In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1957
K ATHERINE W EBER,
Plaintiff-Appellant,
v.
U NIVERSITIES R ESEARCH A SSOCIATION, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:05-cv-05607—Wayne R. Andersen, Judge.
A RGUED D ECEMBER 2, 2009—D ECIDED S EPTEMBER 2, 2010
Before B AUER, K ANNE, and T INDER, Circuit Judges.
K ANNE, Circuit Judge. Katherine Weber sued her
former employer, Universities Research Association,
Inc. (“URA”), for sex discrimination and retaliation
in violation of Title VII. The district court granted
URA’s motion for summary judgment on both claims.
We affirm.
2 No. 08-1957
I. B ACKGROUND
URA hired Weber as a mechanical engineer in 1986.
During the early 1990s Weber was the target of sexual
harassment. The perpetrators of the harassment were
never identified, and the harassment stopped when she
was transferred to a new department where she no
longer worked as an engineer. In 1996, Weber returned
to the department where she had been harassed, this
time as group leader of a computerized maintenance
system called CMMS. She told Dianne Engram, URA’s
Equal Employment Opportunity Officer, that she was
reluctant to return to the department. Fritz Lange, who
at the time of the earlier harassment was Weber’s peer,
was now her boss. He told her that she had “better be
good” and that he did not want any trouble from her.
Later, Weber started reporting to Dave Augustine, a
technician, who had previously been one of Weber’s
subordinates. The chain of command at this time was
as follows: Weber reported to Augustine, who reported
to Lange, who reported to Paul Czarapata, who reported
to Roger Dixon.
In 2003 Augustine gave Weber a negative performance
review. She complained to Engram because she be-
lieved Augustine had failed to properly fill out the goals
section of her review. Engram suggested Weber file a
grievance. Weber filed a level 2 grievance with Dixon,
who forwarded the grievance to Czarapata. Czarapata
twice told Weber to file a level 1 grievance directly
with her supervisor, as required by URA policy. Weber
did not allege in any of her grievances that Augustine’s
review of her performance was discriminatory. Weber
No. 08-1957 3
won her grievance in February 2004, and the negative
review was removed from her file. Her final per-
formance review for 2003 was “satisfactory.”
After she filed her grievances, Weber alleges that a
number of bad things started to happen to her at work.
Augustine sought to reclassify Weber as a computer
specialist rather than as a mechanical engineer—she had
in fact done no engineering work since 1996 when she
took over CMMS. Czarapata and Juanita Frazier, Em-
ployee Relations Manager, started investigating the
viability of CMMS. Czarapata says that he began to
consider shutting down CMMS due to budget issues
some time after approving the contract for 2004 but
before learning about Weber’s filed grievances. The
log book for CMMS showed that Weber only accessed
CMMS once per week. Czarapata eventually decided to
stop using CMMS and eliminate Weber’s position. It
appears from the record that Frazier was responsible
for getting clearance from the Department of Energy to
lay off Weber. Lange and Czarapata informed Weber
that URA was discontinuing the use of CMMS and that
her position was being eliminated.
Rather than fire Weber, Czarapata and Lange offered
Weber a choice of two positions: one working in building
management, which could have required shift work, and
the other working as an Engineer II and reporting to
Christine Ader, who was also an Engineer II. Weber told
Czarapata that she would take the engineer job with
Ader because she could not do shift work. Weber
looked for other positions within URA, but never
found another position to which she could transfer.
4 No. 08-1957
Ader and Weber’s relationship got off to a rocky
start. According to Ader, the two met on March 8, 2004,
to discuss Weber’s first job assignment: to replace and
motorize a kick stand. On March 15, Ader went with
Weber to the P-bar area of the accelerator to give her
further instructions on the assignment. Weber took ap-
proved sick leave from March 17 through March 19.
Weber did not complete the assignment on time, and
Ader did it herself. When Weber returned from her sick
leave, Ader gave Weber an official reprimand for insub-
ordination for having failed to complete the assignment
given to her. Weber denies that Ader ever gave her
the assignment. Ader had in fact submitted a request on
March 10 for a drafter to work on the same assignment.
After Weber’s return to work, Ader asked her about
her sick leave, told Weber to turn off her lights when
she left for the day, requested her work and lunch sched-
ules, and asked to know the layout of the furniture in
her office, which she shared with another employee.
Weber sent a note to Engram complaining that she was
being retaliated against, but Engram did not interpret
the note as lodging a formal complaint of retaliation.
Weber also sent an email to Engram complaining that
Ader did not “check up” on other employees like she
did on Weber. On one occasion Ader denied Weber’s
request for sick leave. Later, when Weber again re-
quested sick leave, Ader sent an email to Czarapata in
which she said she was “ready for the next round.”
Ader noticed that Weber spent a great deal of time at
her computer but still did not finish all of the work as-
No. 08-1957 5
signed to her. Ader told this to Czarapata, and Czarapata
decided to trace Weber’s Internet usage for five
workdays. The results of the trace show that Weber spent
more than 16 hours in one week on the Internet visiting
websites unrelated to her job, including accessing two
personal email accounts and a number of dog-related sites.
URA did not produce the actual amount of time spent
on non-work-related websites during discovery, but the
total time was before the district court when it ruled
on URA’s motion for summary judgment. Based on
the results of the trace the network manager for the
accelerator division concluded that Weber was using
her work computer for personal business matters. Ader
investigated further and discovered a number of adver-
tisements for Weber’s dog training business in which
Weber listed her two personal email accounts as con-
tacts. Ader also found another listing for Weber’s busi-
ness that listed Weber’s URA work phone number as
the contact number.
Weber does not deny that she accessed her personal
email accounts or visited the dog-related sites, but she
claims that she did so for personal reasons. Weber also
says that the amount of time spent on the websites can
be explained by her leaving a browser open to a website
while she worked, though the trace did show that
Weber’s use of the websites was interactive.
URA has a policy that requires those employees
who have outside employment to file a form with URA
and get authorization for the outside employment. The
policy says that unauthorized outside employment may
6 No. 08-1957
be grounds for firing the violating employee. URA’s
policy on computing specifically forbids conducting
outside employment on URA equipment. The computing
policy does allow for some personal use of the Internet
by its employees. Weber did not file an outside employ-
ment form.
Ader and Frazier concluded that Weber had used
URA’s computers to conduct her personal outside busi-
ness in violation of URA policy and that she should
therefore be fired. Lange drafted a letter of termina-
tion for Dixon’s approval, and Weber was suspended
pending Dixon’s decision. Weber responded in writing
to Dixon alleging that her dog-training business was in
fact a hobby rather than a business. She denied con-
ducting any personal business on URA time, and alleged
that a number of male employees also conducted outside
business while at URA but were not disciplined.
Weber identified eight men who she alleges conducted
outside business at URA. Further, two men had viewed
pornography on URA computers; one was officially
reprimanded, but neither was fired. Weber identified
several others who had outside employment but
had not filled out the required outside employment
form. Based on Weber’s allegations, URA investigated
a number of male employees, including tracing the
Internet activities of several men. Two men accessed
websites that could relate to their outside employment;
for example, a musician accessed a music-related
website. None of the men identified by Weber were
disciplined or terminated. Weber challenges the ade-
quacy of URA’s investigation.
No. 08-1957 7
On July 2, 2004, Dixon decided to terminate Weber
for conducting an outside business without authoriza-
tion and for using URA computers in furtherance of
that business in violation of URA policy. Weber sued
URA under Title VII for discrimination and retaliation.
The district court granted URA’s motion for summary
judgment on all claims, and Weber appealed.
II. A NALYSIS
We review the district court’s grant of summary judg-
ment de novo. Tindle v. Pulte Home Corp., 607 F.3d 494, 496
(7th Cir. 2010). We view the evidence in the light most
favorable to Weber, the non-moving party, and give
her the benefit of all reasonable inferences from the
evidence. Id.
A. Waiver
A plaintiff asserting a claim of discrimination or re-
taliation under Title VII may choose to prove her case
under either the direct or indirect method. Poer v. Asrtue,
606 F.3d 433, 439 (7th Cir. 2010). The district court
found that Weber did not attempt to present any direct
evidence of discrimination or retaliation, so the court
analyzed the sufficiency of Weber’s evidence only
under the indirect method of proof. Weber v. Univ. Re-
search Ass’n, Inc., No. 05 C 5607, 2008 WL 818268, at *2-3
(N.D. Ill. Mar. 20, 2008).
Weber argues on appeal, however, that she did in
fact produce evidence sufficient to survive summary
8 No. 08-1957
judgment under both the direct and indirect methods.
URA for its part sides with the district court, arguing that
she has waived the direct method of proof by failing
to develop that argument in the district court. See Bus. Sys.
Eng’g, Inc. v. Int’l Bus. Mach. Corp., 547 F.3d 882, 889 n.3
(7th Cir. 2008) (“Arguments not raised before the
district court are waived on appeal.” (internal quotation
marks omitted)).
After reviewing Weber’s submissions to the district
court opposing URA’s motion for summary judgment,
we find that Weber indeed failed to sufficiently raise
the direct method of proof to preserve the issue for ap-
peal. A single sentence that mentions a theory of direct
proof—suspicious timing1 —is not enough to preserve the
issue for appeal, especially where Weber apparently
did nothing more to indicate to the district court that
she was pursuing the direct method of establishing her
retaliation claim. Because we find that Weber has waived
her discrimination and retaliation arguments under the
1
Although suspicious timing is often used as direct evidence,
Weber’s “direct” theory relies heavily on inferences from
circumstantial evidence that belong more properly in the
indirect method of proof. See Elkhatib v. Dunkin Donuts, Inc., 493
F.3d 827, 829 (7th Cir. 2007) (“Direct evidence is evidence
that, if believed, shows discriminatory conduct by the em-
ployer without reliance on inference or presumption, such as
where there is an admission by an employer that the decision
was based on the prohibited animus. That may include cir-
cumstantial evidence, but such evidence must point directly
to a discriminatory reason for the employer’s action.” (citation
and internal quotation marks omitted)).
No. 08-1957 9
direct method of proof, we do not address these argu-
ments on appeal. Weber does not argue on appeal her
retaliation claim under the indirect method, so the only
claim left for us to consider is her discrimination claim
under the indirect method of proof.2
B. Discrimination
Under the indirect method of proof, Weber must estab-
lish a prima facie case of sex discrimination by pro-
ducing competent evidence that (1) she is a woman,
(2) she suffered an adverse employment action, (3) she
was meeting URA’s legitimate business expectations,
and (4) a similarly situated man was treated more favor-
ably. See LaFary v. Rogers Group, Inc., 591 F.3d 903,
907 (7th Cir. 2010). If she establishes a prima facie
case, the burden shifts to URA to show a legitimate,
non-discriminatory reason for firing her. Weber must
then show that URA’s proffered reason is simply pre-
2
URA argues that Weber should also be precluded from
pursuing her indirect theory of sex discrimination because it
is outside the administrative charge. When Weber filed
her first charge with the Equal Employment Opportunity
Commission after being suspended pending termination, she
indicated that she was complaining of both sex discrimination
and retaliation. After she was terminated, she filed a second
charge in which she identified retaliation as the only ground
for her claim. Because we find that Weber’s sex discrimina-
tion claim fails as a matter of law, we need not decide whether
it falls outside the administrative charge.
10 No. 08-1957
text and that her gender was the real reason she was
fired. Id.
The district court found that Weber failed to estab-
lish a prima facie case of sex discrimination because
there was no question that Weber failed to meet URA’s
business expectations: Weber owned a dog-training busi-
ness, she was aware of the requirement to get URA’s
approval for conducting an outside business, she failed
to submit the required form, she was aware of the
policy prohibiting the use of URA computers to con-
duct outside business, and she spent a significant
amount of time over a five-day period accessing dog-
related websites and personal email addresses that she
used in her dog-training business. The district court
also found that even if she did not conduct outside busi-
ness on the computers, spending more than 16 hours in
one week on websites for personal use was an unrea-
sonable use of the computer for personal reasons. The
district court also rejected Weber’s argument that she
was meeting URA’s expectations because her past per-
formance reviews were satisfactory; the plaintiff bears
the burden of showing that she was meeting her em-
ployer’s expectations at the time of the adverse action,3
3
The only adverse actions that Weber suffered were being
placed on suspension pending termination and being termi-
nated. Although Weber argues that her transfer to the Engineer
II position working under Ader (also an Engineer II) was a
demotion and therefore an adverse action, there is no evi-
dence in the record from which we can infer that this transfer
decreased her salary, gave her an inferior title, changed her
(continued...)
No. 08-1957 11
see Squibb v. Mem’l Med. Ctr., 497 F.3d 775, 788 (7th Cir.
2007). Weber cannot meet this burden.
Weber now argues that she does not have to show
that she was meeting URA’s expectations as long as she
can show that similarly situated men were punished less
harshly. See Pantoja v. Am. NTN Bearing Mfg. Corp., 495
F.3d 840, 846 (7th Cir. 2007); Peele v. Country Mut. Ins. Co.,
288 F.3d 319, 329 (7th Cir. 2002) (“When a plaintiff pro-
duces evidence sufficient to raise an inference that an
employer applied its legitimate employment expecta-
tions in a disparate manner . . ., the second and fourth
prongs of McDonnell Douglas merge—allowing the plain-
tiff to establish a prima facie case, stave off summary
judgment for the time being, and proceed to the pretext
inquiry.”). Because Weber has at least raised the issue
that some of her male coworkers also violated URA’s
outside employment and computing policies but were
not disciplined or fired, we will merge the second and
fourth prongs of the McDonnell Douglas test.
Even if Weber does not have to show that she
was meeting URA’s legitimate business expectations, we
conclude that URA is still entitled to summary judg-
ment because Weber has failed to show that there
were similarly situated men who were treated more
favorably than she was. Although “the similarly situated
co-worker inquiry is a search for a substantially similar
3
(...continued)
benefits, or diminished her responsibilities. See Oest v. Illinois
Dept. of Corr., 240 F.3d 605, 612-13 (7th Cir. 2001).
12 No. 08-1957
employee, not for a clone[,]” Chaney v. Plainfield Healthcare
Ctr., ___ F.3d ___, No. 09-3661, 2010 WL 2813644, at *8
(7th Cir. July 20, 2010), in disciplinary cases a plaintiff
must show that “the two employees dealt with the
same supervisor, were subject to the same standards, and
had engaged in similar conduct without such differentiating
or mitigating circumstances as would distinguish their
conduct or the employer’s treatment of them.” Peele, 288 F.3d
at 330 (quoting Radue v. Kimberly-Clark Corp., 219 F.3d 612,
617-18 (7th Cir. 2000)).
Weber identified a number of male URA employees that
had outside employment, conducted personal busi-
ness while at URA, viewed pornography on URA com-
puters, or viewed websites that could have been related
to their outside employment. She argues that all of
these men are similarly situated to her because they
were all subject to the same outside employment and
computing policies. Although Weber has produced evi-
dence that her male coworkers violated URA policy
and were not fired, she has not satisfied her burden to
show that any of those men were similarly situated
with regard to her. Specifically, although she has identi-
fied a number of policy violations, she has not produced
evidence that any of the men had trouble finishing
their work because of the violations or that any of them
violated URA’s policy with the same reckless abandon.
Even if downloading music files is on par with looking
up dog-related websites, downloading one music file is
a far cry from spending more than 16 hours in one week
on myriad websites related to an outside business. The
No. 08-1957 13
fact that she accessed personal email addresses that
were listed as contact emails for her business serves to
further distinguish her violations of company policy
from those of her male coworkers.
Likewise, the men who viewed pornography at
work are not similarly situated. There is no evidence
that either man spent anywhere near the amount of
time that Weber did on non-URA related websites. Fur-
thermore, URA could reasonably view using company
resources to further an outside business as more offen-
sive to the company’s policy than simply wasting com-
pany time.
None of the men that Weber identified as comparators
violated URA’s policy to the degree that Weber did;
Weber thus cannot show that there are similarly situated
men who were treated more favorably. Weber has
failed to establish a prima facie case of discrimination.
We also agree with the district court that Weber failed
to show that URA’s stated reason for terminating
Weber was pretextual, but we need not address that
issue in detail because Weber failed to satisfy her
initial burden with respect to her claims.
III. C ONCLUSION
The district court’s grant of URA’s motion for sum-
mary judgment is A FFIRMED.
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