James Nichols v. Michigan City Plant Planning D , 755 F.3d 594 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-2893
JAMES NICHOLS,
Plaintiff-Appellant,
v.
MICHIGAN CITY PLANT PLANNING DEPARTMENT,
Michigan City Area Schools,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 12 CV 042 — Philip P. Simon, Chief Judge.
____________________
ARGUED DECEMBER 9, 2013 — DECIDED JUNE 19, 2014
____________________
Before WILLIAMS, SYKES, and HAMILTON, Circuit Judges.
WILLIAMS, Circuit Judge. James Nichols sued his employ-
er, the Michigan City Area Schools (“Michigan City”), alleg-
ing two Title VII violations. First, Nichols claimed that Mich-
igan City required him to work in a hostile work environ-
ment at a school where he was a temporary janitor. Howev-
er, he does not provide sufficient evidence that demonstrates
that the harassment he allegedly suffered was severe or per-
2 No. 13-2893
vasive. Second, he claimed that Michigan City fired him be-
cause of his race. Once again, Nichols does not show suffi-
cient evidence that his alleged harasser, Bette Johnston, was
a proximate cause of his firing because affidavits from Nich-
ols’s supervisors show that he would have been let go even if
there was no feud between him and Johnston. After discov-
ery, Michigan City moved for summary judgment, which the
district court granted. The record on appeal supports sum-
mary judgment in favor of Michigan City, and we affirm the
district court’s judgment.
I. BACKGROUND
In January 2011, the Michigan City Area Schools (“Mich-
igan City”) hired James Nichols as a temporary, substitute
janitor. Nichols first worked at Joy Elementary School with-
out incident. Then he was sent to Springfield Elementary
School as a replacement until a permanent janitor could be
found for a recently retired janitor.
On his first day at Springfield Elementary, Nichols asked
four employees where the janitor’s closet was located. Un-
fortunately, none of them knew. After fifteen minutes of
walking around, Nichols eventually found the closet. Later
on, Nichols ran into the employees whom he had previously
asked for help. When they saw that he found the room, they
said to him, “Oh, you found it.” Nichols believes that they
said this in a mocking manner. Later that day, Nichols met
Bette Johnston, the food service manager and his co-worker
at Springfield Elementary. During their first meeting, Nich-
ols claims that Johnston raised a towel, waived her hand as if
she was scared of him, and mumbled something.
No. 13-2893 3
On Nichols’s second day at Springfield, a purse was left
unattended in an area Nichols was cleaning. It was never de-
termined who owned the purse, but Nichols suspected it
was a ruse designed to catch him in the act of stealing the
purse. Nichols believes his co-workers tried to entrap him
because he is African-American. Nichols alleges that on his
third day, a teacher’s aide pointed out his grandson and told
Nichols not to speak with the child. The aide then, according
to Nichols, stared at him during lunch. After lunch, Nichols
cleaned the cafeteria floor and left to take out the trash, but
when he came back, he found debris on the floor. He found
this suspicious because no students were present when he
left the room.
Nichols claims other incidents with racial undertones oc-
curred as well. On one occasion, Nichols alleges that John-
ston was walking with her assistant, and as they walked by,
Johnston said to him, “You’re a black n----r.” When Nichols
asked her what she said, Johnston responded that she was
joking. On another occasion, Nichols alleges that Johnston
was standing in the cafeteria with a group of school employ-
ees and while standing there he heard her say, “Where that
boy at?” The group did not know that Nichols was within
earshot, but he believes that the term was directed at him
and was used in a racially derogatory manner.
On February 7, 2011, after an altercation between John-
ston and Nichols, Principal Lisa Emshwiller asked Nichols’s
supervisors, Doug Schroeder and John Yeakey, to meet with
her because she felt that Nichols was acting strangely.
Emshwiller was the principal of Springfield Elementary, and
Schroeder and Yeakey were maintenance foremen in the
Plant Planning Department of the Michigan City Area
4 No. 13-2893
Schools who were responsible for the maintenance staff at
Michigan City’s schools and support buildings. Although all
three worked for Michigan City in some capacity, there is no
evidence in the record that Emshwiller was Nichols’s super-
visor or had any power to fire him.
After Emshwiller called Nichols’s supervisors, Nichols
asked to meet with her to report that he believed Johnston
was harassing him. At that time, she told him that Johnston
had filed a report complaining about his behavior. Johnston
claimed that Nichols attempted to surreptitiously take pho-
tos of her. Nichols confirmed Johnston’s account, but
claimed that he did so to catch her in the act of mistreating
him. Johnston also claimed that she bought him lunch, but
that Nichols did not want it and shoved it back at her and
said that he was praying for her. Nichols denied Johnston’s
allegations and claimed that Johnston marked the floors
with pink highlighter (which turned out to be scuff marks
from shoes), threw food on floors he had just cleaned, and
bullied people. According to Nichols, it was during that
meeting that he first informed Emshwiller that he had been
called a racial epithet.
Following the meeting, Emshwiller met separately with
both Schroeder and Yeakey to discuss what steps should be
taken. It was at that time that Emshwiller told Schroeder and
Yeakey that she and Johnston felt threatened by Nichols’s
accusations and strange behavior. Schroeder and Yeakey in-
formed Emshwiller that they decided to remove Nichols
from his assignment at Springfield Elementary. Shortly after
the meeting, Schroeder and Yeakey ran into Nichols, at
which point he told them about his issues with Johnston and
how she allegedly tried to set him up. According to them,
No. 13-2893 5
Nichols appeared agitated, spoke very quickly, and sweated
profusely. At that point, Yeakey told Nichols that the custo-
dial position would be filled with a permanent employee the
following week and that they would call him if they needed
his services, but they never did.
In January of 2012, Nichols filed a pro se complaint
against Michigan City asserting racial harassment and dis-
crimination. Michigan City moved for summary judgment.
Nichols timely filed his response, but attached unsworn and
unverified statements in support of his motion. Michigan
City filed a reply motion arguing that Nichols did not allege
sufficient facts to support his harassment and discrimination
claims. In addition, Michigan City filed a motion to strike the
unsworn and unverified statements contained in Nichols’s
response. Despite the deficiencies in Nichols’s memoran-
dum, the district court considered his claims. In August
2013, the district court granted Michigan City’s motion in its
entirety, finding that the complained-of conduct did not give
rise to Title VII liability, and Nichols now appeals.
II. ANALYSIS
Nichols argues that the district court erred in granting
summary judgment in favor of Michigan City. We review a
district court’s grant of summary judgment de novo and
construe all facts and inferences in the light most favorable
to Nichols as the non-movant. Smiley v. Columbia Coll. Chi.,
714 F.3d 998, 1001-02 (7th Cir. 2013). However, Nichols is not
entitled to the benefit of “inferences that are supported by
only speculation or conjecture.” Argyropoulos v. City of Alton,
539 F.3d 724, 732 (7th Cir. 2008) (citations and quotations
omitted). “A factual dispute is ‘genuine’ only if a reasonable
6 No. 13-2893
jury could find for either party.” SMS Demag Aktiengesell-
schaft v. Material Scis. Corp., 565 F.3d 365, 368 (7th Cir. 2009).
A. Nichols Did Not Waive His Discrimination or Har-
assment Claims
As a preliminary issue, Michigan City argues that Nich-
ols waived his harassment and discrimination claims be-
cause he advanced no cogent argument in the district court
to explain why summary judgment was inappropriate. The
non-moving party waives any arguments that were not
raised in its response to the moving party’s motion for sum-
mary judgment. Laborers’ Int’l Union of N. Am. v. Caruso, 197
F.3d 1195, 1197 (7th Cir. 1999). However, a trial court is obli-
gated to give a liberal construction to a pro se plaintiff’s fil-
ings. Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Although Nichols did not outline the legal components
of his argument in his response, nor provide sworn affida-
vits to support his position, with a liberal construction of his
pleadings it is possible to see that he asserted both argu-
ments. With regard to his hostile work environment claim,
Nichols asserted that Johnston uttered a racial epithet, that
his work environment was both subjectively and objectively
offensive, and that the hostile conduct was pervasive. With
regard to his discrimination claim, he essentially outlined a
cat’s paw theory of liability.
Under the cat’s paw theory of liability, when a biased
subordinate lacks decision-making power to fire an employ-
ee, but “uses [a] formal decision maker as a dupe in a delib-
erate scheme to trigger a discriminatory employment ac-
tion,” we will consider the biased subordinate’s actions as
direct evidence of discrimination. Johnson v. Koppers, Inc., 726
No. 13-2893 7
F.3d 910, 914 (7th Cir. 2013) (citations and quotations omit-
ted). In his response, Nichols stated that Johnston com-
plained to Emshwiller, who then conveyed those complaints
to Schroeder and Yeakey. Nichols then contended that
Schroeder and Yeakey formed their opinion to fire him
based on Johnston’s input. Even though Nichols made this
argument in the defamation section of his memorandum, it
is clear to us that he made a cat’s paw argument. Under the
liberal pleading standard, these allegations are enough to
preserve his claim.
B. Nichols Did Not Provide Sufficient Evidence of a
Hostile Work Environment
Nichols contends that Michigan City subjected him to
race-based harassment by Springfield employees, who called
him “boy,” “black n----r,” and treated him harshly. Title VII
prohibits employers from discriminating against employees
because of their race, color, religion, sex, or national origin.
42 U.S.C. § 2000e-2(a)(1). And employers are prohibited from
“requiring people to work in a discriminatorily hostile or
abusive environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17,
21 (1993). To survive summary judgment on a racially hostile
work environment claim, an employee must provide suffi-
cient evidence that demonstrates: “(1) that the work envi-
ronment was both subjectively and objectively offensive; (2)
that the harassment was based on membership in a protect-
ed class; (3) that the conduct was severe or pervasive; and (4)
that there is a basis for employer liability.” Alexander v. Casi-
no Queen, Inc., 739 F.3d 972, 982 (7th Cir. 2014).
Nichols’s hostile work environment claim fails because
he did not provide sufficient evidence for a reasonable juror
to conclude that he was subjected to harassing conduct that
8 No. 13-2893
was severe or pervasive. It is important to note that the har-
assing conduct does not need to be both severe and perva-
sive. Jackson v. Cnty. of Racine, 474 F.3d 493, 499 (7th Cir.
2007). One instance of conduct that is sufficiently severe may
be enough. Haugerud v. Amery Sch. Dist., 259 F.3d 678 (7th
Cir. 2001). Conversely, separate incidents that are not indi-
vidually severe may trigger liability because they frequently
occur. Jackson, 474 F.3d at 499. The key inquiry is whether the
conduct was so severe or pervasive that it altered the condi-
tions of the employment relationship. Id.In determining whether the conduct is sufficiently severe
or pervasive to be actionable, we look at the totality of the
circumstances, including: (1) the frequency of the discrimi-
natory conduct; (2) how offensive a reasonable person would
deem it to be; (3) whether it is physically threatening or hu-
miliating conduct as opposed to verbal abuse; (4) whether it
unreasonably interferes with an employee’s work perfor-
mance; and (5) whether it was directed at the victim. Lambert
v. Peri Formworks Sys., Inc., 723 F.3d 863, 868 (7th Cir. 2013).
“Courts should not carve up the incidents of harassment and
then separately analyze each incident, by itself, to see if each
rises to the level of being severe or pervasive.” Hall v. City of
Chicago, 713 F.3d 325, 331 (7th Cir. 2013) (citation and quota-
tion omitted).
Nichols claims that Johnston’s alleged “black n----r”
comment constitutes severe harassment. We have stated that
while there is no “magic number of slurs” that indicates a
hostile work environment, an “unambiguously racial epithet
falls on the ‘more severe’ end of the spectrum.” Cerros v. Steel
Technologies, Inc., 398 F.3d 944, 950 (7th Cir. 2005) (“Cerros
II”) (citations and quotations omitted). However, while re-
No. 13-2893 9
ferring to colleagues with such disrespectful language is de-
plorable and has no place in the workforce, one utterance of
the n-word has not generally been held to be severe enough
to rise to the level of establishing liability. Smith v. N.E. Ill.
Univ., 388 F.3d 559, 566 (7th Cir. 2004) (stating that “the mere
utterance of an … epithet which engenders offensive feelings
in an employee” does not necessarily violate Title VII even
though the plaintiff was referred to, but not in his presence,
as a “black motherf----er”). Nichols presents no evidence
that he was subjected to this type of offensive conduct more
than once. Since the one-time use of a racial epithet is not se-
vere enough to trigger liability, Nichols can only succeed if
the totality of the collection of allegedly harassing incidents
triggers liability. While it is a close call whether the conduct
here is severe or pervasive, Nichols’s claim ultimately fails.
Nichols cites six incidents of harassment that he claims
occurred during the 2 ½ weeks that he worked at Springfield
Elementary: (1) Johnston (his co-worker) calling him “black
n----r”; (2) Johnston saying “where that boy at?” without
knowing that Nichols was within earshot; (3) Johnston
bringing Nichols food, but slamming the tray into his chest;
(4) Springfield employees not telling him where the janitor’s
closet was located; (5) Springfield employees making a mess
for him to clean up; and (6) Springfield employees allegedly
baiting him to steal a purse and money from an open regis-
ter.
Experiencing six instances of harassment, if true, over the
course of 2 ½ weeks weighs in his favor, but the remaining
factors do not. First, Nichols does not allege that he was
physically threatened. Second, as far as we can tell, the al-
leged harassment did not interfere with Nichols’s work per-
10 No. 13-2893
formance. Nichols claims that he performed his job well with
no complaints.
Third, we do not find that a reasonable trier of fact could
conclude that all of the allegedly harassing comments were
directed at him. When harassing statements are “directed at
someone other than the plaintiff, the impact of [such] ‘sec-
ond hand harassment’ is obviously not as great as the impact
of harassment directed at the plaintiff.” Russell v. Bd. of Trs. of
the Univ. of Ill. at Chi., 243 F.3d 336, 343 (7th Cir. 2001). Nich-
ols alleges that Johnston said “Where that boy at?” while he
was standing in the cafeteria. He assumes that the question
was directed at him and must have been uttered in a racial
manner because he is black. The Supreme Court has found
that evidence of a manager referring to African-American
employees as “boy” was probative of discriminatory animus.
Ash v. Tyson Foods, Inc., 546 U.S. 454, 456 (2006). However,
the Court said that the speaker’s meaning will depend on
context, inflection, and local custom. Id. Nichols did not pro-
vide evidence that shows that the comment was uttered in a
discriminatory manner, and without knowing the context in
which the comment was made, it is difficult to say that a rea-
sonable juror could conclude that comment was uttered be-
cause of racial animus. See Ellis v. CCA of Tennessee LLC, 650
F.3d 640, 648 (7th Cir. 2011) (stating that a reasonable trier of
fact could not conclude that the word “monkey” used over a
jail intercom was used in a racially derogatory way based on
the record that only indicated that the word was uttered, but
gave no context surrounding the use of the word). Here,
Nichols only points out that the statement was uttered, but
he does not provide context that would help clarify the way
in which the statement was used. It is not unreasonable, or
even unthinkable, for an employee to say “Where that boy
No. 13-2893 11
at?” in an elementary school filled with boys. Without great-
er context, a reasonable juror could not conclude that “boy”
was used in a racially derogatory manner or was directed at
him.
Nor could a reasonable jury conclude, without additional
evidence, that simply because someone left a purse behind
that the purse was intended to ensnare Nichols. In his depo-
sition, Nichols stated that he felt like someone left a purse
out in the open in order to entrap him. However, he pro-
vides no evidence as to who may have left the purse or any
evidence beyond speculation as to why a person might have
left the purse. Nichols concedes that he did not know why
someone left the purse nor did he have evidence that some-
how linked the purse to a ploy designed to ensnare him on
account of his race. It is not uncommon for people to inad-
vertently lose miscellaneous items, and without evidence
beyond his conclusory statement that the purse was left to
ensnare him in a trap, a reasonable trier of fact, without
more, could not conclude that this alleged harassment was
directed at Nichols.
Finally, Nichols has not presented sufficient evidence to
support a finding that the six incidents he alleges occurred
were of such an offensive nature to constitute actionable
conduct. In Cerros II, we concluded that the harassment an
employee faced was sufficiently offensive. The plaintiff pro-
vided evidence that he was subjected to direct and highly
offensive racial epithets by coworkers and supervisors,
where coworkers openly advocated for the Ku Klux Klan
and “white power,” and racially offensive graffiti was writ-
ten on the bathroom walls such as “sp-cs,” “wetb--ks,” “go
12 No. 13-2893
back to Mexico,” and “Tony Cerros is a sp-c.” 398 F.3d at
951.
In Lambert, we also concluded that the harassment an
employee faced was sufficiently offensive to defeat sum-
mary judgment. In that case, the plaintiff provided evidence
that: a top manager, on at least five occasions over a four-
year period, referred to yard laborers as “donkeys” in Lam-
bert’s presence and on one occasion called an African-
American co-worker a “gorilla,” and another supervisor told
Lambert that he did not respect him because he is a “n----r”
while yelling and screaming at him. 723 F.3d at 865. We stat-
ed that Lambert’s case was right on the line of conduct that
was offensive. Id. at 868.
In Peters v. Renaissance Hotel Operating Co., in contrast, we
affirmed summary judgment in favor of the employer. 307
F.3d 535 (7th Cir. 2002). In Peters, comments not directed at
the plaintiff included a supervisor referring to “black music
as ‘wicka-wicka woo music,’” an employee’s request to in-
vestigate an African-American guest who was allegedly
stealing coins from a fountain, African-American guests be-
ing denied additional ice and cups at a party, and one inci-
dent where a co-worker used the word “n----r” in his pres-
ence. Id. at 552. Peters pointed to three additional comments
that were directed towards or involved him: a supervisor
asked a white co-worker to carry money when Peters and
another African-American worker were present and availa-
ble to do the job, the human resources director failed to say
hello to Peters or another African-American worker, and “in-
terracial strife” was revealed at a diversity training. Id. We
stated that with the exception of the use of the word “n----r,”
which was not directed at Peters, the other acts were “mildly
No. 13-2893 13
offensive.” Id. Our Lambert decision distinguished Peters,
finding that Lambert’s case was more serious than Peters be-
cause the supervisors in Lambert repeatedly called employ-
ees racially offensive terms, as opposed to the single unfor-
tunate occurrence in Peters. Lambert, 723 F.3d at 869.
While the alleged actions Nichols faced were offensive,
his case can be distinguished from the plaintiffs in Cerros II
and Lambert. Cerros and Lambert were subjected to multiple
racial epithets directed at them or uttered in their presence.
Nichols can only point to one unambiguous incident that is
of similar magnitude to that Cerros and Lambert faced. In
addition, many of the other incidents that Nichols points to,
such as Springfield employees not telling him where the jan-
itor’s closet was located, allegedly making a mess for him to
clean up, and baiting him to steal a purse and money from a
cash register are similar to the offensive behavior in Peters
that we deemed not offensive enough to avoid summary
judgment. While there is no place in today’s workplace for
the offensive behavior Nichols allegedly experienced, sum-
mary judgment on this claim was proper because Nichols
failed to present sufficient evidence to support his hostile
work environment claim.
C. Nichols’s Termination Did Not Violate Title VII
Nichols’s claim that he was fired because of his race fares
no better. An employer violates Title VII if it discharges or
disciplines an employee because of that person’s race, sex, or
other protected grounds. Coleman v. Donahoe, 667 F.3d 835,
845 (7th Cir. 2012). A plaintiff may use the direct or indirect
method to prove discrimination. Brown v. Advocate S. Subur-
ban Hosp., 700 F.3d 1101, 1104 (7th Cir. 2012). Nichols cannot
prevail under either method.
14 No. 13-2893
Under the direct method, Nichols must provide either di-
rect or circumstantial evidence of intentional racial discrimi-
nation. Montgomery v. Am. Airlines, Inc., 626 F.3d 382, 393
(7th Cir. 2010). Nichols may avoid summary judgment only
by presenting sufficient evidence to create a triable issue as
to whether his firing was motivated by discriminatory in-
tent. Hanners v. Trent, 674 F.3d 683, 691 (7th Cir. 2012). On
appeal, Nichols presents a cat’s paw theory of liability and
argues that Johnston, through Emshwiller, influenced
Schroeder and Yeakey’s decision to fire him. Under this the-
ory, an employer is liable if a non-decision-maker who is
motivated by discriminatory bias is a proximate cause of an-
other employee’s adverse employment action. Smith v. Bray,
681 F.3d 888, 897 (7th Cir. 2012). To prevail, Nichols must
show that: (1) Johnston actually harbored discriminatory an-
imus against him; and (2) Johnston’s input was a proximate
cause of Nichols getting fired. Id. “Proximate cause requires
only some direct relation between injury asserted and injuri-
ous conduct alleged, and excludes only those links that are
too remote, purely contingent, or indirect.” Staub v. Proctor
Hosp., 131 S. Ct. 1186, 1192 (2011) (citations and quotations
omitted). Therefore, in order to survive summary judgment,
Nichols needed to provide evidence to support a finding
that Johnston’s input was a proximate cause in his firing. Id.
at 1193.
Once again, Nichols does not provide enough evidence
for his claim to survive summary judgment. Affidavits by
Emshwiller, Schroeder, and Yeakey assert that Nichols was
fired because he acted strangely the day he was fired and
there was concern about his mental state. Emshwiller stated
that prior to when he was fired, Nichols was laid back and
quiet, but on the day he was fired, he seemed to be “keyed
No. 13-2893 15
up.” She further stated that she was concerned about Nich-
ols’s mental state because he was making odd accusations
(such as that Johnston marked the floor with a pink high-
lighter) against Johnston and behaving strangely. Yeakey,
Nichols’s friend and the person who helped him get the job,
confirmed that on the day Nichols was fired, Nichols was
acting strangely and seemed different than previous times.
Yeakey said that when he spoke to Nichols after his meeting
with Emshwiller, Nichols appeared agitated, spoke quickly,
and was sweating profusely. According to Schroeder’s and
Yeakey’s affidavits, they removed Nichols from the school
because Emshwiller and Johnston felt threatened by his con-
tinued presence.
It is true that both Schroeder and Yeakey considered the
issues Johnston raised about Nichols when they fired him.
(Doc. 30-4, ¶ 6; Doc. 30-5, ¶ 4). But in their affidavits, they
stated that regardless of what happened between Johnston
and Nichols, Nichols’s position was going to be filled with a
permanent employee the next week. (Doc. 30-4, ¶ 9; Doc. 30-
5, ¶ 7). Their statements show that the dust up between
Nichols and Johnston, and her subsequent complaints, had
nothing to do with Nichols getting fired because his position
was going to be filled by a permanent employee the next
week even if he was a model employee. These statements are
sufficient to break the nexus between Johnston’s input and
Nichols’s firing, and Nichols presents no evidence to contra-
dict either Schroeder’s or Yeakey’s account. Although
Schroeder and Yeakey considered Johnston’s input, their ul-
timate decision was based on their belief that Nichols was
acting strangely, and that a permanent employee would be
found to replace Nichols. Therefore, Johnston’s input was
not a proximate cause of Nichols’s firing.
16 No. 13-2893
Since Nichols cannot prevail under the direct method, we
will now examine his claim under the indirect method’s
burden-shifting framework. Under the indirect method,
Nichols must introduce evidence that he: (1) is a member of
a protected class; (2) performed his job satisfactorily; (3) suf-
fered an adverse employment action; and (4) was treated less
favorably than a similarly situated employee outside of
Nichols’s protected class. Burnell v. Gates Rubber Co., 647 F.3d
704, 709 (7th Cir. 2011) (citations omitted). If Nichols estab-
lishes a prima facie case, the burden shifts to Michigan City
to provide a legitimate reason why Nichols was fired. Id. If
Michigan City gives a legitimate reason, then Nichols must
produce evidence that Michigan’s City’s proffered reason for
firing Nichols is a pretext for racial discrimination. Id. Mich-
igan City stipulates that Nichols, an African-American, is a
member of a protected class, and that he suffered an adverse
employment action.
Nichols’s claim fails because he cannot show that similar-
ly situated employees that are not African-Americans re-
ceived more favorable treatment. We have said that even if a
plaintiff cannot identify similarly situated employees he can
still make a prima facie case of discrimination. Timmons v.
General Motors Corp., 469 F.3d 1122, 1126 (7th Cir. 2006). To
meet his burden under the fourth prong, a plaintiff must
show “that the circumstances surrounding the adverse ac-
tion indicate that it is more likely than not that his [race] was
the reason for it.” Id. (citation and quotation omitted).
Nichols’s only evidence is the timing of his firing; i.e.,
Johnston allegedly held racial animus towards him, she met
with his supervisors, and shortly thereafter he was fired.
While suspicious timing may raise a genuine issue of fact
No. 13-2893 17
about discrimination, “suspicious timing alone is rarely
enough to survive summary judgment.” Morgan v. SVT, LLC,
724 F.3d 990, 998 (7th Cir. 2013). We do not find suspicious
timing here. In addition, as we explained above, the timing
of Nichols being fired was governed by what three employ-
ees called his “strange” behavior and that the job was being
filled by another person. Because Nichols did not meet his
legal burden, summary judgment was appropriate.
III. CONCLUSION
The judgment of the district court is AFFIRMED.