Montgomery v. American Airlines, Inc.

In the

United States Court of Appeals
For the Seventh Circuit

No. 08-3951

A NTHONY M ONTGOMERY,
Plaintiff-Appellant,
v.

A MERICAN A IRLINES, INCORPORATED ,
Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 C 5924—Samuel Der-Yeghiayan, Judge.

A RGUED S EPTEMBER 8, 2010—D ECIDED N OVEMBER 19, 2010

Before E ASTERBROOK, Chief Judge, and B AUER and
K ANNE, Circuit Judges.
K ANNE, Circuit Judge. Anthony Montgomery sued his
employer, American Airlines, Incorporated (“American”),
alleging two civil rights violations relating to his race.
First, Montgomery claimed that American allowed a
hostile work environment to persist in a maintenance
shop to which he was briefly assigned as a probationary
employee. Second, he claimed that his demotion at the
2 No. 08-3951

end of his probationary period was an adverse action
motivated by racial discrimination. After discovery,
American Airlines moved for summary judgment. The
district court granted summary judgment in favor of
American on all counts, and Montgomery timely ap-
pealed. Because the record on appeal supports sum-
mary judgment in favor of American, we will affirm
the decision below.

I. B ACKGROUND
Montgomery began working for American in December
1989 as a Fleet Service Clerk at O’Hare International
Airport; he is still employed by American in that position.
The events leading to this suit occurred during Montgom-
ery’s five-month stint as a probationary mechanic in
American’s Automotive Shop (“Auto Shop”) at O’Hare.
Montgomery is and—at all times relevant to this suit—was
a member of the Transport Workers Union of America
AFL-CIO (“TWU”).

A. The Probationary Period
Montgomery requested a transfer into the Auto Shop
as a ground support equipment mechanic in the fall of
2006. After vetting his application for sufficient experi-
ence, education, or training, American granted Mont-
gomery’s request. Montgomery began his probationary
period on December 9, 2006.
The collective bargaining agreement (“CBA”) between
American and the TWU established the probationary
No. 08-3951 3

period and its qualification requirements. On his
first day, a supervisor met with Montgomery and ex-
plained the on-the-job training and familiarization Mont-
gomery would undergo during his probationary period.
The supervisor further explained that Montgomery
needed to pass a tool inspection and a qualification test
near the end of the period in order to remain in the Auto
Shop. The CBA also required that probationary em-
ployees become regular mechanics if they are not given
the qualification test within 180 days of starting in the
Auto Shop.
Montgomery was one of only three African-Americans
working in the Auto Shop during his probationary pe-
riod. The two others—Clifton Shay (supervisor) and
Dwain Wooley (a crew chief and union representa-
tive)—did not work on the Auto Shop floor with Mont-
gomery during his shifts. Montgomery allegedly began
experiencing harassment and hostility from mechanics
and crew chiefs soon after beginning his probationary
period. Montgomery concluded that their actions re-
sulted from his race, though it appears he never artic-
ulated that belief to his supervisors during his probation-
ary period.
Montgomery worked with three other probationary
mechanics—Tim Nguyen, Bill Romano, and Dave Hilt—at
some point during his probationary period. Their proba-
tionary periods did not wholly coincide with his own.
Because Montgomery believed that, in contrast to him,
they did not have to take and pass the qualification test
at the end of their probationary periods, he complained
4 No. 08-3951

to Brian Schaefer in late February or early March 2007.
Schaefer had been named as Manager of Ground Opera-
tions, a position that had been unfilled since December
2005, shortly after Montgomery had commenced his
probationary period. Montgomery told Schaefer that he
felt it was unfair and racially discriminatory that he
had to take the exam; he also notified Schaefer of
other issues that he noticed in the shop, including other
mechanics sleeping on duty and some supervisors
being delinquent. Schaefer answered that the CBA
required all probationary mechanics to take the exam
and that, under his new management, the CBA’s require-
ments would be strictly observed. Schaefer investigated
Montgomery’s other allegations, resulting in some policy
changes and the resignation of one of the supervisors
Montgomery had identified. Montgomery has further
alleged that he also discussed at this meeting the racial
harassment he was experiencing.
Auto Shop supervisor Richard Helton administered
Montgomery’s qualification test on April 7, 2007. Helton
was assisted by Tim Wells (another supervisor) and was
observed by Joe Pacenti (Montgomery’s TWU representa-
tive). Montgomery was not acquainted with Helton
before the date of the exam. At one point, Montgomery
improperly performed a temporary repair on a vehicle
tire—after lifting the vehicle not in accordance with
known safety standards—when he had been asked to
perform a permanent repair. He did not demonstrate
his familiarity with a trouble-shooting procedure by
identifying the steps involved. He did demonstrate a
degree of unfamiliarity with parts manuals by flipping
No. 08-3951 5

through them page-by-page instead of using their cross-
referenced indices. Helton, after consulting with Wells,
determined that Montgomery had failed the qualifying
test. Pacenti agreed that the test had been fairly adminis-
tered.
Due to his failure of the exam, American removed
Montgomery from his probationary position in the
Auto Shop. He returned to his original position as a
Fleet Service Clerk on or about April 26, 2007.

B. Montgomery’s Complaints to Human Resources
Montgomery had no further contact with coworkers or
supervisors from the Auto Shop, and he did not pursue
any of his allegations of racial harassment and discrim-
ination until he contacted Customer Service Manager
Sonji Nicholas on August 8, 2007. Nicholas directed
Montgomery to contact Human Resources or American’s
hotline, as indicated in American’s published policies
against racial discrimination and harassment. Nicholas
also informed Human Resources Representative Jacqueline
Rios of Montgomery’s communication.
Rios waited two days for Montgomery to contact her.
When he did not, she sought him out to inquire about
his concerns. Rios and Montgomery talked for approxi-
mately three hours in their initial meeting on Friday,
August 10, 2007. In this meeting, Montgomery never
indicated that he had complained about racially-motivated
harassment and discrimination to his supervisors, even
in the written statement he prepared for Rios containing
6 No. 08-3951

all of his allegations. Rios then met again with Mont-
gomery on Monday, August 13, and on the following
Thursday to clarify her understanding of his allegations.
Rios initiated an investigation into Montgomery’s
allegations immediately following these meetings. She
reviewed pertinent documents and interviewed num-
erous witnesses to the incidents Montgomery alleged—
including union representative Pacenti, crew chief Frank
Dlugopolski, mechanic Wooley, supervisors Shay and
Helton, and manager Schaefer. At the conclusion of
her investigation, Rios was unable to substantiate Mont-
gomery’s claims.
Rios determined that Montgomery had simply failed
his qualification test and tool inspection and that
both were administered fairly. She concluded that only
two probationary mechanics were made regular Auto
Shop employees without passing the qualification test:
(1) Nguyen, at a time before Schaefer assumed manage-
ment responsibility over the Auto Shop, and (2) Romano,
whose testing was precluded by the CBA when his sen-
iority date was adjusted pursuant to a union argument
regarding his rehiring after a previous reduction in
force. Rios also determined that some mechanics
claimed their aversion to working with Montgomery
was based on his work performance, not upon his race.
Finally, Rios determined that mechanic Mike Kogal
had made a comment to Montgomery that was inappro-
priate for the workplace—“I didn’t know it was you
until you smiled”—even though Kogal maintained that,
because of his friendship with Montgomery, Montgomery
understood the comment referred to an inside joke be-
No. 08-3951 7

tween the two. Based on Rios’s finding, Schaefer counseled
Kogal about the comment and his behavior toward co-
workers.
At the conclusion of her investigation, Rios met again
with Montgomery on October 8, 2007, to inform him
that she was preparing a summary of her investigation
and findings. He made no further comments to Rios.

C. Procedural History
Montgomery filed a charge of discrimination against
American with the Equal Employment Opportunity
Commission (EEOC) on October 2, 2007. After receiving a
Notice of Right to Sue from the EEOC, Montgomery
filed suit in the United States District Court for the North-
ern District of Illinois. His complaint comprised four
counts. In Counts I and II, Montgomery alleged that the
racial harassment and the hostile work environment to
which he was subjected violated 42 U.S.C. § 1981 and
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq., respectively. In Counts III and IV, Montgomery
alleged that his demotion to the Fleet Service Clerk posi-
tion was an adverse action resulting from racial discrim-
ination in violation of § 1981 and Title VII, respectively.
Following discovery, American moved for summary
judgment on all counts. The district court found Mont-
gomery had not demonstrated that a genuine issue of
material fact existed as to whether the conduct alleged in
Counts I and II could be attributed to American as his
employer. It further found Montgomery neither presented
8 No. 08-3951

a prima facie case of racial discrimination in Counts III
and IV nor showed that a genuine issue of material
fact existed as to whether American’s proffered reason
for his demotion was a pretext for discrimination. Ac-
cordingly, the district court granted summary judgment
in favor of American on each of Montgomery’s counts.
Montgomery timely appealed the court’s entry of final
judgment for American.

II. A NALYSIS
A. Standard of Review
The only issue presented by this appeal is whether
the district court erred in granting summary judgment
in favor of American on all four of Montgomery’s counts.
We review grants of summary judgment de novo, Berry
v. Chicago Transit Auth., 618 F.3d 688, 690 (7th Cir. 2010),
viewing the record in the light most favorable to Mont-
gomery and drawing all reasonable inferences in his
favor to determine if there is a genuine issue of material
fact as to any element of his claims, McCann v. Iroquois
Mem’l Hosp., ___ F.3d ___, 2010 WL 3528849, at *5 (7th Cir.
Sept. 13, 2010). We have previously held that “a factual
dispute is ‘genuine’ only if a reasonable jury could find
for either party.” SMS Demag Aktiengesellschaft v. Material
Scis. Corp., 565 F.3d 365, 368 (7th Cir. 2009). Further,
disputed facts that are not outcome-determinative are
not material and will not preclude summary judgment.
Smith ex rel. Smith v. Severn, 129 F.3d 419, 427 (7th
Cir. 1997).
No. 08-3951 9

We pause to point out, however, that before Mont-
gomery can benefit from a favorable view of evidence,
he must first actually place evidence before the courts.
He must “make a showing sufficient to establish any
essential element of [his] cause of action for which [he]
will bear the burden of persuasion at trial.” Severn, 129
F.3d at 425. In Berry we held that uncorroborated, self-
serving testimony, “[i]f based on personal knowledge or
firsthand experience,” may prevent summary judgment
against the non-moving party, as “such testimony can
be evidence of disputed material facts.” Berry, 618 F.3d at
691. But mere conclusory allegations do not constitute
evidence. See Balderston v. Fairbanks Morse Engine Div.
of Coltec Indus., 328 F.3d 309, 320 (7th Cir. 2003).
We turn now to Montgomery’s claims, taking his
two theories of recovery in turn. Montgomery brings
functionally identical claims of racial harassment in
Counts I and II, only differing in the statute he invokes.
The same is true of the racial discrimination he claims in
Counts III and IV. Because Montgomery does not dif-
ferentiate the operative facts based upon the statute
invoked, and because the elements of his claims and the
methods of proof are essentially identical under either
statute, our analysis will apply equally to his claims
under § 1981 and Title VII. McGowan v. Deere & Co., 581
F.3d 575, 579 (7th Cir. 2009).

B. Hostile Work Environment
Montgomery claims he was subjected to a hostile work
environment in the Auto Shop due to harassment he
10 No. 08-3951

suffered based on his race. To stave off summary judg-
ment, Montgomery must have provided sufficient evi-
dence to create a material issue of fact as to four ele-
ments: (1) the work environment must have been both
subjectively and objectively offensive; (2) his race must
have been the cause of the harassment; (3) the conduct
must have been severe or pervasive; and (4) there must
have been a basis for employer liability. Chaney v.
Plainfield Healthcare Ctr., 612 F.3d 908, 912 (7th Cir.
2010). American contends that Montgomery presented
insufficient evidence to allow a jury to find in his favor
as to any of the four elements. The record on appeal is
far from conclusive as to the elements of objective offen-
siveness, causation, and severity, but by reviewing the
record in the light most favorable to Montgomery,1 and
by taking all reasonable inferences in his favor, we deter-
mine that he has presented triable issues of material
fact as to the first three elements. On appeal, American

1
We read the record favorably to Montgomery, although his
position is undermined by his hyperbolic—if not disingenu-
ous—statements set forth in his brief. For example, Montgom-
ery’s brief refers to “the continuous use of ‘nigger’ ” as an
instance of racial harassment. (Appellant’s Br. at 24.) Yet his
citations in support of this “fact” ultimately reveal that he
heard the word used in his presence only once. American
offers an affidavit from Rios confirming that Montgomery
told her that he heard it only once and that he only assumed
that it was directed toward him. The record in no way sup-
ports the statement of fact Montgomery submitted to the
district court or the assertion he makes to this court in his
brief. This is but one example of many.
No. 08-3951 11

fully develops only its arguments regarding the basis
for employer liability. We find this issue dispositive.
For Montgomery to recover against American for the
hostile work environment he alleges, he must show a
basis for employer liability by proving either (1) that a
supervisor participated in the harassment that created
the hostile work environment or (2) that American was
negligent in discovering or remedying harassment by
his coworkers. Andonissamy v. Hewlett-Packard Co., 547
F.3d 841, 848 (7th Cir. 2008). Montgomery’s only conten-
tion that a supervisor participated in harassment in-
volved the conduct of a crew chief, Frank Dlugopolski.
But in American’s Auto Shop, crew chiefs are not “super-
visors” as that term applies to racial harassment claims.
In this context, “supervisor” is a term of art that denotes
more than an individual with a higher rank, a superior
title, or some oversight duties. As Montgomery con-
cedes, crew chiefs are members of the union, not manage-
ment. Further, the crew chiefs could not “affect the terms
and conditions of [Montgomery’s] employment.” Id.
While we have noted that not all individuals fit cleanly
within “the two pigeonholes” of paradigmatic super-
visor and paradigmatic coworker, Doe v. Oberweis Dairy,
456 F.3d 704, 716-17 (7th Cir. 2006), we easily classify
Dlugopolski as a coworker. His occasional authority to
oversee some aspects of Montgomery’s work does not
suffice to make him a supervisor. In fact, we have previ-
ously held that more extensive duties—such as the combi-
nation of directing or managing a plaintiff’s activities,
providing evaluation input to a plaintiff’s supervisor,
and training a plaintiff—do not necessarily suffice. See
12 No. 08-3951

Rhodes v. Ill. Dep’t of Transp., 359 F.3d 498, 506 (7th Cir.
2004); Hall v. Bodine Elec. Co., 276 F.3d 345, 355 (7th
Cir. 2002). Because Montgomery offered no evidence of
harassment from supervisors at American, he has not
established a material issue of fact as to American’s
strict liability for racial harassment.
Montgomery must, therefore, resort to the second
method of proving American liable for the hostile work
environment. To succeed, he must provide evidence
that American “failed to have and enforce a reasonable
policy for preventing harassment.” Oberweis Dairy, 456
F.3d at 716. As a part of this showing, Montgomery
must demonstrate that he made a concerted effort to
inform American of the racial harassment he was
allegedly experiencing or that the harassment was suffi-
ciently obvious to put American on constructive notice.
Rhodes, 359 F.3d at 507. But the record supports neither
Montgomery’s allegation of reporting nor American’s
constructive notice.
At all times relevant to this lawsuit, American had a
published policy that proscribed racial harassment and
provided multiple methods for employees to report
harassing conduct, including speaking with supervisors,
contacting a manager, or calling a hotline. Montgomery
does not deny the existence of this policy, but instead
contends that he was supposed to report racial harass-
ment to his crew chief. While supervisor Shay did tell
Montgomery to address any problems Montgomery
experienced to the crew chiefs, Shay also told Mont-
gomery to contact his immediate supervisor or Shay
No. 08-3951 13

directly if he was not satisfied with the crew chiefs’
response. Moreover, Shay’s instructions referred to
general problems Montgomery might experience; they
did not involve any discussion of racial harassment.
Montgomery later mentioned to Rios and testified in his
deposition that he intended to report his racial harass-
ment concerns to supervisors Shay and Dave Brooks and
manager Schaefer, thus showing his understanding that
he needed to make his supervisors—not just crew
chiefs—aware of his complaints. Regardless, we do not
deem Montgomery’s statements to Dlugopolski suf-
ficient to inform American of his concerns, because it
was unreasonable for Montgomery to believe that
Dlugopolski—a union member and crew chief—was “the
type of employee who could be expected to convey [his]
complaints to someone who could stop the harassment.”
Parkins v. Civil Constructors of Ill., Inc., 163 F.3d 1027, 1038
(7th Cir. 1998).
Upon an exhaustive review of the record, we agree
with the district court that “[t]he evidence that Montgom-
ery relies upon does not support his argument that he
brought his concerns of racial harassment to the attention
of his supervisors.” Montgomery v. American Airlines, Inc.,
2008 WL 4671764, at *7 (N.D. Ill. Oct. 21, 2008). Montgom-
ery contends that he “presented evidence that he explicitly
complained about the racial harassment and racial discrim-
ination” to Shay, Brooks, and Schaefer, (Appellant’s Br. at
28), but he mischaracterizes the evidence in the record.
Montgomery testified in his deposition that he did not
report to Shay or Brooks that he believed his problems
were based on his race. While Montgomery did address
14 No. 08-3951

racial concerns with Schaefer, the record shows that he did
so only within the context of Montgomery’s complaint
about having to take the qualification test—an allegation
relating to employment discrimination and not to harass-
ment. The most favorable inference supported by the
record is that Montgomery intended to inform his supervi-
sors about his concerns of racial harassment, but did not
because he subjectively felt unable to do so in the few
instances where he sought an opportunity to report his
problems. This inference does not suffice to create a triable
issue of fact, as his fear of unpleasantness cannot excuse
Montgomery from using the company’s complaint mecha-
nisms. See Shaw v. AutoZone, Inc., 180 F.3d 806, 813 (7th Cir.
1999).
Employers need not divine complaints from the ether,
guessing at the subjective suspicions of employees. An
aggrieved employee must at least report—clearly and
directly—nonobvious policy violations troubling him so
that supervisors may intervene. See Durkin v. City of Chi-
cago, 341 F.3d 606, 612-13 (7th Cir. 2003) (holding an
employer will not be liable for alleged coworker harass-
ment “when a mechanism to report the harassment
exists, but the victim fails to utilize it.”). What verbal
complaints Montgomery did make to Shay, Brooks, and
Schaefer were too vague to put American on notice of the
racial harassment he now alleges. Montgomery com-
plained of general unfairness in task assignments and of
employee delinquency, but these complaints did not
provide notice of any racial harassment concerns. Because
Montgomery “unreasonably fail[ed] to take advantage
of preventive or corrective opportunities,” and American
No. 08-3951 15

consequently did not know about his concerns, American
“cannot be held liable.” Bright v. Hill’s Pet Nutrition,
Inc., 510 F.3d 766, 770 (7th Cir. 2007).
Alternatively, Montgomery could have offered some
evidence allowing a reasonable inference that super-
visors at American knew of the alleged racial harass-
ment. See Luckie v. Ameritech Corp., 389 F.3d 708, 715 (7th
Cir. 2004). But by failing to develop the constructive
notice argument on appeal, Montgomery waived any
contention that the alleged racial harassment was suffi-
ciently obvious to charge American with knowledge of
the conduct.2 Accordingly, “the law does not require
[American] to do more than promote general anti-harass-
ment policies and training.” Rhodes, 359 F.3d at 507.
An employer can generally avoid liability for a hostile
work environment if it promptly investigated complaints
made by the plaintiff and acted to stop the harassing
behavior. Lucero v. Nettle Creek Sch. Corp., 566 F.3d 720, 731
(7th Cir. 2009). As previously mentioned, American had
the requisite policy in place. Rios began a thorough

2
Montgomery’s brief does state that “an employer such as
[American] may be ‘charged with constructive notice’ when the
harassment was sufficiently obvious.” (Appellant’s Br. at 27
(citing Henderson v. Irving Materials, Inc., 329 F. Supp. 2d 1002,
1016 (S.D. Ind. 2004)). But a passing citation to non-binding
authority is certainly a perfunctory and undeveloped argu-
ment, if it is any argument at all. Accordingly, Montgomery
waived any argument about constructive notice that he may
have had. See Gross v. Town of Cicero, Ill., 619 F.3d 697, 704-05
(7th Cir. 2010).
16 No. 08-3951

investigation immediately upon Montgomery’s first
proper notification of his racial harassment concerns, and
“prompt investigation is the hallmark of a reasonable
corrective action.” Porter v. Erie Foods Int’l, Inc., 576
F.3d 629, 636 (7th Cir. 2009) (quotation marks omitted).
Rios’s actions indicate that American “took the harass-
ment seriously and took appropriate steps to bring the
harassment to an end.” Id. Further, Schaefer had already
responded to Montgomery’s complaints about other
employees’ delinquency. Schaefer’s immediate reactions
to these allegations reinforce the conclusion that Mont-
gomery failed to alert Schaefer to his concerns of racial
harassment. Because it appears that American took rea-
sonable steps to prevent future harms whenever Mont-
gomery properly reported any concerns, American bears
no liability under these circumstances. See id. at 637.
In summary, Montgomery failed to present any evi-
dence that would allow a reasonable jury to impute
liability to American even if Montgomery had proven
that his working environment in the Auto Shop was
hostile. As such, the district court did not err in granting
summary judgment in favor of American on Mont-
gomery’s racial harassment claim.

C. Racial Discrimination
Montgomery also claims that his demotion from his
position as a probationary mechanic in American’s Auto
Shop to his original position as a Fleet Service Clerk was
an act of racial discrimination against him. Montgomery
may attempt to prove his racial discrimination case
No. 08-3951 17

under either the direct or indirect method. Weber v. Univ.
Research Ass’n, Inc., 621 F.3d 589, 592 (7th Cir. 2010). As
Montgomery appears to have addressed both methods of
proof on appeal, we will examine his arguments under
each method in turn.

1. Direct Method
In order to prove his case under the direct method,
Montgomery must have provided direct evidence
of—or sufficient circumstantial evidence to allow an
inference of—intentional racial discrimination by Ameri-
can. Coffman v. Indianapolis Fire Dep’t, 578 F.3d 559, 563
(7th Cir. 2009). Regardless of the type of evidence pre-
sented, Montgomery may avoid summary judgment
only by presenting sufficient evidence to create a triable
issue as to whether his demotion had a discriminatory
motivation. Rudin v. Lincoln Land Cmty. Coll., 420 F.3d 712,
721 (7th Cir. 2005). On appeal, Montgomery offers no
evidence of any direct admission or demonstration of
discriminatory intent. He instead asserts that the fol-
lowing bits of circumstantial evidence suffice to defeat
summary judgment: (1) that he was the only African-
American in the Auto Shop, (2) that he was the only
probationary employee required to pass a tool inspec-
tion, (3) that he was the only probationary mechanic
required to take and pass the qualification test, and
(4) that he suffered incidents of harassment from his
coworkers. He compares his case to Sylvester v. SOS Chil-
dren’s Vills. Ill., Inc., 453 F.3d 900, 904 (7th Cir. 2006)
(“There is no rich mosaic of circumstantial evidence of
18 No. 08-3951

retaliation in this case, but there is enough (though
maybe barely enough) to preclude summary judg-
ment.”), suggesting that the evidence in his case is far
stronger than the evidence we found to suffice in Sylvester.
The relevant circumstantial evidence in discrimination
cases ordinarily consists of indicators showing what
may be “the real motivating force for employment deci-
sions.” Coffman, 578 F.3d at 563. We have described “two
general categories of circumstantial evidence: (1) ambigu-
ous statements or behavior toward other employees in
the protected group that taken together allow an infer-
ence of discriminatory intent and (2) evidence of systemi-
cally better treatment of employees outside the pro-
tected class.” Id.
We first note that, as Montgomery contends he was
alone in his protected group, the first category is clearly
inapplicable here. We also note that Montgomery’s al-
legations involving harassment all describe the conduct
of coworkers, not supervisors—a point which distin-
guishes his circumstances from those in Sylvester. 453
F.3d at 905 (circumstantial evidence of supervisors’
conduct sufficed to defeat summary judgment by
allowing inference of retaliation). Montgomery then
alleges only two incidents of “systemically better treat-
ment” of non-African-American employees: that he was
the only employee who had to pass the tool inspection
and the qualification test. Even if these allegations are
true, they do not constitute evidence allowing a jury to
infer a discriminatory motive behind Montgomery’s
demotion. See, e.g., Coffman, 578 F.3d at 563 (“She does
No. 08-3951 19

aver generally that the Department employed several
short men who were never obligated to undergo driving
evaluations, but this fact alone does little to show that
men generally were treated differently by the Depart-
ment.”). Because Montgomery’s proffered circumstantial
evidence does not point directly to a discriminatory
reason for American’s action, Montgomery cannot sur-
vive summary judgment under the direct method of proof
for his racial discrimination claim.

2. Indirect Method
The indirect method of proof requires Montgomery to
introduce evidence demonstrating four elements to
establish a prima facie case of and survive summary
judgment on his racial discrimination claim: (1) that he
was a member of a protected class, (2) that he was per-
forming his job satisfactorily, (3) that he suffered an
adverse employment action, and (4) that American
treated a similarly situated individual outside Mont-
gomery’s protected class more favorably. Dear v. Shinseki,
578 F.3d 605, 609 (7th Cir. 2009). If Montgomery
satisfied those elements, thus giving rise to an inference
of discrimination, the burden would shift to American to
identify a legitimate, nondiscriminatory reason for the
action taken. Stockwell v. City of Harvey, 597 F.3d 895,
901 (7th Cir. 2010). If American proffered a nondiscrim-
inatory reason for returning Montgomery to his Fleet
Service Clerk position, summary judgment would only
be erroneous if Montgomery produced evidence that
the proffered reason was a pretext for racial discrim-
ination. Id.
20 No. 08-3951

For purposes of this appeal, American does not contest
that Montgomery is a member of a protected class or
that his transfer back to the Fleet Service Clerk position
constituted an adverse employment action. American
contends, however, that Montgomery cannot satisfy the
other two prongs of the prima facie case. For his part,
Montgomery contends that he may proceed to the
pretext inquiry because he has alleged that American’s
expectations were inherently discriminatory. We have
previously noted that “[w]hen a plaintiff produces
evidence sufficient to raise an inference that an em-
ployer applied its legitimate expectations in a disparate
manner . . . the second and fourth prongs merge—allowing
plaintiffs to stave off summary judgment for the time
being, and proceed to the pretext inquiry.” Elkhatib v.
Dunkin Donuts, Inc., 493 F.3d 827, 831 (7th Cir. 2007)
(quoting Peele v. Country Mut. Ins. Co., 288 F.3d 319, 329
(7th Cir. 2002)) (emphasis added). Montgomery does
allege that American’s expectations varied with race,
but we decline to merge the second and fourth prongs
and proceed to the pretext inquiry because he does not
support that allegation with any actual evidence of dis-
parate application. Montgomery may not “put[] the
pretext cart before the prima facie horse” by substituting
allegations for proof. Brummett v. Lee Enters., Inc., 284 F.3d
742, 744 (7th Cir. 2002). “The prima facie case must be
established and not merely incanted.” Grayson v. O’Neill,
308 F.3d 808, 818 (7th Cir. 2002). Montgomery must still
come forward with sufficient evidence of the disparate
treatment of similarly situated individuals in order to
satisfy his prima facie case. See Elkhatib, 493 F.3d at 831.
No. 08-3951 21

After our review of the record in this case, we agree
with the district court that Montgomery did not produce
evidence to establish a prima facie case of racial discrimi-
nation. Montgomery alleges both that he was required to
take the qualification test when other non-African-Ameri-
can probationary mechanics were not and also that the
test itself was prejudicially administered to him. He
supports neither allegation with evidence sufficient to
defeat American’s motion for summary judgment.
As to the first allegation, Montgomery asserts that three
individuals—Nguyen, Hilt, and Romano—were proba-
tionary mechanics at the same time as him, that their
probationary periods also ended after Schaefer had as-
sumed responsibility of the Auto Shop, and that these
contemporaries were not required to take the qualifica-
tion exam to continue as fully vested Auto Shop mechan-
ics. Montgomery contends that the three mechanics
were similarly situated to him—given that they were in
the same job, subject to the same CBA, subordinate to the
same supervisors, and had comparable qualifications—
but that their treatment was preferential to his own. If
the record supported Montgomery’s assertions re-
garding Nguyen, Hilt, and Romano, he likely would
have established a prima facie case of racial discrimina-
tion. But the record does not come close to supporting
those conclusions.
In order to meet the fourth prong of the prima facie
case, the plaintiff must demonstrate that the putative
similarly situated employees were “directly comparable
to the plaintiff in all material respects.” Patterson v. Ind.
22 No. 08-3951

Newspapers, Inc., 589 F.3d 357, 365-66 (7th Cir. 2009).
None of the three probationary mechanics named by
Montgomery was similarly situated to, but treated dif-
ferently from, Montgomery.
First, the record shows that Nguyen worked as a pro-
bationary mechanic in the Auto Shop at some time
during Montgomery’s probation but that Nguyen com-
pleted his probationary period before Schaefer assumed
control over the Auto Shop and began enforcing the CBA’s
qualification test protocol. Because the CBA requires
that a probationary mechanic become a fully vested
mechanic without testing if he has not been tested
within 180 days, and because Schaefer was not available
to enforce the testing requirement during Nguyen’s
180 days of probation, the record establishes that Nguyen
was not situated similarly to Montgomery. See Curry v.
Menard, Inc., 270 F.3d 473, 478 (7th Cir. 2001) (holding
that the majority of the plaintiff’s coworkers were not
similarly situated to the plaintiff because enforcement
of the employer’s disciplinary policy “depended on who
was managing the store, and all but two of the sixteen
violations that [the plaintiff] cites occurred either before
or after the tenure of” the manager who disciplined
the plaintiff).
Second, although Romano was also a probationary
mechanic at some point while Montgomery was in
the Auto Shop, Romano was not tested because his pro-
bationary time was erroneously calculated due to an
earlier layoff and reinstatement. TWU intervened to
prevent Romano from being tested in contravention of
No. 08-3951 23

the CBA’s 180-day provision. Montgomery does not
refute these facts, but rather asserts that he didn’t
know why Romano did not take the test and that
Romano had told him, “They just let me in.” (Mont-
gomery Dep. at 302:15-20.) This testimony in no way
refutes the fact that Romano was not situated sim-
ilarly to Montgomery.
Finally, Montgomery testified that he thought Hilt
had not yet taken his test by the time Schaefer assumed
management responsibilities over the Auto Shop. He
provides no evidence to support this contention
other than his own belief, for which he demonstrates
no foundation. We acknowledge that uncorroborated,
self-serving testimony may suffice to prevent summary
judgment in some circumstances, Berry, 618 F.3d at 691,
but Montgomery’s stated beliefs cannot create genuine
issues of material fact when those beliefs lack a founda-
tion of personal knowledge. Accordingly, the record
does not indicate that Hilt was situated similarly to, but
treated differently from, Montgomery.
Montgomery makes a second allegation under the
indirect method—that the test itself was administered to
him in an illegitimate and prejudicial manner. He claims
test administrator Helton “harbored an overt discrimina-
tory animus against” him. (Appellant’s Br. at 22.) We
have previously held that “an employer’s use of subjec-
tive criteria may leave it more vulnerable to a finding
of discrimination, when a plaintiff can point to some
objective evidence indicating that the subjective evalua-
tion is a mask for discrimination.” Sattar v. Motorola,
24 No. 08-3951

Inc., 138 F.3d 1164, 1170 (7th Cir. 1998). But Montgomery
again fails to provide evidence supporting his conclu-
sions about Helton’s discriminatory animus. Most
notably, Montgomery testified in his deposition that he
had never met Helton prior to the qualification test.
Further, both Wells—who helped administer the quali-
fication test—and union observer Pacenti agreed that
Montgomery had simply failed the test and that Helton
had been fair and actually lenient.
American and Montgomery dispute the appropriate
method of administering the qualification test, including
the number and scope of questions, the number of ques-
tions allowed to be missed, and its permissible duration.
The district court carefully reviewed the record and
correctly found that Montgomery failed to provide ap-
propriate evidence to refute each of American’s conten-
tions regarding proper test administration. Montgomery,
2008 WL 4671764, at *13-14. But even if Montgomery
produced sufficient evidence to dispute these facts, we
find that they are immaterial and thus irrelevant to our
analysis here. See Severn, 129 F.3d at 427.
What Montgomery needed to prove was that the exam
was unfairly administered to him in comparison to other
test takers. See Perez v. Illinois, 488 F.3d 773, 779 (7th Cir.
2007). Montgomery provided only conclusory accusa-
tions about the test’s relative difficulty and no evidence
of how the test had been administered to other can-
didates, let alone that any alleged variation was based on
racial discrimination. He did not dispute that he was
allowed more than adequate time to answer the questions
No. 08-3951 25

presented, and he presented no evidence to refute the
collective conclusion of Helton, Wells, and Pacenti that
the test was fairly administered.
Because he has neither shown that similarly situated
employees outside of his protected class were treated
more favorably than he nor provided evidence that Ameri-
can’s expectations differed based upon race, Mont-
gomery has failed to establish a prima facie case of racial
discrimination under the indirect method. American
nevertheless proffered a legitimate reason for Montgom-
ery’s demotion to his former Fleet Service Clerk posi-
tion: Montgomery failed his tool inspection and qualifi-
cation test, both of which the CBA requires of proba-
tionary employees. Montgomery acknowledged that
Schaefer’s sole basis for demoting him was his alleged
failure of the exam. The district court chose to continue
its analysis, assuming for argument’s sake that Mont-
gomery had satisfied his burden to establish a prima
facie case. We find, as the district court did, that Mont-
gomery provided no evidence that American’s proffered
reason was pretextual.
To demonstrate pretext, Montgomery “must show
that (1) the employer’s non-discriminatory reason was
dishonest and (2) the employer’s true reason was based
on a discriminatory intent.” Stockwell, 597 F.3d at 901.
Montgomery contends that American’s proffered reason
was a lie, but he never develops the argument by pro-
viding a single allegation of deception or false testimony,
let alone any evidence supporting any such allegation.
He neither disputes that American administered the
tool inspection and qualification test because the CBA
26 No. 08-3951

so required nor presents evidence that American’s rea-
sons for Nguyen and Romano not taking the qualifica-
tion test were pretextual. Because Montgomery failed
to specifically address and refute the facts supporting
American’s proffered reason, he cannot succeed in demon-
strating pretext. See Mills v. First Fed. Sav. & Loan Ass’n of
Belvidere, 83 F.3d 833, 845 (7th Cir. 1996). To demon-
strate pretext, Montgomery “must show that [American]
did not honestly believe in the reasons it gave for termi-
nating [him].” Everroad v. Scott Truck Sys., Inc., 604 F.3d
471, 478-79 (7th Cir. 2010). He made no attempt to do so.
In summary, Montgomery failed to establish a prima
facie case of racial discrimination. Even if he had suc-
ceeded in doing so, Montgomery did not establish a
triable issue of fact as to whether American’s reasons for
demoting him were merely pretextual. Accordingly, we
hold that the district court correctly granted summary
judgment in favor of American on Montgomery’s racial
discrimination claim.

III. C ONCLUSION
We find that Montgomery has not produced evidence
to create a genuine issue of material fact regarding a
vital element in both his hostile work environment and
racial discrimination claims. Because no reasonable jury
could find in Montgomery’s favor, we A FFIRM the district
court’s grant of summary judgment in favor of American
on all counts.

11-19-10