NONPRECEDENTIAL DISPOSITION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 March 4, 2008
Decided April 9, 2008
Before
RICHARD D. CUDAHY, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 07‐2014
JEFFERY D. JOHNSON, Appeal from the United States District
Plaintiff‐Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
SIEMENS BUILDING TECHNOLOGIES, No. 05 C 3836
INC.,
Defendant‐Appellee. Rebecca R. Pallmeyer,
Judge.
O R D E R
Jeffery Johnson sued his former employer, Siemens Building Technologies, Inc.,
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e‐17, and 42 U.S.C.
§ 1981, alleging that the company discriminated against him because of his race and sex,
and that it retaliated against him for complaining about the discrimination. The district
court granted summary judgment for Siemens, and Johnson appeals. Johnson has
presented no evidence of discrimination and has not shown that Siemens’s asserted reason
for its disciplinary actions against him is pretextual; therefore, we affirm the district court’s
grant of summary judgment.
No. 07‐2014 Page 2
Background
Johnson, who is black, was hired by Siemens in 1994. At the time of his firing,
Johnson worked as a logistics coordinator (or traffic coordinator) in Siemens’s domestic
traffic department. His duties primarily included tracking the shipment throughout the
United States and Canada of raw materials that control the temperature within a building.
In addition to the domestic department, Siemens also maintains an international traffic
department, which handles shipments to parts of the world other than the United States and
Canada.
Although Johnson worked for the domestic department, he made clear over the
course of roughly five years that he wanted to be trained in international shipping. Siemens
never responded to his requests. According to the company, no formal policy exists
regarding when an employee will receive extra job training. But Johnson’s co‐worker
Joanna Zaucha (a white woman) was trained in international traffic shipping. Johnson felt
that he was being discriminated against and threatened to notify the EEOC. Siemens
asserted that it gave Zaucha the training because, at the time, her shift ended roughly five
hours later than Johnson’s, and thus her schedule was better‐suited to it. Additionally,
Siemens noted, Zaucha was the only employee who worked the late‐night shift, so she
needed the training in order to complete after‐hours international trading and shipment
assignments.
Siemens employs a “Respectful Workplace” policy, which requires employees to “be
respectful towards all others . . . at all times while on Company premises.”
Notwithstanding the policy, Johnson was involved in several altercations while he worked
at Siemens. The first, a fistfight with one of his co‐workers, took place in October 1999; both
he and the co‐worker were suspended for five days. Then in October 2002 Johnson received
a disciplinary warning for “verbally abusing” another employee in the cafeteria. Johnson
also had a contentious relationship with his one‐time supervisor, Clinton Salonis. Salonis
and Johnson had had a series of arguments at work and in October 2003, Salonis (who is
also black) was demoted from his supervisory position. Both he and Johnson were warned
at that time that “any further disruptions of this nature will result in formal disciplinary
action up to and including termination of employment.” Despite this warning, the friction
between Johnson and Salonis continued, and in October 2004 both men were placed on a
three‐day suspension for being “argumentative and disrespectful.” Zaucha was never
involved in any altercations at Siemens and was never disciplined by the company.
On a typical day, Johnson was required to work from 8:00 a.m. to 4:45 p.m. But
No. 07‐2014 Page 3
Siemens’s domestic traffic department closed at 6:00 p.m. and the company mandated that
at least one employee remain at work until that time. Also, according to Siemens, its
customers’ demands at times exceeded the amount of work that its employees could
complete during regular business hours. Accordingly, if no one volunteered, Siemens
would require one of its employees to work overtime. Johnson informed his supervisors
that he could not work the extra hour and fifteen minutes because he had to pick up his
daughter from daycare before it closed at 6:00 p.m. Siemens already was aware of
Johnson’s obligation, and to accommodate him, the company previously had asked another
worker to fill in for him. But because of staffing shortages in both the domestic and
international departments, that employee was needed elsewhere and could no longer work
overtime in Johnson’s stead. At one point, Siemens also hired a temporary employee to
lessen the mandatory overtime requirements. Whenever it did require extra work from
Johnson, Siemens endeavored to warn him at least a day in advance, so that he could make
alternate arrangements for his child. But Alexander Kentfield, director of logistics, also
reminded him that failure to work overtime would be seen as a failure to complete a job
assignment and could lead to his being fired. According to Kentfield, Johnson told him “I
have a life outside of Siemens, and I’m leaving.”
Zaucha also had a child who needed to be picked up from daycare. Siemens chose to
accommodate this need by giving her a temporary reprieve from mandatory overtime.
Johnson complained to the company that Zaucha received this form of “preferential
treatment” because she is a white woman. He also believed that Siemens was falsifying
documents to help Zaucha qualify for a subsidized daycare program. Siemens, on the other
hand, asserted that both Salonis and Johnson voluntarily agreed to adjust their schedules
and work overtime until Zaucha, who was going through a divorce at the time, could find
other childcare options. Also, by that point, the company’s staffing concerns were less
serious than they earlier had been. Zaucha was permitted to work reduced hours for
roughly two months, but when Johnson and Salonis stopped volunteering for overtime,
Siemens made Zaucha return to her normal schedule. According to Siemens, from January
to November 2004, Zaucha worked 114 hours’ overtime while Johnson worked 65 hours.
Additionally, during the months that Zaucha’s schedule was shortened, Salonis worked
52.75 hours’ overtime while Johnson worked only 13.5 hours.
The incident that ultimately led to Johnson’s firing occurred in November 2004.
According to Johnson, Zaucha had approached him with a question and in the middle of
their discussion, his telephone rang. Johnson took the phone call, which, he asserts, angered
Zaucha. When he tried to resume the conversation, Zaucha refused to acknowledge him. In
order to get her attention, Johnson asserts, he tapped her arm with a piece of paper.
Zaucha’s version of the incident differed. According to Zaucha, when she asked the
No. 07‐2014 Page 4
question of Johnson, he retorted that she should learn how to do her job properly. Then, she
stated, Johnson rolled up a piece of paper and tapped her on the shoulder and in the face.
Zaucha was upset by Johnson’s actions and reported him to human resources. In his
deposition, the senior human resources coordinator recounted that Zaucha came to his
office in tears, asserting that she had had an altercation with Johnson. After an
investigation, Siemens credited Zaucha’s version and terminated Johnson’s employment.
Siemens’s reason for firing Johnson was that he repeatedly had violated its workplace
policy of being respectful toward all others while on company premises.
Johnson initiated this lawsuit in June 2005, alleging that he had been discriminated
against because of his race and sex, and that Siemens retaliated against him for opposing
unlawful discrimination. After discovery closed, Siemens moved for summary judgment.
The district court reasoned that Siemens’s decision not to provide Johnson with
international training did not constitute an adverse employment action because it was not
central to his job as a domestic traffic coordinator. Additionally, the court concluded that
Siemens reasonably accommodated Johnson’s schedule to avoid interfering with his
childcare obligations. Finally, the court determined that Johnson’s suspensions and firing
were not related to his complaints of discrimination. The district court therefore granted
Siemens’s motion.
Analysis
On appeal Johnson first argues that the district court erred in granting summary
judgment on his claims of race and sex discrimination. Summary judgment is appropriate
when there are no genuine issues of material fact. See Dorsey v. Morgan Stanley, 507 F.3d
624, 627 (7th Cir. 2007). We review the district court’s grant of summary judgment de novo.
See Pantoja v. Am. Bearing Mfg. Corp., 495 F.3d 840, 843 (7th Cir. 2007). Johnson does not
attempt to prove race or sex discrimination by the direct method, but instead relies on the
indirect method of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). To set forth a
prima facie case of discrimination under the indirect method, Johnson has to show that
(1) he is a member of a protected class, (2) he was meeting his employer’s legitimate job
expectations, (3) he suffered an adverse employment action, and (4) similarly situated
employees outside of the protected class were treated more favorably. See Fane v. Locke
Reynolds, LLP, 480 F.3d 534, 538 (7th Cir. 2007). In actions brought under both Title VII and
§ 1981, a plaintiff must satisfy the same prima facie requirements. See id.
Johnson contends that Siemens discriminated against him because of his race and sex
by failing to train him in international shipping. The district court assumed for the
purposes of argument that Johnson satisfied the first two elements of his prima facie case,
No. 07‐2014 Page 5
but determined that Siemens’s failure to provide international training did not constitute an
adverse employment action. The record supports that determination. An adverse
employment action is a “‘materially adverse change in the terms and conditions of
employment [that is] more disruptive than a mere inconvenience or an alteration of job
responsibilities.’” Cerros v. Steel Tech., Inc., 288 F.3d 1040, 1044 (7th Cir. 2002) (quoting
Stockett v. Muncie Ind. Transit Sys., 221 F.3d 997, 1001 (7th Cir. 2000)); see also Pantoja, 495
F.3d at 847. “[N]ot everything that makes an employee unhappy is an actionable adverse
action.” Nichols v. S. Ill. Univ.‐Edwardsville, 510 F.3d 772, 780 (7th Cir. 2007) (citation and
internal quotation marks omitted).
Here Johnson worked in the domestic traffic department, but wanted formal training
in international shipping because he thought that the international department paid more,
and that the training might improve his chances of becoming an international traffic
coordinator either for Siemens, or for another company. But nothing in the record suggests
that members of the international traffic unit were better compensated. And Johnson
admitted that most employees in the international unit were trained after they began
working in that unit, not before. Cf. Herrnreiter v. Chicago Hous. Auth., 315 F.3d 742, 745 (7th
Cir. 2002) (noting that employee’s “purely subjective preference for one position over
another” was insufficient to support his discrimination claim). Moreover, Siemens planned
to merge the domestic and international departments and intended to train the entire
domestic group, including Johnson, in international shipping. That the company had not
yet done so does not amount to an adverse employment action, and thus this “failure to
train” cannot serve as the basis of his discrimination claims.
Johnson next claims that Siemens discriminated against him by occasionally making
him work overtime, which, he asserts, shows that the company refused to accommodate his
responsibility to pick up his child from daycare. Although Johnson’s brief is somewhat
unclear, he seems to argue that Siemens did not respond to his childcare obligations because
he is a man. As we have noted management decisions are not “necessarily rendered with
discriminatory animus based on sex just because a male and female employee are
involved.” Greenslade v. Chicago Sun‐Times, Inc., 112 F.3d 853, 865 (7th Cir. 1997). Men who
allege sex discrimination generally have a high burden because, historically, employers
have not discriminated against them. See Gore v. Ind. Univ., 416 F.3d 590, 592 (7th Cir. 2005)
(“[I]t is the unusual employer who discriminates against majority employees.”) (quoting
Mills v. Health Care Serv. Corp., 171 F.3d 450, 456‐57 (7th Cir. 1999)). Then again, childcare
has traditionally been associated with women, so Johnson may be able to argue that the
higher burden does not apply to him.
But, assuming for the purpose of argument that he has set forth a prima facie case of
No. 07‐2014 Page 6
discrimination, Johnson cannot show that Siemens’s reason for the action—that increases in
the amount of work necessitated the overtime policy—was pretextual. To survive summary
judgment, Johnson had to show that this reason was a “deliberate false‐hood.” Kodl v. Bd. of
Educ. Sch. Dist. 45, Villa Park, 490 F.3d 558, 562 (7th Cir. 2007) (internal citation and
quotation marks omitted); see Barricks v. Eli Lilly and Co., 481 F.3d 556, 560‐61 (7th Cir. 2007).
Johnson argues that Siemens’s reason is pretext for sex discrimination because, despite its
business needs, the company did not require Zaucha to work overtime for a two‐month
period. Johnson does not acknowledge that Siemens did accommodate his daycare
obligations. The company’s staffing concerns also had become less of an issue during the
months that Siemens permitted Zaucha to leave exactly at the end of her shift.
Additionally, notwithstanding her “grace period” from August through October 2004,
Zaucha’s total overtime hours for the year were far greater than both Johnson and Salonis.
And Salonis, not Johnson, worked the bulk of the overtime hours when Zaucha’s schedule
was altered. Johnson has failed to show that Siemens’s reason is pretext for sex
discrimination; therefore, summary judgment was properly granted on this claim.
Johnson next contends that Siemens suspended him in October 2004 and then fired
him one month later in retaliation for his complaints about race and sex discrimination.
Siemens, on the other hand, asserts that these actions were taken against Johnson because he
repeatedly got into both physical and verbal conflicts at work. Therefore, to survive
summary judgment, Johnson had to show that Siemens’s reason was pretextual, see Sublett
v. Wiley & Sons, Inc., 463 F.3d 731, 740 (7th Cir. 2006), that is, that the company’s explanation
was a lie, Hague v. Thompson Distrib. Co., 439 F.3d 816, 823 (7th Cir. 2006). Here Johnson had
been warned on several occasions that his behavior at work was unacceptable and that it
could lead to his being suspended or fired. Though he questions the timing of his
suspension and later firing, Johnson has not shown that these actions were motivated by
anything other than his disciplinary history. See, e.g., Kodl, 490 F.3d at 563; Stone v. City of
Ind. Pub. Util. Div., 281 F.3d 640, 644 (7th Cir. 2002) (“[M]ere temporal proximity between
the filing of the charge of discrimination and the action alleged to have been taken in
retaliation for that filing will rarely be sufficient in and of itself to create a triable issue.”).
Finally, Johnson raises a claim of retaliatory discharge under Illinois law. Because
the district court dismissed all of Johnson’s federal claims, it declined to exercise
supplemental jurisdiction over the state‐law claim. We conclude that the district court
reasonably exercised its discretion in dismissing the claim. See Williams Elecs. Games, Inc. v.
Garrity, 479 F.3d 904, 906‐08 (7th Cir. 2007).
AFFIRMED.