Kenneth Harper v. C.R. England, Inc

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-2975

K ENNETH H ARPER,

Plaintiff-Appellant,

v.

C.R. E NGLAND, INCORPORATED ,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Indiana, Hammond Division.

No. 2:08-cv-00110-PRC—Paul R. Cherry, Magistrate Judge.

A RGUED F EBRUARY 10, 2012—D ECIDED JUNE 8, 2012

Before

R IPPLE and R OVNER, Circuit Judges, and

C OLEMAN, District Judge.Œ

R IPPLE, Circuit Judge. Kenneth Harper brought this

action in Indiana state court against his former

employer, C.R. England, Inc. (“C.R. England”), alleging

racial discrimination, harassment and retaliation in vio-

lation of 42 U.S.C. § 1981 and Title VII of the Civil Rights

Œ

The Honorable Sharon Johnson Coleman of the Northern

District of Illinois, sitting by designation.

2 No. 11-2975

Act of 1964, 42 U.S.C. § 2000e et seq. He also alleged that

C.R. England had retaliated against him for having filed a

workers’ compensation claim, in violation of Indiana

law. C.R. England removed the case to the district court.1

The magistrate judge, sitting by consent of the parties,2

granted summary judgment in favor of C.R. England,

and Mr. Harper timely appealed.3 He now asks that we

review the district court’s determination only with

respect to his retaliation claim. After examining the

record, studying the appellate briefs and hearing the

argument of counsel, we conclude that the district court

correctly decided that there is no genuine issue of triable

fact on the retaliation claim and that the defendant there-

fore is entitled to judgment as a matter of law. Accord-

ingly, we affirm the judgment of the district court.

I

BACKGROUND

A. Facts

From July 2005 until his termination on August 3, 2007,

Mr. Harper, an African-American, was employed as a

driving instructor for C.R. England, a trucking corpora-

1

See 28 U.S.C. § 1441(a). The district court had jurisdiction

over the federal claim under 28 U.S.C. §§ 1331 and 1343. It

had jurisdiction over the state claim under 28 U.S.C. § 1367(a).

2

See 28 U.S.C. § 636(c).

3

We have jurisdiction under 28 U.S.C. § 1291.

No. 11-2975 3

tion that operated a truck-driving school in Indiana.

Mr. Harper was one of approximately twelve road in-

structors at the driving school. In that capacity, he did

not provide any classroom instruction, but was

assigned a group of students for road instruction in

the operation of the trucks. He was expected to be

present and available to his students during the

weeks that they were assigned to him.

The road instructors’ immediate supervisor held the

title of “lead instructor” and reported to the director of

the school, Chris Kelsey. In January 2007, the lead instruc-

tor left the company, and Director Kelsey appointed

Mr. Harper, who had volunteered for the position, as

acting lead instructor until the company was able to

hire someone to fill the position on a permanent basis. In

early 2007, Mr. Harper, along with about twenty

other individuals, interviewed for the position of lead

instructor, but he was not hired for the permanent posi-

tion. The company instead selected Eric Metzler, also an

African-American, because of his prior management

experience in the trucking industry.4

4

There is some confusion in the record with respect to the job

title of the position that Mr. Harper was appointed to fill on a

temporary basis. At his deposition, Mr. Harper explained that

he was appointed to serve as “yard manager” and that the

lead instructor position was a different position entirely. R.36-1

at 8 (Harper Dep. 23-24). Director Kelsey stated in his deposi-

tion that Mr. Harper was appointed to serve as interim lead

(continued...)

4 No. 11-2975

As part of the daily routine, Lead Instructor Metzler

conducted morning meetings with his team of road

instructors inside their office trailer.5 Mr. Harper alleges

that, on March 9, 2007, while the instructors were

waiting for their meeting to start, another African-Ameri-

can instructor, Darnell Humphrey, called him a “mark

ass n----r.” 6 When Mr. Harper asked Humphrey

what he had just said, Humphrey again called Mr. Harper

a “n----r.” 7 Mr. Harper admitted, in his deposition testi-

mony, that Metzler was not in the room when

Humphrey used the racial slur, but maintains that

Metzler, who was in his adjacent office with the door

open, heard Humphrey’s comment. According to Mr.

Harper, Metzler came in the room shortly after Humphrey

called Mr. Harper a “n----r” for the second time and said

“quit it” or “cut it out.” 8 Metzler consistently has main-

tained that he was not in the room at the time of the

alleged incident and that he did not hear Humphrey use

any racial slur.

4

(...continued)

instructor until Metzler was hired to fill the permanent position.

R.36-4 at 4 (Kelsey Dep. 10). Metzler also stated that he was

employed as lead instructor at C.R. England’s truck-driving

school. R.36-11 at 1 (Metzler Aff.).

5

The road instructors operated out of a two-room trailer.

One room was used as an employee lounge and conference

area, and the other room served as Metzler’s office.

6

R.36-1 at 11 (Harper Dep. 37).

7

Id. (Harper Dep. 38).

8

Id. at 11, 14 (Harper Dep. 38, 47).

No. 11-2975 5

The day after the incident with Humphrey, a fellow

C.R. England employee who had heard about the con-

frontation contacted Mr. Harper and recommended that

he contact Carrie Johansen, Assistant Director of C.R.

England’s Human Resources Department, in Salt Lake

City, Utah, about the incident and provided him with

Johansen’s contact information. Mr. Harper spoke

briefly with Director Kelsey about his encounter with

Humphrey shortly after the alleged incident took place.9

Then, on April 18, 2007, Mr. Harper emailed Johansen

and provided a formal statement regarding the March 9,

2007 incident. In his email, Mr. Harper wrote, “I have

been angry, upset, hurt, stressed, and feel that I’m

working in a hostile environment.” 1 0

After receiving Mr. Harper’s email, Johansen contacted

Director Kelsey and instructed him to contact Metzler to

9

The record is not clear on this point. Mr. Harper stated in

his April 18, 2007 email to Johansen that he originally spoke

with Director Kelsey regarding the incident on March 16, 2007.

In his deposition, Mr. Harper testified that he spoke with

Director Kelsey regarding the incident “a few days” after it

took place. Id. at 13 (Harper Dep. 44). He explained that he

met with Director Kelsey and Metzler in Director Kesley’s

office and Metzler denied hearing Humphrey’s use of the

racial slur. Id. (Harper Dep. 45-46). Director Kelsey testified

that he was unaware of the incident until Johansen contacted

him in late April, after receiving Mr. Harper’s email. R.36-4

at 6 (Kelsey Dep. 16-17).

10

R.36-2 at 4.

6 No. 11-2975

“find out what had happened.” 1 1 According to Director

Kelsey, Metzler interviewed every individual that

Mr. Harper had said was in the room at the time of the

exchange between Mr. Harper and Humphrey.1 2 Metzler

then reported to Director Kelsey that he was unable to

determine what, if anything, Humphrey had said to

Mr. Harper.13 When Director Kelsey met with Metzler,

he made clear that, if the incident did happen, it had

better not happen again because such a remark would

warrant discharge.1 4 He also instructed Metzler to give

the same warning to Humphrey. Director Kelsey re-

ported to Johansen that he had handled the situation.

Mr. Harper met with Director Kelsey a second time to

discuss the Humphrey incident. Director Kelsey asked

Mr. Harper how they could “move past th[e] incident,”

and what the company could do to make the work en-

vironment more comfortable for him.1 5 Director Kelsey

offered Mr. Harper several options, including time off

and a transfer to another position within the company.

11

R.36-4 at 6 (Kelsey Dep. 18). In his April 18 email to Johansen,

Mr. Harper recounted a meeting with Director Kelsey and

Metzler, during which Director Kelsey instructed Metzler to

“handle” the situation. R.36-2 at 4.

12

R.36-4 at 9 (Kelsey Dep. 29).

13

Id. Mr. Harper disputes that any investigation into the

incident took place. R.36-1 at 14 (Harper Dep. 47).

14

Metzler was not called for a deposition and is no longer

an employee of C.R. England.

15

R.36-1 at 14 (Harper Dep. 48).

No. 11-2975 7

Mr. Harper also met separately with Metzler to

discuss, among other things, the email he had sent to

human resources. He claims that Metzler questioned

his reasons for sending the email and wanted to know

what he expected would come as a result of it. In addi-

tion, Metzler said that Mr. Harper’s “skin should not be

so thin.” 16

Mr. Harper further alleged that, on approximately

four or five occasions after March 9, 2007, he heard other

instructors use the slur “n----r” in workplace conversa-

tions. However, in his deposition, Mr. Harper testified

that these remarks were not directed at him and that

Metzler was not part of the conversations.1 7 Mr. Harper

was not able to provide the names of the instructors

who used the term.

Mr. Harper also informed Director Kelsey that the

word “asshole” had been written on his time card on one

occasion at some point after March 9, 2007.1 8 Director

Kelsey assured Mr. Harper that he would talk to

Metzler about it. Metzler responded to the incident by

moving the time clock and time cards inside his office.1 9

On June 24, 2007, Mr. Harper contacted Metzler to

tell him that he would not be able to report to work on

Monday, June 25, due to illness. Metzler left Mr. Harper

16

Id. at 16 (Harper Dep. 56); see also R.36-2 at 5.

17

R.36-1 at 16 (Harper Dep. 57).

18

Id. at 19 (Harper Dep. 70).

19

Id. at 20 (Harper Dep. 71-72).

8 No. 11-2975

a message telling him that he would have to assign his

truck group to another instructor and directed him to

stay at home for the rest of the week.

On Thursday of that same week, Metzler informed

Mr. Harper that he needed to meet with him the fol-

lowing day, Friday, June 29, 2007. During their Friday

meeting, Metzler administered three written warnings

to Mr. Harper, the most serious being for poor attendance.

Metzler told Mr. Harper that he was being placed on

probation for taking too much time off and warned him

not to take any more days off or leave work early for the

remainder of the year. Mr. Harper understood that,

pursuant to C.R. England policies, he could be terminated

if his attendance did not improve.2 0 Prior to this date,

Metzler had given Mr. Harper permission to leave

work early on Fridays to pick his son up from school.

Metzler previously had told Mr. Harper that “he had

20

Id. at 18 (Harper Dep. 63-64). The C.R. England policies and

procedures booklet states, in pertinent part:

In harmony with the company’s at-will status, C.R.

England reserves the right to discipline an employee

up to and including discharge for infractions of work

rules or any policies or conditions of employment

with the company. Discipline may include, but is

never guaranteed to include, verbal or written

warnings prior to discharge.

R.36-3 at 7. “Excessive absence” and “[p]oor job performance”

are among those matters listed that might result in an em-

ployee’s suspension and/or termination. Id.

No. 11-2975 9

no problem with it.” 2 1 Yet, Metzler now made clear to

Mr. Harper that those kinds of early departures would

no longer be permitted because they had “exceeded

acceptable levels” and because Mr. Harper’s “absence

ha[d] now begun to affect [his] performance at work.” 2 2

In addition to the written warning for poor at-

tendance, Metzler also gave Mr. Harper a warning for

failing to report his mileage at the close of business on

Friday on four occasions and for not turning in the key to

his assigned truck. Metzler gave Mr. Harper a third

written warning for the poor rates of hire for students

that he had been assigned (“start-to-hire rate”).2 3

Mr. Harper spoke with Director Kelsey regarding

Metzler’s direction to take the week of June 25 off after

he had called in sick on Monday. Director Kelsey, after

evaluating the circumstances surrounding Metzler’s

decision, and Mr. Harper’s recent attendance record,

ultimately agreed with Metzler’s decision.

21

R.36-1 at 18 (Harper Dep. 63).

22

R.36-6 at 19.

23

Although Metzler administered three written warnings to

Mr. Harper on June 29, Mr. Harper was fired due to poor

attendance. There is no evidence in the record to indicate

that Mr. Harper was fired for failing to report his mileage,

failing to turn in his key or poor start-to-hire rates. Mr. Harper

himself verified at his deposition that Director Kelsey

had told him he was being terminated because of absenteeism.

R.36-1 at 26 (Harper Dep. 97).

10 No. 11-2975

After he was placed on probation, Mr. Harper took

several days off to attend his sister’s wedding and an

additional day off for a court appearance.2 4 On July 10,

2007, he emailed Johansen and asserted, among other

things, that he believed that the written warnings were

unwarranted and requested further clarification on C.R.

England’s policies “regarding attendance, employee

conduct, and harassment in the workplace.” 2 5 He also

recounted portions of his conversation with Metzler,

stating that Metzler had implied that his “skin shouldn’t

be so thin” and that Mr. Harper “should move on and

get over it, because [Metzler] grew up in the 60s and he

was called (N----R) many times.” 2 6 The email also set

forth a number of complaints about the treatment

Mr. Harper had received from his coworkers and, in

particular, from his supervisor, Metzler, after the

original email to human resources.

On or about July 13, 2007, Mr. Harper initiated a

“First Report of Injury or Illness,” prepared by the Man-

24

Mr. Harper contends that he had informed Metzler that he

needed to take some days off to attend his sister’s July wed-

ding. He maintains that Metzler told him in advance that

he could have the days off. The record makes clear that, fol-

lowing Mr. Harper’s being placed on probation, Metzler

told him that he could only take the time off if he had leave

available. The parties dispute whether Mr. Harper had any

leave available in July 2007.

25

R.36-2 at 5.

26

Id.

No. 11-2975 11

ager of Workers’ Compensation, Darlene Niebuhr, in

which he stated that, beginning at the end of

March 2007, his health had started to decline. He specifi-

cally referred to experiencing headaches and high

blood pressure, which he believed were related to harass-

ment in the workplace. Mr. Harper never filed a work-

ers’ compensation claim.

On July 31, 2007, Mr. Harper again spoke with

Johansen on the telephone and reiterated his concerns

about the way that he was being treated by Metzler.

Shortly thereafter, Mr. Harper was terminated. Before

reaching the final decision to terminate Mr. Harper,

Director Kelsey consulted with Johansen about

Mr. Harper’s attendance records. Johansen verified

that Mr. Harper had exceeded his leave and agreed with

Director Kelsey’s decision to terminate Mr. Harper.2 7

27

R.36-5 at 11 (Johansen Dep. 36-38). Johansen testified at her

deposition that, in her opinion, the number of days that

Mr. Harper had missed, whether approved or not, “seemed

excessive.” Id. (Johansen Dep. 36). She explained that the

number of absences becomes excessive “[w]hen it impacts

[an employee’s] performance,” and that would “depend on

[the employee’s] job.” Id. (Johansen Dep. 37). Johansen verified

that C.R. England does not have a rule that governs absences

or leaving early, and that it is left to the discretion of the

supervisor to decide on a case-by-case basis. She explained

that the determination as to when the number of absences or

early departures is affecting an employee’s job performance

is ultimately the responsibility of the employee’s supervisor.

(continued...)

12 No. 11-2975

On August 3, 2007, Director Kelsey met with Mr. Harper

and told him he was being terminated for poor

attendance.28 Director Kelsey prepared a written Termina-

tion Evaluation Form that indicated as the explanation

of termination that Mr. Harper “ha[d] not been able to

do [his] job full time.” 2 9 At the time of his termination,

Mr. Harper had missed seventeen days since January 1,

2007. Although the record is not clear with respect to

the nature of these absences, this total includes four

sick days, two holidays and at least seven vacation

days prior to his probation. It also includes three

additional days after his probation: two for his sister’s

wedding and one to appear in court.3 0

27

(...continued)

Johansen verified that, in Mr. Harper’s case, this decision

would be left to the discretion of “Mr. Metzler in conjunction

with Mr. Kelsey.” Id. Although Mr. Harper provides an alternate

interpretation of Johansen’s statements with respect to the

decision to terminate him, we believe that, reading the testi-

mony in total, it is clear that the decision to terminate

Mr. Harper was not made by Metzler, but by Director Kelsey

with the concurrence of Johansen.

28

Metzler stated that Director Kelsey made the decision to

terminate Mr. Harper based on poor attendance. He also

noted that Director Kelsey did not consult him regarding the

decision to terminate Mr. Harper. R.36-11 at 3 (Metzler Aff.).

29

R.36-6 at 63.

30

See R.36-6 at 22.

No. 11-2975 13

B. Procedural History

Following the termination of his employment,

Mr. Harper filed a charge of racial discrimination with

the Equal Employment Opportunity Commission

(“EEOC”) against C.R. England. He alleged that he had

been terminated unlawfully in retaliation for com-

plaining of racial discrimination and a hostile work

environment. On March 6, 2008, after receiving a “right

to sue letter” from the EEOC, Mr. Harper filed a

complaint in the Porter County Superior Court, alleging

racial discrimination, harassment and retaliation under

42 U.S.C. § 1981 and Title VII, 42 U.S.C. § 2000e et seq. He

also alleged retaliation for filing a workers’ compensa-

tion claim in violation of Indiana law. C.R. England

removed the case to the United States District Court for

the Northern District of Indiana under 28 U.S.C. § 1441(a),

and, once removal was effected, moved for summary

judgment.

With respect to Mr. Harper’s retaliation claim, the

district court concluded that Mr. Harper had failed to set

forth a prima facie case, under either the direct or

indirect method of proof, to support his claim that C.R.

England had retaliated against him for reporting what

he believed to be unlawful racial discrimination. The

district court ultimately granted summary judg-

ment for the defendant on all five counts set forth in

Mr. Harper’s complaint. Mr. Harper now appeals only

the district court’s decision to grant summary judgment

with respect to his retaliation claim.

14 No. 11-2975

II

DISCUSSION

A. Standard of Review

We review the district court’s decision to grant

a motion for summary judgment de novo, construing

all the facts in the light most favorable to the nonmoving

party, Mr. Harper. See Darst v. Interstate Brands Corp.,

512 F.3d 903, 907 (7th Cir. 2008). Summary judgment is

proper where “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). “However, our

favor toward the nonmoving party does not extend to

drawing ‘[i]nferences that are supported by only specula-

tion or conjecture.’ ” Argyropoulos v. City of Alton, 539 F.3d

724, 732 (7th Cir. 2008) (alteration in original) (internal

quotation marks omitted). Rather, “[a] genuine issue

of material fact arises only if sufficient evidence favoring

the nonmoving party exists to permit a jury to return a

verdict for that party.” Faas v. Sears, Roebuck & Co., 532

F.3d 633, 640-41 (7th Cir. 2008) (internal quotation

marks omitted).

B. Direct Method of Proof

A plaintiff may establish retaliation under either the

direct or indirect method of proof. See Weber v. Univs.

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

establish retaliation under the direct method, a plaintiff

must present evidence, direct or circumstantial, showing

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

No. 11-2975 15

(2) he suffered a materially adverse action; and (3) a

causal connection exists between the two. Burks v. Wiscon-

sin Dep’t of Transp., 464 F.3d 744, 758 (7th Cir. 2006).

Here, it is undisputed that Mr. Harper’s complaint

of racial discrimination and harassment is a statutorily

protected activity. The parties also correctly agree that

Mr. Harper’s termination constitutes an adverse employ-

ment action. See Haywood v. Lucent Techs., Inc., 323 F.3d

524, 531 (7th Cir. 2003) (stating that an employee’s termina-

tion “certainly qualifies as an adverse employment ac-

tion”).31

31

On appeal, Mr. Harper does not challenge the district court’s

conclusion that ostracism by his coworkers and comments

made by his direct supervisor, Metzler, did not amount to an

adverse employment action within the meaning of Title VII.

However, Mr. Harper does challenge the court’s additional

determination that the three written warnings administered

to Mr. Harper in June 2007 by Metzler, which resulted in

Mr. Harper’s being placed on probation, did not amount to an

adverse employment action. Indeed, we have suggested that

placing an employee on probation, in some cases, may

constitute a materially adverse employment action, see Smart

v. Ball State Univ., 89 F.3d 437, 442 (7th Cir. 1996), but we do

not believe that is the case here.

The Supreme Court has construed Title VII’s anti-retaliation

provision broadly. See Burlington N. & Santa Fe Ry. Co. v. White,

548 U.S. 53, 67-68 (2006). Indeed, a materially adverse employ-

ment action is one that “well might have dissuaded a rea-

sonable worker from making or supporting a charge of dis-

crimination.” Id. at 68 (internal quotation marks omitted);

(continued...)

16 No. 11-2975

31

(...continued)

Lewis v. City of Chi., 496 F.3d 645, 655 (7th Cir. 2007). In other

words, “if the challenged action would discourage other em-

ployees from complaining about employer conduct that

violates Title VII, it constitutes an adverse employment action.”

Vance v. Ball State Univ., 646 F.3d 461, 473 (7th Cir. 2011).

We believe that, given the circumstances surrounding the

employer’s actions in this case, the district court correctly

concluded that the written warnings and the placement of

Mr. Harper on probationary status did not rise to the level of

a materially adverse employment action. Mr. Harper made

his complaint, at the very latest, on April 18, 2007, more than

two months before he was given the warnings and placed

on probation the week of June 25, 2007. We further note that

Mr. Harper was placed on probation only after calling in sick

on June 25, which resulted in his group being reassigned

to another instructor. We therefore do not believe that a reason-

able employee would be discouraged from filing a Title VII

complaint as a result of the actions taken against Mr. Harper.

Furthermore, even if we were to conclude that the warnings

constitute a materially adverse employment action, Mr. Harper

would be unable to show a connection between his com-

plaint, which he made, at the very latest on April 18, 2007, and

the administration of the warnings, which occurred more than

two months later, during the week of June 25, 2007. See, e.g.,

Argyropoulos v. City of Alton, 539 F.3d 724, 734 (7th Cir. 2008)

(holding that a seven-week interval between a sexual harass-

ment complaint and plaintiff’s termination “does not represent

that rare case where suspicious timing, without more, will carry

the day”); Amrhein v. Health Care Serv. Corp., 546 F.3d 854, 859

(7th Cir. 2008) (holding that timing was not enough, on its

(continued...)

No. 11-2975 17

On appeal, Mr. Harper challenges the district court’s

conclusion that his claim under the direct method

failed because he was unable to establish the third prong

of the analysis: that a causal connection exists between

his complaints to Director Kelsey and Johansen and his

subsequent termination.

Under the direct method of proof, Mr. Harper can rely

on either direct or circumstantial evidence to show

that C.R. England was motivated to terminate him

because of his protected activity. See Haywood, 323 F.3d at

529. Evidence of retaliation is direct when, “if believed

by the trier of fact, [it] will prove the particular fact in

question without reliance on inference or presump-

tion.” Pitasi v. Gartner Grp., Inc., 184 F.3d 709, 714 (7th

Cir. 1999) (internal quotation marks omitted). “Because

direct evidence . . . essentially requires an admission by

the employer,” such evidence “is rare.” Benders v. Bellows

& Bellows, 515 F.3d 757, 764 (7th Cir. 2008). Mr. Harper

has not produced any direct evidence of a causal link

between his complaints of racial discrimination and

his subsequent termination. He instead relies upon what

he considers to be “a convincing mosaic of circumstantial

31

(...continued)

own, to create a jury issue on retaliation where the plaintiff

had threatened to file an EEOC complaint three months and

then again six weeks before she was fired); Parkins v. Civil

Constructors of Ill., Inc., 163 F.3d 1027, 1039 (7th Cir. 1998)

(affirming summary judgment in favor of the employer where

the employee complained of sexual harassment in August and

was laid off in November of the same year).

18 No. 11-2975

evidence,” Rhodes v. Illinois Dep’t of Transp., 359 F.3d

498, 504 (7th Cir. 2004) (internal quotation marks omit-

ted), that would permit a jury to infer unlawful retalia-

tion on the part of his employer, C.R. England. In the

past, we have held that circumstantial evidence of retalia-

tion may include “suspicious timing, ambiguous state-

ments, behavior toward or comments directed at other

employees in the protected group, and other bits and

pieces from which an inference of discriminatory intent

might be drawn.” Boumehdi v. Plastag Holdings, LLC,

489 F.3d 781, 792 (7th Cir. 2007).3 2

Mr. Harper’s primary argument with respect to his

presentation of circumstantial evidence is based on the

proximity between his complaints to human resources

and his termination. It is well established that “mere

temporal proximity between [the statutorily protected

activity] and the action alleged to have been taken in

retaliation for that [activity] will rarely be sufficient in

and of itself to create a triable issue.” Stone v. City of

Indianapolis Pub. Utils. Div., 281 F.3d 640, 644 (7th Cir.

32

This court frequently has recognized two additional

categories of circumstantial evidence, which traditionally

have been associated with the indirect, rather than the direct

method of proof: (1) “evidence, but not necessarily rigorous

statistical evidence, that similarly situated employees were

treated differently”; and (2) “evidence that the employer

offered a pretextual reason for an adverse employment ac-

tion.” Coleman v. Donahoe, 667 F.3d 835, 860 (7th Cir. 2012)

(internal quotation marks and citations omitted); see discus-

sion infra pp. 31-33.

No. 11-2975 19

2002); see also Sauzek v. Exxon Coal USA, Inc., 202 F.3d

913, 918 (7th Cir. 2000) (“Speculation based on suspicious

timing alone . . . does not support a reasonable inference

of retaliation . . . .”). However, “together with other

facts, [suspicious timing] can sometimes raise an

inference of a causal connection.” Magyar v. Saint Joseph

Reg’l Med. Ctr., 544 F.3d 766, 772 (7th Cir. 2008).

Here, as is the often the case, “[w]e can measure the

time in several ways.” Id. The district court concluded

that, “[w]ithout any other evidence supporting a link

between the two occurrences, the several-month time

lag between [Mr. Harper’s] complaint of racial harass-

ment to his supervisor in March, 2007, or even the later

complaint to human resources on April 18, 2007, and his

August 3, 2007, termination is too great to support an

inference of retaliation.” 3 3 The district court also

rejected Mr. Harper’s contention that the proper time

period for the court to consider was the much closer

proximity between his contact with Johansen in human

resources via email on July 10, 2007, and via telephone

on July 31, 2007, and his termination on August 3, 2007.

Mr. Harper now renews this latter argument before us.

He also contends that his case may be distinguished

from the cases considered by the district court because

he has presented additional circumstantial evidence,

other than suspicious timing, to support an inference of

retaliation.

Even if we were to accept Mr. Harper’s contention

that we should consider the proximity between his

33

R.44 at 15.

20 No. 11-2975

contact with Johansen on several occasions in July and

his termination in early August, we agree with the

district court that Mr. Harper has not met his burden of

putting forth other evidence that suggests that his pro-

tected activities were in any way linked to his termina-

tion. In addition to the evidence of suspicious timing,

Mr. Harper offers the following circumstantial evidence:

(1) Director Kelsey and Metzler did not conduct a

proper investigation into Humphrey’s alleged derogatory

comments; (2) Metzler met with Mr. Harper after the

investigation was complete and asked him what he

hoped to gain by filing a complaint with human

resources; and (3) Metzler told him that he needed to

grow a thicker skin.

Mr. Harper provides no support for his assertion that

Metzler and Director Kelsey did not conduct a proper

investigation into the alleged incident. The only related

argument that Mr. Harper made is that Director Kelsey

and Metzler attempted to cover up Mr. Harper’s com-

plaint, but he does not dispute that Metzler and

Director Kelsey made clear to all of the road instructors

that the use of racial slurs would constitute a firing

offense. Such action on the part of management

certainly does not indicate that it was engaged in a

cover up. Mr. Harper also does not dispute that, shortly

after he complained to Director Kelsey that “asshole” had

been written on his time card, Metzler moved the time

cards inside his office to avoid any further incidents in

the future. Finally, he does not dispute that Director

Kelsey reported all information regarding the investiga-

tion and handling of Mr. Harper to human resources

No. 11-2975 21

and that human resources did not ask for any further

action.

Mr. Harper is correct in asserting that Metzler’s com-

ments in the aftermath of the investigation constitute

some circumstantial evidence of retaliation. However,

the record makes clear that Director Kelsey, and not

Metzler, made the decision to fire Mr. Harper. Further,

there is no evidence in the record to suggest that Director

Kelsey’s decision to fire Mr. Harper was in any way

influenced by Metzler. See Cook v. IPC Int’l Corp., 673

F.3d 625, 628 (7th Cir. 2012) (explaining that, under the

“cat’s paw” theory of liability, an employer may be held

liable if “an employee is fired or subjected to some

other adverse employment action by a supervisor who

himself has no discriminatory motive, but who has been

manipulated by a subordinate who does have such a

motive”). Rather, the evidence suggests that Director

Kelsey made the decision to terminate Mr. Harper only

after he had discussed the situation with Johansen. There-

fore, Metzler’s comments do not help to establish a

link between Mr. Harper’s complaint and the termina-

tion of his employment in August 2007.

Because evidence regarding suspicious timing,

without more, is generally insufficient to support a rea-

sonable inference of retaliation, we conclude that

Mr. Harper has failed to establish a prima facie case

of retaliation under the direct method of proof.

22 No. 11-2975

C. The Indirect Method of Proof

Under the indirect, burden-shifting approach,

Mr. Harper may establish a prima facie case of retalia-

tion by showing that: (1) he engaged in a statutorily

protected activity; (2) he met his employer’s legitimate

expectations, i.e., he was performing his job satis-

factorily; (3) he suffered a materially adverse action;

and (4) he was treated less favorably than some

similarly situated employee who did not engage in the

statutorily protected activity. See Tomanovich v. City of

Indianapolis, 457 F.3d 656, 663 (7th Cir. 2006). Once a

plaintiff has established a prima facie case, the burden

shifts to the defendant to articulate a non-discriminatory

reason for discharging the plaintiff. Id. If the defendant

meets its burden, the burden shifts back to the plaintiff

to show that a genuine issue of material fact exists as

to whether the defendant’s proffered reason was pre-

textual. Id.

As we already have noted, it is not disputed that

Mr. Harper engaged in a statutorily protected

activity or that he suffered an adverse employment

action. However, Mr. Harper challenges the district

court’s findings with respect to (1) whether he was

meeting the legitimate expectations of C.R. England at

the time of his termination, and (2) whether similarly

situated employees who did not engage in the statutorily

protected activity were treated more favorably.

We agree, for the reasons that follow, with the district

court’s conclusion that Mr. Harper has not presented

sufficient evidence to satisfy either requirement and,

No. 11-2975 23

therefore, has failed to make a prima facie case for re-

taliation under the indirect method.

1. Similarly Situated Individuals

We first turn to Mr. Harper’s argument that he was

treated less favorably than other instructors who, he

claims, were similarly situated. A similarly situated

employee need not be in a situation identical to that of

the plaintiff. Nevertheless, a plaintiff must show not

only that the proffered comparators “dealt with the

same supervisor[ and] were subject to the same stan-

dards,” but also that they “had engaged in similar

conduct without such differentiating or mitigating cir-

cumstances as would distinguish their conduct or the

employer’s treatment of them.” Gates v. Caterpillar, Inc.,

513 F.3d 680, 690 (7th Cir. 2008) (internal quotation

marks omitted); see also Crawford v. Indiana Harbor Belt

R.R. Co., 461 F.3d 844, 846 (7th Cir. 2006) (holding that

a similarly situated employee is one who is “comparable

to the plaintiff in all material respects” (emphasis in

original)). In short, being “similarly situated” requires

“enough common features between the individuals to

allow [for] a meaningful comparison.” Humphries v. CBOCS

W., Inc., 474 F.3d 387, 405 (7th Cir. 2007).

We agree with the district court’s conclusion that

Mr. Harper has failed to identify any other C.R. England

instructor who had a comparable attendance record.

Mr. Harper provides the name of only one individual,

Kim Beckom, who he asserts received more favorable

treatment with respect to attendance issues. However,

24 No. 11-2975

as the district court pointed out, the documents

provided by Mr. Harper do not include Beckom’s atten-

dance records or indicate how much work Beckom

missed before he was discharged in May 2006 due to

his inability to work the required schedule. Here, we

believe that a meaningful comparison only may be made

by identifying those employees who received more favor-

able treatment while on probation for attendance is-

sues. See Nichols v. S. Ill. Univ.-Edwardsville, 510 F.3d 772,

786 (7th Cir. 2007) (requiring plaintiffs to identify an

employee who had engaged in similar misconduct in

order to satisfy the similarly situated requirement); see

also Argyropoulos, 539 F.3d at 735 (same). We therefore

agree with the district court’s conclusion that, with

respect to Beckom, Mr. Harper failed to demonstrate

that he “was a similarly situated employee suitable for

comparison.” 34

In addition, Mr. Harper provides a list of names and

asserts generally that “eight of the nine witnesses identi-

fied by Harper, who did not complain of or confirm use

of racial slurs by Darnell Humphrey—were treated more

favorably than Harper.” Appellant’s Br. 24. However,

Mr. Harper fails to point to any listed individual who

was treated more favorably with respect to his or her

attendance record. His contention that “[C.R.] England

produced no evidence that any employee other than

Harper had [h]olidays and vacation used against him

to create a history of attendance issues for which the

34

R.44 at 20.

No. 11-2975 25

employee was fired,” Appellant’s Br. 23, is hardly suffi-

cient to satisfy this requirement.

Because Mr. Harper has not demonstrated that any of

the coworkers listed had a “comparable set of failings,”

Haywood, 323 F.3d at 530 (applying the standard in

the discrimination context), he fails to establish that any

of these individuals were similarly situated for the pur-

poses of establishing a retaliation claim.

2. Work Performance and Employer’s Legitimate

Expectations

Next, we turn to Mr. Harper’s contention that he

was performing his job satisfactorily at the time of his

termination. In order to determine whether Mr. Harper

was meeting his employer’s legitimate expectations,

“[t]he proper inquiry mandates looking at [Mr. Harper’s]

job performance through the eyes of [his] supervisors at

the time of [his] . . . termination.” Gates, 513 F.3d at

689. Although Mr. Harper fails to develop fully this

argument, he seems to suggest that the alleged disparities

in C.R. England’s treatment of its employees with

respect to job performance standards, in addition to

the fact that he was appointed to act as interim lead

instructor from January 2007 to February 2007, serves as

evidence that he was meeting C.R. England’s legitimate

job expectations.

As we discussed earlier, Mr. Harper failed to identify

any other instructor who had a comparable attendance

record, and his argument with respect to the disparities

26 No. 11-2975

in C.R. England’s treatment of its employees is therefore

unsupported by the record. In addition, it is important to

note that, at the time of his termination, Mr. Harper was

on probation for attendance issues. In his deposition,

Mr. Harper testified that he was aware of C.R. England’s

expectations that the instructors be on time and present

for their students. He admitted that he had been aware

that he was placed on probation for attendance reasons

and acknowledged that he had known that he could be

terminated if he continued to take time off of work after

being on probation. It is also undisputed that, after being

placed on probation, Mr. Harper took several days off

to attend his sister’s wedding and one additional day

to appear in court. Although the parties dispute

whether Mr. Harper indeed had exceeded his number

of authorized leave days and whether certain of these

days off had been authorized, C.R. England’s policies

and procedures booklet makes clear that “[v]acation

time requests are subject to [m]anagement approval

based upon operating requirements, staffing consider-

ations, and business necessity.” 3 5 Furthermore, Mr. Harper

does not proffer any evidence to rebut C.R. England’s

criticism of his job performance, nor does he argue that

the cumulative effect of his absences did not in fact inter-

fere with his job performance. We therefore conclude

that Mr. Harper has not shown that he was performing

his job adequately at the time of his termination.

35

R.36-3 at 10.

No. 11-2975 27

3. Pretext

Because Mr. Harper has failed to make out a prima

facie case of retaliation under the indirect method, we

need not address the issue of pretext. See Volovsek v.

Wisconsin Dep’t of Agric., Trade & Consumer Prot., 344 F.3d

680, 692 (7th Cir. 2003). Nonetheless, in the interest of

completeness, we shall address Mr. Harper’s arguments

with respect to this issue.

C.R. England has offered a legitimate, nondiscriminatory

reason for terminating Mr. Harper: excessive absences.

In determining whether an employer’s stated reason is

pretextual, “[t]he question is not whether the em-

ployer’s stated reason was inaccurate or unfair, but

whether the employer honestly believed the reason it

has offered to explain the discharge.” O’Leary v. Accretive

Health, Inc., 657 F.3d 625, 635 (7th Cir. 2011). “[I]t is not

the court’s concern that an employer may be wrong

about its employee’s performance, or be too hard on its

employee. Rather, the only question is whether the em-

ployer’s proffered reason was pretextual, meaning that

it was a lie.” Ineichen v. Ameritech, 410 F.3d 956, 961 (7th

Cir. 2005). In short, to meet this burden, Mr. Harper

“must identify such weaknesses, implausibilities, incon-

sistencies, or contradictions” in C.R. England’s stated

reason “that a reasonable person could find [it] unworthy

of credence.” Boumehdi, 489 F.3d at 792 (applying this

standard in the discrimination context).

To begin, we address Mr. Harper’s argument

that C.R. England was inconsistent in its reasoning for

terminating him and that this inconsistency provides

28 No. 11-2975

additional evidence of pretext. Mr. Harper’s characteriza-

tion of the record with respect to the reasoning behind

his termination is inaccurate. Mr. Harper’s Termination

Evaluation Form states that he was being fired because

he “ha[d] not been able to do [his] job full time.” 3 6 Al-

though the form indicates that Mr. Harper had received

warnings in the past regarding absenteeism and poor

performance, nothing on the form indicates that he was

fired for any other reason than violating the terms of

his attendance probation. Furthermore, in his deposi-

tion, Mr. Harper testified that Director Kelsey told

him on August 3, 2007, that the reason he was

terminating his employment was because of absentee-

ism. 3 7 Mr. Harper further agreed that he did not know

of any evidence suggesting that he was being terminated

for some other reason.3 8 Similarly, Director Kesley testi-

fied at his deposition that he made the decision to fire

Mr. Harper because of “[m]ultiple attendance issues.” 3 9

It is clear from the record that, although Director Kelsey

looked at all three of Mr. Harper’s written warnings,

he relied upon Mr. Harper’s probation violation in con-

cluding that his employment should be terminated.

Mr. Harper’s argument that C.R. England shifted

its reason for terminating his employment is therefore

unsupported by the record, including his own testi-

36

R.36-6 at 63.

37

R.36-1 at 20, 26 (Harper Dep. 74, 97).

38

See id. at 26 (Harper Dep. 97).

39

R.36-4 at 13 (Kelsey Dep. 45).

No. 11-2975 29

mony regarding C.R. England’s explanation for his termi-

nation.

Mr. Harper also submits the following as evidence of

pretext: (1) he was disciplined for mileage and keys when

C.R. England had no policy concerning either; (2) C.R.

England changed the start-to-hire rate, and Metzler

did not discipline any other instructor for being below

the acceptable level; (3) C.R. England counted paid holi-

days and vacation days against Mr. Harper, but not

against any other employee; (4) he was not permitted to

take days off for his sister’s wedding when the leave

already had been approved prior to his being placed

on probation; (5) C.R. England tried to cover up the

Humphrey incident; and (6) he was given written

warnings after voicing complaints and then fired after

complaining about being singled out for unjust disci-

pline. We consider each of these arguments, in turn,

bearing in mind that the burden is on Mr. Harper to

establish that C.R. England’s proffered reason for his

termination is pretextual.

As we explained earlier, we need not address

Mr. Harper’s arguments with respect to his being disci-

plined for failing to report mileage or to turn in his

keys, nor must we address Mr. Harper’s arguments with

respect to the company’s start-to-hire rates; neither argu-

ment is germane to our discussion of whether C.R. Eng-

land’s stated reason for firing Mr. Harper, i.e., ex-

cessive absences, was pretextual. We therefore turn to

Mr. Harper’s argument that the evidence shows that C.R.

England improperly counted paid holidays and vacation

30 No. 11-2975

days against Mr. Harper as excessive leave. As we

already have noted, an issue of fact clearly exists as to

whether Mr. Harper had exceeded his authorized

number of leave days and whether C.R. England

impermissibly counted paid holidays and vacation

days against him. One also can debate whether it is

good policy to include paid leave or vacation days in

evaluating an employee’s total attendance record or

whether certain of Mr. Harper’s days off during 2007

indeed were authorized by Mr. Harper’s supervisors.

The fact remains, however, that C.R. England fired

Mr. Harper because it found that his cumulative

exercise of leave was excessive and that it was affecting

his performance as an instructor.

We need only briefly reiterate that Mr. Harper

provides no evidence to support his assertion that

Director Kelsey and Metzler tried to cover up the

incident with Humphrey. As we have discussed earlier,

Mr. Harper does not dispute that, in the aftermath of

the alleged incident, Metzler, at the direction of

Director Kelsey, warned the road instructors, including

Humphrey, that the use of racial slurs would not be

tolerated. In addition, Mr. Harper is unable to provide

evidence to support his claim that Metzler interviewed

only two of the nine witnesses to the incident. According

to Director Kelsey, Metzler confirmed that one in-

structor, Richard Ramos, verified Mr. Harper’s account

of the confrontation with Humphrey. However, Metzler

also reported that Humphrey denied using the racial

slur and at least one other instructor, whom Mr. Harper

identified as being present at the time of the incident, did

No. 11-2975 31

not hear Humphrey call Mr. Harper a “n----r.” Director

Kelsey reported the results of Metzler’s investigation

to Johansen in human resources, and she did not ask

for any further action. There is therefore no evidence

that Director Kelsey or Metzler in any way covered up

the incident.

Finally, Mr. Harper returns to his argument regarding

the timing of his complaints. He argues that the

proximity between his complaints to human resources

regarding the written warnings and other unfair dis-

cipline he received from Metzler via email on July 10,

2007, and by telephone around July 31, 2007, and his

subsequent termination on August 3, 2007, amounts to

evidence of pretext. As we have discussed above,

evidence of suspicious timing, without more, is

insufficient to support a claim of retaliation.

In short, Mr. Harper makes a number of assertions,

none of which could lead a reasonable jury to conclude

that C.R. England’s stated reason for firing him was

pretextual. Rather, as the district court aptly noted,

Mr. Harper argues that his termination was unfair, but

he does not provide any evidence to refute C.R.

England’s position that his cumulative exercise of leave

was excessive or to demonstrate that his absences did not

affect his job performance and ability to instruct. We

therefore conclude, in the alternative, that Mr. Harper

has failed to demonstrate that C.R. England’s stated

reason for terminating him is pretextual.

Finally, we note that under Judge Wood’s approach in

Coleman v. Donahoe, 667 F.3d 835, 862 (7th Cir. 2012) (Wood,

32 No. 11-2975

J., concurring), the same result obtains. In Coleman, our

colleague, joined by the other judges on the panel, sug-

gested in a special concurring opinion that our famil-

iarity with these kinds of discrimination and re-

taliation cases has evolved to the point where two

distinct methodologies, rather than clarifying or sim-

plifying our analysis of a particular case, has become

a complicating factor. Judge Wood suggested that we

would be better served at this time by “collaps[ing] all

these tests,” into a single, unified approach that distills

the core issue at the heart of these cases: whether “a

rational jury could conclude that the employer took

that adverse action on account of [the employee’s] pro-

tected class [or activity], not for any non-invidious rea-

son.” Id. at 863 (Wood, J., concurring); see also King v. Acosta

Sales & Mktg., Inc., No. 11-3617, 2012 WL 807199, at *3

(7th Cir. Mar. 13, 2012) (discussing briefly Judge Wood’s

concurring opinion in Coleman).

Certainly, cases such as this one demonstrate that

the line between circumstantial evidence under the

direct method and indirect evidence of discrimination

or retaliation under the burden-shifting approach

has been blurred by the gradual integration of these

methodologies. Furthermore, we believe that a stream-

lined evaluation of the evidence presented, including

the timing of Mr. Harper’s termination, his job perfor-

mance and ratings after he complained to Director Kelsey

and Johansen, his attendance record compared to those

of his coworkers, as well as C.R. England’s proffered

reason for termination, would yield the same conclusion,

without the “snarls and knots,” Coleman, 667 F.3d at 863

No. 11-2975 33

(Wood, J., concurring), created by the broad, and now

overlapping, approaches. The circumstantial evidence

in the record, construed in the light most favorable to

Mr. Harper, simply does not constitute a sufficient

basis for sustaining a jury verdict in his favor.

Conclusion

For the foregoing reasons, the judgment of the district

court is affirmed.

A FFIRMED

6-8-12