Brown, Jerry v. Il Dept. Natural

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 06-1552

JERRY BROWN,

Plaintiff-Appellant,

v.

ILLINOIS DEPARTMENT OF NATURAL RESOURCES,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 02 C 0398—John A. Nordberg, Judge.

____________

ARGUED JUNE 5, 2007—DECIDED AUGUST 27, 2007

____________

Before EASTERBROOK, Chief Judge, and MANION and

WOOD, Circuit Judges.

MANION, Circuit Judge. Jerry Brown sued the Illinois

Department of Natural Resources, alleging that it vio-

lated Title VII by discriminating against him because of

his race by declining to promote him to a higher payroll

level, and retaliating against him for filing a discrimina-

tion complaint. The district court granted summary judg-

ment in favor of the Department. Brown appeals, and

we affirm.

2 No. 06-1552

I.

Jerry Brown, who is black, is employed by the Illinois

Waste Management and Research Center (the “WMRC”) in

its Oak Brook, Illinois, office. The WMRC is one of four

subsections that comprise the Office of Scientific Re-

search and Analysis, which is a division of the Illinois

Department of Natural Resources (the “Department”). The

WMRC originally hired Brown in November 1994 as a

Manufacturing Process Engineer at the assistant profes-

sional scientist payroll level. Malcolm Boyle interviewed

Brown on behalf of the WMRC, and he recommended

that the WMRC hire Brown. Brown’s education includes

a bachelor of science degree in chemical engineering

from the University of Illinois and a master’s degree in

business administration from the University of Chicago.

Brown accepted the WMRC’s employment offer.

The WMRC is governed by an eight-member, governor-

appointed Board of Natural Resources and Conservation

(the “Board”), which is chaired by the director of the

Department. The Board has a policy for promotion to

higher payroll levels that states that promotion “will be

based upon performance from visible and demonstrable

evidence that the individual has attained, and/or has

the potential to attain, competence and qualifications to

function at the promotion level.” The Board allows each

of the subsections, including the WMRC, to determine

specific guidelines for promotion and procedures for

assessment. Prior to 2002, the WMRC’s policy manual

provided that to be eligible for promotion, an employee

must successfully complete a probationary review peri-

od and receive above-average performance evaluations

during the performance review period, with a minimum of

one year of experience at the WMRC. Beginning in 2002,

No. 06-1552 3

the WMRC changed its policy manual to state that the

above-average performance evaluations should be attained

“preferably for two to three consecutive years,” and that

the employee should meet the education, years of experi-

ence, and time-in-grade requirements of the WMRC’s

promotion-track system. The WMRC’s policy manual

further provides that in order for a promotion to occur,

there must be an available position, a supervisor must

recommend an employee for promotion, and the promo-

tion must be approved by the WMRC’s director, the

Department’s director, and the Board. Under the WMRC’s

promotion guidelines, an employee’s educational degree

determines the length of time the employee needs to

serve in a particular payroll level before being eligible

for promotion. For instance, under the WMRC’s guide-

lines, to be eligible for promotion from the assistant

professional scientist payroll level to the associate profes-

sional scientist payroll level, an employee with a bachelor’s

degree should have five years time-in-grade, while an

employee with a master’s degree should have four

years time-in-grade. The WMRC’s manager of human

resources testified, however, that the WMRC’s promotion

guidelines do not prohibit a supervisor from nominating

an employee who does not satisfy the time-in-grade

criteria.

Brown’s tenure with the WMRC was marked by mixed

performance reviews and criticism of the way in which he

interacted with coworkers and clients. Boyle, who was

Brown’s supervisor from May 1995 until April 2000,

prepared Brown’s performance evaluations during that

period. Brown’s May 1995 performance evaluation stated

that Brown’s performance was “good” overall, but Brown

needed to organize his work more efficiently, keep his

4 No. 06-1552

supervisor informed about his projects, and ask for help

and assistance when needed. Boyle’s April 1997 perfor-

mance evaluation of Brown stated that Brown had a good

attitude generally, but that he was “somewhat argumenta-

tive,” needed to work on punctuality, and needed to better

organize his workload. Brown’s April 1998 performance

evaluation described him as “defensive” and “insensitive

and abrasive when dealing with other WMRC staff.” That

evaluation also noted that while Brown was the leading

revenue generator for his office, he continued to have

problems arriving to work on time and meeting deadlines,

although his tardiness had improved.1 In September 1998,

Brown became eligible for promotion from the assistant

professional scientist payroll level to the associate profes-

sional scientist payroll level. Boyle testified that he did

not recommend Brown for promotion because he be-

lieved that Brown’s poor work performance, including

his tardiness, argumentative behavior, and late submis-

sion of reports and assignments, did not justify his promo-

tion.

In his April 1999 performance evaluation of Brown, Boyle

stated that, despite Brown’s efforts to the contrary, he

still had conflicts with coworkers, clients and partners,

that he had difficulty with his communication skills, and

that he required more supervision than his position

warranted. In his written comments and responses to that

evaluation, Brown stated that he believed he worked

well with his coworkers and clients, and that he had

good communication skills. The WMRC’s clients who

worked with Brown also complained about his work

1

While Brown regularly arrived late for work, he did work

late on the days that he did not arrive on time.

No. 06-1552 5

performance. One specific complaint occurred in July 1999,

when the WMRC received an e-mail from Warren Bu-

chanan of Chicago Manufacturing Center expressing

frustration over Brown’s refusal to provide project updates.

The e-mail also requested that the WMRC refrain from

assigning Brown to future Chicago Manufacturing Center

projects. While Brown contended that it was Buchanan

who failed to update his own employees about the project,

four other Chicago Manufacturing Center employees

complained to the WMRC about Brown’s work perfor-

mance and about Brown’s failure to keep them informed

about projects. Despite Brown’s eligibility, Boyle did not

recommend him for promotion in 1999, again based on his

continued performance deficiencies.

Brown filed an internal grievance against the WMRC in

February 2000, alleging that Boyle and Timothy Lindsey,

the manager of the Department’s pollution prevention pro-

gram, discriminated against him by not recommending

him for promotion. One month later, the WMRC’s director,

George Vander Velde, responded to Brown’s grievance by

stating that the WMRC’s investigation did not yield any

evidence of discrimination. Brown’s April 2000 evaluation,

which Boyle conducted, contained more comments regard-

ing his poor communication skills and argumentative

behavior that hindered his work performance. In response,

Brown submitted written comments and responses disput-

ing that assessment. Three months later, in July 2000,

William Kern of Saporito Plating informed Lindsey that

Brown was not welcome at the Saporito plant because he

questioned Brown’s technical credibility and because

Brown argued with him. Boyle again did not recommend

Brown for promotion because he believed that Brown’s

performance issues had not improved.

6 No. 06-1552

Effective September 2000, the WMRC placed Brown on

probation for receiving an “I” grade on his last evaluation,

indicating that his performance need significant improve-

ment.2 At that same time, the WMRC also placed two

other employees on probation, both of whom are white

males. Brown passed his probationary period in March

2001. One of the white employees, however, initially

passed his probationary period, but the WMRC later

terminated his employment for poor work performance.

On October 24, 2000, after being placed on probation,

Brown filed his first charge with the Equal Employment

Opportunity Commission (“EEOC”) and the Illinois

Department of Human Rights (“IDHR”), alleging race

discrimination and retaliation.3 Three months later, on

January 30, 2001, Brown amended his EEOC and IDHR

charge to include an allegation that the WMRC denied him

a salary increase because of his probationary status.

Beginning in April 2001, Lindsey performed Brown’s

performance evaluations. Brown’s April 2001 performance

2

The WMRC had implemented its new probation system

approximately six months earlier, which stated that employees

who receive grades no higher than “I” on their performance

evaluations were to be placed on probation. Boyle gave

Brown an “I” grade on his April 2000 review, but Boyle testified

that he was unaware that the “I” grade would trigger probation.

3

In his October 24, 2000, EEOC charge, Brown falsely stated

that “[d]uring my employment my performance was always

rated as meeting or exceeding expectations,” which is directly

contradicted by Brown’s April 2000 performance evaluation,

as well as his performance evaluation for earlier years. He

repeated the same false statement in his January 30, 2001,

EEOC charge.

No. 06-1552 7

evaluation noted that his communication skills were

improving, but they still needed improvement, along with

his punctuality and need for excessive supervision. It

further stated that Brown needed to work on his attitude

towards supervision and that “he questions assignments

excessively and is argumentative when receiving direc-

tion.” Two months later, in June 2001, the WMRC received

another letter of complaint about Brown, this time from

Stephen Rundell, the president of Solvent Systems Inter-

national, Inc. Rundell’s letter stated that Brown had taken

an adversarial attitude toward him and that he was

unhappy with the manner in which Brown handled the

project at Solvent Systems, both in terms of performance

and professional conduct. Also, two other clients, James

Kiriases of Commonwealth Edison and Nora Saldevar of

Lawndale Association, complained to the WMRC about

Brown’s work performance.

In addition to the complaint letters from clients, Brown

received five compliments from customers and manage-

ment between 1997 and 2002. These included a 1997 letter

from Scully Jones thanking Brown and others for a “job

well done,” and 1998 letter from Argonne National Lab

thanking Brown for participating in an Earth Day forum.

Additionally, in February 2000, Lindsey sent an e-mail to

Brown stating that Brown had a good idea on a particular

project, and in February 2002 Lindsey sent Brown an e-mail

stating that a particular proposal looked good.

In October 2001, the EEOC issued to Brown a notice of

right to sue authorizing him to bring suit in federal court

under Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e, et seq. On January 17, 2002, Brown filed suit

against Illinois, the Department, and the WMRC, as well as

8 No. 06-1552

Boyle and Lindsey individually,4 alleging race discrim-

ination and retaliation. While Brown’s lawsuit was pend-

ing, Raymond Ronda, the Oak Brook office’s then-opera-

tions manager, performed Brown’s April 2002 evaluation.

Ronda stated that Brown had begun arriving to work on

time, and that while his communication skills were im-

proving, he needed “to improve upon communication

with his supervisor when tasks fall behind schedule.” In

July 2002, Brown filed another EEOC and IDHR charge,

alleging race discrimination and retaliation in violation

of Title VII based on the WMRC’s September 2001 deci-

sion to promote Ronda, who is white, to operations man-

ager instead of Brown. On August 9, 2002, the EEOC issued

to Brown a notice of right to sue on his second charge,

and Brown amended his complaint to include those

allegations.

The defendants moved for summary judgment, and the

district court granted their motion. Regarding Brown’s race

discrimination claim, the district court held that Brown

failed to establish a prima facie case of discrimination

because he did not identify any similarly situated individu-

als of a different race whom the WMRC treated more

favorably. The district court also held that there was no

evidence that the WMRC’s failure to promote Brown was

4

In his second amended complaint, Brown withdrew his

claims against the individual defendants, and Brown’s appeal

only named as defendants-appellees the State of Illinois and

the Illinois Department of Natural Resources. At oral argu-

ment, however, counsel for Brown conceded that there had

never been any basis for suing the State of Illinois. Accordingly,

we removed the State of Illinois as a defendant-appellee in this

appeal.

No. 06-1552 9

a pretext for race discrimination, because the WMRC’s

consistent explanation for its decision was supported by

both the WMRC’s evaluations of Brown’s work perfor-

mance and outside complaints corroborating the nega-

tive comments in those evaluations. The district court

also rejected Brown’s retaliation claim, finding that, in

the absence of any additional direct evidence, a general

temporal proximity between his discrimination com-

plaints and the WMRC’s decision not to recommend him

for promotion was insufficient to create a genuine issue of

material fact. The district court found it unnecessary to

decide whether some of Brown’s claims were time-barred

for failing to file an EEOC charge within 300 days of the

complained-of actions. Brown appeals.

II.

On appeal, Brown argues that the district court erred

in granting summary judgment to the Department on his

race discrimination and retaliation claims. We review a

district court’s grant of summary judgment de novo.

Merillat v. Metal Spinners, Inc., 470 F.3d 685, 690 (7th Cir.

2006) (citations omitted). In doing so, we construe all

facts and reasonable inferences in the light most favor-

able to the non-moving party. Healy v. City of Chicago,

450 F.3d 732, 738 (7th Cir. 2006) (citations omitted).

“Summary judgment is proper if ‘the pleadings, deposi-

tions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.’ ” Id.

(quoting Fed. R. Civ. P. 56(c)).

As a threshold matter, in light of the Supreme Court’s

recent decision in Ledbetter v. Goodyear Tire & Rubber

10 No. 06-1552

Co., ___ U.S. ___, 127 S. Ct. 2162 (2007), which was issued

after the district court entered summary judgment in this

case, we must determine for which, if any, of his allega-

tions Brown timely filed EEOC charges. Ledbetter, 127 S. Ct.

at 2166-67 (stating that “if the employee does not submit

a timely EEOC charge, the employee may not challenge

that [unlawful employment] practice in court” (citing 42

U.S.C. § 2000e-5(f)(1))). In Ledbetter, the Court held that

each “discrete act” of discrimination, such as a “failure to

promote,” constitutes a separate, actionable unlawful

employment practice, which requires the employee to file

a timely EEOC charge. Id. at 2169 (“The EEOC charging

period is triggered when a discrete unlawful practice takes

place.”); see also Roney v. Ill. Dep’t of Transp., 474 F.3d 455,

460 (7th Cir. 2007) (stating that an “unlawful employment

practice includes various discrete acts such as . . . failure

to promote” (quotations and citations omitted)). The

Court thus rejected the so-called “serial” or “series”

violation approach, stating that “if an employer engages

in a series of acts each of which is intentionally discrim-

inatory, then a fresh violation takes place when each act is

committed.” Ledbetter, 127 S. Ct. at 2169 (emphasis added).

Accordingly, Brown is time-barred from filing suit under

Title VII for any “discrete act” about which he did not file

an EEOC charge within the 300-day EEOC charging

deadline.5 Id. at 2170-72 (citing 42 U.S.C. §§ 2000e-5(e)(1),

5

“Title VII has its own requirements as to what claimants

must do before they can sue, but at least so far as the statutory

text is concerned, those requirements are limited to (1) filing

a charge with the Equal Employment Opportunity Commis-

sion within 180 days after the date of the complained-of employ-

ment action, in states that do not have an equal employment

(continued...)

No. 06-1552 11

2000e-5(f)(1)). Brown filed his first EEOC charge on

October 24, 2000, and thus he is time-barred from filing suit

based on any “discrete act” that occurred prior to Decem-

ber 29, 1999. Because Brown has failed to present any

evidence that the WMRC’s decisions not to promote him in

1998 and 1999 occurred on or after December 29, 1999,6 his

claims based on those “discrete acts” are time-barred.

Brown does, however, allege two claims of race discrimi-

nation that are not time-barred: (1) the WMRC’s decision

not to recommend him for promotion to the associate

professional scientist payroll level in late 2000 after the

WMRC placed Brown on probation; and (2) the WMRC’s

2001 decision to promote Ronda rather than Brown to

operations manager. An employee can support a Title VII

claim for failure to promote in one of two ways, either by

“directly show[ing] that racial discrimination motivated

the employment decision, or, as is more common, [by]

rely[ing] on the indirect, burden-shifting method set

forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792

5

(...continued)

opportunity agency, and [as in this case] within 300 days in

states like Illinois that do, in which event the complainant

must file his complaint with that agency at least 60 days before

filing with the EEOC, and (2) waiting to sue until receiving

notification (the “right to sue” letter) from the Commission that

the Commission does not intend to sue.” Doe v. Oberweis Dairy,

456 F.3d 704, 708 (7th Cir. 2006) (citing 42 U.S.C.A. §§ 2000e-5(c),

(e), (f)(1)).

6

The record indicates that the WMRC completed Brown’s

performance evaluations in April of 1998 and 1999, and the

employees that the WMRC did promote in 1998 and 1999

were promoted in September of those years.

12 No. 06-1552

(1973).” Sublett v. John Wiley & Sons, Inc., 463 F.3d 731, 736-

37 (7th Cir. 2006) (quotations and citations omitted). Brown

has not offered any evidence of direct racial discrimina-

tion, and thus he attempts to proceed under the burden-

shifting method. Under the indirect method, the employee

bears the initial burden of establishing a prima facie case

of race discrimination by showing that: (1) he is a member

of a protected group; (2) he was qualified for the position

sought; (3) he was rejected for the position; and (4) the

employee who was promoted was a member of a different

race and was not better qualified than he. Id. at 737 (citing

Johnson v. Nordstrom, Inc., 260 F.3d 727, 732 (7th Cir. 2001)).

If the employee is able to clear that hurdle, then “the

burden shifts to the [employer] to articulate a legitimate,

nondiscriminatory reason for [its] action, ‘which if be-

lieved by the trier of fact, would support a finding that

unlawful discrimination was not the cause of the employ-

ment action.’ ” Id. (quoting St. Mary’s Honor Ctr. v. Hicks,

509 U.S. 502, 507 (1993) (citations omitted)). If the em-

ployer articulates nondiscriminatory reasons for its

actions, then the employee “resumes h[is] original burden

of proof and must establish by a preponderance of the

evidence that the [employer’s] proffered reasons are

pretextual.” Id. (quoting Perdomo v. Browner, 67 F.3d 140,

144 (7th Cir. 1995)).

In this case, Brown did not carry his burden of making

a prima facie showing for either of his actionable race

discrimination claims against the Department, because

none of the four white WMRC employees that he identifies

was similarly situated to him. See Wyninger v. New Ven-

ture Gear, Inc., 361 F.3d 965, 979 (7th Cir. 2004) (“To be

similarly situated to another employee, [the plaintiff] must

show that the employee is directly comparable in all

No. 06-1552 13

material respects.”). For example, the first individual that

Brown cites is Clifford Jahp, a white WMRC employee

whom the WMRC promoted from the assistant professional

scientist payroll level to the associate professional scientist

payroll level in September 1998. While both Jahp and

Brown shared the same supervisor during that time, Jahp

did not share Brown’s negative performance evaluations

and client complaints. Jordan v. City of Gary, 396 F.3d 825,

834 (7th Cir. 2005) (stating that the plaintiff “must demon-

strate that [a coworker] occupied the same job level and

engaged in similar past misconduct, but as a result of his

misconduct he (unlike [the plaintiff]) was treated differ-

ently (i.e., more favorably) for no legitimate reason” (citing

Adams v. Wal-Mart Stores, Inc., 324 F.3d 935, 939-40 (7th Cir.

2003))). Brown argues in response that the WMRC violated

its promotion guidelines by recommending Jahp for

promotion, because Jahp was one year short of the time-in-

grade guidelines. His argument is unavailing because

Boyle testified that he was unaware that Jahp did not

meet the time-in-grade guidelines when he made his

promotion recommendation and the WMRC’s manager of

human relations testified that nothing in the WMRC’s

promotion guidelines prohibits a supervisor from recom-

mending an early promotion. Accordingly, Jahp was not

similarly situated to Brown for purposes of his action-

able claims against the Department.

The next individual that Brown cites is Deborah Jacob-

son. On Boyle’s recommendation, the WMRC promoted

Jacobson, who is white, from the assistant support scien-

tist payroll grade to the assistant professional scientist

payroll grade in September 1998. While Brown may be

correct that Jacobson’s time-in-grade did not comply with

the WMRC’s promotion guidelines, he again glosses over

14 No. 06-1552

the fact that the WMRC never received complaints

about Jacobson’s work performance. Jacobson also was

promoted to a different, and lower-level, position than the

one that Brown sought. See id. (stating that to be similarly

situated the plaintiff and the other employee must have

occupied the same job level). Accordingly, Jacobson was

not similarly situated to Brown for purposes of his action-

able claims against the Department.

Brown also contends that Kenneth Barnes was similarly

situated to him. On Lindsey’s recommendation, the WMRC

promoted Barnes, who is white, from the assistant profes-

sional scientist payroll level to the associate professional

scientist payroll level in September 2002. Like the other

proposed comparisons, and unlike Brown, Barnes was not

placed on probation as a result of unsatisfactory perfor-

mance evaluations, and he never received complaints

from the WMRC’s clients. The record, and Lindsey’s

testimony, indicates that Lindsey promoted Barnes because

of his performance and professionalism. Accordingly,

Barnes was not similarly situated to Brown for purposes

of his actionable claims against the Department.

Finally, Brown points to Raymond Ronda as similarly

situated to him. In September 2001, during the time that

Brown was on probation for his unsatisfactory performance

evaluation, the WMRC promoted Ronda, who is white, to

the associate professional scientist payroll level when it

appointed him operations manager of the Oak Brook office,

a position that Brown apparently was seeking.7 While

Brown correctly notes that Ronda had not met the WMRC’s

7

The operations manager position was open because Boyle

transferred to a different position after another, higher-level

employee left his employment with the WMRC.

No. 06-1552 15

promotion policy’s time-in-grade guidelines, the Depart-

ment points out that prior to joining the WMRC, Ronda

had accumulated thirty-four years of experience with the

Matsushita Microwave Oven Company, including twenty-

five years of supervisory experience. Additionally, dur-

ing his tenure there, Ronda served as its director of engi-

neering, its director of operations, and its general manager

of development engineering. In short, at the time that the

WMRC made its promotion decision, Ronda had far greater

experience, particularly, supervisory experience, than

Brown. See Fisher v. Wayne Dalton Corp., 139 F.3d 1137,

1141-42 (7th Cir. 1998) (finding discrimination did not

occur where an employee with more seniority was

passed over for a position because the less senior employee

had superior qualifications for the position). Further,

unlike Brown, Ronda had not received negative perfor-

mance evaluations or client complaints, and had not been

placed on probation. Jordan, 396 F.3d at 834 (finding

that the plaintiff and a coworker were not similarly situ-

ated because “[t]he record establishes that [the plaintiff]

had an extensive track record of repeated and ongoing

disciplinary problems prior to [the employer’s] decision

to appoint [the coworker] as supervisor, while [the

coworker] did not”). Accordingly, Ronda was not sim-

ilarly situated to Brown for purposes of the WMRC’s Sep-

tember 2001 promotion decision. Brown, therefore, failed

to make a prima facie showing that the WMRC’s decisions

not to promote him were based on race discrimination.

Even if Brown could establish a prima facie case, the

Department still is entitled to summary judgment because

it presented a compelling nondiscriminatory explanation

for the WMRC’s decision not to promote Brown: his

unsatisfactory performance evaluations and client com-

16 No. 06-1552

plaints regarding his performance. Brown has not pro-

vided any evidence to show that the Department’s prof-

fered, nondiscriminatory reason was pretextual. See Sublett,

463 F.3d at 737 (stating that “[p]retext is a lie, specifically

a phony reason for some action”). “To show pretext,

‘a plaintiff must show that [(1)] the employer’s nondis-

criminatory reason was dishonest; and [(2)] the employer’s

true reason was based on a discriminatory intent.’ ” Perez

v. Illinois, 488 F.3d 773, 777 (7th Cir. 2007) (quoting EEOC

v. Target Corp., 460 F.3d 946, 960 (7th Cir. 2006) (citations

omitted)). If the plaintiff cannot offer any direct evidence

of pretext, then the plaintiff must prove pretext indirectly.

Id. (citations omitted). “With indirect evidence, the plaintiff

must show that the employer’s reason is not credible or

that the reason is factually baseless.” Id. at 777-78 (citations

omitted)). “ ‘[The plaintiff] must also provide evidence of

at least an inference that the real reason for [the adverse

employment action] was discriminatory.’ ” Id. (quoting

Jackson v. E.J. Brach Corp., 176 F.3d 971, 983 (7th Cir. 1999)

(citations omitted)).

In this case, the record evinces that both Brown’s cowork-

ers at the WMRC and those clients with whom he worked

regarded his behavior and work performance as problem-

atic. Two different supervisors documented these problems

in performance evaluations and disgruntled clients echoed

these issues in multiple complaint letters to the WMRC

regarding Brown, including one that went as far as stat-

ing that Brown was not welcome at the client’s facility.

While Brown attempted to rebut his negative performance

review by offering his own, more positive self-assessments,

and he attempted to explain away the negative client

letters, we have frequently stated “ ’that a plaintiff’s own

opinions about [his] work performance or qualifications do

No. 06-1552 17

not sufficiently cast doubt on the legitimacy of [his]

employer’s proffered reasons for its employment ac-

tions.’ ” Millbrook v. IBP, Inc., 280 F.3d 1169, 1181 (7th Cir.

2002) (quoting Ost v. W. Suburban Travelers Limousine, Inc.,

88 F.3d 435, 441 (7th Cir. 1996)). Accordingly, the district

court properly entered summary judgment for the Depart-

ment on Brown’s race discrimination claim.

Brown also argues that the district court should not have

granted summary judgment for the Department on his

claim that the WMRC retaliated against him when he

complained about the WMRC’s alleged unlawful discrimi-

natory actions by placing him on probation, issuing

negative performance reviews for him, and continuing

to deny him a promotion to the associate professional

scientist payroll level. Because Brown filed his first dis-

crimination complaint after December 29, 1999, his retalia-

tion claim is not time-barred. Under the anti-retaliation

provision of Title VII, it is unlawful for an employer to

“discriminate against” an employee “because he has

opposed any practice made an unlawful employment

practice” by the statute or “because he has made a charge,

testified, assisted, or participated in” a Title VII “investiga-

tion, proceeding, or hearing.” Roney, 474 F.3d at 459

(quoting 42 U.S.C. § 2000e-3(a)). “A plaintiff may prove

retaliation by using either the direct method or the

indirect, burden-shifting method.” Tomanovich v. City of

Indianapolis, 457 F.3d 656, 662 (7th Cir. 2006) (quotations

and citations omitted). “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. at 663 (quotations and citations

omitted). Alternatively, under the indirect approach, in

18 No. 06-1552

order to establish a prima facie case for retaliation the

employee “must show the following: (1) after filing a

charge [the employee] was subject to adverse employment

action; (2) at the time, [the employee] was performing

his job satisfactorily; and (3) no similarly situated em-

ployees who did not file a charge were subjected to an

adverse employment action.” Hudson v. Chicago Transit

Auth., 375 F.3d 552, 560 (7th Cir. 2004). “ ’If the plaintiff

establishes a prima facie case, the burden of production

shifts to the employer to present evidence of a non-discrim-

inatory reason for its employment action.’ ” Tomanovich,

457 F.3d at 663 (quoting Adusumilli v. City of Chicago, 164

F.3d 353, 362 (7th Cir. 1998)). Then, if the employer pres-

ents evidence of a non-discriminatory reason for its

employment action, “ ‘the burden shifts back to the plain-

tiff to demonstrate that the employer’s reason is pre-

textual.’ ” Id. (quoting Moser v. Ind. Dep’t of Corr., 406 F.3d

895, 903 (7th Cir. 2005)). “Under the indirect method of

proof, failure to satisfy any one element of the prima facie

case is fatal to an employee’s retaliation claim.” Sublett,

463 F.3d at 740 (quoting Hudson, 375 F.3d at 560). Brown

only asserts on appeal that he presented sufficient evid-

ence to avoid summary judgment under the direct method.

In this case, Brown argues that the timing of his February

2000 filing of a discrimination complaint and the WMRC’s

subsequent, increasingly negative performance reviews,

which resulted in him being placed on probation and

denied promotion, are direct evidence of retaliation. Brown

does not contend, however, that the WMRC admitted a

retaliatory motive for its actions. Regarding his negative

performance reviews, Brown asserts that he received a

particularly harsh performance review in April 2000 after

he complained of discrimination two months earlier. He

No. 06-1552 19

thus asserts that the temporal proximity between his

complaint and his negative review evince the WMRC’s

retaliatory intent. However, as we have stated on many

occasions, “timing alone is insufficient to establish a

genuine issue of material fact to support a retaliation

claim.” Kampmier v. Emeritus Corp., 472 F.3d 930, 939 (7th

Cir. 2007). See also Wyninger, 361 F.3d at 981 (“[I]t is clear

that mere temporal proximity is not enough to establish a

genuine issue of material fact.”). While it may be true that

Brown’s performance evaluations were more negative

beginning in 2000, the record reflects that Brown had

received negative reviews and client complaints prior to

his first discrimination complaint. Brown’s argument that

the WMRC placed him on probation because of his dis-

crimination claim also is unavailing because the WMRC

instituted its probation policy prior to Brown’s first

discrimination complaint, and Boyle testified that he was

unaware that giving Brown an unsatisfactory, or “I,” grade

on his April 2000 review would result in probation.

Further, Boyle personally raised similar issues regarding

Brown’s work on the performance evaluations that he

submitted prior to Brown’s discrimination complaint, and

he had previously recommended that Brown not be

promoted both in 1998 and 1999. Brown also does not offer

evidence or even assert that his work performance im-

proved significantly between 1999 and 2000, such that it

would render invalid Boyle’s earlier negative performance

evaluations and rationale for declining to recommend

Brown for a promotion. The multiple client complaint

letters corroborate this view, and are in accord with the

negative comments on Brown’s April 2000 performance

evaluation (performed by Boyle) and his April 2001

performance evaluation (performed by Lindsey). In sum,

Brown does not offer any evidence of retaliation beyond

20 No. 06-1552

the mere temporal proximity between his discrimination

complaint and his continued string of negative perfor-

mance reviews, the resulting term of probation, and the

WMRC’s consistent decisions not to promote him. Accord-

ingly, Brown failed to show any direct evidence that the

WMRC retaliated against him based on his discrimination

complaints, and the district court properly entered sum-

mary judgment for the Department.

III.

Based on the Supreme Court’s decision in Ledbetter, all

of Brown’s Title VII claims that were based on “discrete

acts” that occurred over 300 days prior to his first EEOC

charge are time-barred. For his non-time-barred Title VII

claims, Brown failed to make a prima facie showing

that the WMRC unlawfully discriminated against him by

refusing to promote him based on his race because he did

not present any evidence of similarly situated employees

of a different race whom the WMRC promoted and who

were not better qualified than Brown. He also failed to

offer any direct evidence that the WMRC retaliated against

him for filing a discrimination complaint, because evid-

ence of temporal proximity alone is insufficient to raise

an issue of material fact to support a retaliation claim.

Accordingly, the district court’s grant of summary judg-

ment to the Department is AFFIRMED.

No. 06-1552 21

A true Copy:

Teste:

_____________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—8-27-07