In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16‐1959
JEFF MONROE,
Plaintiff‐Appellant,
v.
INDIANA DEPARTMENT
OF TRANSPORTATION and JOE
MCGUINNESS,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:14‐cv‐00252 — Sarah Evans Barker, Judge.
____________________
ARGUED NOVEMBER 7, 2016 — DECIDED SEPTEMBER 18, 2017
____________________
Before EASTERBROOK and WILLIAMS, Circuit Judges and
FEINERMAN, District Judge.*
* Of the Northern District of Illinois, sitting by designation.
2 No. 16‐1959
WILLIAMS, Circuit Judge. Jeff Monroe worked for the Indi‐
ana Department of Transportation (“INDOT”) for just over
twenty‐one years. In January 2013, after seven or eight of
Monroe’s subordinates went to Monroe’s supervisor, Terry
George, to complain about Monroe’s treatment of them,
INDOT conducted an investigation of Monroe’s conduct.
During the investigation, Monroe disclosed that recently he
had been diagnosed with Post Traumatic Stress Disorder
(“PTSD”). After completing the investigation, INDOT dis‐
charged Monroe for creating a hostile and intimidating work
environment. Monroe then sued INDOT and its Commis‐
sioner1 alleging various claims, including that he was termi‐
nated “on the basis of” or “solely because of” his mental dis‐
ability in violation of the Americans With Disabilities Act
(“ADA”) and Section 504 of the Rehabilitation Act. The dis‐
trict court granted defendants’ motion for summary judg‐
ment. Monroe now appeals, claiming that he provided suffi‐
cient evidence that INDOT’s proffered reason for discharging
him was pretextual and that INDOT treated similarly situated
non‐disabled employees more favorably than they treated
him. Because we find there is not a genuine issue of material
fact regarding either of Monroe’s contentions, we affirm the
district court.
1 The Commissioner of INDOT has changed during the pendency of
Monroe’s case. On January 12, 2017, Commissioner Joe McGuinness, was
substituted as a Defendant‐Appellee. We will refer to both McGuinness
and INDOT as either “defendants” or “INDOT.”
No. 16‐1959 3
I. BACKGROUND
Monroe began working for INDOT on January 6, 1992 and
continued his employment until he was terminated on Febru‐
ary 4, 2013. The last position Monroe held with INDOT was
unit foreman on the night shift, from 8 p.m. until 6 a.m. Mon‐
roe supervised fourteen regular employees and four seasonal
employees. As part of his job, Monroe had the difficult task of
helping to clean up human remains after traffic accidents. He
also witnessed a co‐worker die after a work‐related accident.
Monroe faced challenging circumstances outside of his
work for INDOT as well. He had served in combat in the Gulf
War. In late 2012 Monroe’s sister, who had lived with him,
died of cancer. While employed at INDOT, Monroe also
worked a second job as a stagehand. He testified that near the
end of his employment with INDOT, he was not sleeping well
and had become irritable and easily upset.
In December 2012, Monroe spoke with his supervisor
George and told him that he was stressed, burned out, could
not sleep, and that he wanted to be transferred to a day shift
position. In January 2013, after George did not get back to
him, Monroe met with George and George’s supervisor, J.D.
Brooks. Monroe again requested to be transferred to the day
shift, but was told that no position was available.
On January 7, 2013, George completed a performance re‐
view for Monroe in which he gave Monroe an overall perfor‐
mance rating of “Exceeds Expectations” for 2012. Monroe had
received the same rating from other supervisors for 2010 and
2011 as well.
4 No. 16‐1959
A. January 24, 2013 Incident
On the evening of January 24, 2013, Monroe arrived for his
usual 8 p.m. to 6 a.m. shift. During a safety briefing, Monroe
informed his subordinates that some of them would have to
go to another unit to help prepare some equipment for a pre‐
dicted overnight snowfall. According to Monroe, crew mem‐
bers Johnny Perkins and Josh McClung objected and com‐
plained about doing other peoples’ work. Perkins told Mon‐
roe he did not respect the crew and Monroe responded that
respect had to be earned. Monroe then dropped his clipboard
on the desk, said, “f*** this,” and told his crew leader Danny
Wise to take over.
Monroe went into his office to calm down and then asked
Perkins to meet him in the wash bay, which was an area with
more privacy. Monroe contends that Perkins tried to fight him
in the wash bay but that he would not fight and instead told
Perkins to come to his house so they could discuss why Per‐
kins wanted to fight all the time.
The next day, January 25, after they had completed their
shift, seven or eight of Monroe’s subordinates went to speak
to George about Monroe’s treatment of them. When George
heard the nature of the employees’ complaints, he called in
his supervisor, J.D. Brooks. Brooks in turn called in Jeff Neu‐
man, Human Resources Manager of the Greenfield District, to
listen to the employees’ concerns. The employees stated that
Monroe screamed at them, treated them with no respect,
threatened to terminate them, and publicly ridiculed one em‐
ployee who had a hearing impairment. After listening to the
employees’ statements, it was decided that Neuman would
conduct an investigation into their complaints.
No. 16‐1959 5
B. Investigation of Complaints Against Monroe
On Sunday, January 27, 2013, George called Monroe at
home to let him know that some complaints had been made
and that he needed to attend a meeting in George’s office the
next day. During the conversation, Monroe told George that
he had been given a preliminary diagnosis of PTSD.2
On January 28, Monroe met with George, Brooks, and
Neuman, although George left soon after the meeting began.
Monroe was told that an investigation of complaints made
about him would be conducted. He was offered the choice of
either taking vacation or moving to a different location during
the investigation. Monroe chose to take vacation. During the
meeting, Monroe told Brooks and Neuman that he had spo‐
ken to a therapist who believed he had PTSD.
Also on January 28, seven of the original employees who
met with George, Brooks, and Neuman on January 25 each
gave written statements about Monroe. Several said that at
the January 24 safety briefing Monroe had cursed at the crew,
called them names, yelled, and threatened to fight Perkins.
Several also said that Monroe’s yelling, threatening to fire em‐
ployees, and belittling employees had been going on for quite
some time. Edward (Eddie) Sellers, the employee with a hear‐
ing impairment, said that Monroe made him feel bad for ask‐
ing Monroe to repeat an assignment when Sellers did not hear
2 Although Monroe did not actually meet with a therapist for the first
time until January 29, 2013, he testified at his deposition that in speaking
with people over the phone to make an appointment for therapy, he was
told that it sounded like he had PTSD and depression.
6 No. 16‐1959
him initially, that Monroe told him he should wear a “bell‐
tone” referring to Sellers’ “lack of hearing,” and that Monroe
disciplined him like a child.
On January 29, Monroe was interviewed about the allega‐
tions made against him. Monroe stated he had PTSD and de‐
pression that affected his sleep. He said not getting sleep
caused him to get frustrated easily, although he denied using
profanity or blowing up on January 24. He said, “I don’t han‐
dle Eddie [Sellers] like I should – [I] talk[] real slow to him.”
As the investigation continued, a number of other employ‐
ees and former employees were also interviewed regarding
their experiences with Monroe. The eleven current crew
members reporting to Monroe that had not already given
written statements were interviewed and only three had pri‐
marily positive things to say about him. The rest had either
mixed or mostly negative comments including that Monroe
was testy, intimidating, volatile, demeaning, militaristic, and
disrespectful. Some also reported that Monroe threatened
their jobs and that he made fun of Sellers. Eight former em‐
ployees were also interviewed. A few said they never had a
problem with Monroe, but others said working for Monroe
was stressful, that he would have outbursts and be demean‐
ing, and that he used military methods to get the work done.
When the investigation was completed, Neuman, Brooks,
George, and Brandye Hendrickson, who was then District
Deputy Commissioner, met to discuss what action to take. Ac‐
cording to Neuman, they believed “it wasn’t clear whether
the diagnosis [of PTSD] was legitimate or not …” because
Monroe obtained the diagnosis right after a number of em‐
ployees had complained about him and because Monroe did
not produce documentation or even explain where he had
No. 16‐1959 7
gotten the diagnosis. The attendees at the meeting unani‐
mously agreed that Monroe should be terminated. Monroe
was discharged on February 4, 2013 for “consistently ex‐
hibit[ing] hostile and intimidating behavior in the execution
of [his] responsibilities to the employees … assigned to [his]
supervision.”
C. INDOT’S Treatment of Other Employees
Monroe identified three INDOT employees who also had
instances of inappropriate conduct and were not fired. Mon‐
roe testified that in 2009 or 2010 an employee named Jim Pat‐
rick supervised five unit foremen, including Monroe. Monroe
stated that four of the five unit foremen complained that Pat‐
rick was belittling and undermining his subordinates. Ac‐
cording to Monroe, Patrick was not officially demoted, but his
supervisory authority was taken away.
Between 2007 and 2009, Jeff Wilson, a unit foreman, was
reprimanded, placed on a performance improvement plan,
and given a poor performance rating for various shortcom‐
ings, including mistreating his subordinates. In 2010, Wilson
was demoted for creating a hostile work environment for his
employees. In 2014, when Wilson yelled at his former super‐
visor about a performance rating Wilson had received, he was
given the option to resign or be discharged. He chose to re‐
sign.
The third employee identified by Monroe, Jim Branson,
was disciplined for acting unprofessionally in February 2012
when he told two co‐workers to “get away from the f***ing
truck” he wanted to drive. According to Monroe, during the
incident Branson also threw down a squeegee, cursed, and
stomped his feet. Branson was given a three‐day suspension
8 No. 16‐1959
for that infraction. In May 2013, George demoted Branson
from the position of unit foreman after he “put his hands” on
a co‐worker. The document memorializing Branson’s demo‐
tion stated that he had engaged in “[r]epeated and consistent
inappropriate conduct in performing management and su‐
pervisory duties which have resulted in diminished ability to
effectively manage the operations and personnel of the Indi‐
anapolis Sub‐District.”
D. INDOT’S Employees Become At‐Will Employees
Before July 1, 2011, INDOT employees were considered
“non‐merit employees.” As such, they could appeal suspen‐
sions, demotions, and terminations imposed on them and
INDOT would need to show “just cause” for the discipline to
be upheld. On July 1, 2011, Indiana state law changed and
INDOT employees became “unclassified employees.” An un‐
classified employee “is an employee at will …” and “may be
dismissed, demoted, disciplined, or transferred for any rea‐
son that does not contravene public policy.” Ind. Code § 4‐15‐
2.2‐24. INDOT employees may still appeal discipline, such as
discharge, however INDOT no longer has to show “just
cause” for its disciplinary actions. Instead, the burden is now
on the former employee to establish that “a public policy ex‐
ception to the employment at will doctrine was the reason for
the employee’s discharge.” Ind. Code Ann. § 4‐15‐2.2‐42.
E. Proceedings in the District Court
Monroe filed suit against defendants on February 20, 2014
alleging, among other claims, that his discharge constituted
disability discrimination and that INDOT failed to reasonably
accommodate his disability in violation of the ADA, as
No. 16‐1959 9
amended, and the Rehabilitation Act. Monroe requested dam‐
ages, reinstatement, and front pay if reinstatement was not
available.3
On March 31, 2016, the district court granted defendants’
motion for summary judgment. With regard to Monroe’s dis‐
criminatory termination claim, the district court found that
Monroe did not show that INDOT’s proffered reason for dis‐
charging Monroe was pretextual and he did not identify a
similarly situated non‐disabled employee who was treated
more favorably than he was treated. Concerning Monroe’s
failure to accommodate claim, the district court determined
INDOT was not aware that Monroe had a disability at the
time he requested a transfer to the day shift in December 2012
and January 2013 as Monroe had not yet seen a therapist or
told INDOT of any disability. Also, the court found Monroe’s
requested accommodation was not reasonable because there
were no day shift positions available. Monroe now appeals
the district court’s decision to grant defendants’ motion for
summary judgment on his discriminatory discharge claim.
He does not challenge on appeal the district court’s decision
regarding his failure to accommodate claims.
II. ANALYSIS
We review the district court’s decision to grant defend‐
ants’ motion for summary judgment de novo. Taylor‐Novotny
v. Health Alliance Med. Plans, Inc., 772 F.3d 478, 488 (7th Cir.
3 On appeal, the parties dispute whether front pay in lieu of reinstate‐
ment is barred by the Eleventh Amendment. Because we affirm the district
court’s grant of defendants’ motion for summary judgment, it is not nec‐
essary for us to reach this issue.
10 No. 16‐1959
2014). “Summary judgment is appropriate when the admissi‐
ble evidence shows that there is no genuine dispute as to any
material fact such that the moving party is entitled to judg‐
ment as a matter of law.” Id. (citing Bunn v. Khoury Enter., Inc.,
753 F.3d 676, 681 (7th Cir. 2014)). “A material fact is one that
affects the outcome of the suit.” Id. While we must construe
all the facts and reasonable inferences in the light most favor‐
able to the nonmoving party, “our favor toward the nonmov‐
ing party does not extend to drawing inferences that are sup‐
ported by only speculation or conjecture.” Argyropoulos v. City
of Alton, 539 F.3d 724, 732 (7th Cir. 2008) (internal quotation
marks and citation omitted).
A. Standard for Analyzing ADA and Rehabilitation Act
Claims
The ADA, as amended, provides, “No covered entity shall
discriminate against a qualified individual on the basis of dis‐
ability in regard to … discharge of employees …” 42 U.S.C.
§ 12112(a). “To prove a violation of § 12112(a), a plaintiff must
show that: (1) he is disabled; (2) he is otherwise qualified to
perform the essential functions of the job with or without rea‐
sonable accommodation; and (3) the adverse job action was
caused by his disability.” Roberts v. City of Chi., 817 F.3d 561,
565 (7th Cir. 2016). To establish the third prong and survive
summary judgment, a plaintiff must show a genuine issue of
material fact exists regarding whether his disability was the
“but for” reason for the adverse action, in this case termina‐
tion. Serwatka v. Rockwell Automation, Inc., 591 F.3d 957, 962
(7th Cir. 2010).
In Serwatka we held that “a plaintiff complaining of dis‐
criminatory discharge under the ADA must show that his or
her employer would not have fired him but for his actual or
No. 16‐1959 11
perceived disability; proof of mixed motives will not suffice.”
Id. However, this holding applies to the language of the ADA
before it was amended by the ADA Amendments Act
(“ADAAA”). One of the changes made to the statute under
the ADAAA was to change the language from prohibiting
employers from discriminating “because of” a disability to
prohibiting employers from discriminating “on the basis of”
a disability. We noted in Serwatka, and in other cases since
then, that it is an open question whether the change from “be‐
cause of” to “on the basis of” changes the “but for” causation
standard. Id. at 961 n.1; see also Roberts, 817 F.3d at 565 n.1;
Hooper v. Proctor Health Care Inc., 804 F.3d 846, 853 n. 2 (7th
Cir. 2015). Like the parties in Roberts and Hooper, the parties
in this case have not argued that another causation standard
should apply, so we will continue to apply the “but for” cau‐
sation standard.
To show that disability discrimination was the “but for”
reason for the termination, a plaintiff can use either direct or
circumstantial evidence. Direct evidence would be an admis‐
sion that the defendant fired the plaintiff on the basis of his
disability. Circumstantial evidence may include
(1) suspicious timing; (2) ambiguous statements
or behavior towards other employees in the
protected group; (3) evidence, statistical or oth‐
erwise, that similarly situated employees out‐
side of the protected group systematically re‐
ceive better treatment; and (4) evidence that the
employer offered a pretextual reason for an ad‐
verse employment action.
Bunn, 753 F.3d at 684 (internal citations omitted).
12 No. 16‐1959
Some of our previous decisions have referred to this
method of proof as the “direct method” of proving disability
discrimination. See, e.g., Hooper, 804 F.3d at 853; Bunn 753 F.3d
at 683. In Hooper and Bunn we noted that a plaintiff may also
proceed under the “indirect method” of proving disability
discrimination by employing the burden‐shifting method es‐
tablished in McDonnell‐Douglas Corp. v. Green, 411 U.S. 792
(1973). See Hooper, 804 at 853; Bunn, 753 F.3d at 685. However,
since deciding Hooper and Bunn, we have tried to move away
from the many multi‐factored tests in employment discrimi‐
nation cases and decide, when considering the evidence as a
whole, “whether the evidence would permit a reasonable
factfinder to conclude that the plaintiff’s race, ethnicity, sex,
religion, or other proscribed factor caused the discharge …”
Ortiz v. Werner Enter., Inc., 834 F.3d 760, 765 (7th Cir. 2016). As
will be discussed below, in this case, regardless of the method
of proof used, we find there is not sufficient evidence to create
a genuine issue of fact that Monroe’s disability was the “but
for” cause of his discharge.
The Rehabilitation Act, the other statute under which
Monroe brings his claims, prohibits programs receiving fed‐
eral financial assistance from discriminating against an “oth‐
erwise qualified individual with a disability … solely by rea‐
son of her or his disability …“ 29 U.S.C. § 794(a). “Aside from
the ‘solely by reason of’ standard of causation … the Rehabil‐
itation Act incorporates the standards applicable to Title I of
the ADA.” Brumfield v. City of Chi., 735 F.3d 619, 630 (7th Cir.
2013).
Monroe asserts that the district court should not have
granted defendants’ motion for summary judgment on his
No. 16‐1959 13
discriminatory discharge claims because he has sufficient ev‐
idence that INDOT’s asserted reason for discharging him—
that he created a hostile and intimidating working environ‐
ment for his subordinates—is pretextual, and because he has
put forth sufficient evidence that similarly situated non‐disa‐
bled employees were treated better than he was treated. We
disagree with both of Monroe’s contentions.
B. Reason for Discharge Not Pretextual
Monroe claims that the district court improperly ignored
evidence he submitted to support his claim that INDOT’s
proffered reason for its termination of Monroe is pretextual.
Specifically, Monroe points to the following issues he believes
establish pretext: (1) he received positive performance evalu‐
ations for the three years leading up to his termination and
therefore he could not have “consistently” exhibited hostile
and intimidating behavior; (2) INDOT made a misstatement
in its EEOC position statement and indicated that all the em‐
ployees who were at the January 24 safety briefing com‐
plained about Monroe the next day; (3) INDOT made incon‐
sistent statements during discovery regarding whether
George told Neuman and Brooks about Monroe’s PTSD; and
(4) the decision makers discussed Monroe’s PTSD before de‐
ciding to terminate him. We do not find that these issues,
alone or in combination, are sufficient to establish pretext.
“In determining whether an employer’s stated reason [for
discharge] is pretextual, the question is not whether the em‐
ployer’s stated reason was inaccurate or unfair, but whether
the employer honestly believed the reason it has offered to
explain the discharge.” Harper v. C.R. England, Inc., 687 F.3d
297, 311 (7th Cir. 2012) (internal quotation marks and citation
omitted). “Pretext involves more than just faulty reasoning or
14 No. 16‐1959
mistaken judgment on the part of the employer; it is [a] lie,
specifically a phony reason for some action.” Argyropoulos,
539 F.3d at 736. The issues cited by Monroe in no way show
that the legitimate non‐discriminatory reason offered by
INDOT for Monroe’s discharge was a lie or a sham to cover
up discriminatory motives.
Although it is undisputed that Monroe received perfor‐
mance evaluations of “Exceeds Expectations” for three years
before his discharge, including his last evaluation which was
completed less than one month before his discharge, this does
not show that INDOT’s reason for discharge was pretextual.
George was not aware of Monroe’s continued and serious
mistreatment of his subordinates before seven or eight of
them came to him to complain about Monroe on January 25.
When that group came to his office, he took appropriate steps,
including involving his supervisor Brooks and Neuman from
Human Resources. Neuman conducted an extensive investi‐
gation, interviewing not only all of Monroe’s current subordi‐
nates, but contacting former employees as well. Many current
and former employees confirmed the complaints made by the
original group of employees who had come to George’s office
on January 25, including that Monroe “consistently” exhib‐
ited hostile and intimidating behavior for many months, or
perhaps even longer.
It is unfortunate that George did not have the information
from the investigation when he filled out Monroe’s perfor‐
mance evaluation in early January 2013. However, it is not al‐
together surprising given that many employees said that
Monroe threatened to discharge them and one employee
mentioned that when he had complained before he faced re‐
taliation. In summary, Monroe’s earlier positive evaluations
No. 16‐1959 15
do not call into question INDOT’s proffered reason for dis‐
charge. “Certainly earlier evaluations cannot, by themselves,
demonstrate the adequacy of performance at the crucial time
when the employment action is taken.” Moser v. Ind. Dep’t. of
Corr., 406 F.3d 895, 901 (7th Cir. 2005) (citation omitted).
Similarly, the misstatement INDOT made in the position
statement it submitted to the EEOC was not sufficient to es‐
tablish pretext. In its position statement INDOT indicated that
only seven employees were present at Monroe’s safety brief‐
ing on January 24, and that all seven employees went to
George’s office to complain about Monroe after their shift
ended on January 25. In fact, Monroe supervised eighteen em‐
ployees so, if none was absent, presumably there were eight‐
een employees at the safety briefing and not all of them went
to complain to George on January 25. While it is more com‐
pelling to say that all employees at a meeting went to com‐
plain about their supervisor after the meeting, it is not insig‐
nificant that seven or eight of eighteen employees went to
complain. In short, INDOT’s erroneous statement, while care‐
less, is not significant enough to create a genuine issue of fact
regarding whether INDOT’s proffered reason for Monroe’s
discharge was pretextual. See Lane v. Riverview Hosp., 835 F.3d
691, 697 (7th Cir. 2016) (erroneously telling EEOC that deci‐
sion maker was not aware of an allegation against a compar‐
ator is not sufficient to support an inference of discrimination
when there was no other evidence “corroborating unlawful
intent”).
The issue of whether George told Brooks and Neuman
about Monroe’s PTSD is similarly insignificant. George testi‐
fied that he did not tell Brooks and Neuman about Monroe’s
PTSD, and Neuman testified that George did tell him that
16 No. 16‐1959
Monroe said he had PTSD. However, this disagreement is ir‐
relevant because it is undisputed that Monroe himself told
Brooks and Neuman about his PTSD during their meetings
on January 28 and January 29. Monroe cannot establish pre‐
text by pointing to a disagreement between two defense wit‐
nesses regarding an insignificant detail.
Finally, the fact that the decision makers discussed Mon‐
roe’s statement that he had PTSD during the meeting at which
they decided to discharge him does not establish that their
stated reason for discharge was a pretext for discrimination.
According to Neuman, the decision makers discussed
whether Monroe actually had PTSD, given the fortuitous tim‐
ing of his disclosure and given Monroe’s failure to submit any
documentation from a health care provider confirming the di‐
agnosis. It is illogical for Monroe to argue that the discussion
here about whether he had PTSD shows an intent to discrim‐
inate against him because he had PTSD.
Moreover, even if the decision makers believed Monroe
had PTSD, and that his PTSD caused him to not be able to
sleep and to be volatile toward his subordinates, this still
would not establish pretext. “[A]n employer may, consistent
with the ADA and the Rehabilitation Act, terminate an em‐
ployee for inappropriate behavior even when that behavior is
precipitated by the employee’s disability …” Felix v. Wisconsin
Dep’t. of Transp., 828 F.3d 560, 574 (7th Cir. 2016).
In summary, the issues raised by Monroe, neither individ‐
ually nor in combination, establish that INDOT’s stated rea‐
son for Monroe’s discharge is pretextual. Monroe cannot es‐
tablish pretext by pointing to a positive performance evalua‐
tion filled out before an extensive investigation revealed his
misconduct toward his subordinates. Similarly, highlighting
No. 16‐1959 17
a relatively minor misstatement in an EEOC position state‐
ment or a disagreement among defense witnesses about an
irrelevant detail cannot establish pretext. Finally, the fact that
the decision makers questioned the veracity of Monroe’s
statement that he had PTSD in no way supports the conten‐
tion that INDOT’s stated reason for discharging Monroe was
a lie meant to cover up disability discrimination.
C. Monroe’s Comparators Are Not Similarly Situated
Monroe identified three non‐disabled INDOT employees,
Jim Patrick, Jeff Wilson, and Jim Branson, who Monroe con‐
tends engaged in misconduct similar to his and were not dis‐
charged. Monroe asserts that INDOT’s failure to discharge the
non‐disabled employees shows that his discharge was “on the
basis of” or “solely because of” his disability. We agree with
the district court that none of the three comparators named by
Monroe was similarly situated to him and therefore they can‐
not be used by Monroe to create a genuine issue of fact re‐
garding whether Monroe’s disability was the “but for” or
“sole” cause of his termination.
“In order for an individual to be similarly situated to the
plaintiff, the plaintiff must show that the individual is ‘di‐
rectly comparable to her [or him] in all material respects.’”
Burks v. Wis. Dep’t. of Transp., 464 F.3d 744, 751 (7th Cir. 2006)
(quoting Patterson v. Avery Dennison Corp., 281 F.3d 676, 680
(7th Cir. 2002)). “The similarly situated inquiry is a flexible,
common‐sense one that asks, at bottom, whether ‘there are
enough common factors … to allow for a meaningful compar‐
ison in order to divine whether intentional discrimination
was at play.’” Henry v. Jones, 507 F.3d 558, 564 (7th Cir. 2007)
(quoting Barricks v. Eli Lilly & Co., 481 F.3d 556, 560 (7th Cir.
2007)). Generally, a plaintiff must show that his comparators
18 No. 16‐1959
“dealt with the same supervisor, were subject to the same
standards and had engaged in similar conduct without such
differentiating or mitigating circumstances as would distin‐
guish their conduct or the employer’s treatment of them.”
Gates v. Caterpillar, Inc., 513 F.3d 680, 690 (7th Cir. 2008) (inter‐
nal quotation marks and citations omitted).
Jim Patrick was not similarly situated to Monroe for a
number of reasons. First, Monroe submitted very little evi‐
dence regarding Patrick’s misdeeds. Monroe testified at his
deposition that four out of five foremen supervised by Patrick
complained about Patrick for “belittling” his subordinates
and “undermining” them by changing the work plans at the
last minute. Monroe did not give any details regarding what
Patrick said or did to “belittle” his subordinates and he did
not say for how long the behavior had been occurring. Based
on this sparse description, Monroe failed to establish that Pat‐
rick’s behavior was at all comparable to Monroe’s behavior of
creating a hostile and intimidating work environment over a
period of months (or perhaps even longer) that included tar‐
geting an employee because of his hearing impairment.
Another reason Patrick was not similarly situated to Mon‐
roe is because none of the supervisors involved in Monroe’s
discharge was involved in the decision to take away Patrick’s
supervisory responsibilities in 2009 or 2010. Monroe tries to
indicate in his brief that George was the decision maker, but
the portion of the record to which Monroe cites does not sup‐
port that contention. Furthermore, George explicitly stated in
his affidavit that he never imposed any discipline on Patrick
and that none of the persons involved in the decision to ter‐
minate Monroe disciplined Patrick.
No. 16‐1959 19
An additional reason why both Patrick and Jeff Wilson
were not similarly situated to Monroe is because at the time
Patrick and Wilson engaged in misconduct arguably similar
to Monroe’s and were not fired, before July 1, 2011, INDOT
employees could be discharged only if INDOT could show
“just cause” for the discharge. After July 1, 2011, all INDOT
employees became “unclassified” or “at will” employees. So,
after July 1, 2011, INDOT no longer had to show “just cause”
for discipline. Instead, an INDOT employee could success‐
fully appeal a discharge only if the employee could show that
“a public policy exception to the employment at will doctrine
was the reason for the employee’s discharge.” Ind. Code Ann.
§ 4‐15‐2.2‐42. As George noted in his affidavit, “during the last
few years INDOT has taken a much firmer stance on issues
involving negative and hostile behaviors in the workplace
and mistreatment of subordinates.”
Jeff Wilson is a perfect example of this “firmer stance.” Be‐
tween 2007 and 2010, Wilson received a written reprimand,
was placed on a performance improvement plan, and was ul‐
timately demoted for various shortcomings including mis‐
treatment of subordinates and creating a hostile work envi‐
ronment. He was not discharged during that time period.
However, in 2014, when he angrily approached a former su‐
pervisor and yelled at him about a performance review, Wil‐
son was given the option to resign or be discharged. In sum‐
mary, because Patrick and Wilson engaged in misconduct ar‐
guably similar to Monroe’s misconduct before the standard
for appealing discipline changed from “just cause” to “at
will,” Patrick and Wilson cannot be deemed similarly situated
to Monroe.
20 No. 16‐1959
Monroe argues that because he was fired on the basis of a
disability, his termination falls under the public policy excep‐
tion to the employment at will doctrine and therefore he
should be considered a “just cause” employee like Patrick and
Wilson. This argument fails for two reasons. First, as a case
cited by Monroe confirms, in Indiana the public policy excep‐
tion to the employment at will doctrine has been narrowly
construed to apply only to persons discharged for filing a
workers’ compensation claim or for refusing to commit an il‐
legal act. Groce v. Eli Lilly & Co., 193 F.3d 496, 503 (7th Cir.
1999). Second, Monroe has not submitted sufficient evidence
to create a genuine issue of fact regarding whether he was
fired on the basis of a disability. So he cannot not claim to fall
under the public policy exception to the employment at will
doctrine, even if it applied to discharges on the basis of a dis‐
ability, which it likely does not. In short, because Monroe’s
discharge does not fit into the public policy exception to the
employment at will doctrine, he was not a “just cause” em‐
ployee and therefore he was not similarly situated to Patrick
and Wilson.
The only comparator identified by Monroe who engaged
in misconduct arguably similar to Monroe’s misconduct after
July 1, 2011 and who was not fired was Jim Branson. How‐
ever, upon closer inspection, it is evident that Branson’s mis‐
conduct was not as egregious as Monroe’s and therefore the
two employees are not similarly situated. As discussed above,
Branson was disciplined in 2012 for telling two co‐workers to
“get away from the f***ing truck” he wanted to drive, throw‐
ing down a squeegee, and stomping his feet. In 2013, he was
demoted after a co‐worker stated that Branson “put his hands
on” him. The wording used in Branson’s demotion document
No. 16‐1959 21
(“[r]epeated and consistent inappropriate conduct in per‐
forming management and supervisory duties”) sounds simi‐
lar to the wording used in Monroe’s termination letter (“con‐
sistently exhibit[ing] hostile and intimidating behavior in the
execution of [his] responsibilities to the employees … as‐
signed to [his] supervision”). Yet, the conduct of the two men
was quite distinguishable.
While we agree that a supervisor swearing at a co‐worker
or putting his hands on a co‐worker is serious misconduct,
these were apparently two individual incidents occurring
over a year apart. In contrast, according to many of Monroe’s
current and former subordinates, Monroe created a hostile
and abusive work environment for his subordinates over a
lengthy period of time, including targeting an employee with
a hearing disability. Monroe’s behavior was so extreme that it
culminated in many of his subordinates going to Monroe’s su‐
pervisor and stating that they could no longer work under
Monroe. In summary, while neither Branson nor Monroe
acted in an appropriate manner for a supervisor, Monroe has
not submitted sufficient evidence to show that Branson’s fail‐
ings were comparable to his own failings. See, e.g., Henry, 507
F.3d at 566 (plaintiff’s conduct deemed “more egregious”
than other employees’ conduct and therefore other employees
not similarly situated); Burks, 464 F.3d at 751‐52 (comparators
not similarly situated because they did not have a “compara‐
ble set of failings” to plaintiff). Therefore, the district court
was correct to grant defendants’ motion for summary judg‐
ment.
III. CONCLUSION
The judgment of the district court is AFFIRMED.