Buie, Anthony D. v. Quad/Graphics ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2026
ANTHONY D. BUIE,
Plaintiff-Appellant,
v.
QUAD/GRAPHICS, INC.,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 01 C 646—Rudolph T. Randa, Chief Judge.
____________
ARGUED FEBRUARY 13, 2004—DECIDED APRIL 27, 2004
____________
Before FLAUM, Chief Judge, and MANION and DIANE P.
WOOD, Circuit Judges.
MANION, Circuit Judge. Anthony D. Buie is a black man
with AIDS. He alleged that Quad/Graphics, Incorporated
committed (1) racial discrimination in violation of 42
U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e, et seq.; (2) sexual discrimination in violation
of Title VII; (3) disability discrimination under the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101,
et seq.; and (4) retaliation under the Family and Medical
Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601, et seq. The
district court entered summary judgment in
Quad/Graphics’ favor as to all claims. On appeal, Buie
2 No. 03-2026
abandons his theories of racial and sexual discrimination
but maintains that he was entitled to reach a jury with his
claims under the ADA and FMLA. We affirm.
I.
Because this appeal comes to us after summary judgment
in favor of Quad/Graphics, we review the record in the
light most favorable to Buie. E.g., Rogers v. City of Chicago,
320 F.3d 748, 750 (7th Cir. 2003). From November 28, 1997
through December 1, 1999, Buie worked in the finishing
department at Quad/Graphics, which produces printed
materials. Buie’s supervisors warned him about frequent
absenteeism three times between March 1998 and
September 9, 1999. When providing the latest warning to
Buie, Buie’s supervisor, Scott Connell, wrote that “[i]f
Anthony continues to have attendance problems he may be
termed [sic] from Quad Graphics.” Buie was nonetheless
absent without excuse and without notice again on
September 24 and October 10, 1999.
On October 15, 1999, Buie called Connell on the tele-
phone—after his shift had already begun—and told him
that he was sick and would not work that day. Connell re-
sponded by saying that Buie’s job was in jeopardy. Buie
then said that he had AIDS and that his absenteeism was
because of the syndrome. This was the first time Quad/
Graphics knew of Buie’s condition. After Connell learned
that Buie had AIDS, he told Buie (either on October 15 or
October 17; Buie’s affidavit provides both dates) not to
return to work.1
1
The district court concluded that no competent evidence
showed that, before October 21, Buie was told not to return to
work. For reasons discussed below, we conclude that the record,
(continued...)
No. 03-2026 3
On October 21, 1999, at the instruction of Steve Kirk,
the finishing department manager, Buie met with Caroline
Vrabel, Quad/Graphics’ corporate employee services man-
ager. Vrabel told Buie that he could apply for FMLA leave
for some of the absences when he had called in sick. She
further told him not to report to work until he had com-
pleted the FMLA application and his attendance issue was
resolved. Buie complied with Vrabel’s directions. Only after
Buie returned to work, however, did Frank Arndorfer, vice
president of finishing operations, decide that his leave
would be considered a disciplinary suspension for excessive
absenteeism. Buie was unaware of that designation when he
first left work.
Buie met with Vrabel and Arndorfer on November 10,
1999. Vrabel told Buie that she had excused many of his
absences and requested that short-term disability benefits be
paid to him for those absences. But Vrabel also stated that
she had calculated that he still had accumulated 14 absences
during the preceding 11 months that could not be excused,
including six no-call, no-show absences. On November 16,
1999, Buie met again with Vrabel and Arndorfer. Arndorfer
presented him with a last chance agreement and offered him
the choice between signing the agreement or being fired
immediately. The agreement, which Buie signed, stated that
Buie could be fired for any violation of the employee
services manual or the agreement itself. Buie then returned
to work, but the peace was short- lived.
On November 29, 1999, Buie had a confrontation with a
superior, Harold Bridges, while the two were working on a
conveyor belt. According to Bridges (who is black), after he
(...continued)
construed in the light most favorable to Buie, shows that Connell
told him either on October 15 or 17 not to come back to work.
4 No. 03-2026
upbraided Buie for falling behind in his work, Buie treated
Bridges to an outburst about how Buie would work on the
conveyor belt when he pleased and how Bridges and other
black employees did not know how to “get over on these
white mother------s.” Bridges admitted that he replied by
saying that “niggas [sic] always want something for noth-
ing” and stated that Buie reacted to this remark by pushing
bundles of publications off of the conveyor belt and refusing
Bridges’ order to return to work.
Connell soon learned of, and investigated, the incident.
Several employees confirmed Bridges’ version of events.
Connell also asked for Buie’s side of the story. Buie denied
telling Bridges that he would work when he pleased, push-
ing publications off of the conveyor belt, and making the
racist statement that Bridges attributed to him. Buie further
explained he would not return to work under Bridges
because of Bridges’ own use of a racial slur. After consider-
ing the evidence, Connell issued a written warning to Buie.
Buie, for his part, did not let matters rest there. He knew
that one of the employees who had corroborated Bridges’
account was Diane Grignon and, on December 1, 1999, he
confronted her. As Grignon soon told Connell, Buie pointed
his finger at her and said, at a range where Grignon could
feel Buie’s spittle on her face, “I’ll get you, bitch.” As
Grignon recounted, when she asked him whether that was
a threat, Buie replied that it was and asked where her
witnesses were. The confrontation ended with Grignon
pushing Buie’s finger from her face as Connell approached.
Later that day, Connell learned that the house mother of
the halfway house in which Grignon resided had received
a call from a man identifying himself as “Anthony.” The
caller said that if “something happens to [Grignon] on the
bus tonight, it’s her own fault.” At that point, Connell, Kirk,
and Arndorfer decided to fire Buie, whom they discharged
No. 03-2026 5
the next day (December 2) through a letter signed by
Arndorfer. Grignon was disciplined for her part in the
incident, but not fired.
Buie’s work-related troubles did not end with his dis-
charge. He later was found guilty in the State of Wisconsin
Circuit Court of Waukesha County for disorderly conduct
as a result of his confrontation with Grignon. The state court
found that the prosecution
met its burden of proof establishing that this defendant
was profane and otherwise disorderly—or otherwise
disorderly. I would point to him getting within six
inches of Ms. Grignon, putting his finger in her face so
close and speaking in such a way and so close that the
spitle [sic] would go across to her and making threaten-
ing remarks. This is all under circumstances tending to
cause or provoke an immediate disturbance of public
order.
Buie sued Quad/Graphics in the district court, alleging
four claims: (1) racial discrimination in violation of § 1981
and Title VII; (2) sexual discrimination in violation of Title
VII; (3) disability discrimination under the ADA; and (4)
FMLA retaliation. The district court entered summary
judgment in Quad/Graphics’ favor, disregarding several
parts of Buie’s affidavit in the process. On appeal, Buie
abandons his claims of racial and sexual discrimination but
maintains that he was entitled to reach a jury with his
claims under the ADA and FMLA.
II.
We review the district court’s grant of summary judgment
de novo, construing all facts in favor of Buie, the
nonmoving party. Rogers, 320 F.3d at 752. Summary judg-
ment is appropriate when the “pleadings, depositions,
6 No. 03-2026
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Fed. R. Civ. P.
56(c). In short, summary judgment is warranted where “a
rational trier of fact could not find for the non-moving
party.” Rogers, 320 F.3d at 752.
The ADA forbids certain employers from “discriminat-
[ing] against a qualified individual with a disability because
of the disability of such individual in regard to job applica-
tion procedures, the hiring, advancement, or discharge of
employees, employee compensation, job training, and other
terms, conditions, and privileges of employment.” 42 U.S.C.
§ 12112(a) (2000). It is undisputed that Quad/Graphics is an
employer covered by the ADA and that Buie is an “individ-
ual with a disability” for purposes of the statute.2 To prove
that he suffered disability discrimination under the ADA,
Buie may proceed under the direct or indirect methods.
Robin v. Espo Engineering Corp., 200 F.3d 1081, 1089 (7th Cir.
2000). There are two types of permissible evidence under
the direct method: direct evidence and circumstantial
evidence. Rogers, 320 F.3d at 753. The former “essentially
requires an admission by the decision-maker that his actions
2
Buie argues that he has the ADA’s protections because
Quad/Graphics regarded him as disabled, but that he “has not
presented proof that he is actually disabled.” The undisputed
evidence, however, shows that Buie had AIDS when he was
suspended and fired, which means that he was disabled for
purposes of the ADA. See Doe v. Mutual of Omaha Ins., Co., 179
F.3d 557, 558 (7th Cir. 1999). Regardless of whether we were to
construe Buie as someone actually disabled by AIDS, or merely
as someone whom Quad/Graphics regarded as being disabled by
AIDS, he would still be within the statute’s protection. See, e.g.,
Mack v. Great Dane Trailers, 308 F.3d 776, 780 (7th Cir. 2002).
No. 03-2026 7
were based upon the prohibited animus.” Id. The latter is
evidence that “allows a jury to infer intentional discrimina-
tion by the decision-maker.” Id.Buie may also proceed under the indirect method, which
first requires him to establish a prima facie case of discrim-
ination. To do so, Buie must show that (1) he is disabled
under the ADA; (2) he is qualified to perform the essential
functions of his job with or without reasonable accommoda-
tion; and (3) he has suffered from an adverse employment
decision because of the disability. Dvorak v. Mostardi Platt
Assoc., Inc., 289 F.3d 479, 483 (7th Cir. 2002). Were Buie to
put forth a prima facie case, the burden would then shift to
Quad/Graphics to articulate a nondiscriminatory reason for
each adverse employment action. Id. at 485. If
Quad/Graphics were to meet its burden, Buie would then
have to prove by a preponderance of the evidence that
Quad/Graphics’ proffered reasons were a pretext for
intentional discrimination. Id.As to Buie’s claim for FMLA retaliation, two provisions of
the statute govern. Section 2615(a)(2) prohibits “dis-
criminat[ion] against any individual for opposing any
practice made unlawful by the subchapter”; § 2615(b)
prohibits discrimination against any individual for institut-
ing or participating in FMLA proceedings or inquiries. See
Bachelder v. America West Airlines, Inc., 259 F.3d 1112, 1124
(9th Cir. 2001). We evaluate a claim of FMLA retaliation the
same way that we would evaluate a claim of retaliation
under other employment statutes, such as the ADA or Title
VII. See King v. Preferred Technical Group, 166 F.3d 887, 891
(7th Cir. 1999). Therefore, to prove retaliation, Buie may rely
once again on the direct or indirect methods. The direct
method is as described above for the ADA claim. The order
of proof concerning retaliation under the indirect method,
however, differs slightly. To establish a prima facie case, a
plaintiff must
8 No. 03-2026
show that after [engaging in protected conduct] only he,
and not any similarly situated employee who did not
[engage in protected conduct], was subjected to
an adverse employment action even though he was per-
forming his job in a satisfactory manner. If the de-
fendant presents no evidence in response, the plaintiff
is entitled to summary judgment. If the defendant pre-
sents unrebutted evidence of a noninvidious reason for
the adverse action, he is entitled to summary judgment.
Otherwise there must be a trial.
Rogers, 320 F.3d at 754-55 (quoting Stone v. City of
Indianapolis, 281 F.3d 640 (7th Cir. 2002)).3
A. Evidentiary Issues
Before we assess whether, on the state of the record before
the district court, a reasonable jury could have found
Quad/Graphics liable for either claim, we must first address
the parties’ disagreement as to whether, as Buie asserts, the
district court committed reversible error by refusing to
consider parts of his affidavit on which he relied in response
to Quad/Graphics’ motion for summary judgment.
3
Quad/Graphics incorrectly asserts that Buie must also prove a
causal link between the protected activity and the adverse
employment action. Although circuit precedent formerly
required a causal link, Stone, which was decided under Circuit
Rule 40(e), eliminated that requirement from the prima facie case
of retaliation under the indirect method. Rogers, 320 F.3d at 755.
The plaintiff in Stone brought claims under the ADA and Title
VII, and not the FMLA. Nonetheless, as noted above, we assess
a claim of FMLA retaliation in the same manner that we would
evaluate a claim of retaliation under other employment statutes,
such as the ADA or Title VII.
No. 03-2026 9
According to Buie, his affidavit provided evidence from
which a reasonable jury could have concluded that Quad/
Graphics’ “reasons for imposing a disciplinary suspension
and a ‘Last Chance Agreement’ on Mr. Buie were pretextual,
and a jury could have found that the real reason
[Quad/Graphics] imposed the discipline and the Last
Chance Agreement was because Mr. Buie disclosed that he
had AIDS.” We review for an abuse of discretion the district
court’s decision to disregard parts of a plaintiff’s affidavit.
Patterson v. Chicago Ass’n for Retarded Citizens, 150 F.3d 719,
723 (7th Cir. 1998). For Buie to be entitled to relief, he must
show both that the district court erred and that the exclusion
of this evidence prejudiced his “substantial rights” under
Federal Rule of Civil Procedure 61. Rogers, 320 F.3d at 751.
The district court excluded several parts of Buie’s affida-
vit, citing Albiero v. City of Kankakee, 246 F.3d 927 (7th Cir.
2001), for the proposition that “self-serving affidavits are
insufficient to defeat summary judgment.” In Albiero,
however, we held merely that self-serving statements con-
tained in an affidavit will not defeat a motion for summary
judgment when those statements are “without factual support in
the record.” Id. at 933 (emphasis added) (quoting Slowiak v.
Land O’Lakes, Inc., 987 F.2d 1293, 1295 (7th Cir. 1993)); see
also Rogers, 320 F.3d at 751 (construing Albiero as holding
that “self-serving affidavits without factual support in the
record do not create an issue of material fact”). In contrast,
a self-serving affidavit supported by facts in the record
could defeat summary judgment. Payne v. Pauley, 337 F.3d
767, 773 (7th Cir. 2003). The record, moreover, may include
the self-serving affidavit itself, provided that the affidavit
“meets the usual requirements for evidence on summary
judgment—including the requirements that it be based on
personal knowledge and that it set forth specific facts
showing that there was a genuine issue for trial.” Id. See
10 No. 03-2026
generally 10B Charles Alan Wright, Arthur R. Miller & Mary
Kay Kane, Federal Practice and Procedure § 2738 (3d ed.
1998).
We apply that standard to the three instances Buie
specifies, in which the district court disregarded his affi-
davit. First is the district court’s refusal to consider Buie’s
affidavit as evidence that Connell told Buie “not to come
back to work at all until October 21, 1999,” after Buie told
him on October 15 that he had AIDS. Next is the district
court’s refusal to consider Buie’s affidavit as evidence that
the version of the altercation between Buie and Bridges as
recounted by Bridges and several other employees was in-
correct. Last is the district court’s refusal to consider Buie’s
affidavit as evidence that he did not confront and threaten
Grignon on December 1.
As to the latter two instances, both involved parts of the
affidavit concerning events that occurred after Buie’s sus-
pension and the imposition of the last chance agreement.
Neither, therefore, was relevant to proving that Quad/
Graphics made those decisions for an impermissible reason.
See Sears, Roebuck & Co. v. NLRB, 349 F.3d 493, 513, 515 (7th
Cir. 2003) (reasoning that a decision cannot be motivated by
what the decisionmaker does not yet know). Even if Buie’s
brief could be construed as arguing that those parts of the
affidavit would have proven that Quad/ Graphics fired
Buie not for its professed reasons (his absenteeism and
altercation with Grignon), but because he had AIDS and
requested FMLA leave, there would still be no ground for
relief. The points that Buie was trying to prove by introduc-
ing his affidavit, that he was not actually the aggressor in
his confrontations with Bridges and Grignon, have nothing
to do with his AIDS or the FMLA.
What matters is whether the decisionmakers who fired
Buie honestly thought that Buie was culpable during the
No. 03-2026 11
two confrontations and whether that belief motivated his
termination. See Crim v. Board of Educ., 147 F.3d 535, 541 (7th
Cir. 1998).4 Even if such a belief were mistaken, which is all
that the affidavit would tend to establish, it would still
constitute a nondiscriminatory reason for the adverse
employment action and would preclude Quad/Graphics’
liability. Id. Moreover, even if the question of whether Buie
confronted Grignon were relevant, that issue was answered
explicitly by the Circuit Court of Waukesha County when it
found that, not only did Buie approach Grignon, but that he
got within six inches of her. This finding would estop Buie
from contesting that fact unless the state court proceeding
failed to provide minimum standards of due process, which
Buie does not attempt to establish. See Guenther v.
Holmgreen, 738 F.2d 879, 889 (7th Cir. 1984). Excluding the
portion of Buie’s affidavit covering his version of his
confrontations with Bridges and Grignon was not an error,
did not prejudice his substantial rights, and is not a basis for
relief.
That leaves the exclusion of the part of Buie’s affidavit
offered to establish that, shortly after learning that Buie had
AIDS on October 15, Connell told Buie “not to come back to
work at all until October 21, 1999.” He apparently wanted
to show that on October 15 or 17,5 when Connell learned
4
As we discuss below, Quad/Graphics cited Buie’s confronta-
tion with Grignon, but not his dispute with Bridges, as a nondis-
criminatory reason for firing him.
5
Both Buie’s opening brief and his affidavit are internally
contradictory as to the date on which Connell ostensibly imposed
what would become a disciplinary suspension. Each contains the
assertion that the suspension began on October 15 and on October
17. Internally contradictory affidavits are generally disfavored.
(continued...)
12 No. 03-2026
that Buie had AIDS, he almost immediately imposed a
suspension (a suspension that, Buie would later learn, was
an unpaid, disciplinary suspension). If a jury believed that
Connell acted almost immediately, it could (or so the theory
goes) infer that Connell suspended Buie without pay simply
because he had AIDS.
The district court disregarded this part of Buie’s affida-
vit solely on the ground that self-serving affidavits are
insufficient to defeat summary judgment. A self-serving
affidavit should be considered, however, when it meets the
requirements of evidence on summary judgment. Payne, 337
F.3d at 773. Buie’s affidavit meets those criteria: it is based
on his personal knowledge and sets forth that he was
suspended shortly after revealing his disability, which is a
specific fact relevant to whether his rights under the ADA
and FMLA were violated (more about this later). See Fed. R.
Civ. P. 56(e). Under these circumstances, the district court
abused its discretion by refusing to consider this part of
Buie’s affidavit. See Payne, 337 F.3d at 773. We therefore
must determine whether this evidentiary error prejudiced
Buie’s substantial rights. That is, we must ask whether this
(...continued)
See Cooper Cameron Corp. v. Department of Labor, 280 F.3d 539, 550
(5th Cir. 2002) (concluding that “[t]he government cannot meet
its burden with an internally inconsistent, self-contradictory
affidavit”); cf. Piscione v. Ernst & Young, LLP, 171 F.3d 527, 532
(7th Cir. 1999) (stating that an affidavit that contradicts earlier
deposition testimony generally does not create an issue of
material fact); United States v. 1980 Red Ferrari, 827 F.2d 477, 480
n.3 (9th Cir. 1987) (holding that internally contradictory deposi-
tion testimony created no issue of material fact). However,
construed liberally, as discussed below, Buie’s affidavit consis-
tently supports the idea that his suspension followed shortly after
he told Connell that he had AIDS.
No. 03-2026 13
claim, in conjunction with the evidence that the district
court did properly consider, could have allowed a reason-
able jury to rule in Buie’s favor.
B. ADA Discrimination
Buie’s theory of discrimination under the ADA is that,
although he was a qualified employee, Quad/Graphics
suspended him without pay, imposed a last chance agree-
ment on him, and then fired him, because of what it re-
garded as his disability, AIDS. Before the district court,
however, Buie did not argue that the imposition of a last
chance agreement constituted an adverse employment
action, and he has thus waived that argument on appeal.
Ehrhart v. Secretary of Health and Human Serv., 969 F.2d
534, 537 n.4 (7th Cir. 1992); see also Hrobowski v. Worthington
Steel Indus., 358 F.3d 473, 478 (7th Cir. 2004) (stating that
“evidence not designated to the district court in resisting
summary judgment cannot be properly argued on appeal”).
We therefore confine our inquiry to whether a reasonable
jury could conclude that Quad/Graphics suspended or
discharged Buie because he had AIDS.
1. Direct Method
We turn first to the direct method. As to the theories that
Quad/Graphics violated the ADA by first suspending him
without pay, and then discharging him, because he had
AIDS, Buie put forth no direct evidence in support of either
proposition. He did, however, present circumstantial evi-
dence, namely the short time period between his suspension
and the decision to fire him (they occurred on October 15 or
17 and December 1, respectively) and his announcement on
October 15 that he had AIDS. In Buie’s view, the timing of
14 No. 03-2026
these events was suspicious and would allow a jury to
conclude that Quad/Graphics acted as it did because of
Buie’s disability.
Suspicious timing is a type of circumstantial evidence
under the direct method. Troupe v. May Dep’t Stores Co., 20
F.3d 734, 736 (7th Cir. 1994). However, a “temporal se-
quence analysis is not a magical formula which results in a
finding of a discriminatory cause.” Foster v. Arthur Anderson,
LLP, 168 F.3d 1029, 1034 (7th Cir. 1999). By itself, temporal
proximity would not normally create an issue of material
fact as to causation, see id. (stating that “Foster would have
to show more than just temporal proximity”), although it
could suffice where the adverse action followed on the heels
of the employer’s discovery of the employee’s disability, cf.
King, 166 F.3d at 893 (reasoning that temporal proximity
created an issue of fact where the plaintiff’s termination
occurred one day after she finished her FMLA leave).
Here, temporal proximity is all that Buie relies on under
the direct method, and it does not create an issue of fact.
Even when the record is viewed in Buie’s favor, the un-
disputed evidence shows that he was on the brink of
discharge before anybody at Quad/Graphics knew that he
had AIDS. Connell warned Buie on September 9, 1999
that, if he continued “to have attendance problems” he
could be fired. On September 24, October 10, and October
15, Buie nonetheless chose to miss work without excuse and
without warning. It was only then, when Buie had every
reason to believe that he was on the edge of termination,
that he told Connell that he had AIDS. Quad/ Graphics had
already experienced serious difficulties with Buie’s contin-
ued problems with attendance. Also, after his disciplinary
suspension, he had his aggressive encounter with, and made
a threat toward, Grignon. All of these troubles occurred
after Connell had already warned him that his job was in
No. 03-2026 15
jeopardy. It is also worth noting that, after Buie’s AIDS
announcement, Vrabel made a concerted effort to qualify
Buie for pay under the FMLA for some of his absences
where he had called in sick. And although Buie belatedly
complains about a last chance agreement, it did give him
another chance to perform satisfactorily despite his attitude
and excessive absences. His response to that opportunity, in
short order, was his confrontation with Grignon. (We put
Buie’s confrontation with Bridges aside because
Quad/Graphics does not cite that incident as a reason for
firing Buie.) Under these circumstances, we conclude that
no reasonable jury could infer simply from the temporal
proximity among Buie’s announcement that he had AIDS
(on October 15) and his subsequent suspension (on October
15 or 17) and the decision to fire him (on December 1) that
Buie was suspended or fired because of his disability. An
eleventh-hour declaration of disability does not insulate an
unruly employee from the consequences of his misdeeds.
We conclude that, under the direct method, Buie has not
created an issue of material fact as to his ADA claim.
2. Indirect Method
The indirect method, as we discussed above, first requires
Buie to establish a prima facie case, at which point
Quad/Graphics must put forth a nondiscriminatory reason
for its action, which then requires Buie to show by a pre-
ponderance of the evidence that Quad/Graphics’stated
reason was a pretext for discrimination. The district court
entered summary judgment for Quad/Graphics because
Buie had not established prong two of the prima facie case
and, in any event, Buie failed to rebut Quad/Graphics’
nondiscriminatory reasons for suspending and then firing
Buie. We affirm on the latter ground and need not reach the
former.
16 No. 03-2026
Before the district court, Quad/Graphics justified the
decision to impose a suspension on Buie on the ground that
it was disciplinary action appropriate to his absenteeism. It
explained the decision of Connell, Kirk, and Arndorfer
to fire Buie on two grounds: that he was chronically absent
without excuse or warning, and that he threatened Grignon.
These reasons are nondiscriminatory, and thus, to avoid
summary judgment, Buie had to put forth evidence that
they were actually lies designed to camouflage that
Quad/Graphics really acted against Buie because he had
AIDS. The district court concluded that Buie had failed to
produce such evidence.
On appeal, Buie maintains that he met his burden, point-
ing to evidence that several employees who did not have
AIDS, out of the 11,000 or so employed by Quad/Graphics,
had problems with attendance and threats but were not
fired or suspended. Specifically, Buie claims that “since
Sherita Rideout, Chris Studzinski, Bruce Iwanski, and Diane
Grignon, all had attendance problems and they all engaged
in violence or threats of violence in the workplace, it would
have been reasonable for the District Court to infer that
Quad/Graphics tolerated attendance problems
in conjunction with violence and threats of violence in
the workplace.” According to Buie, a jury could infer from
this disparity that Quad/Graphics’ professed reasons for
suspending and firing him actually were lies designed to
conceal its real, invidious reasons for those actions.
The disparate treatment of similarly-situated employees
who were involved in misconduct of comparable serious-
ness, but did not have a similar disability, could establish
pretext. Hiatt v. Rockwell Int’l Corp., 26 F.3d 761, 770 (7th Cir.
1994). As to Rideout, Studzinski, and Iwanski, however,
Buie puts forth no evidence that they were disciplined by
any of the same people who disciplined him, which means
No. 03-2026 17
that the discipline that they may (or may not) have received
sheds no light on the decisions to suspend or terminate
Buie. See Timms v. Frank, 953 F.2d 281, 287 (7th Cir. 1992)
(reasoning that “it is difficult to say that the difference was
more likely than not the result of intentional discrimination
when two different decision-makers are involved”); see also
Smith v. Leggett Wire Co., 220 F.3d 752, 762 (6th Cir. 2000)
(stating that the “comparisons are inapt, however, because
Smith was disciplined by a different decisionmaker and
engaged in different conduct than” the other employees); 1
Employment Discrimination, § 8.04 (Matthew Bender 2d.
2003) (stating that “it may be difficult or impossible to show
intentional discrimination when more than one
decisionmaker is involved”).
That leaves the ostensible evidence of pretext arising from
Quad/Graphics’ treatment of Grignon’s problems with
attendance and threats. Grignon, like Buie, was supervised
by Connell and (the briefs are unclear on this point) may
have been supervised by Kirk and Arndorfer as well.
However, Buie does not show that Grignon was treated
differently for comparable misconduct. As to absenteeism,
Buie maintains that “Grignon was absent fourteen times
between 7/21/99 and 4/26/2000 (9 months), and she was
disciplined for it on April 26, 2000.” If true, this assertion
would tend to show that Grignon was treated similarly for
similar misconduct (although Buie’s lack of specificity as
to how Grignon was disciplined creates some ambiguity).
Like Buie, Grignon was disciplined, but not fired, after
Quad/Graphics concluded that she accumulated fourteen
absences. Later, of course, Buie was fired—but not before he
committed an act of disorderly conduct at work. Buie
brazenly argues that he and Grignon were treated dispa-
rately because she was not also fired after engaging in a
violent episode. However, the inflammatory incident for
which Buie argues that Quad/Graphics should have fired
18 No. 03-2026
Grignon is the very one that, as the Circuit Court of
Waukesha County found, Buie provoked by getting within
six inches of Grignon, pointing in her face, and making
threatening remarks. An employer’s decision to punish
the instigator of a violent, or nearly-violent, episode more
severely than it treats his victim is evidence of rationality,
not pretext. Buie has not rebutted Quad/Graphics’ non-
discriminatory reasons for first suspending and later
discharging him.
We affirm summary judgment as to Buie’s claim under
the ADA because he fails to create an issue of material fact
under either the direct or indirect methods.
C. FMLA Retaliation
As discussed above, Buie may prove FMLA retaliation
under the direct or indirect methods. Unfortunately, his
brief as to this claim is difficult to decipher.
We begin with the direct method. Buie presents no direct
evidence in support of this claim. The only circumstantial
evidence to which he points is suspicious timing. Buie con-
tends, as best we can discern, that the proximity between his
announcement that he had AIDS (and, implicitly,
Quad/Graphics’ realization that Buie would request FMLA
leave) and Buie’s suspension and firing would allow a jury
to infer retaliation. His suspicious timing argument regard-
ing FMLA retaliation fails for the same reason it failed to
prove ADA discrimination: given Buie’s myriad problems
at work, a reasonable jury could not conclude from timing
alone that Quad/Graphics suspended or fired Buie because
of his announcement that he had AIDS and, implicitly,
because he would thus be requesting benefits under the
FMLA.
No. 03-2026 19
Regarding the indirect method, for the same reasons
discussed above in relation to the ADA claim, Buie fails
to rebut the nondiscriminatory justifications that Quad/
Graphics offered for his suspension and discharge. We
conclude that summary judgment was proper as to Buie’s
claim for FMLA retaliation.
III.
Although a self-serving affidavit may sometimes preclude
summary judgment, in this case the district court properly
refused to consider two parts of Buie’s affidavit that were
either irrelevant or unsupported by the record. It should
have considered the portion of Buie’s affidavit offered to
show that Buie was suspended shortly after telling his boss
that he had AIDS, but that failure did not prejudice Buie’s
substantial rights. Even in light of that evidence, we con-
clude that the record would not allow a reasonable jury to
return a verdict in Buie’s favor either as to his claim for
ADA discrimination or his claim for FMLA retaliation.
AFFIRMED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-27-04