In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3214
A UTUMN E ATON,
Plaintiff-Appellant,
v.
INDIANA D EPARTMENT OF C ORRECTIONS,
P ENDLETON JUVENILE C ORRECTIONS F ACILITY,
Defendant-Appellee.
Appeal from the United States District Court
For the Southern District of Indiana, Indianapolis Division.
No. 1:08-cv-01318—JMS-DML—Jane E. Magnus-Stinson, Judge.
A RGUED F EBRUARY 7, 2011—D ECIDED S EPTEMBER 9, 2011
Before
R OVNER and W OOD , Circuit Judges, and
G OTTSCHALL, District Judge.
G OTTSCHALL, District Judge. Autumn Eaton sued her
employer, the Indiana Department of Corrections,
The Honorable Joan B. Gottschall, United States District
Judge for the Northern District of Illinois, sitting by designation.
2 No. 10-3214
Pendleton Juvenile Corrections Facility (“DOC”), under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2,
alleging that DOC discriminated against her on the
basis of gender when it terminated her employment.
The district court granted summary judgment in favor of
DOC, and Eaton’s appeal followed. On appeal, Eaton
argues that the district court erroneously granted
summary judgment to DOC because Eaton presented
sufficient evidence to create a material issue of disputed
fact under the McDonnell Douglas indirect method of
proof analysis. See McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973).
We review the district court’s grant of summary judg-
ment de novo. Ellis v. DHL Express Inc. (USA), 633 F.3d
522, 525 (7th Cir. 2011). Summary judgment is ap-
propriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). We must draw all reasonable inferences for
Eaton, the non-moving party, and view the record in a
light most favorable to her. Ellis, 633 F.3d at 525. Based
on the record before us, we conclude that sufficient evi-
dence exists to preclude summary judgment, and we
reverse the judgment of the district court.
I. F ACTS AND P ROCEDURAL H ISTORY
Eaton worked as a correctional officer for DOC from
April 2006 until March 2008. When Eaton began her
employment, she was assigned to watch tour duty, which
No. 10-3214 3
required walking around her assigned unit to monitor
the inmates. In the spring of 2007, Eaton was reassigned
to work in a control room, where she monitored residents
and staff via a computer. As a result, Eaton was no
longer required to walk or to have any physical con-
tact with the inmates.
In or around September 2007, Eaton received a warning
for excessive absenteeism. She was told that if she did
not improve her attendance, she would be moved from
her current (and, in her view, more desirable) schedule,
which involved alternating between one “short week”
of two twelve-hour shifts and one “long week” of five
twelve-hour shifts, to a schedule of five eight-hour
days every week. In addition, the new schedule could
require up to four hours of mandatory overtime each
day; thus, Eaton theoretically could have been required
to work five twelve-hour days each week under the
new schedule.
At some point in late 2007, she was switched to this five-
day-a-week, eight-hour-a-day schedule. She testified that
the schedule shift was discipline for using too many
sick days, although she also testified that she only used
sick time she had accrued prior to taking the time off.1
Eaton never worked under the new schedule. Immedi-
ately after being reassigned, she took a month or two of
1
Eaton apparently filed a grievance with DOC on Septem-
ber 21, 2007 as a result of this shift change, but the record
does not indicate what happened with the grievance.
4 No. 10-3214
(presumably employer-approved)2 leave under the
Family Medical Leave Act (“FMLA”). When she returned,
she was put back on the twelve-hour-a-day shifts with
alternating long (five day) and short (two day) weeks.
(See Pl.’s Designation of Evidence, Ex. D-E.) In Novem-
ber 2007, shortly after her return, Eaton—who suffered
from a degenerative back condition—was in an auto-
mobile accident. That accident aggravated her back
injury to the point where it restricted some of her work-
related activities. In particular, she was given certain
restrictions by her physician, but she did not immedi-
ately disclose those restrictions to DOC for fear of being
returned to a five-day-a-week, eight-hour-a-day shift.3
In early 2008, Eaton had a “pre-deprivation hearing” for
refusing overtime.4 At this point, she disclosed her re-
strictions and stated that she had delayed doing so for
fear of being switched to the undesirable shift. Eaton
was told that she could submit her restrictions and her
schedule would not be altered. She did so.
In early March 2008, Eaton used vacation time to visit
her brother, who had been injured in a motorcycle acci-
2
9 C.F.R. § 825.300(d)(1) (“The employer is responsible in all
circumstances for designating leave as FMLA-qualifying, and
for giving notice of the designation to the employee as pro-
vided in this section.”).
3
Eaton stated that she was restricted from bending or
walking excessively, lifting over ten pounds, or working
more than a twelve-hour shift.
4
The record does not make clear what a “pre-deprivation
hearing” is.
No. 10-3214 5
dent. When she returned to work, Eaton learned that
she had been removed from control room duty and reas-
signed to watch tour duty. Despite her request to be
assigned to a different duty due to her severe back pain,
Eaton was assigned watch tour duty in Unit D-11. On
March 12, 2008, Eaton was assigned to watch tour duty
in Unit E-16, which she called “the worst unit a cor-
rection[al] officer can work.” When Eaton repeatedly
refused the E-16 assignment, stating both that she physi-
cally could not do the job and that it violated
her medical restrictions, her supervisor, Lieutenant
Bensheimer, asked for her belt and badge. Begging to
be placed in another assignment and insisting that she
did not wish to quit, Eaton ultimately turned over her
belt and badge and left the facility.
Immediately thereafter, Eaton called her mother, Micki
Neal, who was also a correctional officer employed by
DOC. Neal met with Bensheimer, and Bensheimer told
Neal that Eaton could return for her next shift. Neal
communicated this information to Eaton, but shortly
thereafter, Bensheimer told Neal that Eaton would not
be permitted to return. A gate closure order was issued
so that when Eaton tried to return for her next shift,
she was barred from entering the facility. Eaton never
returned to work.
Eaton filed suit, alleging that DOC’s actions violated the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101
et seq., the FMLA, 29 U.S.C. § 2601 et seq., and Title VII’s
6 No. 10-3214
gender discrimination prohibition.5 DOC moved for
summary judgment, arguing that Eaton could not
establish three of the four elements of her prima facie case
of discrimination under Title VII: first, there was no
adverse action because she quit; second, she was not
meeting her employer’s legitimate job expectations
because she refused to work in her assigned area; and
third, there was no evidence that she was treated dif-
ferently from employees outside the protected class who
refused a work assignment. (See Mem. in Supp. of Mot.
for Summ. J. at 16.) In support of its motion, DOC sub-
mitted only two pieces of evidence: an excerpt from
Eaton’s deposition and Eaton’s complaint. DOC did not
submit any evidence as to who made the decision to
terminate Eaton’s employment or any evidence of the
reasons underlying any such decision. The record is
silent as to both of these issues.
In her opposition, Eaton argued that she had pre-
sented sufficient evidence of gender discrimination to
survive summary judgment. Under the McDonnell
Douglas indirect method, a plaintiff must first establish a
prima facie case by showing that “(1) she is a member of
a protected class; (2) her performance met her em-
ployer’s legitimate expectations; (3) despite this perfor-
mance, she was subjected to an adverse employment
action; and (4) her employer treated similarly situated
5
Eaton explicitly abandoned her ADA and FMLA claims
during summary judgment briefing, leaving only the Title VII
claim at issue.
No. 10-3214 7
employees outside of the protected class more favor-
ably.” Barricks v. Eli Lilly & Co., 481 F.3d 556, 559 (7th Cir.
2007) (citing Ptasznik v. St. Joseph Hosp., 464 F.3d 691, 696
(7th Cir. 2006)). If the plaintiff establishes a prima facie
case, the burden shifts to the employer to “articulate
a legitimate, non-discriminatory reason for the adverse
employment action.” South v. Ill. Envtl. Prot. Agency, 495
F.3d 747, 751 (7th Cir. 2007). Once the employer
articulates a non-discriminatory reason for its action,
the burden shifts back to the plaintiff to present evi-
dence showing that the employer’s purported reason
was pretextual. Id.
Eaton argued that she had met DOC’s expectations
and had been subject to an adverse employment action.
She identified male correctional officers whom she con-
tended were similarly situated and had been treated
more favorably. In particular, she identified Dennis
Curtis, the male comparator at issue here. Eaton also
argued that DOC’s purported legitimate reason for her
termination (that she quit) was pretextual. In support,
Eaton submitted affidavits from herself, Micki Neal,
and Dennis Curtis; portions of her deposition testi-
mony; and a few employment-related documents, such
as letters of commendation she had received.
In reply, DOC asserted that Curtis was not similarly
situated, both because his refusal of a DOC assignment
was distinguishable from Eaton’s refusal and because
his prior disciplinary record differed from Eaton’s. DOC
further argued that even if Eaton had demonstrated a
prima facie case of discrimination, DOC had a legitimate,
8 No. 10-3214
non-discriminatory reason for terminating Eaton’s em-
ployment: Eaton “refused to do her assigned work and
quit.” (Def.’s Reply in Supp. of Mot. for Summ. J. at 7.)6
In addition, DOC argued that Eaton had no evidence
establishing pretext.
The district court granted DOC’s summary judgment
motion, ruling that Eaton had failed to establish a prima
facie case of gender discrimination under the indirect
method of proof.7 See Eaton v. Indiana Dep’t of Corr.,
No. 08-cv-01318, 2010 WL 3526266 (S.D. Ind. Sept. 3,
2010). Assuming without deciding that Eaton had
suffered an adverse employment action and that she had
met DOC’s legitimate expectations, the district court
found that Eaton’s asserted male comparators were not
similarly situated. See Eaton, No. 08-cv-01318, 2010 WL
3526266, at *4-6.
On appeal, Eaton argues that the district court erred
in granting summary judgment. Eaton again argues that
she established a prima facie case because she was
meeting DOC’s legitimate job expectations, she suf-
fered an adverse employment action, and Curtis was a
6
DOC drove this point home a number of times. (See Def.’s
Mem. in Supp. of Mot. for Summ. J. at 17 (“[T]here is no evi-
dence establishing pretext. Eaton quit. There is no evidence
of any ‘phony reason’ for Eaton’s termination (which was
not even a termination).”)
7
The district court also ruled that Eaton failed to set forth a
prima facie case under the McDonnell Douglas direct method
of proof; Eaton does not challenge this finding on appeal.
No. 10-3214 9
similarly situated male comparator whom DOC treated
more favorably. DOC concedes that genuine issues of
material fact preclude summary judgment on the issues
of whether Eaton suffered an adverse employment
action and whether she met DOC’s legitimate job ex-
pectations. DOC argues only that Eaton failed to
establish a prima facie case because Curtis was not
similarly situated. (See Br. of Appellee at 10.)
As noted above, in DOC’s motion for summary judg-
ment it argued that Eaton “refused to do her assigned
work and quit.” DOC now argues for the first time on
appeal that it fired Eaton based on her disciplinary
history and her refusal of an assignment, and further
claims that differences between Eaton’s and Curtis’s
disciplinary history prevent Curtis from being an appro-
priate comparator. However, with the exception of
Bensheimer telling Neal that Eaton could not return to
work and the gate closure order, nothing in the record
indicates that DOC ever made a decision to terminate
Eaton’s employment—there is no evidence as to when
that decision was made, who made the decision, or why.
II. A NALYSIS
Title VII prohibits an employer from terminating an
employee because of the employee’s gender. See 42
U.S.C. § 2000e-2(a)(1). Under the McDonnell Douglas
indirect test, a plaintiff must satisfy four requirements to
establish a prima facie case of gender discrimination. See
McDonnell Douglas, 411 U.S. at 802. Eaton has satisfied
the first three requirements because DOC admits (and
10 No. 10-3214
the record supports) that Eaton is a member of a pro-
tected class and that there are genuine issues of material
fact as to whether Eaton met DOC’s legitimate expecta-
tions and whether she suffered an adverse employment
action. Therefore, the issue before this court is whether
Eaton presented sufficient evidence to allow a rea-
sonable factfinder to find that a similarly situated male
employee, Dennis Curtis, received more favorable treat-
ment than Eaton. Based on the record before us, we
find that a reasonable factfinder could conclude that
Eaton and Curtis were similarly situated, and that there-
fore Eaton established her prima facie case. Although
the parties argue the issue of pretext, the district court
did not decide that issue, and the record below—con-
taining no evidence of who made the decision to
terminate Eaton or why—does not permit the issue of
pretext to be resolved by this court.
A. A Reasonable Factfinder Could Conclude that a Similarly
Situated Male Employee Received More Favorable Treat-
ment than Eaton.
The similarly situated analysis requires a context-based
examination of all relevant factors. South, 495 F.3d at 752-
53 (citing Humphries v. CBOCS West, Inc., 474 F.3d 387, 404
(7th Cir. 2007) (holding that the plaintiff failed to show
that comparators with the same employment responsi-
bilities and the same supervisor were similarly situated,
as the plaintiff failed to show they had similar employ-
ment history or had otherwise engaged in similar con-
duct)). It “ought not be construed so rigidly or inflexibly
No. 10-3214 11
that it [becomes] a useless analytical tool.” Id. at 752.
Nevertheless, “the comparators must be similar enough
that any differences in their treatment cannot be at-
tributed to other variables.” Silverman v. Bd. of Educ. of
Chi., 637 F.3d 729, 742 (7th Cir. 2011). This generally
requires the plaintiff to show that the comparator had
the same supervisor, was subject to the same employ-
ment standards, and had engaged in conduct similar to
that of the plaintiff. See South, 495 F.3d at 752. Because
the similarly situated analysis does not require num-
erosity, the plaintiff need offer evidence as to only
one similarly situated comparator. Humphries, 474 F.3d
at 406-07. Overall, “the inquiry simply asks whether
there are sufficient commonalities on the key variables
between the plaintiff and the would-be comparator to
allow the type of comparison that, taken together with
the other prima facie evidence, would allow a jury to
reach an inference of discrimination.” Id. at 405.
Here, the district court rejected Curtis as a similarly
situated comparator based on differences between
Eaton’s and Curtis’s conduct in refusing an assign-
ment and differences between Eaton’s and Curtis’s dis-
ciplinary history. We address both findings in turn.
1. Refusal of a Work Assignment
Eaton refused a work assignment on March 12, 2008,
when she was assigned to watch tour duty in Unit E-16.
Eaton, accompanied by Neal, spoke to Lieutenant
Bensheimer prior to her assignment regarding her desire
not to work in that unit. Eaton requested a different unit
12 No. 10-3214
assignment, telling Bensheimer that she could not work
in Unit E-16 due to her physical limitations and
medical restrictions. Although Neal offered to swap
assignments with Eaton, Bensheimer denied Eaton’s
request to switch assignments.
At some point, Neal left while Eaton and Bensheimer
continued to talk. When Eaton continued to refuse her
new assignment, Bensheimer asked for her belt and
badge. Eaton responded by saying that she did not want
to quit. When Bensheimer told her that she had to work
in Unit E-16 or turn in her belt and badge, Eaton gave
the items to Bensheimer and left the facility. Shortly
thereafter, Eaton called Neal and told her that
Bensheimer had taken her belt and badge. Neal spoke
with Bensheimer, who told her that, because Eaton was
so upset, Eaton should go home and return on her
next scheduled workday. Neal told Eaton about this
conversation, but several hours later, Bensheimer told
Neal that Eaton would not be allowed to return to DOC.
When Neal informed Eaton of this development, Eaton
immediately called to speak to Bensheimer, but was
unable to contact him. When Eaton attempted to return
for her next scheduled shift, she was informed that a
gate closure order denied her entrance to the facility.
Curtis was employed at DOC as a correctional officer
from December 2006 through September 2007. While
under the supervision of Bensheimer, Curtis reported to
work and refused an assignment to a new unit. When
Bensheimer insisted that Curtis work the new assign-
ment, Curtis became angry, told Bensheimer that he
quit, and left the facility. Curtis returned to work about
No. 10-3214 13
forty-five minutes later, and Bensheimer permitted
him to return to his preferred assignment without any
discipline.
The district court’s determination that Eaton’s and
Curtis’s conduct in refusing a work assignment was
too dissimilar to provide a basis for comparison was
based on three factors: (1) unlike Curtis, Eaton never
actually quit, but simply left the facility, (2) Curtis did
not turn in his belt or badge when he left, whereas
Eaton did, and (3) Curtis returned to work less than
an hour later and resumed working, whereas Eaton
only attempted to return at the start of her next shift.8 See
Eaton, No. 08-cv-01318, 2010 WL 3526266, at *5.
In our view, the conduct of Eaton and Curtis in refusing
an assignment is sufficiently similar to allow a jury to
decide whether their disparate treatment was based on
gender discrimination. While their situations are not
identical, we cannot say that, as a matter of law, Eaton’s
conduct was more blameworthy than Curtis’s. If any-
thing, Eaton’s conduct could be viewed as less de-
serving of termination, as she made clear that she did not
want to quit and it is undisputed in this record that
she refused the new assignment based on her physical
limitations and medical restrictions.
This court’s decision in Humphries is instructive.
In Humphries, the plaintiff sued his employer, Cracker
8
Eaton did so at Bensheimer’s instruction: he specifically told
Neal that Eaton should go home and to return on her next
scheduled workday.
14 No. 10-3214
Barrel, alleging racial discrimination and retaliation
after Cracker Barrel fired him for allegedly leaving the
store safe unlocked at night. 474 F.3d at 389-90. The
plaintiff had offered evidence of a similarly situated
comparator who held the same position with the same
duties, supervisor, and ultimate decisionmaker, and
who had a similar employment performance history. Id.
at 406. But while the plaintiff had been fired for leaving
a safe unlocked at night, his putative comparator left
a safe open during the day and was not fired.
Although we agreed that a distinction existed between
leaving a safe unlocked at night and leaving a safe un-
locked during the day, we concluded that this was
“a distinction without much difference.” Id. Both em-
ployees had violated Cracker Barrel policy that the safe
could not be left unlocked and unattended at any
point during the twenty-four hour day. The issue was
“whether there [were] sufficient commonalities on the
key variables between the plaintiff and the would-be
comparator to allow the type of comparison that, taken
together with the other prima facie evidence, would
allow a jury to reach an inference of discrimination.” 474
F.3d at 405. After undertaking a “flexible,” “common-
sense” inquiry, we found that the putative comparator
was similarly situated, because there were enough sim-
ilarities between the two employees to “isolate the
critical independent variable: complaints about discrim-
ination.” Id. at 405-06.
Thus, summary judgment is appropriate only where it
is clear that no reasonable jury could find that the
No. 10-3214 15
similarly situated requirement has been satisfied. See
Lunini v. Grayeb, 395 F.3d 761, 770 n.6 (7th Cir. 2005) (citing
McDonald v. Vill. of Winnetka, 371 F.3d 992, 1002 (7th
Cir. 2004); Bell v. Duperrault, 367 F.3d 703, 709-10 (7th Cir.
2004); Purze v. Vill. of Winthrop Harbor, 286 F.3d 452,
455-56 (7th Cir. 2002); and Harlen Assoc. v. Vill. of Mineola,
273 F.3d 494, 499 n. 2 (2d Cir. 2001)). In general, “whether
individuals are similarly situated is a factual question
for the jury.” Id.
Eaton’s refusal of a work assignment was similar
enough to Curtis’s refusal that a reasonable factfinder
could determine that they were similarly situated. As in
Humphries, Eaton was not required to show that Curtis’s
refusal to work was identical to hers. See Humphries, 474
F.3d at 406. Eaton and Curtis both refused a work assign-
ment from the same supervisor and left the facility.
Both returned to work or attempted to return to work
promptly or when instructed to do so by their super-
visor. And as noted, Eaton’s behavior reasonably
could be viewed as less culpable than Curtis’s.
Under the flexible, common-sense standard described
in Humphries, there is more than enough similarity on
this point to allow the matter to proceed to a jury.
2. Disciplinary History
In addition to the refusal of a work assignment, the
district court found that Curtis was not similarly situated
because his disciplinary history was not comparable
to Eaton’s: Eaton had been disciplined for excessive
16 No. 10-3214
absenteeism and reprimanded for failing to attend a
mandatory training session, whereas Curtis had been
disciplined for refusing to work overtime and for dis-
obeying a direct order to turn off a television set
while inmates were being disciplined.9 (See Aff. of
Dennis Curtis, Pl.’s Designation of Evidence, Ex. B.)
DOC relies on Amrhein v. Health Care Services Corp., 546
F.3d 854 (7th Cir. 2008), to support its argument that
Curtis cannot be considered similarly situated to Eaton
because he did not have a similar disciplinary history. In
Amrhein, while noting that a similarly situated employee
“need not be ‘identical,’ ” we rejected a potential compara-
tor who had the same supervisor and was subject to the
same standards as the plaintiff because there was no
evidence that the comparator had additional conduct
violations. Amrhein, 546 F.3d at 860. Indeed, the plaintiff
had provided minimal evidence that any of the putative
comparators had a similar disciplinary history. Id. at 858-
60. “Without a similar disciplinary history, [the compara-
tor] cannot be considered ‘similarly situated.’ ” Id. at 860.
9
DOC’s recitation of Eaton’s disciplinary history is based on
Eaton’s deposition testimony. Because Eaton’s deposition
testimony about her discipline at DOC is often vague and at
times inconsistent, the details of her official disciplinary history
at DOC are nearly incomprehensible. Further complicating
the issue, although documents from DOC’s records of Eaton’s
disciplinary history are referenced on numerous occasions in
her deposition, these documents were not included in the
record in the district court.
No. 10-3214 17
Amrhein, however, did not address the issue presented
in this case: whether distinctions in disciplinary history
render two individuals non-comparable when there is
no evidence that the employer actually considered disci-
plinary history in making its termination decision.
Here—where DOC repeatedly took the position in the
district court that the only basis for the decision to termi-
nate Eaton’s employment was that she quit—not only
does the evidence fail to indicate that disciplinary
history was considered, but the record makes clear that
disciplinary history played no role in DOC’s decision to
terminate Eaton’s employment (if it even did “decide”
to terminate her employment). These arguments—that
Eaton’s disciplinary history was a factor in her termina-
tion, that this disciplinary history was a legitimate
reason for her discharge, and that this disciplinary
history distinguished her from Curtis—were made for
the first time in DOC’s reply brief in support of its
motion for summary judgment, and even then, only in
the context of whether DOC’s reasons for terminating
Eaton’s employment were pretextual. Neither DOC’s
motion for summary judgment nor the district court’s
decision cited evidence indicating that Eaton’s dis-
ciplinary history played any role in any decision to ter-
minate her employment.
It is routinely stated that similarly situated employees
must be “directly comparable to the plaintiff in all
material respects, which includes showing that the co-
workers engaged in comparable rule or policy viola-
tions.” Naik v. Boehringer Ingelheim Pharms., Inc., 627 F.3d
596, 600 (7th Cir. 2010) (quoting Patterson v. Indiana News-
18 No. 10-3214
papers, Inc., 589 F.3d 357, 365-66 (7th Cir. 2009)). Our
cases have further refined the inquiry: “all material re-
spects” means comparable experience, education and
qualifications, “provided that the employer took these factors
into account when making the personnel decision in ques-
tion.” Patterson v. Avery Dennison Corp., 281 F.3d 676, 680
(7th Cir. 2002) (emphasis added); see Hull v. Stoughton
Trailers, LLC, 445 F.3d 949, 952 (7th Cir. 2006) (same); Bio
v. Federal Express Corp., 424 F.3d 593, 597 (7th Cir. 2005)
(same); Ajayi v. Aramark Bus. Servs., Inc., 336 F.3d 520,
532 (7th Cir. 2003) (same). A characteristic that distin-
guishes two employees, regardless of its significance
when objectively considered, does not render the em-
ployees non-comparable if the employer never con-
sidered that characteristic. The purpose of the similarly
situated requirement is to provide a basis for a judg-
ment about the fairness of the employer’s decision.
Factors never considered by the employer cannot
provide any insight as to whether the employer’s
decision was motivated by discriminatory intent.
Here, the record provides no indication that DOC
considered Eaton’s disciplinary history in deciding to
terminate her employment. Because the record contains
no such evidence, there is no basis for believing that
Eaton’s disciplinary history was more serious than
Curtis’s or that DOC so considered it. On this record, it
was error for the district court to conclude that Eaton
and Curtis were not similarly situated based on their
disciplinary history.
No. 10-3214 19
III. C ONCLUSION
For the foregoing reasons, we R EVERSE the district
court’s grant of DOC’s motion for summary judgment on
Eaton’s Title VII claim, and R EMAND for proceedings
consistent with this opinion.
9-9-11