December

2005, shortly after Montgomery had commenced his

probationary period. Montgomery told Schaefer that he

felt it was unfair and racially discriminatory that he

had to take the exam; he also notified Schaefer of

other issues that he noticed in the shop, including other

mechanics sleeping on duty and some supervisors

being delinquent. Schaefer answered that the CBA

required all probationary mechanics to take the exam

and that, under his new management, the CBA’s require-

ments would be strictly observed. Schaefer investigated

Montgomery’s other allegations, resulting in some policy

changes and the resignation of one of the supervisors

Montgomery had identified. Montgomery has further

alleged that he also discussed at this meeting the racial

harassment he was experiencing.

Auto Shop supervisor Richard Helton administered

Montgomery’s qualification test on April 7, 2007. Helton

was assisted by Tim Wells (another supervisor) and was

observed by Joe Pacenti (Montgomery’s TWU representa-

tive). Montgomery was not acquainted with Helton

before the date of the exam. At one point, Montgomery

improperly performed a temporary repair on a vehicle

tire—after lifting the vehicle not in accordance with

known safety standards—when he had been asked to

perform a permanent repair. He did not demonstrate

his familiarity with a trouble-shooting procedure by

identifying the steps involved. He did demonstrate a

degree of unfamiliarity with parts manuals by flipping

No. 08-3951 5

through them page-by-page instead of using their cross-

referenced indices. Helton, after consulting with Wells,

determined that Montgomery had failed the qualifying

test. Pacenti agreed that the test had been fairly adminis-

tered.

Due to his failure of the exam, American removed

Montgomery from his probationary position in the

Auto Shop. He returned to his original position as a

Fleet Service Clerk on or about April 26, 2007.

B. Montgomery’s Complaints to Human Resources

Montgomery had no further contact with coworkers or

supervisors from the Auto Shop, and he did not pursue

any of his allegations of racial harassment and discrim-

ination until he contacted Customer Service Manager

Sonji Nicholas on August 8, 2007. Nicholas directed

Montgomery to contact Human Resources or American’s

hotline, as indicated in American’s published policies

against racial discrimination and harassment. Nicholas

also informed Human Resources Representative Jacqueline

Rios of Montgomery’s communication.

Rios waited two days for Montgomery to contact her.

When he did not, she sought him out to inquire about

his concerns. Rios and Montgomery talked for approxi-

mately three hours in their initial meeting on Friday,

August 10, 2007. In this meeting, Montgomery never

indicated that he had complained about racially-motivated

harassment and discrimination to his supervisors, even

in the written statement he prepared for Rios containing

6 No. 08-3951

all of his allegations. Rios then met again with Mont-

gomery on Monday, August 13, and on the following

Thursday to clarify her understanding of his allegations.

Rios initiated an investigation into Montgomery’s

allegations immediately following these meetings. She

reviewed pertinent documents and interviewed num-

erous witnesses to the incidents Montgomery alleged—

including union representative Pacenti, crew chief Frank

Dlugopolski, mechanic Wooley, supervisors Shay and

Helton, and manager Schaefer. At the conclusion of

her investigation, Rios was unable to substantiate Mont-

gomery’s claims.

Rios determined that Montgomery had simply failed

his qualification test and tool inspection and that

both were administered fairly. She concluded that only

two probationary mechanics were made regular Auto

Shop employees without passing the qualification test:

(1) Nguyen, at a time before Schaefer assumed manage-

ment responsibility over the Auto Shop, and (2) Romano,

whose testing was precluded by the CBA when his sen-

iority date was adjusted pursuant to a union argument

regarding his rehiring after a previous reduction in

force. Rios also determined that some mechanics

claimed their aversion to working with Montgomery

was based on his work performance, not upon his race.

Finally, Rios determined that mechanic Mike Kogal

had made a comment to Montgomery that was inappro-

priate for the workplace—“I didn’t know it was you

until you smiled”—even though Kogal maintained that,

because of his friendship with Montgomery, Montgomery

understood the comment referred to an inside joke be-

No. 08-3951 7

tween the two. Based on Rios’s finding, Schaefer counseled

Kogal about the comment and his behavior toward co-

workers.

At the conclusion of her investigation, Rios met again

with Montgomery on October 8, 2007, to inform him

that she was preparing a summary of her investigation

and findings. He made no further comments to Rios.

C. Procedural History

Montgomery filed a charge of discrimination against

American with the Equal Employment Opportunity

Commission (EEOC) on October 2, 2007. After receiving a

Notice of Right to Sue from the EEOC, Montgomery

filed suit in the United States District Court for the North-

ern District of Illinois. His complaint comprised four

counts. In Counts I and II, Montgomery alleged that the

racial harassment and the hostile work environment to

which he was subjected violated 42 U.S.C. § 1981 and

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e

et seq., respectively. In Counts III and IV, Montgomery

alleged that his demotion to the Fleet Service Clerk posi-

tion was an adverse action resulting from racial discrim-

ination in violation of § 1981 and Title VII, respectively.

Following discovery, American moved for summary

judgment on all counts. The district court found Mont-

gomery had not demonstrated that a genuine issue of

material fact existed as to whether the conduct alleged in

Counts I and II could be attributed to American as his

employer. It further found Montgomery neither presented

8 No. 08-3951

a prima facie case of racial discrimination in Counts III

and IV nor showed that a genuine issue of material

fact existed as to whether American’s proffered reason

for his demotion was a pretext for discrimination. Ac-

cordingly, the district court granted summary judgment

in favor of American on each of Montgomery’s counts.

Montgomery timely appealed the court’s entry of final

judgment for American.

II. A NALYSIS

A. Standard of Review

The only issue presented by this appeal is whether

the district court erred in granting summary judgment

in favor of American on all four of Montgomery’s counts.

We review grants of summary judgment de novo, Berry

v. Chicago Transit Auth., 618 F.3d 688, 690 (7th Cir. 2010),

viewing the record in the light most favorable to Mont-

gomery and drawing all reasonable inferences in his

favor to determine if there is a genuine issue of material

fact as to any element of his claims, McCann v. Iroquois

Mem’l Hosp., ___ F.3d ___, 2010 WL 3528849, at *5 (7th Cir.

Sept. 13, 2010). We have previously held that “a factual

dispute is ‘genuine’ only if a reasonable jury could find

for either party.” SMS Demag Aktiengesellschaft v. Material

Scis. Corp., 565 F.3d 365, 368 (7th Cir. 2009). Further,

disputed facts that are not outcome-determinative are

not material and will not preclude summary judgment.

Smith ex rel. Smith v. Severn, 129 F.3d 419, 427 (7th

Cir. 1997).

No. 08-3951 9

We pause to point out, however, that before Mont-

gomery can benefit from a favorable view of evidence,

he must first actually place evidence before the courts.

He must “make a showing sufficient to establish any

essential element of [his] cause of action for which [he]

will bear the burden of persuasion at trial.” Severn, 129

F.3d at 425. In Berry we held that uncorroborated, self-

serving testimony, “[i]f based on personal knowledge or

firsthand experience,” may prevent summary judgment

against the non-moving party, as “such testimony can

be evidence of disputed material facts.” Berry, 618 F.3d at

691. But mere conclusory allegations do not constitute

evidence. See Balderston v. Fairbanks Morse Engine Div.

of Coltec Indus., 328 F.3d 309, 320 (7th Cir. 2003).

We turn now to Montgomery’s claims, taking his

two theories of recovery in turn. Montgomery brings

functionally identical claims of racial harassment in

Counts I and II, only differing in the statute he invokes.

The same is true of the racial discrimination he claims in

Counts III and IV. Because Montgomery does not dif-

ferentiate the operative facts based upon the statute

invoked, and because the elements of his claims and the

methods of proof are essentially identical under either

statute, our analysis will apply equally to his claims

under § 1981 and Title VII. McGowan v. Deere & Co., 581

F.3d 575, 579 (7th Cir. 2009).

B. Hostile Work Environment

Montgomery claims he was subjected to a hostile work

environment in the Auto Shop due to harassment he

10 No. 08-3951

suffered based on his race. To stave off summary judg-

ment, Montgomery must have provided sufficient evi-

dence to create a material issue of fact as to four ele-

ments: (1) the work environment must have been both

subjectively and objectively offensive; (2) his race must

have been the cause of the harassment; (3) the conduct

must have been severe or pervasive; and (4) there must

have been a basis for employer liability. Chaney v.

Plainfield Healthcare Ctr., 612 F.3d 908, 912 (7th Cir.

2010). American contends that Montgomery presented

insufficient evidence to allow a jury to find in his favor

as to any of the four elements. The record on appeal is

far from conclusive as to the elements of objective offen-

siveness, causation, and severity, but by reviewing the

record in the light most favorable to Montgomery,1 and

by taking all reasonable inferences in his favor, we deter-

mine that he has presented triable issues of material

fact as to the first three elements. On appeal, American

1

We read the record favorably to Montgomery, although his

position is undermined by his hyperbolic—if not disingenu-

ous—statements set forth in his brief. For example, Montgom-

ery’s brief refers to “the continuous use of ‘nigger’ ” as an

instance of racial harassment. (Appellant’s Br. at 24.) Yet his

citations in support of this “fact” ultimately reveal that he

heard the word used in his presence only once. American

offers an affidavit from Rios confirming that Montgomery

told her that he heard it only once and that he only assumed

that it was directed toward him. The record in no way sup-

ports the statement of fact Montgomery submitted to the

district court or the assertion he makes to this court in his

brief. This is but one example of many.

No. 08-3951 11

fully develops only its arguments regarding the basis

for employer liability. We find this issue dispositive.

For Montgomery to recover against American for the

hostile work environment he alleges, he must show a

basis for employer liability by proving either (1) that a

supervisor participated in the harassment that created

the hostile work environment or (2) that American was

negligent in discovering or remedying harassment by

his coworkers. Andonissamy v. Hewlett-Packard Co., 547

F.3d 841, 848 (7th Cir. 2008). Montgomery’s only conten-

tion that a supervisor participated in harassment in-

volved the conduct of a crew chief, Frank Dlugopolski.

But in American’s Auto Shop, crew chiefs are not “super-

visors” as that term applies to racial harassment claims.

In this context, “supervisor” is a term of art that denotes

more than an individual with a higher rank, a superior

title, or some oversight duties. As Montgomery con-

cedes, crew chiefs are members of the union, not manage-

ment. Further, the crew chiefs could not “affect the terms

and conditions of [Montgomery’s] employment.” Id.

While we have noted that not all individuals fit cleanly

within “the two pigeonholes” of paradigmatic super-

visor and paradigmatic coworker, Doe v. Oberweis Dairy,

456 F.3d 704, 716-17 (7th Cir. 2006), we easily classify

Dlugopolski as a coworker. His occasional authority to

oversee some aspects of Montgomery’s work does not

suffice to make him a supervisor. In fact, we have previ-

ously held that more extensive duties—such as the combi-

nation of directing or managing a plaintiff’s activities,

providing evaluation input to a plaintiff’s supervisor,

and training a plaintiff—do not necessarily suffice. See

12 No. 08-3951

Rhodes v. Ill. Dep’t of Transp., 359 F.3d 498, 506 (7th Cir.

2004); Hall v. Bodine Elec. Co., 276 F.3d 345, 355 (7th

Cir. 2002). Because Montgomery offered no evidence of

harassment from supervisors at American, he has not

established a material issue of fact as to American’s

strict liability for racial harassment.

Montgomery must, therefore, resort to the second

method of proving American liable for the hostile work

environment. To succeed, he must provide evidence

that American “failed to have and enforce a reasonable

policy for preventing harassment.” Oberweis Dairy, 456

F.3d at 716. As a part of this showing, Montgomery

must demonstrate that he made a concerted effort to

inform American of the racial harassment he was

allegedly experiencing or that the harassment was suffi-

ciently obvious to put American on constructive notice.

Rhodes, 359 F.3d at 507. But the record supports neither

Montgomery’s allegation of reporting nor American’s

constructive notice.

At all times relevant to this lawsuit, American had a

published policy that proscribed racial harassment and

provided multiple methods for employees to report

harassing conduct, including speaking with supervisors,

contacting a manager, or calling a hotline. Montgomery

does not deny the existence of this policy, but instead

contends that he was supposed to report racial harass-

ment to his crew chief. While supervisor Shay did tell

Montgomery to address any problems Montgomery

experienced to the crew chiefs, Shay also told Mont-

gomery to contact his immediate supervisor or Shay

No. 08-3951 13

directly if he was not satisfied with the crew chiefs’

response. Moreover, Shay’s instructions referred to

general problems Montgomery might experience; they

did not involve any discussion of racial harassment.

Montgomery later mentioned to Rios and testified in his

deposition that he intended to report his racial harass-

ment concerns to supervisors Shay and Dave Brooks and

manager Schaefer, thus showing his understanding that

he needed to make his supervisors—not just crew

chiefs—aware of his complaints. Regardless, we do not

deem Montgomery’s statements to Dlugopolski suf-

ficient to inform American of his concerns, because it

was unreasonable for Montgomery to believe that

Dlugopolski—a union member and crew chief—was “the

type of employee who could be expected to convey [his]

complaints to someone who could stop the harassment.”

Parkins v. Civil Constructors of Ill., Inc., 163 F.3d 1027, 1038

(7th Cir. 1998).

Upon an exhaustive review of the record, we agree

with the district court that “[t]he evidence that Montgom-

ery relies upon does not support his argument that he

brought his concerns of racial harassment to the attention

of his supervisors.” Montgomery v. American Airlines, Inc.,

2008 WL 4671764, at *7 (N.D. Ill. Oct. 21, 2008). Montgom-

ery contends that he “presented evidence that he explicitly

complained about the racial harassment and racial discrim-

ination” to Shay, Brooks, and Schaefer, (Appellant’s Br. at

28), but he mischaracterizes the evidence in the record.

Montgomery testified in his deposition that he did not

report to Shay or Brooks that he believed his problems

were based on his race. While Montgomery did address

14 No. 08-3951

racial concerns with Schaefer, the record shows that he did

so only within the context of Montgomery’s complaint

about having to take the qualification test—an allegation

relating to employment discrimination and not to harass-

ment. The most favorable inference supported by the

record is that Montgomery intended to inform his supervi-

sors about his concerns of racial harassment, but did not

because he subjectively felt unable to do so in the few

instances where he sought an opportunity to report his

problems. This inference does not suffice to create a triable

issue of fact, as his fear of unpleasantness cannot excuse

Montgomery from using the company’s complaint mecha-

nisms. See Shaw v. AutoZone, Inc., 180 F.3d 806, 813 (7th Cir.

1999).

Employers need not divine complaints from the ether,

guessing at the subjective suspicions of employees. An

aggrieved employee must at least report—clearly and

directly—nonobvious policy violations troubling him so

that supervisors may intervene. See Durkin v. City of Chi-

cago, 341 F.3d 606, 612-13 (7th Cir. 2003) (holding an

employer will not be liable for alleged coworker harass-

ment “when a mechanism to report the harassment

exists, but the victim fails to utilize it.”). What verbal

complaints Montgomery did make to Shay, Brooks, and

Schaefer were too vague to put American on notice of the

racial harassment he now alleges. Montgomery com-

plained of general unfairness in task assignments and of

employee delinquency, but these complaints did not

provide notice of any racial harassment concerns. Because

Montgomery “unreasonably fail[ed] to take advantage

of preventive or corrective opportunities,” and American

No. 08-3951 15

consequently did not know about his concerns, American

“cannot be held liable.” Bright v. Hill’s Pet Nutrition,

Inc., 510 F.3d 766, 770 (7th Cir. 2007).

Alternatively, Montgomery could have offered some

evidence allowing a reasonable inference that super-

visors at American knew of the alleged racial harass-

ment. See Luckie v. Ameritech Corp., 389 F.3d 708, 715 (7th

Cir. 2004). But by failing to develop the constructive

notice argument on appeal, Montgomery waived any

contention that the alleged racial harassment was suffi-

ciently obvious to charge American with knowledge of

the conduct.2 Accordingly, “the law does not require

[American] to do more than promote general anti-harass-

ment policies and training.” Rhodes, 359 F.3d at 507.

An employer can generally avoid liability for a hostile

work environment if it promptly investigated complaints

made by the plaintiff and acted to stop the harassing

behavior. Lucero v. Nettle Creek Sch. Corp., 566 F.3d 720, 731

(7th Cir. 2009). As previously mentioned, American had

the requisite policy in place. Rios began a thorough

2

Montgomery’s brief does state that “an employer such as

[American] may be ‘charged with constructive notice’ when the

harassment was sufficiently obvious.” (Appellant’s Br. at 27

(citing Henderson v. Irving Materials, Inc., 329 F. Supp. 2d 1002,

1016 (S.D. Ind. 2004)). But a passing citation to non-binding

authority is certainly a perfunctory and undeveloped argu-

ment, if it is any argument at all. Accordingly, Montgomery

waived any argument about constructive notice that he may

have had. See Gross v. Town of Cicero, Ill., 619 F.3d 697, 704-05

(7th Cir. 2010).

16 No. 08-3951

investigation immediately upon Montgomery’s first

proper notification of his racial harassment concerns, and

“prompt investigation is the hallmark of a reasonable

corrective action.” Porter v. Erie Foods Int’l, Inc., 576

F.3d 629, 636 (7th Cir. 2009) (quotation marks omitted).

Rios’s actions indicate that American “took the harass-

ment seriously and took appropriate steps to bring the

harassment to an end.” Id. Further, Schaefer had already

responded to Montgomery’s complaints about other

employees’ delinquency. Schaefer’s immediate reactions

to these allegations reinforce the conclusion that Mont-

gomery failed to alert Schaefer to his concerns of racial

harassment. Because it appears that American took rea-

sonable steps to prevent future harms whenever Mont-

gomery properly reported any concerns, American bears

no liability under these circumstances. See id. at 637.

In summary, Montgomery failed to present any evi-

dence that would allow a reasonable jury to impute

liability to American even if Montgomery had proven

that his working environment in the Auto Shop was

hostile. As such, the district court did not err in granting

summary judgment in favor of American on Mont-

gomery’s racial harassment claim.

C. Racial Discrimination

Montgomery also claims that his demotion from his

position as a probationary mechanic in American’s Auto

Shop to his original position as a Fleet Service Clerk was

an act of racial discrimination against him. Montgomery

may attempt to prove his racial discrimination case

No. 08-3951 17

under either the direct or indirect method. Weber v. Univ.

Research Ass’n, Inc., 621 F.3d 589, 592 (7th Cir. 2010). As

Montgomery appears to have addressed both methods of

proof on appeal, we will examine his arguments under

each method in turn.

1. Direct Method

In order to prove his case under the direct method,

Montgomery must have provided direct evidence

of—or sufficient circumstantial evidence to allow an

inference of—intentional racial discrimination by Ameri-

can. Coffman v. Indianapolis Fire Dep’t, 578 F.3d 559, 563

(7th Cir. 2009). Regardless of the type of evidence pre-

sented, Montgomery may avoid summary judgment

only by presenting sufficient evidence to create a triable

issue as to whether his demotion had a discriminatory

motivation. Rudin v. Lincoln Land Cmty. Coll., 420 F.3d 712,

721 (7th Cir. 2005). On appeal, Montgomery offers no

evidence of any direct admission or demonstration of

discriminatory intent. He instead asserts that the fol-

lowing bits of circumstantial evidence suffice to defeat

summary judgment: (1) that he was the only African-

American in the Auto Shop, (2) that he was the only

probationary employee required to pass a tool inspec-

tion, (3) that he was the only probationary mechanic

required to take and pass the qualification test, and

(4) that he suffered incidents of harassment from his

coworkers. He compares his case to Sylvester v. SOS Chil-

dren’s Vills. Ill., Inc., 453 F.3d 900, 904 (7th Cir. 2006)

(“There is no rich mosaic of circumstantial evidence of

18 No. 08-3951

retaliation in this case, but there is enough (though

maybe barely enough) to preclude summary judg-

ment.”), suggesting that the evidence in his case is far

stronger than the evidence we found to suffice in Sylvester.

The relevant circumstantial evidence in discrimination

cases ordinarily consists of indicators showing what

may be “the real motivating force for employment deci-

sions.” Coffman, 578 F.3d at 563. We have described “two

general categories of circumstantial evidence: (1) ambigu-

ous statements or behavior toward other employees in

the protected group that taken together allow an infer-

ence of discriminatory intent and (2) evidence of systemi-

cally better treatment of employees outside the pro-

tected class.” Id.

We first note that, as Montgomery contends he was

alone in his protected group, the first category is clearly

inapplicable here. We also note that Montgomery’s al-

legations involving harassment all describe the conduct

of coworkers, not supervisors—a point which distin-

guishes his circumstances from those in Sylvester. 453

F.3d at 905 (circumstantial evidence of supervisors’

conduct sufficed to defeat summary judgment by

allowing inference of retaliation). Montgomery then

alleges only two incidents of “systemically better treat-

ment” of non-African-American employees: that he was

the only employee who had to pass the tool inspection

and the qualification test. Even if these allegations are

true, they do not constitute evidence allowing a jury to

infer a discriminatory motive behind Montgomery’s

demotion. See, e.g., Coffman, 578 F.3d at 563 (“She does

No. 08-3951 19

aver generally that the Department employed several

short men who were never obligated to undergo driving

evaluations, but this fact alone does little to show that

men generally were treated differently by the Depart-

ment.”). Because Montgomery’s proffered circumstantial

evidence does not point directly to a discriminatory

reason for American’s action, Montgomery cannot sur-

vive summary judgment under the direct method of proof

for his racial discrimination claim.

2. Indirect Method

The indirect method of proof requires Montgomery to

introduce evidence demonstrating four elements to

establish a prima facie case of and survive summary

judgment on his racial discrimination claim: (1) that he

was a member of a protected class, (2) that he was per-

forming his job satisfactorily, (3) that he suffered an

adverse employment action, and (4) that American

treated a similarly situated individual outside Mont-

gomery’s protected class more favorably. Dear v. Shinseki,

578 F.3d 605, 609 (7th Cir. 2009). If Montgomery

satisfied those elements, thus giving rise to an inference

of discrimination, the burden would shift to American to

identify a legitimate, nondiscriminatory reason for the

action taken. Stockwell v. City of Harvey, 597 F.3d 895,

901 (7th Cir. 2010). If American proffered a nondiscrim-

inatory reason for returning Montgomery to his Fleet

Service Clerk position, summary judgment would only

be erroneous if Montgomery produced evidence that

the proffered reason was a pretext for racial discrim-

ination. Id.

20 No. 08-3951

For purposes of this appeal, American does not contest

that Montgomery is a member of a protected class or

that his transfer back to the Fleet Service Clerk position

constituted an adverse employment action. American

contends, however, that Montgomery cannot satisfy the

other two prongs of the prima facie case. For his part,

Montgomery contends that he may proceed to the

pretext inquiry because he has alleged that American’s

expectations were inherently discriminatory. We have

previously noted that “[w]hen a plaintiff produces

evidence sufficient to raise an inference that an em-

ployer applied its legitimate expectations in a disparate

manner . . . the second and fourth prongs merge—allowing

plaintiffs to stave off summary judgment for the time

being, and proceed to the pretext inquiry.” Elkhatib v.

Dunkin Donuts, Inc., 493 F.3d 827, 831 (7th Cir. 2007)

(quoting Peele v. Country Mut. Ins. Co., 288 F.3d 319, 329

(7th Cir. 2002)) (emphasis added). Montgomery does

allege that American’s expectations varied with race,

but we decline to merge the second and fourth prongs

and proceed to the pretext inquiry because he does not

support that allegation with any actual evidence of dis-

parate application. Montgomery may not “put[] the

pretext cart before the prima facie horse” by substituting

allegations for proof. Brummett v. Lee Enters., Inc., 284 F.3d

742, 744 (7th Cir. 2002). “The prima facie case must be

established and not merely incanted.” Grayson v. O’Neill,

308 F.3d 808, 818 (7th Cir. 2002). Montgomery must still

come forward with sufficient evidence of the disparate

treatment of similarly situated individuals in order to

satisfy his prima facie case. See Elkhatib, 493 F.3d at 831.

No. 08-3951 21

After our review of the record in this case, we agree

with the district court that Montgomery did not produce

evidence to establish a prima facie case of racial discrimi-

nation. Montgomery alleges both that he was required to

take the qualification test when other non-African-Ameri-

can probationary mechanics were not and also that the

test itself was prejudicially administered to him. He

supports neither allegation with evidence sufficient to

defeat American’s motion for summary judgment.

As to the first allegation, Montgomery asserts that three

individuals—Nguyen, Hilt, and Romano—were proba-

tionary mechanics at the same time as him, that their

probationary periods also ended after Schaefer had as-

sumed responsibility of the Auto Shop, and that these

contemporaries were not required to take the qualifica-

tion exam to continue as fully vested Auto Shop mechan-

ics. Montgomery contends that the three mechanics

were similarly situated to him—given that they were in

the same job, subject to the same CBA, subordinate to the

same supervisors, and had comparable qualifications—

but that their treatment was preferential to his own. If

the record supported Montgomery’s assertions re-

garding Nguyen, Hilt, and Romano, he likely would

have established a prima facie case of racial discrimina-

tion. But the record does not come close to supporting

those conclusions.

In order to meet the fourth prong of the prima facie

case, the plaintiff must demonstrate that the putative

similarly situated employees were “directly comparable

to the plaintiff in all material respects.” Patterson v. Ind.

22 No. 08-3951

Newspapers, Inc., 589 F.3d 357, 365-66 (7th Cir. 2009).

None of the three probationary mechanics named by

Montgomery was similarly situated to, but treated dif-

ferently from, Montgomery.

First, the record shows that Nguyen worked as a pro-

bationary mechanic in the Auto Shop at some time

during Montgomery’s probation but that Nguyen com-

pleted his probationary period before Schaefer assumed

control over the Auto Shop and began enforcing the CBA’s

qualification test protocol. Because the CBA requires

that a probationary mechanic become a fully vested

mechanic without testing if he has not been tested

within 180 days, and because Schaefer was not available

to enforce the testing requirement during Nguyen’s

180 days of probation, the record establishes that Nguyen

was not situated similarly to Montgomery. See Curry v.

Menard, Inc., 270 F.3d 473, 478 (7th Cir. 2001) (holding

that the majority of the plaintiff’s coworkers were not

similarly situated to the plaintiff because enforcement

of the employer’s disciplinary policy “depended on who

was managing the store, and all but two of the sixteen

violations that [the plaintiff] cites occurred either before

or after the tenure of” the manager who disciplined

the plaintiff).

Second, although Romano was also a probationary

mechanic at some point while Montgomery was in

the Auto Shop, Romano was not tested because his pro-

bationary time was erroneously calculated due to an

earlier layoff and reinstatement. TWU intervened to

prevent Romano from being tested in contravention of

No. 08-3951 23

the CBA’s 180-day provision. Montgomery does not

refute these facts, but rather asserts that he didn’t

know why Romano did not take the test and that

Romano had told him, “They just let me in.” (Mont-

gomery Dep. at 302:15-20.) This testimony in no way

refutes the fact that Romano was not situated sim-

ilarly to Montgomery.

Finally, Montgomery testified that he thought Hilt

had not yet taken his test by the time Schaefer assumed

management responsibilities over the Auto Shop. He

provides no evidence to support this contention

other than his own belief, for which he demonstrates

no foundation. We acknowledge that uncorroborated,

self-serving testimony may suffice to prevent summary

judgment in some circumstances, Berry, 618 F.3d at 691,

but Montgomery’s stated beliefs cannot create genuine

issues of material fact when those beliefs lack a founda-

tion of personal knowledge. Accordingly, the record

does not indicate that Hilt was situated similarly to, but

treated differently from, Montgomery.

Montgomery makes a second allegation under the

indirect method—that the test itself was administered to

him in an illegitimate and prejudicial manner. He claims

test administrator Helton “harbored an overt discrimina-

tory animus against” him. (Appellant’s Br. at 22.) We

have previously held that “an employer’s use of subjec-

tive criteria may leave it more vulnerable to a finding

of discrimination, when a plaintiff can point to some

objective evidence indicating that the subjective evalua-

tion is a mask for discrimination.” Sattar v. Motorola,

24 No. 08-3951

Inc., 138 F.3d 1164, 1170 (7th Cir. 1998). But Montgomery

again fails to provide evidence supporting his conclu-

sions about Helton’s discriminatory animus. Most

notably, Montgomery testified in his deposition that he

had never met Helton prior to the qualification test.

Further, both Wells—who helped administer the quali-

fication test—and union observer Pacenti agreed that

Montgomery had simply failed the test and that Helton

had been fair and actually lenient.

American and Montgomery dispute the appropriate

method of administering the qualification test, including

the number and scope of questions, the number of ques-

tions allowed to be missed, and its permissible duration.

The district court carefully reviewed the record and

correctly found that Montgomery failed to provide ap-

propriate evidence to refute each of American’s conten-

tions regarding proper test administration. Montgomery,

2008 WL 4671764, at *13-14. But even if Montgomery

produced sufficient evidence to dispute these facts, we

find that they are immaterial and thus irrelevant to our

analysis here. See Severn, 129 F.3d at 427.

What Montgomery needed to prove was that the exam

was unfairly administered to him in comparison to other

test takers. See Perez v. Illinois, 488 F.3d 773, 779 (7th Cir.

2007). Montgomery provided only conclusory accusa-

tions about the test’s relative difficulty and no evidence

of how the test had been administered to other can-

didates, let alone that any alleged variation was based on

racial discrimination. He did not dispute that he was

allowed more than adequate time to answer the questions

No. 08-3951 25

presented, and he presented no evidence to refute the

collective conclusion of Helton, Wells, and Pacenti that

the test was fairly administered.

Because he has neither shown that similarly situated

employees outside of his protected class were treated

more favorably than he nor provided evidence that Ameri-

can’s expectations differed based upon race, Mont-

gomery has failed to establish a prima facie case of racial

discrimination under the indirect method. American

nevertheless proffered a legitimate reason for Montgom-

ery’s demotion to his former Fleet Service Clerk posi-

tion: Montgomery failed his tool inspection and qualifi-

cation test, both of which the CBA requires of proba-

tionary employees. Montgomery acknowledged that

Schaefer’s sole basis for demoting him was his alleged

failure of the exam. The district court chose to continue

its analysis, assuming for argument’s sake that Mont-

gomery had satisfied his burden to establish a prima

facie case. We find, as the district court did, that Mont-

gomery provided no evidence that American’s proffered

reason was pretextual.

To demonstrate pretext, Montgomery “must show

that (1) the employer’s non-discriminatory reason was

dishonest and (2) the employer’s true reason was based

on a discriminatory intent.” Stockwell, 597 F.3d at 901.

Montgomery contends that American’s proffered reason

was a lie, but he never develops the argument by pro-

viding a single allegation of deception or false testimony,

let alone any evidence supporting any such allegation.

He neither disputes that American administered the

tool inspection and qualification test because the CBA

26 No. 08-3951

so required nor presents evidence that American’s rea-

sons for Nguyen and Romano not taking the qualifica-

tion test were pretextual. Because Montgomery failed

to specifically address and refute the facts supporting

American’s proffered reason, he cannot succeed in demon-

strating pretext. See Mills v. First Fed. Sav. & Loan Ass’n of

Belvidere, 83 F.3d 833, 845 (7th Cir. 1996). To demon-

strate pretext, Montgomery “must show that [American]

did not honestly believe in the reasons it gave for termi-

nating [him].” Everroad v. Scott Truck Sys., Inc., 604 F.3d

471, 478-79 (7th Cir. 2010). He made no attempt to do so.

In summary, Montgomery failed to establish a prima

facie case of racial discrimination. Even if he had suc-

ceeded in doing so, Montgomery did not establish a

triable issue of fact as to whether American’s reasons for

demoting him were merely pretextual. Accordingly, we

hold that the district court correctly granted summary

judgment in favor of American on Montgomery’s racial

discrimination claim.

III. C ONCLUSION

We find that Montgomery has not produced evidence

to create a genuine issue of material fact regarding a

vital element in both his hostile work environment and

racial discrimination claims. Because no reasonable jury

could find in Montgomery’s favor, we A FFIRM the district

court’s grant of summary judgment in favor of American

on all counts.

11-19-10