NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued January 7, 2011
Decided March 24, 2011
Before
DANIEL A. MANION, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
CHARLES N. CLEVERT, JR., District Judge*
No. 10‐2077 Appeal from the United States District
Court for the Northern District of
John R. Garcia, Illinois, Eastern Division.
Plaintiff‐Appellant, No. 08 C 3366
v. Marvin E. Aspen, Judge.
United States Postal Service, et al.
Defendant‐Appellee.
O R D E R
John Garcia, a Mexican‐American postal employee, was fired for unacceptable
conduct tied to his handling of several transactions with customers. He sued, claiming that
his firing was based on his national origin and on the fact that he had previously filed
*
Hon. Charles N. Clevert, Jr., of the Eastern District of Wisconsin, sitting by designation.
No. 10‐2077 Page 2
complaints with the Equal Employment Opportunity Commission. In a thorough and well‐
reasoned opinion, the district court granted summary judgment in favor of the Postmaster
General, and Garcia appeals. Because he has not produced any evidence which, if believed,
would entitle him to relief under either claim, we affirm.
I.
Garcia worked at the Hazel Crest, Illinois, post office as a window clerk, selling
stamps and handling the packages customers needed mailed. Of the four window clerks, he
was the only Mexican‐American. At some point in 2004, the Post Office conducted a routine
audit and found an $800 inventory shortage at the Hazel Crest branch. The branch
postmaster, Patrick Kavanaugh, filed a report about the loss indicating that he suspected
Garcia was responsible because he was the only full‐time window clerk, he had previously
discussed gambling results, and he had recently flashed a large roll of cash. The report was
forwarded to a postal inspector assigned to the case, Ramona Parker, and she investigated
the loss.
During the investigation, Parker looked at the transactions that each window clerk
made. She specifically looked at how many times each teller accessed his or her drawer
without making a sale, how many single‐stamp sales were made, and how many sales were
voided. It turned out that Garcia had significantly more of these transactions than the other
window clerks. He had roughly ten to one hundred times more single‐stamp sales than his
coworkers: Garcia transacted 284 single‐stamp sales in one month, while one window clerk
had just 3 single‐stamp sales and another had 26 single‐stamp sales in the same period.
Based on this, Parker focused her investigation on Garcia and installed surveillance
equipment to monitor his work station. She did not, however, monitor the other tellers’
work stations. There were three discrepancies for the day he was monitored by videotape.
One customer bought a book of stamps for $7.40, but Garcia voided the sale into his register
and entered a single‐stamp sale. Another customer actually did purchase just one stamp,
and Garcia did not enter it at all. A third customer bought a book of stamps for $7.40, but
again, Garcia voided the sale and entered it as a three‐stamp sale.
Several weeks later, Parker interviewed Garcia about these transactions and he said
he “probably” does not enter all transactions correctly and that he “probably” does not put
all sales into the register. In her report, she catalogued the three improper transactions and
noted the $800 shortage that spurred the investigation. She then gave the report to
Kavanaugh who later interviewed Garcia about his behavior. At the interview, Garcia could
No. 10‐2077 Page 3
not explain the improper transactions; instead, he repeatedly answered, “I did not
knowingly put in any wrong transactions.” Kavanaugh, with the approval of his supervisor,
fired Garcia.
Garcia sued, claiming that the real reason behind his firing was national‐origin
discrimination and retaliation against him for his previous EEOC complaints—he had filed
a complaint in 2003 and several others over the previous decade. The district court held that
Garcia had no evidence which, if believed, could establish that his national origin was a
motivating factor in his termination, nor did he have any evidence that could establish a
causal connection between his EEOC complaint in 2003 and his firing fifteen months later.
II.
On appeal, Garcia claims he presented sufficient evidence before the district court to
avoid summary judgment. We review de novo the granting of summary judgment and
construe all facts and reasonable inferences in favor of the non‐moving party. Goodman v.
National Sec. Agency, Inc., 621 F.3d 651, 653‐54 (7th Cir. 2010).
Garcia focuses much of his argument on his national‐origin claim, arguing that he
can establish his claim through either the direct or indirect method of proof. To make a
prima facie case for discrimination under the direct method of proof, Garcia must present
direct or circumstantial evidence that creates a “convincing mosaic of discrimination.”
Winsley v. Cook County, 563 F.3d 598, 604 (7th Cir. 2009). Under the indirect method, to
establish a prima facie case for discrimination, Garcia must present evidence that: (1) he is a
member of a protected class, (2) he was meeting his employer’s legitimate expectations, (3)
he was subject to an adverse employment action, and (4) the employer treated similarly
situated employees outside the protected class more favorably. Id.
Concerning the direct method, Garcia attempts to paint a “convincing mosaic of
discrimination” through two sets of allegations: one, that racist comments were made to
him sometime over the course of his fifteen years with the post office; two, that he was the
only one that the postmaster suggested was responsible for the account deficiency. For
disparaging remarks about race to constitute direct evidence of discrimination, the remarks
must be (1) made by the decision‐maker, (2) around the time of the decision, and (3) in
reference to the adverse employment action. Egonmwan v. Cook County Sheriffʹs Dept., 602
F.3d 845, 850 (7th Cir. 2010). That did not happen here. Kavanaugh did not make the
comments at issue; Garcia could not say when the comments were made; nor does anything
in Garcia’s deposition suggest the comments were made in reference to his firing. Thus,
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they are no more than “stray remarks,” which fail to create a suggestion of racial animus, let
alone a convincing mosaic. See Nichols v. S. Ill. Univ.‐Edwardsville, 510 F.3d 772, 781‐82 (7th
Cir. 2007) (“[S]tray remarks that are neither proximate nor related to the employment
decision are insufficient to defeat summary judgment.”(quotation omitted)). And the fact
that Garcia was the only one mentioned in Kavanaugh’s report does not suggest racial
animus, especially since he articulated why he suspected Garcia: Garcia had access to the
inventory, he gambled, and he was seen with large amounts of money.
Concerning the indirect method of proof, Garcia focuses much of his argument on
the district court’s holding that he could not establish that similarly situated employees
outside his protected class were treated more favorably than he was. This argument is also
two‐fold: one, he claims that other clerks had suspicious transactions but were not
videotaped, and two, that other clerks had large discrepancies in their drawers but were
never written up. To establish a valid comparison under Title VII, the similarly situated
employee must be “directly comparable to the plaintiff in all material respects, which
includes showing that coworkers engaged in comparable rule or policy violations.”
Patterson v. Indiana Newspapers, Inc., 589 F.3d 357, 365‐66 (7th Cir. 2009) (citation and
quotation omitted).
There are many problems with Garcia’s argument. For one, being investigated is not
a materially adverse employment action. Smart v. Ball State Univ., 89 F.3d 437, 441 (7th
Cir.1996) (“[N]ot everything that makes an employee unhappy is an actionable adverse
action.”). The Post Office has the right to make sure it isn’t fleeced by its employees. The
other problem with Garcia’s argument is he was not fired because he had an inordinate
number of single‐stamp sales. That fact simply made him the prime suspect. He was fired
for unacceptable conduct, namely improperly recording transactions as evidenced by the
videotape that showed him voiding larger, proper sales and entering smaller, improper
ones.
It’s also for this reason that Garcia’s second argument fails. He claims that other
clerks had discrepancies in their drawers but they were not written up or fired. Garcia,
however, does not support that allegation with any admissible evidence. And even if he
could be more specific, his claims are based on his own collection of workplace rumors. The
fact that other clerks’ drawers were short one day, without more, is not the same as
improperly recording transactions by voiding the more expensive sales and entering much
cheaper sales. Thus, based on the unsupported allegations in Garcia’s brief, the other tellers’
actions are not comparable to his. Burks v. Wisconsin Dept. of Transp., 464 F.3d 744, 752 (7th
Cir. 2006) (noting that to be similarly situated, employees must have a “comparable set of
No. 10‐2077 Page 5
failings.”). Because Garcia cannot point to a similarly situated employee outside the
protected class who was treated more favorably, he cannot establish a prima facie case of
national‐origin discrimination.
Garcia also presses his retaliation claim on appeal. This claim rests on the fact that
he made an EEOC claim in May 2003 and that Kavanaugh was aware of his EEOC
complaint when he fired Garcia in August 2004. To establish a claim for retaliation, Garcia
must show that he engaged in statutorily protected activity, he suffered an adverse
employment action, and a causal connection exists between the two events. Gates v.
Caterpillar, Inc., 513 F.3d 680, 686 (7th Cir. 2008). We have repeatedly held that a year
between the adverse action and the protected activity—without something more—cannot
establish a causal connection. Everroad v. Scott Truck Systems, Inc., 604 F.3d 471, 481 (7th Cir.
2010); Haywood v. Lucent Techs., Inc., 323 F.3d 524, 531 (7th Cir. 2003) (holding a year is too
long). And the fact, by itself, that Garcia’s supervisors knew of the prior complaint does not
suggest or establish a causal connection. Bilow v. Much Shelist Freed Denenberg Ament &
Rubenstein, P.C., 277 F.3d 882, 895 (7th Cir. 2001). In sum, Garcia has failed to present
evidence that would establish a causal connection between his earlier EEOC complaint and
his firing.
III.
Garcia failed to produce evidence to establish that his firing was based on his
national origin or in retaliation for his previous complaints with the EEOC. Therefore, the
judgment of the district court is AFFIRMED.