finding direct evidence of causation where the plaintiff had made previous complaints of racial discrimination and a former supervisor decided to terminate the plaintiff in the same conversation that the supervisor mentioned the plaintiff was again “playing the race card... [and] this was the last straw”
How later courts described this case
- finding direct evidence of causation where the plaintiff had made previous complaints of racial discrimination and a former supervisor decided to terminate the plaintiff in the same conversation that the supervisor mentioned the plaintiff was again “playing the race card... [and] this was the last straw”
- circumstantial evidence that discriminatory intent motivated firing “may include suspicious timing; ambiguous statements; behavior or comments directed at others in the protected class; and evidence that similarly situated employees outside the protected class received systematically better treatment”
- “To survive summary judgment under the direct method, Burnell needed to present either direct evidence of discriminatory intent (such as an admission) or enough circumstantial evidence to allow a rational jury to infer that discriminatory *703 intent motivated his firing.”
- elements of Title VII and § 1981 claims
Written by the judges who cited it.
The opinion
In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3490
E DDIE B URNELL, JR.,
Plaintiff-Appellant,
v.
G ATES R UBBER C OMPANY,
a foreign corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 08 C 50192—Frederick J. Kapala, Judge.
A RGUED A PRIL 4, 2011—D ECIDED JULY 27, 2011
Before K ANNE, R OVNER, and SYKES, Circuit Judges.
K ANNE, Circuit Judge. When Eddie Burnell, Jr., received
a written warning from his supervisor for failing to
complete a task, he went straight to management to
complain. To his surprise, the complaint triggered a
series of events that led to his discharge from Gates
Rubber Company. Burnell then sued his former em-
ployer in federal district court, complaining of discrim-
2 No. 10-3490
ination in violation of 42 U.S.C. § 1981, as well as dis-
criminatory discharge, discriminatory employment
actions, and retaliatory discharge, all in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e,
et seq. The district court granted summary judgment on
all counts, and Burnell now appeals that order as to his
discriminatory and retaliatory discharge claims and
his § 1981 claim. We affirm the grant of summary judg-
ment as to his discriminatory discharge and § 1981 claims,
but reverse as to his retaliatory discharge claim.
I. B ACKGROUND
Burnell, an African American, claims race motivated
his December 20, 2006, discharge. As evidence for this
claim, Burnell alleges several instances of past discrim-
ination—mainly during his first stint in Gates Rubber’s
tool room, from 1993 to 1996. Before describing the
events leading to Burnell’s discharge, we summarize
these allegations.
Many of Burnell’s allegations involve white employee
Joe Payne, who was rumored to have said that he
would rather retire than work with Burnell. Near the
beginning of Burnell’s time in the tool room, Payne
tricked Burnell into being sprayed with a hose. Payne
later told Burnell that Burnell would never be allowed
to run certain tool room equipment. Burnell alleges a
few other instances of racial discrimination during his
first stint in the tool room. He claims that employees
were trained disproportionately by members of the
same race and that other (white) tool room employees
No. 10-3490 3
received outside training that he did not receive. Finally,
Burnell claims that white employees improperly gave
him failing grades on a test to earn a promotion.
At some point, Burnell complained about Payne
to plant manager Shahram Totonchian and employee
relations specialist Jill Carvalho. Totonchian talked to
Burnell’s supervisor about Payne, but Burnell was not
satisfied with the results. Totonchian also laughed about
Payne’s threat to retire if he had to work with Burnell.
Payne eventually retired, but he was hired back as a
temporary employee. Burnell rejoined the tool room
in 2003.
On December 18, 2006, supervisor Todd Gates 1
asked Burnell to “turn down”2 six tools. According to
Burnell, Gates prefaced the request with “if you have
time.” When Gates returned the next morning, he saw
the tools in the same place he had left them, and the
tools had not been turned down. Gates reported
Burnell’s apparent insubordination to maintenance man-
ager Doug Krause. When Burnell arrived at work, Gates
issued him a written warning. Burnell explained to
Gates that he had not had time to turn down the tools,
and he did not accept the written warning.
1
We refer to Todd Gates as “Gates” and to Gates Rubber
Company as “Gates Rubber.”
2
“Turning down” a tool involves grinding down the shaft of
the tool. While the details of the process are not relevant here,
we note that improperly turning down a tool may create a
serious safety risk.
4 No. 10-3490
Instead, Burnell left to complain to Totonchian about
the warning. At some point, Krause joined the conver-
sation. Burnell told Totonchian that Gates had left him
a note asking him to turn down the tools if he had
time. Burnell then claimed he had not had time to turn
them down, so the written warning was inappropriate.
Later in the conversation, Burnell explained he had felt
he could not turn down the tools safely.
After meeting with Burnell, Totonchian and Krause
spoke briefly with Gates. Gates reported that he had
given Burnell an oral instruction to turn down the tools
and that the instruction did not include any suggestion
Burnell should do the work only if he had time. He also
reported that Payne had successfully turned down the
tools upon request.
Totonchian and Krause then met once more with
Burnell. Burnell began the meeting by asking for a third
party witness, which Totonchian and Krause refused.
Though Burnell repeated that he did not turn down the
tools because he could not do it safely, he did not
describe the steps he had taken to try to turn down
the tools safely. At some point, according to Burnell,
Totonchian accused Burnell of “playing the race
card” and told him to find another job if he did not
enjoy working at Gates Rubber. Krause dismissed
Burnell from work for the day and instructed him to
return the next day with a commitment letter, which is
a common disciplinary device at Gates Rubber.
Totonchian was demonstrably upset, and he wanted
to fire Burnell for insubordination and lying. Carvalho
No. 10-3490 5
convinced Totonchian not to fire Burnell if Burnell
would sign a commitment letter. Carvalho then called
Burnell, and Burnell claims she approved a commitment
letter that he had drafted. But when Burnell met the
next day with Krause and human resources manager
Cathy Waters, they demanded Burnell sign a dif-
ferent commitment letter. The new letter implied that
Burnell had been insubordinate and dishonest. When
Burnell repeatedly refused to sign the new letter, Krause
and Waters told him he would be fired if he did not
sign. Burnell refused again and was fired.
Burnell sued Gates Rubber in federal district court,
claiming discriminatory discharge, other discriminatory
employment acts, and retaliatory discharge—all in viola-
tion of Title VII—and discrimination in violation of
42 U.S.C. § 1981. The district court granted Gates
Rubber’s motion for summary judgment as to all of
Burnell’s claims. Burnell then appealed the grant of
summary judgment as to his Title VII discriminatory
and retaliatory discharge claims and his § 1981 discrim-
ination claim.
II. A NALYSIS
We review a grant of summary judgment de novo,
construing all facts and drawing all reasonable inferences
in the nonmoving party’s favor. Moore v. Vital Prods.,
Inc., 641 F.3d 253, 256 (7th Cir. 2011). Summary judgment
is appropriate if there is “no genuine dispute as to any
material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a).
6 No. 10-3490
A. Discriminatory Discharge and § 1981 Discrimination
Title VII discrimination claims and § 1981 discrimination
claims are nearly identical, see Montgomery v. Am. Airlines,
Inc., 626 F.3d 382, 389 (7th Cir. 2010), and Burnell treats
them identically. Accordingly, we apply the same
analysis to each. A plaintiff may show discriminatory
discharge by the direct method or the indirect method.
Silverman v. Bd. of Educ. of City of Chicago, 637 F.3d 729, 733
(7th Cir. 2011). Burnell tries both, but he has not shown
enough evidence to survive summary judgment under
either approach.
1. Direct Method
To survive summary judgment under the direct
method, Burnell needed to present either direct evidence
of discriminatory intent (such as an admission) or
enough circumstantial evidence to allow a rational jury
to infer that discriminatory intent motivated his firing.
Id. at 733-34. Circumstantial evidence may include suspi-
cious timing; ambiguous statements; behavior or com-
ments directed at others in the protected class; and evi-
dence that similarly situated employees outside the
protected class received systematically better treat-
ment. See Darchak v. City of Chicago Bd. of Educ., 580
F.3d 622, 631 (7th Cir. 2009). Whatever circumstantial
evidence a plaintiff presents “must point directly to a
discriminatory reason for the employer’s action.”
Adams v. Wal-Mart Stores, Inc., 324 F.3d 935, 939 (7th
Cir. 2003).
No. 10-3490 7
Burnell has presented only circumstantial evidence,
and much of it concerns past racial discrimination and
harassment—training, promotion testing, Payne, and so
forth—that occurred mainly between 1993 and 1996. The
pertinent evidence from the time of his discharge
centers on Burnell’s argument that Gates Rubber
deviated from its normal disciplinary proceedings. But
many of the “facts” Burnell cites for this argument have
no basis in the record. For instance, Burnell claims
that “[Gates Rubber] would terminate for not signing a
commitment letter only if the underlying offense was
a terminable offense, for which lying and insubordina-
tion did not qualify.” In support of this claim, he cites
Carvalho’s February 11 deposition. But the testimony
cited actually contradicts Burnell’s claim: Carvalho
clearly states that an employee might be fired for
refusing to sign an insubordination warning.
Viewing the facts supported by the record in the
light most favorable to Burnell, the strongest evidence
pointing to discrimination is Totonchian’s investigation
of Burnell’s apparent insubordination. Totonchian did
not have others gather facts for him, as Burnell claims
was the norm. Nor did he investigate the safety of
turning down the relevant tools. Instead, he simply
asked Gates about the situation. Gates’s explanation
contradicted Burnell’s, and Totonchian believed Gates.3
3
Though Burnell’s brief suggests otherwise, Totonchian had
no obligation to view the evidence in the light most favorable
(continued...)
8 No. 10-3490
At some point, Totonchian did ask Payne if Burnell
should have known how to turn down the tools, and
Payne said he should have. Burnell also points to
Totonchian’s “race card” statement as evidence that he
acted with a discriminatory motive. Burnell does not
explain how Totonchian’s alleged accusation suggests
a discriminatory motive, and we see no obvious connec-
tion. Regardless, the sum of Burnell’s circumstantial
evidence—including past discrimination, Totonchian’s
investigation, and the “race card” statement—would not
allow a rational jury to conclude that racial discrimina-
tion caused Burnell’s firing.
2. Indirect Method
To establish a prima facie case of discriminatory dis-
charge under the indirect method of proof, Burnell
needed to show that: (1) he is a member of a protected
class; (2) his job performance met his employer’s
legitimate expectations; (3) he suffered an adverse em-
ployment action; and (4) similarly situated persons
outside the class received more favorable treatment.
Montgomery, 626 F.3d at 394. If Burnell establishes a
prima facie case, Gates Rubber must give a legitimate
reason for his discharge, at which point Burnell must
produce evidence that the proffered reason for his firing
is a pretext for racial discrimination. Id.
3
(...continued)
to Burnell. The summary judgment standard applies to
courts, not employers.
No. 10-3490 9
Everyone agreed that Burnell is a member of a pro-
tected class and that he suffered an adverse employ-
ment action. So Burnell needed only to provide evidence
that his job performance met expectations and that simi-
larly situated persons outside the class received better
treatment. He has provided no such evidence. Instead,
he points to testimony from Carvalho that an employee
would not violate the code of conduct by refusing to
perform an unsafe act. Burnell’s argument—read gener-
ously—assumes that everyone else at Gates Rubber
would have been treated better had they been in Burnell’s
circumstances. This claim shows staggering self-pity on
Burnell’s part. More importantly, it does not show that
any similarly situated person actually received better
treatment than Burnell, as the fourth prong requires.
Accordingly, Burnell cannot escape summary judgment
on his discriminatory discharge claim via the indirect
method of proof.
B. Retaliatory Discharge
To demonstrate a prima facie case of retaliation by
the direct method of proof, Burnell must provide
evidence that he engaged in statutorily protected activ-
ity, that he suffered a materially adverse employment
action, and that the former caused the latter. Silverman,
637 F.3d at 740. Burnell’s discharge was a materially
adverse employment action. And before he was fired,
Burnell complained regularly—almost habitually—about
instances of real and perceived racial discrimination,
including being sprayed with a hose; segregation in
10 No. 10-3490
training assignments; discrimination in application of
the Operator A test; being passed over for a job; Payne’s
rumored desire not to work with black people; and lack
of training from Payne. These complaints are protected
activity under 42 U.S.C. § 2000e-3(a). See Loudermilk v.
Best Pallet Co., 636 F.3d 312, 314-15 (7th Cir. 2011). To
survive summary judgment, then, Burnell needed only
to provide enough evidence to allow a jury to conclude
Gates fired Burnell because of his statutorily protected
complaints. See Silverman, 637 F.3d at 741.
The strongest evidence of causation is Burnell’s deposi-
tion testimony that, during the December 19 interview,
“[Totonchian] at one point said I guess I am playing the
race card . . . I am the saddest employee he has ever
seen. Just do the damn job. This is the last straw.” Gates
Rubber calls this part of Burnell’s deposition testimony
ambiguous. But at the summary judgment stage, we
must resolve any ambiguity in Burnell’s favor, and we
do not think it a stretch to read Burnell’s testimony as
reporting that Totonchian had accused him of “playing
the race card.” By the end of the interview in which
Totonchian allegedly made the “race card” comment,
Totonchian had decided he wanted Burnell fired. Given
Burnell’s prior complaints of racial discrimination,
Totonchian’s statement is evidence that those com-
plaints caused Burnell’s discharge.
In response to Burnell’s evidence of causation, Gates
Rubber emphasizes that Burnell made no complaint of
racial discrimination in the days leading up to his dis-
charge on December 20, 2006. It is true that Burnell
No. 10-3490 11
denies bringing up race during his December 19 inter-
view with Totonchian and Krause. But Burnell had com-
plained to Totonchian about race discrimination in the
past; he had complained to management about race
discrimination as recently as early 2006; and Totonchian’s
“race card” comment suggests he may have believed
Burnell’s complaint about being written up was racially
based. “[T]emporal proximity is only evidence of causa-
tion, not a separate element of the prima facie case, and
thus there will be cases in which a plaintiff can demon-
strate causation despite a substantial time lag.” Lalvani
v. Cook County., Ill., 269 F.3d 785, 791 (7th Cir. 2001).
Burnell certainly hasn’t proven causation by a preponder-
ance of the evidence, but his history of complaints
and Totonchian’s “race card” statement are enough to
allow Burnell to survive summary judgment on his re-
taliation claim.
III. C ONCLUSION
Burnell has not pointed to any evidence that would
allow a jury to conclude he was fired because of his
race, but he has pointed to evidence that would allow a
jury to conclude he was fired in retaliation for com-
plaining about racial discrimination. Accordingly, we
A FFIRM the district court’s grant of summary judgment
as to counts I and IV, but R EVERSE the grant of sum-
mary judgment as to count III and R EMAND for further
proceedings.
7-27-11