In the
United States Court of Appeals
For the Seventh Circuit
No. 13-2206
SUSAN I. MOULTRIE, as Executor of the
Estate of LEVIA MOULTRIE,
Plaintiff-Appellant,
v.
PENN ALUMINUM INTERNATIONAL, LLC,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 11-CV-00500-DRH-DGW — David. R. Herndon, Chief Judge.
ARGUED DECEMBER 9, 2013 — DECIDED SEPTEMBER 10, 2014
Before WILLIAMS, SYKES, and HAMILTON, Circuit Judges.
SYKES, Circuit Judge. Levia Moultrie was demoted from his
position as a forklift operator at Penn Aluminum’s plant in
southern Illinois. According to Penn, Moultrie was demoted
because of performance problems. Moultrie, however, attrib-
utes Penn’s decision to racial discrimination and retaliation. He
2 No. 13-2206
also claims that Penn’s conduct violated its obligations under
the collective-bargaining agreement applicable to his employ-
ment. The district court entered summary judgment for Penn,
and we affirm. Moultrie’s breach-of-contract claim is barred by
the statute of limitations, and he has failed to provide sufficient
evidence to support his discrimination and retaliation claims.
I. Background
Moultrie began working at Penn Aluminum in 1990. Over
the next two decades, he moved between different positions at
the plant, including forklift operator, block operator, utility
coiler, and scrap chopper. The events giving rise to this
litigation began on September 2, 2008, when Moultrie used his
seniority to move back into the position of forklift operator.
The collective-bargaining agreement gave him two days to
show he could perform the job adequately.
Moultrie soon began experiencing performance problems.
On September 8 he allegedly hooked up some wires back-
wards, which caused a delayed shipment. Though Moultrie
denies that he made any mistake, he admits something
happened that caused the late shipment. Because of this
incident, Moultrie began receiving counseling for inadequate
job performance from one of his supervisors, Ken Sizemore.
On September 10 he received a warning for an unsafe incident
involving an oven; a rod sticking out of his forklift damaged
the oven door. Moultrie claims this damage was nothing more
than a small crease that was not repaired. The record also
suggests another performance lapse on September 22:
No. 13-2206 3
thermocouple wires were cut because Moultrie hooked them
up improperly. This brought another counseling session.
At this point Moultrie had a meeting with another of his
supervisors, Paul Crawford, that was documented in a letter
placed in Moultrie’s file. They discussed his performance
problems, and Crawford recounted his initial reservations
about Moultrie’s ability to keep up in this fast-paced position.
The letter goes on to state that “I told Levia that I knew he had
a very long, very good work record and that I would hate to
have to disqualify him from the job but that it was painfully
obvious that he could not keep up with the demand.”
Moultrie continued to experience problems. On
February 25, 2009, he was written up for placing tags in the
wrong piles, which took several hours to sort out. According
to Moultrie, others were responsible for this incident. The next
day, Jeff Drake (filling in as temporary manager) told Moultrie
to operate the chopper, a “dirty” job, while another employee,
Dave Billups, operated the forklift, a “clean” job. As a result,
Moultrie filed a grievance. The grievance itself mentioned
nothing about race. But Moultrie alleges that this incident was
racially motivated and that the union refused to include an
allegation of racism in his grievance.
On March 4 Moultrie was written up for substandard work
and carelessness. This time he had failed to notice that an oven
he had turned on earlier that day was not running when it
should have been. Moultrie signed the incident report despite
claiming that he was doing other work at the time. He was
again written up on March 5 for dropping a coil from the
forklift, creating an unsafe condition. Though he filed a
4 No. 13-2206
grievance after he was disciplined for this action, he does not
deny that he dropped the coil. Rather he claims coils are
frequently dropped without discipline. On March 19 he was
written up again and placed on probation after a March 16
incident involving his failure to turn on an oven. Though he
submitted an affidavit claiming this was someone else’s fault,
he appears to have admitted responsibility in his deposition.
His final write-up came on April 2 when he failed to take a
load out of the oven, again causing a delay in shipment. He
claims this incident occurred because he did not hear his
supervisor’s instructions. It was the final straw, however, and
Penn disqualified him from the forklift position. This
amounted to a demotion; Moultrie continued to work at the
plant.
Moultrie filed a grievance challenging his disqualification
as a forklift operator. Again, this grievance did not mention
race, and Moultrie again claims the union representatives
refused to include his allegations of racism. Penn held a
meeting on April 29—called a “Step 3” meeting in the parlance
of Penn’s collectively bargained, multitiered grievance
process—to address the disqualification. The company issued
its decision rejecting Moultrie’s grievance on May 21, 2009.
Neither the union nor Moultrie filed for arbitration within the
ten-day period provided under the collective-bargaining
agreement.
Moultrie filed charges of discrimination with the Illinois
Department of Human Rights and Equal Employment Oppor-
tunity Commission on September 3, 2009. The Illinois agency
notified Moultrie on November 16, 2009, that his charge would
No. 13-2206 5
be dismissed because it was not supported by substantial
evidence. This notice also alerted Moultrie of his right to seek
review of the dismissal before the Illinois Human Rights
Commission or file a civil action within ninety days. The EEOC
sent Moultrie a dismissal and notice of rights along with a
right-to-sue letter on March 30, 2011.
Moultrie proceeded to file a complaint in the Southern
District of Illinois on June 14, 2011. His complaint alleged a
violation of the collective-bargaining agreement, breach of the
union’s duty of fair representation, racial discrimination (under
both Title VII and the Illinois Human Rights Act), and retalia-
tion. As defendants he named Penn, one of Penn’s parent
companies, and the union. He voluntarily dismissed his claims
against the parent company and union, leaving Penn as the
only defendant. The district court dismissed the Illinois state-
law claim as time barred and entered summary judgment
against Moultrie on all remaining claims. Moultrie appealed.1
II. Discussion
We review the district court’s grant of summary judgment
de novo, construing the evidence and drawing reasonable
inferences in favor of Moultrie, the nonmoving party. Coca-Cola
Enters., Inc. v. ATS Enters., Inc., 670 F.3d 771, 774 (7th Cir. 2012).
Summary judgment is appropriate if the evidence
demonstrates that there are no genuine issues of material fact
1
Moultrie died while this appeal has been pending. We have substituted
Susan I. Moultrie, the executor of his estate, as the plaintiff-appellant.
6 No. 13-2206
and Penn is entitled to judgment as a matter of law. FED. R.
CIV. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986);
Coca-Cola Enters., 670 F.3d at 774.
A. Breach of the Collective-Bargaining Agreement
Moultrie first claims that Penn violated the collective-
bargaining agreement by, among other things, moving him
from a “clean” job to a “dirty” job and allowing a person with
less seniority to take his position. This claim is subject to a six-
month statute of limitations under § 10(b) of the National
Labor Relations Act, 29 U.S.C. § 160(b). DelCostello v. Int’l Bhd.
of Teamsters, 462 U.S. 151, 155 (1983).2 The “cause of action
accrues from the time a final decision on a plaintiff’s grievance
has been made or from the time the plaintiff discovers, or in
2
Moultrie claims that the district court should never have allowed Penn to
raise this statute-of-limitations defense. Penn requested leave to amend its
initial answer to include this defense. The district court allowed the
amendment, and doing so was not an abuse of discretion. See Akrabawi v.
Carnes Co., 152 F.3d 688, 693 (7th Cir. 1998) (“We review the court’s grant
of leave to amend a pleading only for an abuse of discretion.”). After a
pleading can no longer be amended as a matter of course, “a party may
amend its pleading only with the opposing party’s written consent or the
court’s leave. The court should freely give leave when justice so requires.”
FED. R. CIV. P. 15(a)(2); see also Larkin v. Galloway, 266 F.3d 718, 721–22 (7th
Cir. 2001) (“Whether or not to grant a defendant’s motion to amend her
answer is a decision committed to the discretion of the district court.”).
Allowing the amendment was a valid exercise of the court’s discretion; the
court properly concluded that Moultrie was not prejudiced by Penn’s delay
in raising the defense, and Moultrie does not advance such an argument
here.
No. 13-2206 7
the exercise of reasonable diligence should have discovered,
that no further action would be taken on his grievance.”
Chapple v. Nat’l Starch & Chem. Co. & Oil, 178 F.3d 501, 505 (7th
Cir. 1999) (internal quotation marks omitted).
In order to determine when the statute of limitations began
to run, we must examine the grievance structure in place at
Penn. The collective-bargaining agreement sets up a three-step
grievance procedure. Step 1 involves the employee bringing
the grievance to the attention of an immediate supervisor
within five working days of an incident, from which time the
supervisor has five working days to respond. If the employee
is not satisfied with the supervisor’s disposition of the matter,
at Step 2 the grievance is reduced to writing and given to the
company by the union for settlement by a department head.
Once that written grievance is submitted, the company has five
working days to settle the matter. If the matter is not settled,
the process moves to Step 3. At that point a meeting takes place
involving both the union and the company, and the company
has thirty working days after that meeting to respond in
writing. After receiving that written answer, the parties have
ten working days to file for arbitration.
The company issued the Step 3 written report denying
Moultrie’s grievance on May 21, 2009, placing his deadline for
filing for arbitration in early June. The union did not file for
arbitration. At that point it should have been clear to Moultrie
that the union would take no further action regarding his
grievance and that the company’s decision was final. Moultrie
argues that the statute of limitations never started running
because the union allegedly failed to include his claims of racial
8 No. 13-2206
discrimination in his grievance. But the time to file any such
grievance also had passed. There was simply nothing left to do
within the structure established by the collective-bargaining
agreement, and Moultrie would not forgo any internal reme-
dies by filing suit at that point. Moultrie first raised this claim
against Penn in an amended complaint in October 2011, more
than two years after the deadline to file for arbitration had
passed. So he must rely on a tolling doctrine in order to avoid
the time bar of the six-month statute of limitations.
There is no basis for equitable tolling of the limitations
period and no evidence whatsoever that Penn is guilty of
fraudulent concealment. Equitable tolling is available when the
plaintiff, exercising due diligence, was unable to discover
evidence vital to a claim until after the statute of limitations
expired. Chapple, 178 F.3d at 505–06. Moultrie doesn’t point to
any such evidence. His breach-of-contract claim mentions
violations of the seniority and grievance policies. But Moultrie
had a copy of the collective-bargaining agreement that gov-
erned seniority issues and grievance procedures, he knew what
was written on his grievances, and he had personally experi-
enced the relevant events. He had all the information necessary
to raise his claim but failed to bring it in a timely fashion. His
argument that the statute of limitations should be tolled due to
fraudulent concealment likewise fails for lack of evidence.
Moultrie has identified no evidence showing that Penn
concealed necessary information from him.
No. 13-2206 9
B. Discrimination
Next, Moultrie argues that the district court erroneously
determined that he failed to put forth sufficient evidence of
discrimination. Under the indirect method of proof, on which
Moultrie relies, he must establish a prima facie case of discrimi-
nation with evidence that: (1) he is a member of a protected
class; (2) he met his employer’s legitimate job expectations;
(3) he suffered an adverse employment action; and (4) similarly
situated employees outside of his protected class were treated
more favorably. Smiley v. Columbia Coll. Chi., 714 F.3d 998, 1002
(7th Cir. 2013). If he satisfies his burden, Penn has an opportu-
nity to identify a legitimate, nondiscriminatory reason for its
actions. Id. The burden would then shift back to Moultrie to
demonstrate that the given reason was pretextual. Id.
Moultrie has not established his prima facie case. The
evidence does not show that he was meeting his employer’s
legitimate expectations, nor has he identified similarly situated
employees who were treated more favorably.
Moultrie points to no evidence showing that he was
performing as expected. There are no performance reviews,
formal or informal, indicating that he was a competent forklift
operator. Crawford’s letter indicates that Moultrie had a good
record before moving to the forklift position; once in that
position, however, it became “painfully obvious that he could
not keep up with the demand.” His supervisors gave him
assistance and time to improve his skills before they demoted
him.
Moultrie was also counseled and disciplined due to poor
performance on several occasions. Moultrie now disputes some
10 No. 13-2206
of the incidents underlying this discipline even though he did
not file a contemporaneous grievance. Despite these factual
challenges, which are based primarily on Moultrie’s own,
uncorroborated assertions, some of the incidents remain
essentially undisputed. For example, Moultrie acknowledges
damaging an oven door on September 10, though he minimizes
the extent of the damage. He also admits to dropping a coil on
March 5. He failed to notice that an oven was off on March 4;
failed to start an oven on March 16; and didn’t hear his
supervisor’s instructions on April 2, resulting in his failure to
take a load out of the oven and causing a delay in shipment.
Though not related to any discipline, Moultrie also admitted in
his deposition that he had “dozed off” while driving the fork
truck.
Moultrie likewise fails to provide sufficient evidence
showing similarly situated employees from outside his
protected class who received more favorable treatment.
“Similarly situated employees must be directly comparable to
the plaintiff in all material respects, but they need not be
identical in every conceivable way.” Coleman v. Donahoe,
667 F.3d 835, 846 (7th Cir. 2012) (internal quotation marks
omitted). The purpose of this requirement “is to eliminate
other possible explanatory variables, such as differing roles,
performance histories, or decision-making personnel, which
helps isolate the critical independent variable—discriminatory
animus.” Id. (internal quotation marks omitted).
Moultrie first argues that this requirement should not apply
because he is alleging that “he is the only one in the plant who
is treated this way and that … is because he was black.” If that
No. 13-2206 11
were true, there should be numerous employees who received
more favorable treatment; neither his position nor performance
is sui generis.
That said, Moultrie has pointed to several employees who
he claims satisfy this requirement. However, his litigating
position in this regard has been something of a moving target.
On appeal he focuses on Dave Billups, a white forklift driver.3
Specifically, Moultrie claims that Billups dropped several coils
and was not disciplined. The evidence of these alleged inci-
dents is sketchy at best; we have no idea when these actions
took place or who supervised Billups at the time. Moultrie
relies only on his own testimony to substantiate his claims, but
he concedes that he lacks personal knowledge of these events.
Additionally, Billups apparently was fired for falling asleep
while driving a forklift. In short, the evidence does not show
that Billups was either similarly situated or received more
favorable treatment.
Moultrie ultimately failed to support a prima facie case of
discrimination. This resolves both his federal and state-law
discrimination claims. The district court found that the state-
3
Though now the sole focus of his argument, Billups was not mentioned in
Moultrie’s summary-judgment brief. (Though that suggests waiver, it
makes no difference in our analysis; the district court concluded Billups did
not satisfy the similarly situated requirement and so do we.) That brief did
mention three other employees, Anthony Kinsey, Ryan Maclin, and Kent
Aspen, none of whom was a valid comparator. Each of these men had been
disqualified from the forklift position or even fired by Penn. Prior to that,
Moultrie had focused on coworkers holding different jobs or with different
supervisors.
12 No. 13-2206
law action was untimely and rejected the federal claim on the
merits. At oral argument Moultrie conceded that the merits of
his state-law discrimination claim would rise or fall with the
merits of the federal claim.4 Because his federal claim fails, so
too does his state-law claim, and we do not need to address the
timeliness issue.
C. Retaliation
Finally, Moultrie argues that the district court erred in
entering summary judgment on his retaliation claim. Retalia-
tion may be established by either the direct or the indirect
method of proof. Moultrie relies on both, and we begin with
the direct method, which requires the plaintiff to show: (1) that
he engaged in activity protected by the statute; (2) that his
employer took an adverse employment action against him; and
(3) that there is a causal connection between the plaintiff’s
protected activity and the adverse employment action.
O’Leary v. Accretive Health, Inc., 657 F.3d 625, 630–31 (7th Cir.
2011).
4
The standards for Illinois state-law discrimination claims mirror those for
Title VII claims. See, e.g., Owens v. Dep’t of Human Rights, 936 N.E.2d 623,
640 (Ill. App. Ct. 2010) (“To establish a prima facie case of employment
discrimination, the petitioner must first show that (1) he is a member of a
protected class; (2) he was meeting his employer's legitimate business
expectations; (3) he suffered an adverse employment action; and (4) the
employer treated similarly situated employees outside the class more
favorably.”).
No. 13-2206 13
Moultrie alleges that he engaged in protected activity by
complaining of racial discrimination to his temporary
supervisor Jeff Drake on February 27, 2009.5 After he was
temporarily assigned to a “dirty job” while his white coworker
Billups was given a “clean job,” Moultrie claims that he asked
Drake “if Dave Billup[s] [was] black and I was white, would
you put him back here?” Drake denies this took place.
Even if we generously assume that this complaint consti-
tutes protected activity, Moultrie has not connected it to his
demotion. Apart from allegedly suspicious timing—Moultrie
was written up several times following this alleged complaint,
though his performance problems arose well before that—no
evidence demonstrates that the demotion was caused by his
protected activity. And “[s]peculation based on suspicious
timing alone … does not support a reasonable inference of
5
He also points to his grievances and a complaint to union representative
Paul Crawford. However, the grievances did not contain any reference to
his race or complaints of racial discrimination. Even if his initial discussions
with union representatives mentioned racial discrimination, Penn did not
know about those allegations, which is fatal to his claim. See Nagle v. Village
of Calumet Park, 554 F.3d 1106, 1122 (7th Cir. 2009) (“In order to establish
retaliation pursuant to Title VII, the employer must have had actual
knowledge of the protected activity in order for its decisions to be
retaliatory; it is not sufficient that [an employer] could or even should have
known about [an employee’s] complaint.” (internal quotation marks
omitted)). His claim that he told Crawford that his write-ups were racially
motivated is not supported by the record; Moultrie does not say when this
complaint took place, and when asked in his deposition whether he “ever
complained to Mr. Crawford about race,” Moultrie responded: “I was mad
when I was talking to him so I don’t know what I said to him.”
14 No. 13-2206
retaliation.” Sauzek v. Exxon Coal USA, Inc., 202 F.3d 913, 918
(7th Cir. 2000).
Moultrie’s reliance on the indirect method fares no better.
The indirect method of proof for retaliation mirrors that for
discrimination. Specifically, Moultrie must show that he:
(1) engaged in statutorily protected activity; (2) met his
employer’s legitimate expectations; (3) suffered an adverse
employment action; and (4) was treated less favorably than
similarly situated employees who did not engage in protected
activity. Alexander v. Casino Queen, Inc., 739 F.3d 972, 983 (7th
Cir. 2014). Several problems with Moultrie’s theory are readily
apparent. First, he struggles to identify any evidence of
protected activity. And as we discussed in analyzing his
discrimination claims, his on-the-job performance was seri-
ously inadequate, and he has failed to point to similarly
situated employees who received more favorable treatment.
Because Moultrie cannot show retaliation under either method
of proof, summary judgment on this claim also was proper.
AFFIRMED.