In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2960
P RAKASH N AIK ,
Plaintiff-Appellant,
v.
B OEHRINGER INGELHEIM
P HARMACEUTICALS, INCORPORATED ,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:07-cv-03500—Wayne R. Andersen, Judge.
A RGUED S EPTEMBER 16, 2010—D ECIDED N OVEMBER 22, 2010
Before C UDAHY, R OVNER, and E VANS, Circuit Judges.
E VANS, Circuit Judge. Prakash Naik,1 who had over
thirty years of experience in the pharmaceutical sales
business, was fired by his employer, Boehringer Ingelheim
1
Naik was born in India in 1949. He is now a naturalized
United States citizen.
2 No. 09-2960
Pharmaceuticals, Inc. (BIPI), allegedly for falsifying his
call records. Naik, believing he was fired instead because
of his age and national origin (Indian), filed suit against
BIPI, claiming violations of the Age Discrimination
in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq.,
and Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e et seq. The district judge, finding that
Naik failed to establish a prima facie employment dis-
crimination case or prove that his termination was
pretextual, granted BIPI’s motion for summary judg-
ment and denied Naik’s subsequent motion for recon-
sideration. Naik now appeals.
In January 2004, after eight months of contract work,
BIPI hired Naik as a professional sales representative
for its Schaumburg territory in the Rockford, Illinois,
district. The district is part of the company’s Chicago
region. Naik was 53 years old at the time he was hired,
and he continued to report to the same supervisor, Brett
Lundsten, who watched over his work as a contract
employee. As a BIPI sales representative, Naik’s main
duty was to sell its products and increase sales. This
was achieved by calling on doctors and medical profes-
sionals and urging them to prescribe BIPI products. At
oral argument, Naik’s counsel confirmed that many of
the doctors Naik dealt with were of Indian descent.
According to Naik, Lundsten was hard on everybody
on the Schaumburg team. Naik complained to both
Bill Somers, the regional manger, and Bee Smith, the
regional operations coordinator, about the difficulty
of working under Lundsten and about comments Naik
No. 09-2960 3
found inappropriate in regards to his age and nationality.
Specifically, Naik complained that Lundsten frequently
referred to Naik’s thirty years of experience as a pharma-
ceutical sales representative and once gave Naik a birth-
day card with the inscription, “You’re How Old?!” on
the inside. Naik also complained about Lundsten’s
inquiry into his experience as a sales representative in
India. Naik was the only member of Lundsten’s team
who was born in India.
At a sales meeting in early 2005, Somers informed all
district managers that the Chicago region was
underperforming and instructed them to review their
territories and identify the cause of the poor perform-
ance. Lundsten found that, within the Rockford district,
the Schaumburg territory was not meeting its goals.
He began reviewing each employee’s call report activity.
During the review, Lundsten found abnormal entries
in Naik’s daily call reporting, including sales numbers
that did not reflect an increase of reported sales calls,
late starts, and irregular synchronization times (Naik
had apparently synchronized his computer with BIPI’s
network at times when he should have been in the
field). Lundsten also found that Naik reported face-to-
face calls with physicians on days that those physicians
did not appear to be available.
Lundsten showed his findings to Somers as well as
Glen Englram, the human resources business partner
for the region. Englram told Lundsten to contact the
physicians’ offices where he suspected falsified calls to
verify whether the physician was in the office on the
4 No. 09-2960
dates in question. Lundsten contacted several offices
and spoke with an administrative assistant, receptionist,
office manager, or nurse to confirm his findings. His
calls produced a list of six instances when Naik reported
a face-to-face call with a physician on a day when
the physician was not in the office. Lundsten then
reported his finding to Somers and Englram, who
decided to set up a meeting with Naik to discuss the
reporting anomalies.
On August 2, 2005, Lundsten, Somers, and Englram
met with Naik to discuss the call discrepancies. Naik said
he could not remember the calls in question but that he
might have more information in his personal records.
Lundsten requested that Naik supply any additional
information by the end of the next day. At Naik’s request,
Lundsten provided Naik with a list of five doctors and
dates in question. On August 4, Naik told Lundsten that
he had no further information.
The next day, Lundsten, Somers, and Englram deter-
mined that Naik falsified the calls in violation
of BIPI policy, and Somers and Englram decided to termi-
nate Naik’s employment. On August 5, all three met
with Naik to inform him of their decision. At the
meeting, Naik still could not explain the discrepancies
in the call log. A few months later, BIPI hired a 36-year-
old, non-Indian man to replace Naik.
In addition to Naik, BIPI fired two other sales repre-
sentatives in the Chicago region for falsifying call
records between 2003 and 2005. Two more representa-
tives resigned after being accused of falsifying their call
No. 09-2960 5
records. BIPI has no record of any sales representative
who falsified call records and was not either terminated
or allowed to resign after being threatened with termina-
tion.
In the district court, BIPI sought summary judgment,
arguing that Naik failed to prove a prima facie case of
discrimination. The district judge agreed, finding that
Naik had not met BIPI’s legitimate expectations, did not
have any evidence of similarly situated employees who
were treated more favorably, and failed to show he was
fired for a pretextual reason. For the same reasons,
the district judge also denied Naik’s motion for recon-
sideration.
We review the district court’s grant of summary judg-
ment de novo. Nemsky v. ConocoPhillps Co., 574 F.3d 859,
864 (7th Cir. 2009). Summary judgment is appropriate
where the admissible evidence shows that “there is no
genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(c)(2). “A genuine issue of material fact arises
only if sufficient evidence favoring the nonmoving
party exists to permit a jury to return a verdict for that
party.” Faas v. Sears, Roebuck & Co., 532 F.3d 633, 640-41
(7th Cir. 2008) (internal quotation marks omitted).
To survive a summary judgment motion on age and
national origin discrimination claims under the ADEA
and Title VII, a plaintiff must present either direct or
indirect evidence of discriminatory intent. La Montagne
v. American Convenience Products, Inc. 750 F.2d 1405, 1409
(7th Cir. 1984). Naik attempts to prove discriminatory
6 No. 09-2960
intent through the indirect method, which involves
establishing a prima facie case under the familiar
McDonnell Douglas formula. See Egonmwan v. Cook County
Sheriff’s Department, 602 F.3d 845, 850 (7th Cir. 2010).
Accordingly, he must show that: (1) he is a member of
the protected class; (2) he was performing well enough
to meet his employer’s legitimate expectations; (3) he
suffered an adverse employment action; and (4) sim-
ilarly situated employees not in his protected class
were treated more favorably. Hildebrandt v. Illinois De-
partment of Natural Resources, 347 F.3d 1014, 1030 (7th
Cir. 2003). If he establishes all four elements, the burden
shifts to BIPI to offer a legitimate, nondiscriminatory
reason for the adverse employment action. Id. If BIPI
meets its burden, Naik must demonstrate that the
reasons offered were pretextual. Egonmwan, 602 F.3d
at 850.
Only the second and fourth elements are at issue
here. Regarding the second element, the district judge
correctly found that Naik failed to meet BIPI’s legitimate
expectations. Naik argues that he was not able to prove
whether he met BIPI’s expectations because BIPI did not
produce the average daily call logs of other BIPI employ-
ees. 2 This argument misses the point. Naik did not fail
to meet BIPI’s expectations simply because he made
fewer calls than other employees. He failed to meet
BIPI’s expectations because he falsified his call records.
2
Naik’s request for these documents was denied by the
magistrate judge. Naik failed to object to the judge’s order
and thus has waived his right to challenge the ruling now.
No. 09-2960 7
Naik is correct that Lundsten began looking into Naik’s
call logs because of his average daily calls, but that
was not the reason he was terminated. Naik was termi-
nated because of the discrepancies Lundsten found in
Naik’s call logs and Naik’s inability to provide what he
considered to be an acceptable explanation.
Naik’s response is that he had met BIPI’s legitimate
expectations in the past. This, however, is irrelevant. See
Luckie v. Ameritech Corp., 389 F.3d 708, 715 (7th Cir. 2004).
Naik must show that he was meeting BIPI’s expecta-
tions at the time of his termination, which includes evi-
dence that he did not violate BIPI’s policies. After
Lundsten, Somers, and Englram approached Naik about
the discrepancies in his call log, they gave him time
to rebut the accusation. Naik, however, replied only that
he had no further information. His failure to provide
any evidence or defense in response to Lundsten’s
findings is a failure to establish the second element of
his prima facie case.
Furthermore, the district judge also correctly found
that Naik had not established the fourth element, which
required him to show that similarly situated employees
not in his protected class were treated more favorably.
Similarly situated employees must be “directly com-
parable to the plaintiff in all material respects, which
includes showing that the coworkers engaged in com-
parable rule or policy violations.” Patterson v. Indiana
Newspapers, Inc., 589 F.3d 357, 365-66 (7th Cir. 2009).
Here, the evidence shows that every employee that
BIPI found to have falsified call logs was either ter-
8 No. 09-2960
minated or allowed to resign. There is no evidence that
any employee who violated the BIPI policy remained
on the job.
Naik argues that we should apply the more relaxed
standard articulated in Pantoja v. American NTN
Bearing Manufacturing Corp., 495 F.3d 840 (7th Cir. 2007),
to his claims. In Pantoja, we held that the plaintiff only
had to show that his “employer sought someone to per-
form the same work after he left.” Id. at 846 (internal
citations omitted). Naik left out, however, the next para-
graph of the opinion, which requires a plaintiff to prove
the second element of the prima facie case in order
to benefit from this more flexible standard for the
fourth element. “Once an employee can show (in the
sense of raising an issue of material fact at the sum-
mary judgment stage) that he is meeting his employer’s
legitimate expectations (the second element), then the
fact that the employer needs to find another person to
perform that job after the employee is gone raises the
same inference of discrimination that the continuation
of a search does in the hiring situation.” Id. Naik’s
claim would only work if he had met BIPI’s legitimate
expectations. But on that score, he came up short.
His claims, therefore fall outside the more relaxed re-
quirement we mentioned in Pantoja. Therefore, Naik
failed to establish the fourth element of his prima
facie case.
Even if Naik had met his initial burden, the district
judge correctly held that Naik’s claims still fail because
he cannot show that BIPI’s nondiscriminatory reason
No. 09-2960 9
for his termination was pretextual. The only question
we must ask is whether BIPI had a legitimate, nondis-
criminatory reason for firing Naik, not whether it made
the correct decision. See Ineichen v. Ameritech, 410 F.3d
956, 961 (7th Cir. 2005) (“[I]t is not the court’s concern
that an employer may be wrong about its employee’s
performance, or be too hard on its employee. Rather, the
only question is whether the employer’s proffered
reason was pretextual, meaning that it was a lie.”). “If it
is the true ground and not a pretext, the case is over.”
Forrester v. Rauland-Borg Corp., 453 F.3d 416, 417 (7th
Cir. 2006).
Here, BIPI put forth a legitimate, nondiscriminatory
reason for terminating Naik. BIPI believed, whether
wrong or right, that Naik falsified his call reports and
Naik did nothing to really dispute the accusation. Thus,
the district judge properly granted BIPI’s motion for
summary judgment. We also conclude that the district
judge did not abuse his discretion in denying Naik’s
Rule 59(e) motion seeking reconsideration.
For these reasons, the judgment of the district court
is A FFIRMED.
11-22-10