In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3311
D IANA E VERROAD,
Plaintiff-Appellant,
v.
S COTT T RUCK SYSTEMS, INC. and
S HERRY H ANTZIS, in her individual
capacity,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:06-CV-00770-RLY-JMS—Richard L. Young, Chief Judge.
A RGUED S EPTEMBER 22, 2009—D ECIDED M AY 10, 2010
Before E ASTERBROOK, Chief Judge, and B AUER and
R OVNER, Circuit Judges.
R OVNER, Circuit Judge. Diana Everroad sued her
former employer, Scott Truck Systems, Inc. (“Scott
Truck”), and Sherry Hantzis, the company’s general
manager, for gender and age discrimination, and for
retaliation for reporting gender and age discrimination.
The district court granted summary judgment in favor
of the defendants, and Everroad appeals. We affirm.
2 No. 08-3311
I.
Scott Truck is a family-owned commercial trucking
business. David Scott (“Scott”) is the owner and president
of the company, and his wife, Sherry Hantzis (“Hantzis”),
is the general manager. In the spring of 2004, Everroad,
who was fifty-one years old at the time, applied for a
job as a dispatcher at Scott Truck. On Hantzis’ recom-
mendation, Scott hired Everroad, selecting her over
three other candidates. The other applicants included
Tim Wilson, age forty; Dennis Wilder, age fifty; and Tina
Skadra, age twenty-four. The dispatcher job entailed
pairing customer loads with trucks and drivers, en-
suring that drivers turned in their required paperwork,
and helping the drivers. The dispatcher had extensive
contact with both drivers and customers.
Jim Moore was Everroad’s direct supervisor. Although
he was responsible for training Everroad, he failed to
do so over a two-month period, and Scott was forced to
train her while Moore was on vacation for two weeks.
Moore complained that Everroad did not understand
her job, and two of Scott Truck’s largest customers also
complained about their encounters with Everroad.
Everroad also experienced conflicts with other Scott
Truck employees. Tim Wilson, who had been passed over
for the dispatcher job, told Everroad that she was not a
good dispatcher and should not have been hired. Wilson
also told Everroad that he was unhappy that more
women were being hired at the company, and that the
male employees preferred the company when it was all
men. Wilson repeated that he did not think Everroad
No. 08-3311 3
should be working at the company within the hearing of
Moore, who simply told Everroad to “let it go.” Everroad
points to no evidence that Moore, Scott or Hantzis were
aware that Wilson had expressed any gender-based
comments to Everroad. Scott and Hantzis, in fact, heard
raised voices and asked Wilson and Everroad what had
happened. Everroad told them that Wilson said she
could not do her job and he did not want her to perform
the dispatch job. Scott and Hantzis told Wilson that he
was required to work with Everroad as long as she
was the dispatcher. During this meeting, Wilson asked
several times if he could leave, and Hantzis insisted
that he stay until the meeting was concluded.
Everroad had four run-ins with John Mulligan, a driver
for Scott Truck. The first two encounters were on the
telephone, and on each occasion, Mulligan yelled at
Everroad and insisted that he talk to either Moore
or Scott, declining to talk to Everroad about dispatch
matters. After those first two calls, Everroad left
Mulligan a voice mail asking to speak with him about
his manner on the phone and telling him she would not
allow him to scream at her again. The next time
Mulligan came into the office, he pounded on the office
door, which Everroad had locked because she was alone
in the office. When she unlocked the office door,
he slammed the door open in a manner she found physi-
cally intimidating. Everroad secretly recorded her fourth
confrontation with Mulligan. At that time, he made a
derogatory remark to Everroad that was gender-based,
attributing her demeanor to “PMS,” presumably meaning
premenstrual syndrome. Everroad told Scott and
4 No. 08-3311
Hantzis about this remark, but Everroad did not know
whether they did anything about it. Mulligan’s brusque
manner extended to his employer as well. Everroad’s
husband, who was a truck driver for Scott Truck, saw
Mulligan “verbally screaming at Dave Scott in a loud
and humiliating manner while employed at STS.” R. 72,
Ex. C. Hantzis acknowledged that Mulligan was a large
man with a booming voice and a sarcastic wit, who liked
to “tease” people. Hantzis also conceded that Mulligan
sometimes did not control his anger well. But Hantzis
and Scott both denied that Mulligan, whom they con-
sidered a friend, ever was insubordinate with them.
In August 2004, Scott and Hantzis moved Everroad
from the dispatcher position to a newly created “data
administrator” job. Everroad’s new duties included
filing, tracking information for payroll purposes, per-
forming data entry, and screening the public. Everroad
received the same pay and worked the same number of
hours as in the dispatch job. Hantzis told Everroad that
she could pick her own start time as long as she worked
a full day, and so the job was more flexible than the
dispatcher position. As data administrator, Everroad
shared an office with Jennifer Sasser. Sasser, a twenty-
eight year old hourly-wage employee, was responsible
for copying audiobooks onto compact disks for the com-
pany’s drivers to use on long trips. The shared office
had only one telephone and it was placed on Sasser’s
desk. Sasser had health and family issues and made
personal calls at work to address some of these problems.
Everroad found the calls distracting and disturbing,
and eventually complained to Hantzis about this issue.
No. 08-3311 5
Hantzis counseled Sasser to use a lobby phone or her
cell phone for extended calls, but Sasser fell back into
her old pattern after a few days of compliance with
Hantzis’ request.
Everroad found it especially difficult to listen to
Sasser’s health-related calls after the long-time boy-
friend of Everroad’s sister suffered a heart attack. When
she again complained to Scott and Hantzis about
Sasser’s excessive telephone use and the disturbing
content of the calls, Hantzis suggested that Everroad
take time off from work to address issues in her personal
life. Everroad took offense at this suggestion and later
compiled a written list of complaints about Sasser. She
presented this list to Hantzis and Scott, who then called
a meeting with Everroad and Sasser to resolve the con-
flict. The meeting did not go well. Everroad sur-
reptitiously recorded the first hour and a half of the
meeting. Both Everroad and Sasser denied there was a
conflict. Sasser was asked to leave the meeting at some
point and then rejoined it much later. By all accounts it
was a lengthy and tense meeting. Voices were raised,
accusations were exchanged, tears were shed, and eyes
were rolled. By the end of the meeting, the group com-
piled proposals that might allow Everroad and Sasser to
work peacefully in the same office. Plans were made to
reconvene the next day to discuss the proposals. Hantzis
and Scott, however, were disturbed by Everroad’s
conduct during the meeting and discussed that evening
whether she had been insubordinate. They concluded
she had been and began considering their options. The
next morning, when they arrived at work, Everroad
6 No. 08-3311
ignored Hantzis’ morning greeting, but acknowledged
Scott’s greeting in an exaggerated manner. Irritated
that Everroad had pointedly ignored Hantzis, and
given the previous days’ events, they decided to terminate
her for insubordination. After consulting their attorney,
Scott gave Everroad a termination letter and her final
paycheck at the end of the workday, and waited while
she gathered her belongings to leave. Everroad asked
Scott why she was being fired and he replied, “You
winked at Sherry.” Everroad took the opportunity to
tell Scott that Hantzis had been saying unflattering
things about him behind his back. By her own account,
she also told Scott that he and his wife were “nuts, crazy,
insane” and “sick.” Hantzis appeared a short while
later and told Everroad that they cared about her.
Everroad, by her own account, replied by telling Hantzis
to “fuck herself” and also called her a “fucking bitch.”
That evening, Everroad called Scott and asked for sever-
ance pay. Scott declined.
Everroad sued Scott Truck and Hantzis under federal
and state law. She contended that Scott Truck violated
Title VII by treating similarly situated male employees
more favorably and by retaliating against her when she
voiced opposition to this practice. She also alleged that
Scott Truck violated the Age Discrimination in Employ-
ment Act (“ADEA”) by treating younger employees
more favorably and by retaliating against her when she
objected to this practice. Everroad brought state law
claims against Scott Truck for wrongful termination and
negligent retention, and against Hantzis for assault and
intentional infliction of emotional distress. The district
No. 08-3311 7
court granted summary judgment in favor of the defen-
dants on Everroad’s federal claims and declined to
exercise supplemental jurisdiction over the remaining
state law claims. Everroad appeals.
II.
On appeal, Everroad complains that the district court
improperly refused to consider certified transcripts of
the two secretly recorded conversations. She also asserts
that the court erred in finding that she was not
similarly situated to Tim Wilson and John Mulligan for
the purposes of her Title VII claims. She maintains that
the court erred again when it found Everroad was not
similarly situated to Jennifer Sasser for the purpose of
her ADEA claims. She contends that she adequately
established that the non-discriminatory reason given by
Scott Truck for her termination was pretextual, and that
she also provided sufficient evidence to establish a
causal link between her protected activity and adverse
employment actions for the purpose of her retaliation
claims. Our review of the evidentiary decision is for
abuse of discretion and we review the court’s decision
to grant summary judgment de novo. Gunville v. Walker,
583 F.3d 979, 985 (7th Cir. 2009); George v. Walker, 535
F.3d 535, 538 (7th Cir. 2008).
A.
In the district court and on appeal, Everroad offered
transcripts of the conversations she recorded with John
8 No. 08-3311
Mulligan and with Scott and Hantzis. The transcripts
purport to be prepared by a “transcriptionist” and are
accompanied by statements attesting to the accuracy of
the transcription and the absence of any financial in-
terest in the outcome of the litigation by the preparer.1 In
the district court, in her response in opposition to the
defendants’ motion for summary judgment, Everroad
quoted these transcripts and dropped footnotes stating,
“Plaintiff’s counsel can make the actual recording
available for the Court’s review.” R. 72, at 5-6. In her
opening brief on appeal, she makes a similar offer. For
each transcript that she cites, she states, “Appellant’s
counsel can make the actual recording available for
this Court’s review.” Brief of Appellant, at 11 and 14. Yet
there is no “actual recording” in the certified record on
appeal and counsel appears to have never provided the
tapes to the district court either. Instead, Everroad
faults the district court for failing to ask to review the
tapes after she extended her offer.
The district court declined to consider the transcripts
as evidence in assessing the defendants’ motion for
summary judgment. The court found that a tape re-
cording rather than a transcript of a conversation consti-
1
The defendants point out that the certifications signed by the
transcriptionist and included in Everroad’s appendix on
appeal were not part of the record before the district court. We
generally will not consider evidence that was not presented
to the district court. Hernandez v. HCH Miller Park Joint Venture,
418 F.3d 732, 736 (7th Cir. 2005). We cite the information
from the certifications only to provide background.
No. 08-3311 9
tutes evidence of what was said. See Stringel v. Methodist
Hosp. of Indiana, Inc., 89 F.3d 415, 420 (7th Cir. 1996). See
also United States v. Howard, 80 F.3d 1194, 1198 (7th Cir.
1996) (the real evidence of who said what in a recorded
conversation is the tape itself rather than a transcript
of the tape). The court also found that the relevancy
and accuracy of the tapes and the transcripts were ques-
tionable because both recordings are largely inaud-
ible and because Everroad did not know whether the re-
cordings were complete recordings of the entire con-
versations. Stringel, 89 F.3d at 420 (a district court is
obliged to ascertain that a recording is sufficiently audible
to constitute reliable evidence of the conversation re-
corded). Indeed, as Everroad now concedes, the tape
recording of the meeting with Scott and Hantzis covers
only the first hour and a half of a meeting that she
claims went on for six and half hours.
Everroad nonetheless argues that the court erred in
concluding that the tapes were largely inaudible without
actually listening to the tapes. There are two problems
with this argument. First, Everroad did not submit the
tapes to the district court. She offered to submit the
tapes but she never actually submitted them. It is not the
district court’s responsibility to seek out relevant infor-
mation that a party has in its possession. She had an
opportunity to present the tapes and she did not. It is a
strange and unwise strategy for a party to advise a
court that it has relevant evidence without actually sub-
mitting the evidence. Summary judgment proceedings
provide the “put up or shut up” moment in litigation.
Offering to provide the tapes is not the same as providing
10 No. 08-3311
them, and the court was under no obligation to review
anything that was not part of the record. Even on appeal
Everroad makes this offer to provide the tapes to this
court if we wish to hear them. But we generally will not
consider evidence that was not before the district court,
and there is no doubt that the tapes were never pro-
vided to the district court. Hernandez v. HCH Miller Park
Joint Venture, 418 F.3d 732, 736 (7th Cir. 2005) (this court
may consider only evidence properly presented to the
district court). Everroad has never provided the tapes
to any court.
Second, the transcripts themselves prove the court’s
conclusion that the tapes are largely inaudible. The
transcriptionist hired by Everroad found significant
portions of the tapes inaudible. For example, the
transcript of the taped conversation between John
Mulligan and Diane Everroad begins:
(Voices far away—inaudible)
JOHN: (inaudible)
DIANE: (inaudible)
JOHN: (inaudible) I didn’t say you didn’t (inaudi-
ble)
DIANE: (inaudible)
JOHN: (inaudible) any time you see me go (inaudi-
ble)
DIANE: (inaudible) you always act like your [sic]
mad.
JOHN: You know what, that is your perception.
No. 08-3311 11
DIANE: I don’t . . .
JOHN: That is your perception and that is not my
problem. (inaudible) perception (inaudible)
stuffed animals, this is Dave’s stuff. I would
like to (inaudible)
DIANE: (inaudible)
JOHN: (inaudible)
R. 72, Ex. E. And so it goes. At times, it is more compre-
hensible but it is impossible to follow the thread of
the conversation at all. The transcript of the first
hour and a half of the meeting with Scott and Hantzis
is somewhat better but the first page includes the “inaudi-
ble” indicator nine times. R. 72, Ex. D. That conversation
also includes numerous indications of “talking over,”
presumably where two people were speaking at the
same time. There is no indication in the transcript re-
garding the length of the inaudible portions of the tran-
script. It could be a word, a phrase, a sentence or a
page. We have no way of knowing. And the district court
had no way of knowing, either, how much was missing.
The conversation between Everroad and Mulligan is
essentially incomprehensible. The conversation with
Scott and Hantzis is partly incomprehensible and con-
tains numerous omissions of unknown length, together
with an admission that the last five hours of the meeting
are missing. Given the circumstances, any argument that
the district court abused its discretion in refusing to
consider the transcripts is frivolous.
12 No. 08-3311
B.
We turn to Everroad’s claims for age and gender dis-
crimination, and for retaliation. For each of the discrim-
ination claims, Everroard lacks direct evidence of dis-
crimination and relies on the McDonnell Douglas burden-
shifting analysis to make her case. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973); Lucas v. PyraMax
Bank, FSB, 539 F.3d 661, 666 (7th Cir. 2008). To make out
a prima facie claim under McDonnell Douglas, a plaintiff
must demonstrate that (1) she is a member of a protected
class, (2) she met her employer’s legitimate job expecta-
tions, (3) she suffered an adverse employment action, and
(4) similarly situated employees outside of the pro-
tected class received more favorable treatment. Lucas, 539
F.3d at 666. If the plaintiff is able to establish a prima
facie case of discrimination, the burden then shifts to the
employer to offer a non-discriminatory reason for the
adverse employment action. If the employer does so, the
burden shifts back to the plaintiff to submit evidence
demonstrating that the employer’s explanation is a
pretext. Gates v. Caterpillar, Inc. 513 F.3d 680, 690 (7th
Cir. 2008).
For each claim, the parties agree that Everroad can
establish that she is a member of a protected class
because she is female and over forty years of age, and
that she suffered an adverse employment action when
she was terminated. They disagree on the state of the
record for the other two parts of the analysis. Everroad
argues that the evidence is undisputed that she was
meeting her employer’s legitimate job expectations and
No. 08-3311 13
that similarly situated male and younger employers
were treated more favorably. Scott Truck, of course,
contends that Everroad was not meeting the company’s
legitimate expectations because she was insubordinate.
The company also contends that Everroad has failed to
identify any male employees or younger employees
who were similarly situated because no one else had
engaged in insubordination.
Normally, we first determine whether a plaintiff has
established a prima facie case before putting the em-
ployer to the burden of demonstrating a non-discrim-
inatory reason for a termination and engaging in the
pretext analysis. Hague v. Thompson Distribution Co., 436
F.3d 816, 823 (7th Cir. 2006). In some cases, though, the
issue of satisfactory performance and the question of
pretext overlap. When the employer asserts as the non-
discriminatory reason for termination that the em-
ployee was not meeting legitimate job expectations, the
credibility of the employer’s assertion is at issue for
both the second element of the plaintiff’s prima facie case
and the pretext analysis. Hague, 436 F.3d at 823. See also
Bodenstab v. County of Cook, 569 F.3d 651, 657 (7th Cir. 2009)
(although the question of pretext arises only after the
plaintiff has established a prima facie case of discrim-
ination and the employer has countered with a legiti-
mate non-discriminatory reason for the adverse action,
we may skip over the initial burden-shifting of the
indirect method and focus on the question of pretext);
Adelman-Reyes v. Saint Xavier Univ., 500 F.3d 662, 665 (7th
Cir. 2007) (the prima facie case and pretext inquiry often
overlap; we may skip the analysis of the prima facie case
14 No. 08-3311
and proceed directly to the evaluation of pretext if the
defendant offers a non-discriminatory explanation for
its employment decision). There is a good deal of overlap
in this case between these key issues. Everroad was
not meeting her employer’s legitimate expectations
if she was insubordinate; insubordination is a non-dis-
criminatory reason for termination; and Everroad is
similarly situated only to other insubordinate employees.
Everroad essentially concedes in her brief that Scott and
Hantzis genuinely believed she had been insubordinate
at the lengthy meeting the day before her termination,
and also that she had been insubordinate the next
morning, immediately before Scott and Hantzis decided
to terminate her.2 Appellant’s Brief at 15 (“Scott and
Hantzis determined that Appellant was insubordinate
during the 6½-hour meeting and discussed their options
in dealing with Appellant. . . . As they walked away,
Scott and Hantzis agreed that Appellant pointedly
2
Everroad argues that a reasonable jury could conclude that her
conduct at the meeting did not constitute insubordination.
But that is not the relevant inquiry. The decisive question is
whether Scott and Hantzis genuinely believed that Everroad
had been insubordinate, and even Everroad concedes that
they did. That a jury might disagree with them or even find
that they erred in their assessment does not render their
termination decision discriminatory. So long as they genuinely
believed in the truth of their stated reason for the decision,
that reason is not pretextual. See Ptasznik v. St. Joseph Hosp., 464
F.3d 691, 696 (7th Cir. 2006) (an employer’s mistaken belief
that the plaintiff’s conduct merited termination is not
unlawful, so long as the belief was honestly held).
No. 08-3311 15
ignored Hantzis and, at that moment, they decided to
terminate her for insubordination.”). She does not
contest that she engaged in any of the behavior that led
Hantzis and Scott to conclude that she was insubordinate.
Among other things, during the lengthy meeting to
discuss the problem with Sasser, Everroad rolled her
eyes at Hantzis, and when Hantzis asked her not to, she
replied, “I’m allowed to have facial expressions.” She
threw up her arms and yelled, “Jeez!” in response to
something Hantzis said. When Hantzis tried to confirm
something Everroad said earlier in the meeting, Everroad
said, “I don’t need your confirmation.” She also told
Hantzis, “It doesn’t matter what I say. You’re going to
put a spin on it.” She also compared Sasser’s phone
calls about her father’s health problems to a scene in
the movie Forrest Gump, where the character Bubba ram-
bles on about the different ways to cook shrimp. Finally,
she refused to say hello to Hantzis the following morning.
All of this Scott and Hantzis found to be inappropriate and
insubordinate workplace behavior.
Everroad denies that this explanation accounts for
her termination, however, because she contends that
Mulligan, Wilson and Sasser also were insubordinate
but they faced no adverse employment action. In other
words, Everroad argues that because these similarly
situated employees were not terminated, the reason
given for her termination is a pretext. To demonstrate
pretext, Everroad must show that her employer did not
honestly believe in the reasons it gave for terminating
her. Krchnavy v. Limagrain Genetics Corp., 294 F.3d 871, 876
16 No. 08-3311
(7th Cir. 2002). “Pretext means a dishonest explanation,
a lie rather than an oddity or an error.” Bodenstab, 569
F.3d at 657. See also Filar v. Board of Educ. of Chicago, 526
F.3d 1054, 1063 (7th Cir. 2008) (demonstrating pretext
requires proof that the defendant’s explanation is unwor-
thy of credence). When a plaintiff claims to have been
disciplined more harshly than other, similarly situated
employees based on a prohibited reason, the plaintiff
typically must demonstrate that the other employees
“engaged in similar conduct without such differen-
tiating or mitigating circumstances as would distin-
guish their conduct or the employer’s treatment of
them.” Antonetti v. Abbott Labs., 563 F.3d 587, 592 (7th
Cir. 2009).
Everroad’s evidence that these other three employees
enagaged in similar conduct is thin to nonexistent. For
Wilson, Everroad claims only that he asked whether
he could leave a meeting before it was finished. She
concedes that Wilson complied when he was told he
could not leave. Sasser continued to make personal calls
related to family health matters in the office she shared
with Everroad after Hantzis and Scott asked her not to do
so. As a result of the ongoing conflict between Sasser and
Everroad, Scott and Hantzis called Sasser into the same
conflict-resolution meeting where Everroad engaged in
most of the conduct that led to her dismissal. There is
no evidence that Sasser behaved in an insubordinate
manner at that meeting. Sasser’s occasional noncompli-
ance with the new phone rule appears to have irritated
only Everroad; Scott and Hantzis did not consider
Sasser’s conduct to be insubordinate toward them. As
No. 08-3311 17
for Mulligan, Everroad’s husband averred that he wit-
nessed Mulligan “verbally screaming at Dave Scott in a
loud and humiliating manner.” R. 72, Ex. C. Mulligan, a
friend of Scott and Hantzis, was known at Scott Truck
for his booming voice and sarcastic wit. The only
evidence in the record defining insubordination at
Scott Truck was Hantzis’ testimony that she told
Mulligan it would be a major issue if he was inordinately
rude or if he refused to do something she asked him to
do. There is no evidence in the record that Scott or
Hantzis believed that Mulligan or any employee other
than Everroad had violated this standard.3 Although
3
The district court also found that Mulligan and Wilson
were not similarly situated because there was no evidence
they were treated more favorably than Everroad at the time
of her termination. In each case, any possibly insubordinate
acts by Mulligan and Wilson had occurred approximately a
year earlier. The district court cited Keri v. Board of Trs. of
Purdue Univ., 458 F.3d 620, 644 (7th Cir. 2006) for the proposi-
tion that “the Plaintiff must establish that the similarly situated
employees were treated more favorably at the time of the
alleged discrimination” against the plaintiff. D. Ct. Opinion at
17, quoting Keri, 458 F.3d at 644 (emphasis added by the
district court). This dictum in Keri cites to Jordan v. City of
Gary, Indiana, 396 F.3d 825, 834 (7th Cir. 2005). Jordan, in turn,
relies on Grayson v. City of Chicago, 317 F.3d 745, 748 (7th Cir.
2003). Both Jordan and Grayson were failure-to-promote cases,
and part of the prima facie case required the plaintiff to demon-
strate that the employer granted the promotion to someone
outside the protected group who was not better qualified than
(continued...)
18 No. 08-3311
Everroad’s husband perceived Mulligan’s speech as
“humiliating,” there is no evidence in the record that
Scott or Hantzis ever found that Mulligan was “inordi-
nately rude” or that he refused to do something after
being asked to comply.4 Without any evidence that these
3
(...continued)
the plaintiff. In the context of a failure-to-promote case, when
the comparator is the person who was promoted instead of the
plaintiff, the “same time” analysis is important to the consider-
ation of whether the comparator is similarly situated to the
plaintiff. Keri was not a failure-to-promote case but rather
involved a decision not to reappoint the plaintiff for another
term. The comparators were not similarly situated because
some were tenured employees to whom different standards
applied, some reported to different supervisors, and for some
the plaintiff was simply too vague about when and how the
other employees were treated in a more favorable manner. The
timing issue was not determinative. Because the instant case
does not involve a failure to promote, the analogy to these
cases is not particularly apt.
4
Jim Everroad, the plaintiff’s husband, averred that he
“personally witnessed John Mulligan verbally screaming at
Dave Scott in a loud and humiliating manner while employed
at STS. Mulligan’s speech included a substantial amount of
profanity.” The characterization of Mulligan’s speech as
“humiliating” is conclusory and unsupported by any
specific information in the affidavit. Payne v. Pauley, 337 F.3d
767, 773 (7th Cir. 2003) (conclusory allegations unsupported
by specific facts will not suffice to defeat summary judgment).
Jim Everroad had no personal knowledge of how Scott per-
(continued...)
No. 08-3311 19
other employees met Hantzis’ definition of insubordina-
tion, Everroad’s case fails on two levels. First, she has
failed to demonstrate that she was performing up to
her employer’s legitimate job expectations and has also
failed to identify any other employees at Scott Truck
who were similarly situated to her. She is thus unable
to make out a prima facie case of discrimination under
the McDonnell Douglas analysis. Second, she has failed to
present any evidence calling into question the sincerity
of her employer’s non-discriminatory reason for termi-
nating her, namely, that she was insubordinate. The
district court therefore correctly granted summary judg-
ment in favor of the defendants on Everroad’s claims
for age and gender discrimination.
Her claims for retaliation also fall short. On appeal,
Everroad makes no argument at all that Scott Truck
retaliated against her for complaining about age-related
discrimination. Instead she argues that she was
removed from her position as dispatcher because of her
complaint about Wilson’s sexually derogatory comments,
and that she was terminated for complaining about Mulli-
gan’s PMS comment. Her argument regarding her com-
4
(...continued)
ceived this incident. At most, it appears that Jim Everroad
concluded that Mulligan’s speech was humiliating because
it was generously laced with profanity. The definition of
insubordination employed by Hantzis did not disallow profane
speech. Profanity was apparently part of the environment
at Scott Truck, as evidenced by Everroad’s parting words to
her employer.
20 No. 08-3311
plaint about Wilson fails for three reasons. First, her
appeal is the first time that she claims that her transfer
from dispatch was an adverse employment action, and
she has thus waived that claim. Pole v. Randolph, 570
F.3d 922, 937 (7th Cir.), cert. denied, 130 S.Ct. 562 (2009)
(a party may not raise an issue for the first time on appeal).
Second, the move to the data administrator position was a
lateral move with no loss of pay, benefits, or significant
changes to working conditions. A purely lateral move to a
new position, a transfer that “does not involve a demotion
in form or substance,” cannot serve as an adverse employ-
ment action. Maclin v. SBC Ameritech, 520 F.3d 781, 788 (7th
Cir. 2008). Neither does a transfer involving no reduction
in pay and no more than a minor change in working
conditions qualify as an adverse employment action.
Maclin, 520 F.3d at 788. Finally, there is no evidence that
Everroad reported Wilson’s gender-based comments to
anyone at Scott Truck. Although Moore overheard Wilson
telling Everroad she should not be working for the com-
pany, there is no evidence that he overheard Wilson’s
gender-based comments, and Everroad did not report
Wilson’s comments to Scott or Hantzis.
Turning to her retaliation claim regarding Mulligan’s
PMS comment, Everroad argues that the district court
considered only the temporal relationship between
her report of the PMS comment and her termination.
Because there was a year-long gap between Everroad
telling Scott and Hantzis that Mulligan made this remark
and Everroad’s termination, the district court found that
timing would not help Everroad establish a causal link
between protected activity and the adverse employment
No. 08-3311 21
action. To survive summary judgment on her retaliation
claim, Everroad must present sufficient direct or circum-
stantial evidence for the trier of fact to infer that there
was a causal link between the protected activity and her
termination. Antonetti, 563 F.3d at 592. Under the direct
proof methodology, a plaintiff may establish a prima
facie case of retaliation by presenting direct evidence of
statutorily protected activity, an adverse employment
action, and a causal connection between the two.
Haywood v. Lucent Techs., Inc., 323 F.3d 524, 531 (7th Cir.
2003). A plaintiff may employ the indirect method by
showing that she engaged in statutorily protected
activity, performed her job to her employer’s legitimate
expectations, suffered an adverse employment action,
and was treated less favorably than similarly situated
employees who did not engage in that protected activity.
Dear v. Shinseki, 578 F.3d 605, 610-11 (7th Cir. 2009);
Haywood, 323 F.3d at 531. We will assume for the pur-
poses of the appeal that Everroad engaged in statutorily
protected activity when she mentioned Mulligan’s
PMS comment to Scott and Everroad.5 She clearly
suffered an adverse employment action when she was
terminated but her efforts on appeal to demonstrate a
causal link between the two are non-existent. Although
she criticizes the district court for addressing only tempo-
5
We assume without deciding that this report was sufficient
to alert Scott and Hantzis to the nature of Everroad’s com-
plaint. She was reporting to her employer only a single rude,
childish remark (albeit a gender-based one) made by a co-
worker who had no supervisory authority over her.
22 No. 08-3311
ral proximity, Everroad offers no other factual or legal
theory linking her report about the PMS comment to her
termination. Because we agree with the district court
that a year is too long in the absence of any other
evidence tying the protected activity to the adverse
action, we also conclude that Everroad has failed to
establish the requisite causal connection. Haywood, 323
F.3d at 532 (one-year delay between protected activity
and termination is far too long to establish a causal link
in the absence of any other evidence relating to causa-
tion). The court therefore correctly granted summary
judgment in favor of the defendants on the retaliation
claims.
A FFIRMED.
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