Tomanovich, George v. City of Indianapolis

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 05-1653

GEORGE TOMANOVICH,

Plaintiff-Appellant,

v.

CITY OF INDIANAPOLIS and INDIANA DEPARTMENT

OF TRANSPORTATION,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 02 C 1446—Richard L. Young, Judge.

____________

ARGUED APRIL 12, 2006—DECIDED AUGUST 8, 2006

____________

Before POSNER, RIPPLE, and MANION, Circuit Judges.

MANION, Circuit Judge. George Tomanovich sued the City

of Indianapolis and the Indiana Department of Transporta-

tion, alleging that they retaliated against him for engaging

in protected activity in violation of Title VII. Tomanovich

also alleged that the City blacklisted him in violation of

Indiana Code 22-5-3-1. The district court granted the

defendants summary judgment. Tomanovich appeals. We

affirm.

2 No. 05-1653

I.

George Tomanovich first began working for the City of

Indianapolis (“the City”) in 1976. He left the City’s employ

in the 1990’s, but was rehired in March 2000 as the Natural

Resources Manager for the City’s Department of Parks and

Recreation. In July 2000, Tomanovich transferred to the

City’s Department of Asset Management, where he worked

as a Senior Project Engineer. Tomanovich again changed

jobs in July 2001, when he joined the City’s Department of

Public Works (“DPW”) Engineering Division as an Admin-

istrator of Construction Services.

In early 2002, Mona Salem became the Deputy Director of

the DPW and Tomanovich’s direct supervisor. A few

months after Salem took over as Tomanovich’s boss, he filed

an internal complaint against Salem because he believed

there was inequity between his salary and the salaries of

five other individuals in his section. The City denied the

grievance. Tomanovich then filed a second grievance

against Salem for harassment. The City also denied this

grievance.

On June 3, 2002, Salem issued Tomanovich a written

notice of unacceptable performance. In this notice, Salem

identified four areas of deficiency, specifically

Tomanovich’s (1) failure to perform his duties in a satis-

factory manner, including untimely completion of his

duties, canceling certain meetings, and failing to obtain pre-

approval for actions he had taken; (2) failure to conform to

established work standards or supervisory orders by not

submitting weekly reports; (3) failure to show courtesy and

respect to his supervisor and other DPW employees; and (4)

failure to exercise good judgment as a manager. Based on

these deficiencies, Salem placed Tomanovich on a Perfor-

mance Improvement Plan.

No. 05-1653 3

A little over a month later, on July 10, 2002, Tomanovich

filed his first charge of discrimination with the Equal

Employment Opportunity Commission (“EEOC”). In that

charge, Tomanovich alleged that the City was retaliating

against him for engaging in protected activity. On August

23, 2002, Salem issued an Updated Notice of Unacceptable

Performance to Tomanovich. This notice noted some

areas of improvement, but also identified five areas for

improvement in his management skills. The notice also

warned him that “failure to sustain the expected level of

performance may result in termination without additional

notice.”

While still working for the City, Tomanovich filed suit

under Title VII against the City, Salem, and three other

employees on September 18, 2002. Tomanovich later failed

to attend a November 4, 2002, meeting with Salem at

which Salem was to review his performance. Then, on

November 12, 2002, the City fired Tomanovich. Tomanovich

responded by filing a second charge of discrimination with

the EEOC alleging that after he filed his first charge of

discrimination, Salem “began intensifying her scrutiny of

my work.” He further claimed that the City retaliated

against him by refusing to consider him for other positions

within City government.

On February 4, 2003, Tomanovich applied for the position

of Construction Engineer Trainee with the State of Indiana

Department of Transportation (“INDOT”). To apply for the

position, Tomanovich had to complete a written application

which, among other things, required him to authorize

INDOT to contact his former employers. For work experi-

ence, Tomanovich listed, among other jobs, his most recent

employment as Administrator of Construction Services with

the City. He stated that the reason for leaving that position

4 No. 05-1653

was “separation of employment.” The “Work Experience”

section of the Application noted that “[e]xperience that

cannot be confirmed is not acceptable.”

At the time that Tomanovich applied for the Construction

Engineer Trainee position he was also a candidate for

Indianapolis City Council. Not knowing of his candidacy,

on March 13, 2003, Stephen Risch of INDOT’s Greenfield

District Office offered Tomanovich the job of Construction

Engineer Trainee. Once the candidacy was discovered,

however, INDOT’s Chief Legal Counsel Kelly Whiteman

concluded that Indiana law prohibited an INDOT employee

holding an engineering position from running for elected

office. As a consequence, on March 19, 2003, Whiteman

rescinded INDOT’s offer to Tomanovich by letter, informing

him of the statutory prohibition against INDOT engineers

running for elected office.

In response, Tomanovich withdrew his candidacy for City

Council and, on March 20, 2003, he faxed a copy of his

formal withdrawal to Whiteman. The next day INDOT

contacted the City to verify Tomanovich’s employment

history. INDOT’S Human Resources Division Chief, Jane

Trout, contacted Barbara Lawrence, whom Tomanovich had

listed as his Supervisor at the City, but Lawrence indicated

that she could not answer any of Trout’s questions about

Tomanovich due to pending litigation. Trout then contacted

the City’s Human Resources Division, but the City refused

to provide any information as to Tomanovich’s prior

employment, other than his dates of employment.

Around this same time, Vaneetta Kumar, a deputy

commissioner with INDOT, asked Trout whether INDOT

was “hiring someone by the name of Tomanovich.” Trout

answered in the affirmative and Kumar, who had previ-

ously worked for the City, then responded that “there

No. 05-1653 5

were some issues with that.” Trout then sent an email to

Risch telling him not to make an offer to Tomanovich,

stating “[t]here’s problems.” A couple of days later, Trout

told Risch “[w]e are not going to hire Mr. Tomanovich.”

On March 24, 2003, Tomanovich called Risch and Risch

told him his employment with INDOT was still “on hold.”

After additional attempts to obtain information on

Tomanovich’s employment with the City failed, on May 15,

2003, Whiteman sent Tomanovich a letter stating that

INDOT “performed a routine check of your employment

history. Your previous employer, the City of Indianapolis,

refused to provide any information other than your dates of

employment. Because we are unable to verify any informa-

tion regarding your job performance, we have decided that

no further offers will be forthcoming.”

Tomanovich responded by amending his discrimination

complaint. In his amended complaint, in addition to his

retaliation claim against the City, Tomanovich added a

claim against INDOT for retaliation. Tomanovich also

added a claim against the City, alleging that Indianapolis

blacklisted him in violation of Indiana Code 22-5-3-1.1 The

City and INDOT moved for summary judgment. The

district court granted their motions. Tomanovich appeals.

1

Tomanovich also alleged Salem (who is a Muslim from Egypt),

acting on behalf of the City, discriminated against him on the

basis of his ethnicity (he is Serbian) and on the basis of his age.

Before the district court, however, Tomanovich conceded that the

City was entitled to summary judgment on those claims, and

those claims are not before this court on appeal.

6 No. 05-1653

II.

On appeal, Tomanovich argues that the district court

erred in granting the defendants summary judgment on his

retaliation claims. We review a district court’s grant of

summary judgment de novo, viewing all of the facts and

drawing all reasonable inferences in favor of the nonmoving

party. Lim v. Trs. of Ind. Univ., 297 F.3d 575, 580 (7th Cir.

2002). Summary judgment is appropriate if there are no

genuine issues of material fact and the moving party is

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

Title VII makes it unlawful “for an employer to discrimi-

nate against any of his employees or applicants for employ-

ment . . . because he has opposed any practice made an

unlawful employment practice by [Title VII].” 42 U.S.C.

§ 2000e-3(a). This type of discrimination is commonly called

“retaliation.” “A plaintiff may prove retaliation by using

either the direct method or the indirect, burden-shifting

method.” Moser v. Ind. Dept. of Corr., 406 F.3d 895, 903 (7th

Cir. 2005). Under the direct method, a plaintiff must show

that “(1) he engaged in statutorily protected activity; (2) he

suffered an adverse action taken by the employer; and (3)

[there was] a causal connection between the two.” Id. To

prove retaliation under the “indirect method, the plaintiff

must establish a prima facie case of retaliation by showing

that: (1) [ ]he engaged in a statutorily protected activity; (2)

[ ]he met the employer’s legitimate expectations; (3) [ ]he

suffered an adverse employment action; and (4) [ ]he was

treated less favorably than similarly situated employees

who did not engage in statutorily protected activity.” Id. “If

the plaintiff establishes a prima facie case, the burden of

production shifts to the employer to present evidence of a

non-discriminatory reason for its employment action.”

Adusumilli v. City of Chicago, 164 F.3d 353, 362 (7th Cir.

No. 05-1653 7

1998). “If the employer meets its burden, the burden shifts

back to the plaintiff to demonstrate that the employer’s

reason is pretextual.” Moser, 406 F.3d at 904. Tomanovich

asserts on appeal that he presented sufficient evidence to

avoid summary judgment under both the direct and indirect

methods. We consider each defendant and each method

of proof in turn.

A. The City

1. The Direct Method

Tomanovich argues on appeal that he presented sufficient

evidence under the direct method that the City retaliated

against him so as to avoid summary judgment. As noted,

under the direct method, Tomanovich must prove that he

(1) engaged in a statutorily protected activity; (2) suffered

an adverse employment action; and (3) that a causal connec-

tion exists between the two. Id. at 903.

As to the first element, Tomanovich points to the three

charges of discrimination he filed with the EEOC, noting

“[o]bviously, the filing of a charge of discrimination satisfies

the first element . . . .” Of course, he is right. See Ajayi v.

Aramark Bus. Serv., Inc., 336 F.3d 520, 533 (7th Cir. 2003)

(holding that there is “no dispute that [the plaintiff] satisfied

the first element by filing her EEOC charge”). Therefore,

Tomanovich presented sufficient evidence to satisfy the first

prong of the direct method.

However, in his brief, in arguing that he presented

sufficient direct evidence of retaliation, Tomanovich also

focused on the internal grievance he filed with the City on

March 26, 2002, claiming “discriminatory treatment with

respect to his pay,” and a “second grievance regarding

sexual harassment” on April 25, 2002. Although filing an

8 No. 05-1653

official complaint with an employer may constitute statuto-

rily protected activity under Title VII, the complaint must

indicate the discrimination occurred because of sex, race,

national origin, or some other protected class. See Gleason v.

Mesirow Fin., Inc., 118 F.3d 1134, 1147 (7th Cir. 1997). Merely

complaining in general terms of discrimination or harass-

ment, without indicating a connection to a protected class or

providing facts sufficient to create that inference, is insuffi-

cient. Id. (holding that the plaintiff’s general complaint

about management style without raising the subject of

sexual harassment fails to constitute protected activity);

Sitar v. Indiana Dept. of Transp., 344 F.3d 720, 727 (7th Cir.

2003) (affirming the district court’s grant of summary

judgment to the employer on the plaintiff’s retaliation claim

because the plaintiff’s complaint to his employer “did not

invoke any action protected by Title VII”); Miller v. Am. Fam.

Mut. Ins., 203 F.3d 997, 1008 (7th Cir. 2000) (holding that the

plaintiff did not engage in a protected activity where “[h]er

complaints instead concerned a general displeasure with

being paid less than her co-workers given her longer tenure

and the fact that she had trained some of them . . .” and not

discrimination related to a protected class).

In this case, in complaining about pay discrimination,

Tomanovich did not claim that the discrimination resulted

from his national original or his membership in another

protected class. In fact, in his deposition, Tomanovich stated

that he did not believe his salary was tied to his national

origin or his relationship with Salem. Additionally, while in

his brief Tomanovich claims he complained about “sexual

harassment,” the record reference Tomanovich cites does

not support his characterization of this grievance as a

complaint about sexual harassment. Rather, Tomanovich

cites to a single page in his deposition, wherein he stated

that he spoke with the City regarding “issues of harass-

No. 05-1653 9

ment.” Tomanovich fails to point to any evidence that in

complaining to the City he indicated the alleged harassment

was based upon his sex or was sexual harassment. Accord-

ingly, neither the March 26, 2002, nor the April 25, 2002,

grievance constitutes “protected activities” for purposes of

Title VII’s anti-retaliation provisions. See, e.g., Gleason, 118

F.3d at 1147; Sitar, 344 F.3d at 727; Miller, 203 F.3d at 1008.

As to the second element, Tomanovich points to numer-

ous events that he claims constitute adverse actions, includ-

ing his placement on a Performance Improvement Plan on

June 3, 2002; his updated notice of unacceptable perfor-

mance on August 23, 2002; his firing on November 12, 2002;

the City’s subsequent refusal to rehire Tomanovich; and the

City’s refusal to provide INDOT with details of his perfor-

mance record with the City.

Tomanovich, however, did not file his first charge of

discrimination with the EEOC until July 10, 2002, and, thus,

the City’s prior decision to place Tomanovich on a perfor-

mance plan on June 3, 2002, could not have been retaliatory

for the later EEOC filings.2 (And as noted, the internal

complaints failed to constitute “protected activities.”) On

August 23, 2003, several weeks after Tomanovich filed this

first charge with the EEOC, Salem issued to Tomanovich an

Updated Notice of Unacceptable Performance. It is ques-

2

In his brief, Tomanovich claims that Salem wanted to terminate

him in June 2002, and that around that time Salem directed that

Tomanovich’s office telephone and office computer network be

disconnected. Tomanovich then claims that on June 3, 2002, he

felt he “had already been terminated.” However, if Tomanovich

was, in fact, terminated on June 3, 2002, that would be before he

filed his first EEOC claim, and thus his retaliation claim for his

discharge would fail.

10 No. 05-1653

tionable whether updating Tomanovich’s Notice of Unac-

ceptable Performance constituted “a materially adverse

action.” See Burlington Northern and Santa Fe Ry. Co. v. White,

126 S.Ct. 2405, 2415 (2006) (holding that to state a retaliation

claim, “a plaintiff must show that a reasonable employee

would have found the challenged action materially adverse,

which in this context means it well might have dissuaded a

reasonable worker from making or supporting a charge of

discrimination”) (internal quotations omitted). Firing

Tomanovich, however, clearly constituted a materially

adverse action, and the City fired Tomanovich on Novem-

ber 12, 2002, which was after Tomanovich filed his com-

plaint with the EEOC on July 10, 2002, and filed suit on

September 18, 2002. The question then is whether

Tomanovich satisfied the third prong under the direct

method, namely, whether Tomanovich presented direct or

circumstantial evidence that a causal connection exists

between his filing of the complaint and his later termina-

tion. Moser, 406 F.3d at 903.

Tomanovich claims that the timing of his firing constitutes

circumstantial evidence to establish the requisite causal

connection, pointing to the proximity between his filing a

complaint with the EEOC on July 10, 2002, and filing a

lawsuit against the City under Title VII, on September 18,

2002, and his termination on November 12, 2002. However,

“suspicious timing alone rarely is sufficient to create a

triable issue.” Moser, 406 F.3d at 905. Moreover, while

“[t]here is no bright-line rule as to the amount of evidence

necessary to survive summary judgment under the direct

method, . . . it is clear that mere temporal proximity is not

enough to establish a genuine issue of material fact.”

Wyninger v. New Venture Gear, Inc., 361 F.3d 965, 981 (7th

Cir. 2004).

No. 05-1653 11

Here, more than four months elapsed between the time

that Tomanovich filed his complaint with the EEOC and his

firing. This court has held a temporal connection of

four months failed to establish a causal connection between

a protected activity and an adverse action. See, e.g.,

Longstreet v. Ill. Dep’t. of Corr., 276 F.3d 379, 384 (7th Cir.

2002) (holding that even had plaintiff shown an adverse

action, a four-month proximity was insufficient to establish

a causal connection); see also Sauzek v. Exxon Coal USA, Inc.,

202 F.3d 913, 919 (7th Cir. 2000) (holding that a three-month

gap alone could not reasonably support a causal connection

for a retaliation claim). Although only two months expired

between Tomanovich’s lawsuit and his firing, in this case

the City had placed Tomanovich on a performance plan in

June, noting several performance problems. While the City

updated Tomanovich’s performance problems in August,

which is after he filed his first complaint with the EEOC,

there is nothing suspicious about this timing. Before

Tomanovich filed his complaint with the EEOC, the City

informed Tomanovich that it would update the Notice,

indicating areas of notable improvement as well as areas

which still required attention. Under these circumstances,

this is not the rare case in which temporal proximity,

without more, established a causal connection. See Moser,

406 F.3d at 905 (explaining that “numerous incidents

brought [employee’s] professionalism and ability . . . into

question” and thereby undermined any inference of suspi-

cious timing); Juarez v. Ameritech Mobile Commc’n, Inc., 957

F.2d 317, 321-22 (7th Cir. 1992) (holding that the “timing of

the complaints, standing alone, d[id] not create a genuine

issue as to a causal connection” when plaintiff “presents no

evidence to suggest that [those] who complained of her

deficient performance were lying or that their motives in

12 No. 05-1653

making those complaints were improper”).3

Tomanovich also claims that the City retaliated against

him by refusing to re-hire him and then by failing to

provide INDOT with details concerning his employment

at the City, thus preventing him from obtaining a job

with INDOT. Again, Tomanovich relies solely on the timing

as evidence of a causal connection. In addition to the July

10, 2002, complaint, Tomanovich filed two additional

discrimination charges with the EEOC on January 22, 2003,

and April 11, 2003. Tomanovich does not specify the date on

which he attempted to obtain another position with the City,

but it was towards the end of March 2003 when the City

refused to provide information on Tomanovich’s perfor-

mance to INDOT. This timing alone, however, is insufficient

to create a factual issue under the direct method. See, e.g.,

Moser, 406 F.3d at 905; Wyninger, 361 F.3d at 981. Moreover,

where pending litigation indicates that an employee

disputes the reason his employer gives for firing him, an

employer acts prudently, and not retaliatorily, in limiting

the information provided to inquiring employers to objec-

tive facts, such as the dates of employment, the job title, etc.

3

Moreover, even if the internal complaints Tomanovich filed on

March 26, 2002, and April 25, 2002, constituted “protected

activities,” Tomanovich still failed to establish a causal connec-

tion between those complaints and his firing in November, 2002.

See Adusumilli, 164 F.3d at 363-64 (holding that plaintiff failed

to establish causal connection where plaintiff complained about

co-worker’s sexual harassment in January, plaintiff was placed in

the Behavior Alert program in March and terminated in Septem-

ber, because the sequence of events did not raise the inference of

a causal connection, and the plaintiff failed to show that she was

fired in retaliation for her complaint rather than for her inability

to do her job well).

No. 05-1653 13

Cf. Dranchak v. Akzo Nobel Inc., 88 F.3d 457, 460-61 (7th Cir.

1996) (rejecting plaintiff’s retaliation claim, noting that an

employer did not have an obligation to provide glowing

recommendation of former employee).

2. The Indirect Method

Alternatively, Tomanovich asserts that he presented

sufficient evidence of retaliation under the indirect method.

As noted above, to prove retaliation under the “indirect

method, the plaintiff must establish a prima facie case of

retaliation by showing that: (1) [ ]he engaged in a statutorily

protected activity; (2) [ ]he met the employer’s legitimate

expectations; (3) [ ]he suffered an adverse employment

action; and (4) [ ]he was treated less favorably than similarly

situated employees who did not engage in statutorily

protected activity.” Moser, 406 F.3d at 903.

The district court concluded that Tomanovich failed to

establish a prima facie case of discrimination under the

indirect method because he did not show that he was

treated less favorably than others who had not engaged in

statutorily protected activity. On appeal, the City argues

that Tomanovich also failed to establish a prima facie case of

retaliation because Tomanovich was not meeting the City’s

legitimate expectations. The evidence supports both conclu-

sions. First, the City presented evidence that Tomanovich

did not meet its legitimate expectations in several respects,

including through his insubordinate conduct. For instance,

the City points out that Tomanovich was insubordinate by

refusing to stay for the entire meeting Salem held on June 3,

2002, to review his performance. Tomanovich does not claim

otherwise. Tomanovich also admits that he refused to attend

a November 4, 2002, meeting with Salem to review his

14 No. 05-1653

performance. Tomanovich claims he decided it was best not

to attend the meeting so as to avoid a confrontation. That,

however, was not Tomanovich’s decision to make, and his

admission to the conduct at issue prevents him from

establishing that he was meeting the City’s legitimate

expectations. See, e.g., Hague v. Thompson Distrib. Co., 436

F.3d 816, 824 (7th Cir. 2006) (holding that the defendant is

entitled to summary judgment because the plaintiff admit-

ted the conduct which the employer proffered as its reason

for terminating the plaintiff).

To establish a prima facie case of retaliation, Tomanovich

also needed to present evidence that a similarly situated

employee who had not engaged in statutorily protected

activity was treated more favorably. Moser, 406 F.3d at 903.

On appeal, Tomanovich points to Mario Mazza, who

worked for the City’s DPW engineering division and

who was terminated in October 2001, only to be re-hired

two months later. Conversely, Tomanovich claims that

when he sought to reapply with the City, the City refused to

consider his application because it had a policy of not re-

hiring a terminated employee within a year of the termina-

tion. Tomanovich argues that because Mazza did not file

a charge of discrimination and was rehired, that shows

that a similarly situated individual was treated differently.

There are two problems with Tomanovich’s argument. First,

he did not point to any evidence on appeal concerning the

other positions for which he attempted to apply, and thus,

he cannot show that he was qualified for those positions. See

Hasan v. U.S. Dep’t. of Labor, 400 F.3d 1001, 1004 (7th Cir.

2005) (explaining that the plaintiff’s burden “is to show that

after filing the charge that he claims provoked the retalia-

tion, only he, and not any similarly situated job applicant

who did not file a charge, was not hired even though he was

qualified for the job for which he was applying”) (emphasis

No. 05-1653 15

added); Volovsek v. Wis. Dep’t. of Agr., Trade & Consumer

Prot., 344 F.3d 680, 692 (7th Cir. 2003) (noting that the

indirect method of proving retaliation requires, among other

things, the plaintiff to establish that she was qualified for

the position). Second, Tomanovich did not present evidence

establishing that Mazza had engaged in similar misconduct,

or that he was fired by the same individual, or that the

individual or department that refused to rehire Tomanovich

had rehired Mazza.4 See Snipes v. Illinois Dept. of Corr., 291

F.3d 460, 463 (7th Cir. 2002) (explaining that the prima facie

case requires a plaintiff to “show that he is similarly situated

with respect to performance, qualifications and conduct, . . .

and had engaged in similar conduct without such differenti-

ating or mitigating circumstances as would distinguish their

conduct or the employer’s treatment of them”) (internal

quotation omitted). Accordingly, Tomanovich did not

present sufficient evidence that Mazza was similarly

situated. Tomanovich also did not point to any other

employee (much less a similarly situated employee) who

was put on a performance plan or a revised performance

plan, was terminated, or was refused a reference for another

job. As a result, Tomanovich did not present a prima facie

case of retaliation under the indirect method for any of these

claimed materially adverse actions.

4

The evidence instead showed that Mazza was fired in October

2001 and subsequently rehired by the DPW operations division

on December 31, 2001. Salem, however, did not become the

Deputy Director of the DPW Engineering Division until early

2002, and therefore from the record it does not appear that Salem

fired Mazza and then rehired him. See Timms v. Franks, 953 F.2d

281, 287 (7th Cir. 1992) (holding that a similarly situated em-

ployee must have been disciplined by the same decisionmaker

who imposed an adverse employment action on the plaintiff).

16 No. 05-1653

3. State Blacklisting Claim

Tomanovich also sued the City for blacklisting under

Indiana Code 22-5-3-1, which provides:

(a) A person who, after having discharged any em-

ployee from his service, prevents the discharged em-

ployee from obtaining employment with any other

person commits a Class C infraction and is liable in

penal damages to the discharged employee to be

recovered by civil action; but this subsection does not

prohibit a person from informing, in writing, any

other person to whom the discharged employee has

applied for employment a truthful statement of the

reasons for the discharge.

(b) An employer that discloses information about a

current or former employee is immune from civil

liability for the disclosure and the consequences proxi-

mately caused by the disclosure, unless it is proven by

a preponderance of the evidence that the information

disclosed was known to be false at the time the disclo-

sure was made.

Ind. Code 22-5-3-1(a)(b).

The district court granted the City summary judgment on

this supplemental state law claim, concluding that

Tomanovich failed to present any admissible evidence that

the City had provided INDOT with false information. On

appeal, Tomanovich does not claim that the City pro-

vided INDOT with false information; instead he merely

incorporates the arguments he made for reversal of his Title

VII retaliation claim. However, without evidence that the

City provided INDOT with false information, the City was

entitled to summary judgment on Tomanovich’s blacklisting

claim.

No. 05-1653 17

B. INDOT

Tomanovich also sued INDOT for retaliation, claiming

that INDOT refused to hire him in retaliation for filing

EEOC charges against his former employer, the City. As

with his claim against the City, Tomanovich attempts to

establish his retaliation claim against INDOT under both the

direct and indirect methods.

1. Direct Method

Tomanovich argues that he presented sufficient evidence

to avoid summary judgment on his retaliation claim under

the direct method because he established a causal connec-

tion between his Title VII complaint and INDOT’s refusal to

hire him. As proof, Tomanovich points to the state-

ments made by Lawrence (who worked for the City) that the

City could not answer any of INDOT’s questions beyond

Tomanovich’s dates of employment, due to pending

litigation. Lawrence, however, never indicated that the

pending litigation involved Title VII, and Title VII only

prohibits retaliation for opposing a practice made unlawful

under Title VII. 42 U.S.C. § 2000e-3(a). Tomanovich also

argues that statements made by Kumar (the Deputy Com-

missioner with INDOT) to INDOT’s Human Resources

Division Chief, Trout, that there were “some issues” with

INDOT hiring Tomanovich constitutes direct evidence of

retaliation. There is no evidence, however, that “some

issues” meant that Tomanovich had filed a charge of

discrimination against the City. Tomanovich failed to

present any evidence showing that INDOT knew that he

had filed a complaint under Title VII. “It is not sufficient

that [an employer] could or even should have known about

[an employee’s] complaint; [the employer] must have had

18 No. 05-1653

actual knowledge of the complaints for [its] decisions to be

retaliatory.” Luckie v. Ameritech Corp., 389 F.3d 708, 715 (7th

Cir. 2004). Because these statements do not indicate that

INDOT knew of Tomanovich’s Title VII complaints,

Tomanovich cannot succeed on his retaliation claim against

INDOT under the direct method.

2. Indirect Method

Tomanovich also argues that he presented sufficient

evidence under the indirect method. Again, to establish a

prima facie case of retaliation under the indirect method,

Tomanovich must show that he: (1) engaged in a statutorily

protected activity; (2) met the employer’s legitimate expecta-

tions; (3) suffered a materially adverse action; and (4) was

treated less favorably than similarly situated employees

who did not engage in statutorily protected activity. Moser,

406 F.3d at 903. However, proof of retaliation under the

indirect method presupposes that the decision-maker knew

that the plaintiff engaged in a statutorily protected activity,

because if an employer did not know the plaintiff made any

complaints, it “cannot be trying to penalize him for making

them.” Shafer v. Kal Kan Foods, Inc., 417 F.3d 663, 664 (7th

Cir. 2005). See Durkin v. City of Chicago, 341 F.3d 606, 614 n.4

(7th Cir. 2003) (noting that an employer’s knowledge of the

protected activity is implicit in the first element of the

indirect method). Because, as noted, there is no evidence

that INDOT knew that Tomanovich had filed Title VII

complaints against the City, Tomanovich also cannot

proceed under the indirect method.

Moreover, even had Tomanovich presented evidence that

INDOT knew of his EEOC complaint, he nonetheless failed

to establish a prima facie case. Specifically, Tomanovich did

No. 05-1653 19

not establish that a similarly situated employee who did not

engage in statutorily protected activity was treated more

favorably. Tomanovich argues otherwise, pointing to a

statement by INDOT’s Legal Counsel, Kelly Whiteman, that

she had never encountered problems gaining information

from an applicant’s previous employer. This evidence,

however, does not show that INDOT treated Tomanovich

differently than applicants who had not filed a charge of

discrimination. Rather, this evidence shows that INDOT

made several attempts to verify Tomanovich’s employment

record. Tomanovich also argues that Risch’s testimony that,

in thirty years of working for INDOT, he had never been

required to withdraw an offer of employment, shows that he

was treated less favorably than similarly situated employ-

ees. This testimony, however, does not establish that the

other applicants were similarly situated. Moreover, in this

case, INDOT presented evidence that it withdrew its offer to

Tomanovich because it only learned after having made the

offer that Tomanovich was a candidate for City Council and

under Indiana law could not be hired as an engineer.

Tomanovich did not identify any other applicant who

was barred by Indiana law from holding a position, but was

nonetheless hired. Tomanovich also failed to present

evidence of other applicants who were hired by INDOT

even though INDOT could not confirm details of their

prior employment. Therefore, Tomanovich did not show

that INDOT treated a similarly situated applicant, who had

not engaged in protected activity, more favorably.

Furthermore, even if Tomanovich had established a prima

facie case, INDOT presented evidence of legitimate non-

discriminatory reasons for withdrawing its job offer and not

hiring Tomanovich. Specifically, INDOT presented evidence

that it withdrew its employment offer only after learning

that Tomanovich was a candidate for public office and

20 No. 05-1653

barred by state law from working as an engineer. INDOT

further presented evidence that after Tomanovich withdrew

his candidacy for city council, it did not hire him because it

was unable to confirm details about his job performance in

his previous position. Tomanovich failed to present any

evidence that these proffered reasons were pretextual.

Accordingly, Tomanovich’s retaliation claim against INDOT

cannot succeed under the indirect method, and the district

court properly granted INDOT summary judgment.

III.

Although the City fired Tomanovich after he had filed a

complaint with the EEOC, Tomanovich failed to present

sufficient evidence under the direct method of a causal

connection between Tomanovich’s protected activities and

his firing, or the City’s subsequent refusal to provide

INDOT details on Tomanovich’s work history. Tomanovich

also failed to establish retaliation under the indirect method

because he failed to present evidence that he was meeting

the City’s legitimate business expectations or that someone

who was similarly situated, but who had not engaged in

protected activity, was treated more favorably. Addition-

ally, Tomanovich’s state law blacklisting claim against the

City fails because Tomanovich failed to present evidence

that the City provided INDOT with false information.

Finally, Tomanovich’s retaliation claim against INDOT fails

under both the direct and indirect methods, because, among

other reasons, Tomanovich failed to present sufficient

evidence that INDOT knew of Tomanovich’s protected

activities. Accordingly, the district court properly granted

the defendants summary judgment. For these and the

foregoing reasons, we AFFIRM.

No. 05-1653 21

A true Copy:

Teste:

_____________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—8-8-06