Lucas, William L. v. CTA ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1575
WILLIAM L. LUCAS,
Plaintiff-Appellant,
v.
CHICAGO TRANSIT AUTHORITY,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois,
Eastern Division.
No. 01 C 7075—Harry D. Leinenweber, Judge.
____________
ARGUED OCTOBER 24, 2003—DECIDED MAY 14, 2004
____________
Before BAUER, EASTERBROOK and RIPPLE, Circuit Judges.
RIPPLE, Circuit Judge. William L. Lucas filed discrimina-
tion and retaliation claims against the Chicago Transit
Authority (“CTA”), alleging violations of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. The CTA
filed a motion for summary judgment. The district court
granted the CTA’s summary judgment motion. Mr. Lucas
timely appealed. For the reasons set forth in the following
opinion, we affirm the judgment of the district court.
2 No. 03-1575
I
BACKGROUND
1
A. Facts
1. 1997 Internal EEO Complaint of Discrimination
Mr. Lucas is an African-American male who has been
employed with the CTA since 1993. Mr. Lucas was hired as
a track inspector, maintaining and repairing sections of
track and surrounding right of ways to ensure the tracks
were safe for CTA trains. In 1997, Mr. Lucas briefly held
a different position within the Track Maintenance
Department as a machine operator. For this position,
Mr. Lucas trained to operate a “Tie Inserter/Extractor
machine” and a “Tie Handler machine.” As their names
suggest, the Tie Inserter/Extractor enables CTA employees
to remove and replace railroad ties, and the Tie Handler
machine is used to stack railroad ties prior to their insertion
or after their extraction. Mr. Lucas had the most seniority
and obtained the highest passing score for employees
learning to use the Tie Inserter/Extractor machine; however,
he only was permitted to operate that machine three times.
Instead, he was often assigned to work on the Tie Handler
machine, a machine he considered less desirable. Mr. Lucas
asked Senior Roadmaster James Blatz for assignments to
operate the inserter/extractor machine, but Blatz denied the
request. Mr. Lucas then asked another supervisor, Joe Ryan,
but he refused to intervene. Finally, Mr. Lucas asked
General Manager Ray Schriks for assistance, but this request
also was to no avail.
1
Because this is an appeal from the district court’s grant of
summary judgment, we must construe all facts in the light most
favorable to the non-moving party, Mr. Lucas. See Bellaver v.
Quanex Corp., 200 F.3d 485, 491-92 (7th Cir. 2000).
No. 03-1575 3
After his unsuccessful attempts to gain experience on the
Tie Inserter/Extractor machine, Mr. Lucas filed an internal
complaint with the CTA Affirmative Action Unit on Sep-
tember 27, 1997. In that complaint, Mr. Lucas checked the
box that indicated that he was alleging race discrimination
by his supervisor, Blatz. Mr. Lucas elaborated by explaining
that Blatz had denied him the opportunity to operate the
inserter/extractor machine, and that General Manager
Schriks had responded to Mr. Lucas’ complaints about this
issue in a “rude and discourteous manner.” R.22, Ex.13 at 2.
Mr. Lucas details the days he was permitted to work on the
machine and his efforts in securing more work for himself
on the machine he preferred. After the complaint, the CTA’s
Affirmative Action Unit began its investigation, and, as part
of this examination, a CTA investigator met with Blatz. The
following day Blatz sent Mr. Lucas home. Mr. Lucas then
amended his internal CTA complaint to allege retaliation by
Blatz.
At the time, Mr. Lucas claimed that Blatz sent him home
without an explanation. More recently, in his November 27,
2002 deposition, Mr. Lucas testified that, when Blatz sent
him home in September of 1997, Blatz stated: “If you don’t
like it here, nigger, go home.” R.28-1, Ex.13 at 70. Addition-
ally, Mr. Lucas’ more recent submissions allege that his
supervisors repeatedly used racial slurs and the “N word.”
Specifically, in his January 2003 affidavit, Mr. Lucas states
2
that Blatz used racial slurs toward him in 1997.
2
The defendant correctly points out that Mr. Lucas did not
allege any racial slurs in his 1997 complaint to the CTA. Mr.
Lucas has not pointed to any complaint, grievance or correspon-
dence between 1997 and 2002 that alleged racial comments, nor
(continued...)
4 No. 03-1575
Before the CTA completed its internal investigation,
Mr. Lucas requested to work the daytime hours as a ma-
chine operator; this request was denied. Mr. Lucas then
requested a transfer to another position so that he could
work days to accommodate his family needs. Sometime
around December 1, 1997, the CTA granted this second
request by transferring Mr. Lucas back to his original track
inspector position, a position in which he was no longer
supervised by Blatz.
Following Mr. Lucas’ transfer, on July 7, 1998, the CTA
sent him a letter indicating its investigation supported a
finding of cause on his race discrimination and retaliation
claims against Blatz and Schriks. After a subsequent review
by the Track Maintenance Department, however, CTA Vice
President, Pat Harney, told Blatz and Schriks that he dis-
agreed with the finding of cause and decided not to disci-
pline either employee. Mr. Lucas asserts that he was aware
of the finding of cause but not aware either that the finding
was discredited upon review or that the managers were not
disciplined in any way.
Mr. Lucas did not file a formal charge with the Equal
Employment Opportunity Commission (“EEOC”) or its
corresponding state agency within 300 days of the 1997
incident. Mr. Lucas attributes his failure to the fact that the
CTA communicated its finding of possible racial discrimina-
tion. Mr. Lucas thought he had exposed the injustice in the
workplace and therefore accomplished what he set out to
do. He maintains that he relied on the CTA’s representa-
(...continued)
does the record reveal any specific complaint by Mr. Lucas
available during the CTA’s investigation. Mr. Lucas supports his
assertion only by citing his November 2002 deposition and a
January 2003 affidavit.
No. 03-1575 5
tions that it would investigate and resolve complaints. Had
he known that the CTA had failed to take corrective action
after its initial conclusion, he continues, he would have filed
a charge with the EEOC.
2. 2001 EEOC Charge and Related Events
After his transfer in December 1997, Mr. Lucas again in-
spected and repaired track. As a result of this transfer, Mr.
Lucas was not managed by, and had no contact with, Blatz
from December 1, 1997, until January 18, 2001. Mr. Lucas
admits that he was “no longer subject to Blatz’s on-going
racial harassment until Jan[.] 18, 2001.” Appellant’s Br. at 7.
In January 2001, Mr. Lucas and co-worker, Jose Quintana,
stopped a CTA passenger train instead of walking to the
nearest station, apparently, so they could get to lunch faster.
Blatz coincidentally was riding the train that Mr. Lucas and
Quintana stopped. Blatz reprimanded Mr. Lucas and
Quintana by telling them not to stop trains unnecessarily in
violation of CTA rules. He asserts that Mr. Lucas would not
respond to his questions and, as a result, Blatz told Mr.
Lucas he was “out of service” for his insubordination. Mr.
Lucas, on the other hand, asserts that he promised not to
stop trains in the future but said nothing more in order to
avoid escalating the altercation. Blatz next allegedly
grabbed Mr. Lucas’ shoulder and bruised his neck. As a
result of this altercation, Mr. Lucas called emergency
paramedics and requested an ambulance, but upon their
arrival the paramedics found no serious injuries that war-
ranted their transporting Mr. Lucas to the hospital. Mr.
Lucas next contacted the Chicago Police Department and
filed a criminal complaint against Blatz for battery. This
charge was later dismissed.
6 No. 03-1575
Mr. Lucas also filed an “Unusual Occurrence Report” with
the CTA describing his version of the events. CTA General
Manager of Power and Way Maintenance, Frank Machara,
along with another employee, Fred Tijan, investigated the
incident to determine what actually occurred. Mr. Lucas
remained out of service during this investigation. Machara
and Tijan, the Track Maintenance Manager, conducted
interviews of several witnesses, including, Blatz, Quintana,
Mr. Lucas’ partner, and Carlos Flores, another employee
who was at the scene and witnessed the altercation. After
this investigation, Machara initially concluded that Mr.
Lucas should be terminated because Mr. Lucas’ accusations
were incorrect and because the reports Mr. Lucas filed with
the CTA and the police were false. Mr. Lucas admits that
Machara determined that he had given a false account of the
incident, which had resulted in Blatz’s arrest for battery.
After consulting with the CTA’s Employee Relations
Department, however, Machara decided to suspend Mr.
Lucas for over twenty days, the length of the investigation.
Relying on these events as the basis for his claim,
Mr. Lucas filed a charge of discrimination with the EEOC on
February 1, 2001. Mr. Lucas filed a second charge with the
EEOC on July 3, 2003, alleging retaliation for his first
complaint.
3. Other 2001 Incidents
In addition to the 1997 and January 2001 incidents, Mr.
Lucas detailed the following actions in his charge of dis-
crimination and retaliation. First, Mr. Lucas alleges his
supervisor, Roadmaster Emiliano Escorcia, discriminated
against him by imposing discipline for going to the credit
exchange during the hours of 7-9 a.m. Mr. Lucas contends
that he was singled out for discipline while others were
No. 03-1575 7
permitted this liberty. In describing the discipline he
received, Mr. Lucas stated that he was “written up,”
Appellant’s Br. at 13, and he “alone was issued a caution
and instruct [sic] by Escorcia to create a paper trail,” Appel-
3
lant’s Reply Br. at 15.
Next, Mr. Lucas asserts he and his co-worker Quintana
were given written warnings for returning late from lunch
when other employees were not similarly disciplined.
Mr. Lucas offered, as an example, Francisco Garcia, a co-
worker, who went and arrived back from lunch at the same
times, but who was not similarly disciplined. In his reply
brief, Mr. Lucas explained that he was docked thirty
minutes of pay for this incident.
3
The single page of a deposition transcript, R.28-1, Ex.13 at 134,
cited in his reply brief contains no support for his laconic
description of the discipline. This practice of citation continues
throughout Mr. Lucas’ brief. We note at this point that, although
this case comes to us after the trial court granted the defendant’s
motion for summary judgment, and we therefore must construe
all facts in the light most favorable to the non-moving party, see
Bellaver, 200 F.3d at 491-92, Mr. Lucas has made this task particu-
larly difficult. First, his presentation of the facts are in the form of
an argument, often without proper citation. See Cir. R. 28(c) (“The
statement of the facts required . . . shall be a fair summary
without argument or comment.”); Palmquist v. Selvik, 111 F.3d
1332, 1337 (7th Cir. 1997); see also L.S.F. Transp., Inc. v. N.L.R.B.,
282 F.3d 972, 975-76 n.1 (7th Cir. 2002) (noting that Circuit Rule
28(c) is “essential to meaningful judicial review” and cautioning
counsel that violations could lead to the brief being stricken or
summary affirmance, in addition to other sanctions). Further, as
defendant correctly points out, the “Plaintiff’s approach in this
case has been to present his claims non-chronologically, often
without reference to time or dates, and without discernable
logical flow.” Appellee’s Br. at 18. This practice also does not aid
plaintiff in demonstrating whether his claims are meritorious or
not.
8 No. 03-1575
In a third event, Mr. Lucas asserts he was singled out for
refusing to go onto the tracks to remove a “pushcart” during
the rush-hour period while others were not disciplined for
also refusing the order. Mr. Lucas explains that CTA
employees were instructed not to enter the tracks during
rush hour unless there was an emergency. Therefore, when
Mr. Lucas and three other employees were asked to remove
the cart, no one complied. Mr. Lucas does not contest that
he was the only employee who called this order “stupid and
idiotic.” R.20 ¶ 109; R.26 ¶ 109. After a Track Maintenance
Department investigation of the matter, Mr. Lucas was
suspended for one day for showing disrespect.
Finally, Mr. Lucas asserts that there also was evidence of
a racially hostile working environment. Mr. Lucas does not
provide dates or even a time frame in his appellate brief
indicating when many of the statements occurred. In Mr.
Lucas’ statement of uncontested facts before the district
court, he indicated that his supervisor, Escorcia, “regularly
demeaned African-Americans with comments and slavery
gestures” from 1999 through 2002. R.28-1, Ex.11 ¶ 8.
Mr. Lucas quotes a few of Escorcia’s alleged racial slurs,
only noting that the slurs and gestures were “common
phrase[s].” R.28-1, Ex.13 at 92. Mr. Lucas also contends that
African-Americans were asked to work longer sections of
the track and were written up for reasons for which non-
African-Americans were not written up. Mr. Lucas offers, as
an undated example, an African-American worker who was
asked to go into a tunnel without a flashlight when non-
African-Americans were not so required. Finally, Mr. Lucas
contends, further evidence of a hostile work environment is
Escorcia’s discipline of Mr. Lucas after he refused Escorcia’s
order to remove the pushcart from the tracks.
No. 03-1575 9
B. District Court Proceedings
On September 13, 2001, Mr. Lucas filed his complaint. The
CTA asserted that Mr. Lucas’ claims were barred by the
statute of limitations, and it moved for summary judgment
shortly thereafter. The CTA subsequently filed a motion to
strike much of the statement of facts that Mr. Lucas had
submitted in response to its summary judgment motion.
The district court granted, in part, the motion to strike and
also granted the motion for summary judgment.
The district court first addressed whether Mr. Lucas’ 1997
claims were time-barred. The court noted that Mr. Lucas
had filed his EEOC charge on February 1, 2001, well outside
of the 300-day time requirement for filing a charge of
discrimination. The court then addressed Mr. Lucas’
argument that his claims were saved by equitable estoppel
or the continuing violation doctrine. The court reiterated
that equitable estoppel applies only in situations in which
a defendant takes active steps to prevent a plaintiff from
suing on time. The court found that the CTA had not taken
any steps to prevent Mr. Lucas from filing on time and that
the CTA actually had advised Mr. Lucas that he might have
a valid claim.
The court also rejected Mr. Lucas’ continuous violation
argument for two reasons. First, the district court found that
Mr. Lucas had acknowledged that the past acts were
sufficiently severe to constitute a discrete act, and discrete
acts must be filed within the limitations period. The court
pointed to Mr. Lucas’ acknowledgment that he had told his
manager in 1999 that he was the victim of discrimination
but had decided not to file a legal claim. Second, the court
determined that Mr. Lucas was transferred away from Blatz
in 1997 and did not have any contact with him until 2001.
The district court next addressed Mr. Lucas’ claims that he
was disciplined in a discriminatory manner. The district
10 No. 03-1575
court found that Mr. Lucas could not come forward with
evidence that similarly situated non-African-American
employees were treated less severely. The court first ad-
dressed Mr. Lucas’ discipline for returning late from lunch;
according to the court, the record indicated that Escorcia
wrote up both Mr. Lucas and Lucas’ Hispanic partner,
Quintana, for returning late. The court then addressed the
January 18 train incident and related discipline. It found
that Mr. Lucas had failed to come forward with any evi-
dence that another CTA employee had filed a false police
report against a fellow employee, but had not been pun-
ished. Finally, the court dismissed Mr. Lucas’ contention
that he was subject to improper discipline after refusing to
obey a supervisor’s order. The court found that Mr. Lucas
had called the direction of his superior “stupid and idiotic”;
however, Mr. Lucas had failed to offer evidence of another
employee who had engaged in similar conduct without
being subject to discharge. The court therefore granted
CTA’s motion for summary judgment.
Finally, the district court addressed, and ultimately
granted, the CTA’s motion to strike the allegations that Mr.
Lucas’ supervisor, Escorcia, regularly demeaned African-
American employees or discriminated against Mr. Lucas.
The court found that Mr. Lucas “provided no support for
his general statements as to such comments, such as time,
place, and who was present.” R.37 at 9. Accordingly, the
court could not assess whether the statements fell within the
statute of limitations period or not. The court struck Mr.
Lucas’ “statements of uncontested facts with regard to
Escorcia’s alleged comments for lack of foundation.” Id.II
DISCUSSION
We review the district court’s grant of summary judgment
de novo, “viewing all of the facts and drawing all rea-
No. 03-1575 11
sonable inferences therefrom in favor of” Mr. Lucas, the
non-moving party. Franzoni v. Hartmarx Corp., 300 F.3d 767,
771 (7th Cir.); see Hilt-Dyson v. City of Chicago, 282 F.3d 456,
462 (7th Cir.), cert. denied, 537 U.S. 820 (2002). Summary
judgment should be granted only when the “pleadings,
depositions, 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). The decision of the district court to strike several
factual allegations because they were without foundation or
support is an evidentiary ruling that is reviewed under a
deferential abuse of discretion standard even on a motion
for summary judgment. See Bradley v. Work, 154 F.3d 704,
708-09 (7th Cir. 1998); Eisenstadt v. Centel Corp., 113 F.3d 738,
744 (7th Cir. 1997).
We first turn to whether the 1997 claims are barred by the
statute of limitations and then address the remaining clams.
A. 1997 Claims
“Section 2000e-5(e)(1) requires that a Title VII plaintiff file
a charge with the Equal Employment Opportunity Commis-
sion (EEOC) either 180 or 300 days ‘after the alleged unlaw-
ful employment practice occurred.’ ” Nat’l R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 104-05 (2002) (citing 42 U.S.C.
§ 2000e-5); see Hardin v. S.C. Johnson & Son, Inc., 167 F.3d
340, 344 (7th Cir. 1999); Russell v. Delco Remy Div. of Gen.
Motors Corp., 51 F.3d 746, 750 (7th Cir. 1995). Mr. Lucas filed
his first charge of discrimination with the EEOC on Febru-
ary 1, 2001. Accordingly, the CTA contends that any claim
before April 1, 2000 (300 days before Mr. Lucas’ first EEOC
charge) is time-barred unless Mr. Lucas can demonstrate an
12 No. 03-1575
4
exception to this limitations period. Mr. Lucas offers two
theories to avoid this result and to reach claims prior to
April of 2000.
1. Equitable Estoppel
Mr. Lucas first contends that the CTA’s secret rejection of
the initial discrimination finding equitably estops the CTA
from employing the statute of limitations as a defense. Mr.
Lucas explains that he relied upon the CTA’s communica-
tions and its finding of cause for discrimination. He asserts
that the CTA claimed it investigated and resolved the dis-
crimination claims but then allowed higher management to
disregard the findings regarding his claim. Mr. Lucas char-
acterizes this review process as “nothing but a deliberate,
misleading illusion to employees.” Appellant’s Br. at 18.
According to Mr. Lucas, CTA management’s disregard of
the initial internal finding of discrimination justifies the
application of equitable estoppel.
a. legal framework
Equitable estoppel will operate as a bar to the defense of
statute of limitations if “the defendant t[ook] active steps to
prevent the plaintiff from suing in time, such as by hiding
evidence or promising not to plead the statute of limita-
tions.” Thelen v. Marc’s Big Boy Corp., 64 F.3d 264, 267 (7th
Cir. 1995) (internal citations omitted); see Soiginer v. Am. Bd.
of Plastic Surgery, 92 F.3d 547, 554 (7th Cir. 1996); Cada v.
4
Mr. Lucas concedes that, if this court does not accept his
equitable estoppel or continuing violation arguments, he is
limited to recovering for only those actions that occurred after
April 1, 2000.
No. 03-1575 13
Baxter Healthcare Corp., 920 F.2d 446, 451 (7th Cir. 1990).
However, Mr. Lucas does not allege that the CTA somehow
prevented him from suing or that it promised not to plead
the limitations as a defense. He only contends that he would
have filed his claim if the CTA had not misled him into
thinking the internal review would remedy the situation.
Mr. Lucas’ hope that internal review would resolve his
complaint in a manner he desired is not the type of claim
that equitable estoppel is designed to address.
Our resolution of Mr. Lucas’ claim is guided by the deci-
sion of the Supreme Court in Delaware State College v. Ricks,
449 U.S. 250 (1980), and our subsequent case law interpret-
ing Ricks. See Lever v. Northwestern Univ., 979 F.2d 552,
556 (7th Cir. 1992) (noting that to treat the opportunities
of internal review as a source of equitable estoppel would
reverse the Court’s conclusion in Ricks); Soignier, 92 F.3d
at 554. In Ricks, the Court reiterated that the limitations
period begins to run when the discrimination occurs. It
further determined that the “pendency of a grievance, or
some other method of collateral review of an employment
decision does not toll the running of the limitations peri-
ods.” Ricks, 449 U.S. at 261. The existence of these internal
procedures, the Court explained, does “not obscure the
principle that limitations periods normally commence when
the” discriminatory act occurs. Id.In Lever v. Northwestern University, the plaintiff attempted
to pursue claims outside the 300-day limitations period by
characterizing the internal review process as a “snare[ ] for
the unwary” that kept her from filing with the EEOC in
time. Lever, 979 F.2d at 556. The defendant university
offered many channels of internal review through which a
professor could attempt to persuade school officials to
change their employment decisions. Lever pursued these
procedures without success and without filing a charge with
14 No. 03-1575
5
the EEOC within the limitations period. We rejected Lever’s
claim that these multiple and varied opportunities for
internal review were the type of deception that could
support equitable estoppel. See Lever, 979 F.2d at 556(“Excessive kindness in providing many and varied oppor-
tunities for internal review is not the sort of deception that
supports equitable estoppel.”). We noted that “[t]o treat
such opportunities as a source of equitable estoppel would
reverse the Court’s conclusion in Ricks . . . that appeals and
requests for reconsideration do not permit delay.” Id.We held similarly in Soignier v. American Board of Plastic
Surgery. In that case, the plaintiff alleged that his internal
review was delayed until the last day of the month in which
he could file an EEOC charge and that his employer only
explained the internal review process without informing
him of the option of filing a lawsuit. Soignier, 92 F.3d at 554.
This court held that neither act supported equitable
estoppel. Id. Specifically, with respect to the contention that
internal appeals should toll the statute of limitations, we
determined that permitting internal review to delay the
statute of limitations would be contrary to Ricks:
An employee’s pursuit of an internal grievance proce-
dure does not affect the date on which his claim ac-
crued. Unlike an EEOC investigation . . . , internal
appeals are not part of the . . . statutory procedure and
do not toll the time for filing suit. . . . His internal
5
Lever was an assistant professor who was notified by the Dean
of the College that she would not be recommended for promo-
tion. The dean then subsequently received further evidence and
reviewed his initial decision several times. The dean did not
reverse his decision, and an internal panel agreed to hear Lever’s
appeal of the dean’s decision. As a result, Lever delayed filing her
complaint.
No. 03-1575 15
appeal was only an added forum—an opportunity to
get two bites at the apple.
Id. Internal review was not, therefore, an act that implicated
equitable estoppel.
b. application
As we have stated, to invoke equitable estoppel, the
plaintiff must demonstrate that the defendant took “active
steps to prevent the plaintiff from suing in time.” Cada, 920
F.2d at 450-51. Our decisions clearly demonstrate that
merely providing internal review, as in the present situa-
tion, is not the type of active step that warrants the appli-
cation of equitable estoppel. Mr. Lucas chose to trust that
the internal review process would resolve his complaint to
his satisfaction without following through to see that the
desired result was actually achieved. His lack of satisfaction
does not equate to an affirmative concealment on the part of
the CTA.
That the CTA’s actions do not warrant application of
equitable estoppel finds further support in the correspon-
dence between the parties. The only action the CTA took
was to inform Mr. Lucas the internal investigation sup-
ported a finding of cause on Mr. Lucas’ race discrimination
and retaliation claims against Blatz and Schriks. The letter
sent by the CTA stated that “the evidence supported a
finding of race discrimination and retaliation” and that the
“Affirmative Action Unit will make various recommen-
dations to the Vice President of Engineering and
Construction.” R.28-1, Ex.1. Contrary to hiding or destroy-
ing evidence, the CTA stated that the evidence supported a
claim. Further, the CTA only promised to make recommenda-
tions to the Vice President of Engineering. It appears
uncontested that the CTA did just that. The evidence
16 No. 03-1575
indicates that the CTA Vice President disagreed with the
investigation and decided not to discipline Blatz or Schriks.
At no time did the CTA hide evidence helpful to Mr. Lucas’
discrimination claim; the CTA only informed Mr. Lucas of
their findings in his favor and that they would make
“recommendations” to management. The letter actually
alerted Mr. Lucas to his potentially meritorious claim and
did not amount to active steps preventing a plaintiff from
filing a claim within the limitations period.
Finally, Mr. Lucas asserts that the CTA’s failure to inform
him that the findings had been reversed by management
qualifies as an act that implicates the doctrine of equitable
estoppel. Mr. Lucas explains that he did not learn that the
CTA disregarded the findings of the investigation until May
28, 2002. He therefore contends that he did not learn of his
injury until this time. The proper focus, however, is when
Mr. Lucas discovered the discriminatory act that violated the
applicable statute and not when Mr. Lucas discovered some
other act that was not itself the subject of a violation. See
Ricks, 449 U.S. at 258 (“[T]he proper focus is upon the time
of the discriminatory acts, not upon the time at which the
consequences of the acts became most painful.” (quoting
Abramson v. Univ. of Hawaii, 594 F.2d 202, 209 (9th Cir. 1979)
6
(emphasis added))). As we have explained, “[a]n em-
ployer’s refusal to undo a discriminatory decision is not a
fresh act of discrimination.” Lever, 979 F.2d at 552. The fact
that the CTA disregarded the initial finding of cause upon
review is not alleged to be a discriminatory violation of Title
6
In Delaware State College v. Ricks, 449 U.S. 250 (1980), the dis-
criminatory act was the denial of tenure and the Court held that
the subsequent lawful termination should not be the starting
point for the statute of limitations. Id. at 257-58; Chardon v.
Fernandez, 454 U.S. 6, 7-8 (1981) (per curiam).
No. 03-1575 17
VII, but the alleged discriminatory act occurred, and was
discovered, in 1997 before Mr. Lucas even filed his internal
complaint. Mr. Lucas’ equitable estoppel argument fails,
and we now turn to whether the continuing violation
doctrine will save his otherwise time-barred claims.
2. Continuing Violation
Mr. Lucas next contends that his 1997 Title VII claims
should be treated as a single continuing violation. He ex-
plains that “it would have been unreasonable for Mr. Lucas
to sue given the EEO Department’s findings. Mr. Lucas was
told the racial discrimination had been resolved.”
Appellant’s Br. at 19.
a. case law
In National Railroad Passenger Corp. v. Morgan, the Supreme
Court explained when a plaintiff may rely on the continuing
violation doctrine to recover for discriminatory acts that fall
outside the 300-day limitations period. The doctrine oper-
ates differently according to the type of discriminatory act
alleged—-“discrete” discriminatory acts or acts contributing
to a hostile work environment. Morgan, 536 U.S. at 114-15.
With respect to the first category—“discrete” acts—each act
“starts a new clock for filing charges,” and the clock starts
on the date that the act “occurred.” Id. at 113. Any discrete
discriminatory acts that fall outside the statute of limitations
are time-barred even though they may relate to other
discrete acts that fall within the statute of limitations. See id.
at 112-13. Similarly, timely filed discrete acts cannot save
discrete acts that are related but not timely filed. See id. at
112 (“[D]iscrete acts that fall within the statutory time
period do not make timely acts that fall outside the time
18 No. 03-1575
period.”). The Court provided further guidance with respect
to application of the continuing violation doctrine by giving
specific examples of discrete acts “such as termination,
failure to promote, denial of transfer, or refusal to hire.”
Id. at 114. The Court noted that these acts “are easy to
identify” because “[e]ach incident of discrimination and
each retaliatory adverse employment decision constitutes a
separate actionable ‘unlawful employment practice.’ ” Id.However, as noted above, the Court in Morgan distin-
guished “discrete” acts from a second category of acts, those
contributing to a hostile work environment. The Court
explained that the “very nature” of hostile work environ-
ment claims involves “repeated conduct” that “may not be
actionable on its own.” Id. at 115. Rather, “[s]uch claims are
based on the cumulative effect of individual acts.” Id. In
contrast to discrete acts of discrimination,
[i]t does not matter, for purposes of the statute, that
some of the component acts of the hostile work environ-
ment fall outside the statutory time period. Provided
that an act contributing to the claim occurs within the
filing period, the entire time period of the hostile
environment may be considered by a court for the
purposes of determining liability.
Id. at 117; see also Hildebrandt v. Illinois Dept. of Nat. Res., 347
F.3d 1014, 1027 (7th Cir. 2003). The Court reasoned that the
“incidents constituting a hostile work environment are part
of one unlawful employment practice.” Morgan, 536 U.S. at
118.
b. discrete acts
Applying the framework set forth in Morgan to Mr. Lucas’
claims, we believe that at least some of the allegedly
No. 03-1575 19
discriminatory acts identified by Mr. Lucas are “discrete”
acts, and therefore claims based on these acts cannot be
rendered timely by application of the continuing violation
doctrine. For instance, Mr. Lucas’ claim that, in 1997, Blatz
sent him home without pay in retaliation for filing his in-
ternal grievance is a discrete act. Because it occurred prior
to April 1, 2000, 300 days prior to Mr. Lucas’ filing, it is not
actionable. Other discrete acts that were actionable standing
alone were the CTA’s decision to suspend Mr. Lucas for one
day after he refused Escorcia’s order to enter the track and
his twenty-two-day suspension in January 2001. These
discrete acts fell within the limitations period and are
addressed separately below.
c. hostile environment
In addition to discrete acts, Mr. Lucas also maintains that
he endured hostile harassment from 1997 forward. We set
forth the incidents that allegedly form a hostile environment
claim, keeping in mind the Court’s instruction in Morgan
that our task “is to determine whether the acts about which
an employee complains are part of the same actionable
hostile work environment practice.” Id. at 120. If we con-
clude that they are part of the same hostile work environ-
ment practice, then, we must determine “whether any act
falls within the statutory period.” Id. Without a hostile act
within the limitations period, we cannot consider compo-
nent hostile acts that occurred outside the limitations
period. See id.We are hindered in our efforts in assessing Mr. Lucas’
claim, however, by his failure to point to the specific actions
that he believes contributed to a hostile work environment
claim. In addressing the continuing violation doctrine, Mr.
Lucas only submits that “[i]t would have been unreasonable
20 No. 03-1575
for Lucas to sue given the EEO Department’s findings.
Lucas was told the racial discrimination had been resolved.”
Appellant’s Br. at 19. This laconic contention does not
demonstrate a hostile work environment. We therefore look
to the remainder of Mr. Lucas’ brief to assess whether he
may have a hostile work environment claim that merits the
inclusion of otherwise barred actions. However, even there,
Mr. Lucas makes only two references to his hostile work
environment claim. The first is based on his assertion that
“Blatz had previously retaliated against Lucas in October of
1997” and that the Affirmative Action Unit found cause for
discrimination but failed to discipline Blatz. Appellant’s Br.
at 28. Mr. Lucas therefore concluded that “a jury could
reasonably find that Blatz retaliated, discriminated and
maintained a hostile work environment against Lucas on
Jan[.] 18, 2002.” Id. Mr. Lucas also contends that on June 29,
2001, “[t]he CTA’s discipline of Mr. Lucas for speaking up
to challenge Escorcia’s . . . order to violate CTA safety rules
was a clear example of racial discrimination and is an aspect
of Mr. Lucas’ hostile work environment.” Id. at 30.
Although Mr. Lucas’ brief attempt to invoke the principles
of the continuing violation doctrine well might warrant the
7
application of forfeiture principles, even a charitable review
of the entire record reveals that the continuing violation
doctrine is inapplicable. The record reveals that Mr. Lucas
asserted in his statement of uncontested facts before the
district court that, when he addressed Blatz as “Sir,” Blatz
would respond to Mr. Lucas as “asshole.” R.27 ¶¶ 1-3. Mr.
Lucas also offered testimony of an experienced employee
who said Blatz treated African-Americans with disrespect
7
See United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991);
United States v. Giovannetti, 919 F.2d 1223, 1230 (7th Cir. 1990).
No. 03-1575 21
and, consequently, the work environment was hostile. Mr.
Lucas further contended that Blatz allowed him to work on
the Tie Inserter/Extractor machine only two times despite
Mr. Lucas’ high test score. Finally, Mr. Lucas maintains that,
in 1997, Blatz wrote on a railroad tie that “Lucas is a dumb
nigger.” R.27 ¶ 29. However, the acts set forth above, which
all occurred outside the limitations period, cannot be
considered unless Mr. Lucas can point to an act that is part
of the same hostile work environment and that falls within
the limitations period.
Mr. Lucas attempts to fulfill this requirement by pointing
to various actions that occurred after 1997. However, many
of these incidents are nothing more than undated, unspecific
assertions. First, Mr. Lucas asserts that Escorcia used racial
slurs and that “racial slurs were commonly used in the
workplace.” Appellant’s Br. at 14. Mr. Lucas also offered
deposition testimony from a co-worker who asserted that
Escorcia treated African-Americans “more harshly than non
African-Americans.” Id. Mr. Lucas also claims (1) that
African-Americans were asked to change the rail ties more
frequently; (2) that Escorcia wrote an African-American
employee up for his first time being thirty minutes late to
work while other non-African-Americans were not written
up their first time; (3) that Escorcia ordered an African-
American employee, McGee, to enter a tunnel without a
flashlight, a dangerous undertaking with the electrified,
high-voltage rail; and (4) that Escorcia finally gave McGee
an inadequate flashlight of lower intensity than the flash-
lights given to non-African-Americans.
Although the above actions could possibly support Mr.
Lucas’ hostile environment claim, there must be evidence in
the record from which a trier of fact could conclude that the
acts were committed after April 1, 2000, within the lim-
itations period. First, we address Escorcia’s comments and
racial slurs.
22 No. 03-1575
The evidence concerning Escorcia’s actions was the subject
of the CTA’s motion to strike, which was granted by the
district court. The district court explicitly held that Mr.
Lucas failed to provide support for his general allegations
against Escorcia. The court specifically noted that the
allegations did not contain the time, place of the actions, nor
did the allegations specify who was present. Therefore, the
court could not determine whether Escorcia’s comments
occurred within the limitations period. The court accord-
ingly granted the CTA’s motion to strike Mr. Lucas’ general
allegations of Escorcia’s racial statements. As we previously
noted, we review the decision of the district court to strike
such allegations for an abuse of discretion. See Bradley v.
Work, 154 F.3d 704, 708-09 (7th Cir. 1998); Eisenstadt v. Centel
Corp., 113 F.3d 738, 744 (7th Cir. 1997). However, because
Mr. Lucas offers no argument as to why the district court’s
decision was erroneous, he has waived any argument as to
8
Escorcia’s comments.
However, assuming arguendo that Mr. Lucas has not
waived his objection to this decision, the district court did
not abuse its discretion in excluding Escorcia’s statements.
Mr. Lucas proffered his affidavit that stated Escorcia treated
African-Americans “more harshly.” He asserts that African-
Americans were asked to change rail ties more frequently,
8
The district court granted, in part, the defendant’s motion to
strike, but was less than precise in stating what it had stricken.
R.37 at 9. The court referred to Mr. Lucas’ allegations that
Escorcia regularly demeaned African-Americans. The court
granted the plaintiff’s motion “to strike Lucas[’] additional
statements of uncontested facts with regard to Escorcia’s alleged
comments for lack of foundation.” Id. The court apparently struck
all the statements allegedly made by Escorcia that were not
supported by time or other detail.
No. 03-1575 23
work longer sections of the track and were written up for
reasons that non-African-Americans were not. See Appel-
lant’s Br. at 14-15. Mr. Lucas does not set forth any of the
times, dates or places which led to these conclusions. We
repeatedly have held that conclusory statements, not
grounded in specific facts, are not sufficient to avoid
summary judgment. See Albiero v. City of Kankakee, 246 F.3d
927, 933 (7th Cir. 2001). “Rule 56 demands something more
specific than the bald assertion of the general truth of a
particular matter, rather it requires affidavits that cite spe-
cific concrete facts establishing the existence of truth of the
matter asserted.” Drake v. Minnesota Min. & Mfg. Co., 134
9
F.3d 878, 887 (7th Cir. 1998) (citations omitted). Conse-
quently, without specific instances of support, we cannot
consider Mr. Lucas’ assertions in support of his hostile work
environment claim.
Excluding the unsupported claims of racially deroga-
tory statements by Escorcia, we are left with only discrete
9
In Drake v. Minnesota Mining & Manufacturing Co., the plaintiff
offered an affidavit statement that every time the plaintiff or
another African-American employee complained about an
employee who was white, the employer would not investigate
the allegations against white employees. We determined that this
was “exactly the type of conclusory allegations that Rule 56
counsels should be disregarded.” 134 F.3d 878, 887 (7th Cir. 1998).
Likewise, conclusory allegations that African-Americans had to
do more work and received the tougher assignments cannot
support a claim of harassment.
24 No. 03-1575
10
acts and Mr. Lucas’ encounter with Blatz in January 2001
on the commuter train. With regard to the train incident
with Blatz, we accept as true Mr. Lucas’ version that Blatz
yelled at and physically grabbed him. These actions on
January 18, however, were not connected to any 1997 hostile
work environment. The altercation in 2001 occurred long
after 1997 with no incidents during the intervening years.
We believe that this chance meeting over three years later
stretches the application of a continuing violation theory
beyond any workable limit; it simply cannot be considered
part of the same hostile environment practice. Blatz was no
longer Mr. Lucas’ supervisor and had not supervised Lucas
since 1997.
We have stated that “[t]he concept of cumulation suggests
a critical limiting principle. Acts . . . so discrete in time or
circumstances that they do not reinforce each other cannot
reasonably be linked together into a single chain, a single
course of conduct, to defeat the statute of limitations.”
Tinner v. United Ins. Co. of Am., 308 F.3d 697, 708 (7th
Cir. 2002) (quoting Galloway v. Gen. Motors Serv. Parts
Operations, 78 F.3d 1164, 1166 (7th Cir. 1996), and noting that
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002)
abrogated Galloway on other grounds). In Tinner, for ex-
10
These discrete acts previously mentioned involve Mr. Lucas’
suspensions. Specifically, Machara suspended Mr. Lucas for filing
a false report after the January 2001 train incident with Blatz. Mr.
Lucas also was disciplined after visiting the credit exchange,
returning late from lunch, and in June 2001 the CTA suspended
him after he had disobeyed and called an order from Escorcia
“stupid and idiotic.” R.20 ¶ 109; R.26 ¶ 109.
No. 03-1575 25
ample, we reviewed our precedent and determined that an
eight-year gap between discriminatory incidents could not
constitute a single hostile work environment claim. Tinner
in turn relied upon Selan v. Kiley, 969 F.2d 560, 566-67 (7th
Cir. 1992). In this earlier case, we “held that a two-year gap
between alleged discriminatory acts could not support a
continuing violation claim.” Tinner, 308 F.3d at 708-09. This
court in Selan held that the almost two-year separation was
“considerable” and “weigh[ed] heavily against finding a
continuing violation.” Selan, 969 F.2d at 567.
The gap between alleged hostile acts in Mr. Lucas’ claim,
exceeding three years, was even greater than the two-year
gap in Selan. Although a brief passage of time will not de-
feat automatically the application of the continuing vio-
lation doctrine, we must conclude that the approximate
three-year gap between the discriminatory acts alleged, with
the last act occurring entirely by happenstance, was not part
of the same hostile work environment. Thus, Mr. Lucas puts
forth no evidence of a discriminatory act during the limita-
tions period that contributed to a hostile work environment.
11
Accordingly, the 1997 claims are time-barred.
11
Although we do not consider it necessary to decide this point,
the defendant also contends that any hostile acts in 1997 were
waived by Mr. Lucas. Its argument is not without merit. The
Court in Morgan expressly left open the possibility of an em-
ployer’s use of equitable defenses. The record confirms that Mr.
Lucas admitted that as of August 1997 he believed that Blatz’s
use of racial slurs created a hostile working environment. Mr.
Lucas further acknowledged that he told his manager in 1999 that
(continued...)
26 No. 03-1575
B. Claims Filed Within the Limitations Period
Now that we have determined that the 1997 claims are
time-barred, we turn to Mr. Lucas’ discrete claims of dis-
crimination that fell within the limitations period in order
to determine whether he has set forth a prima facie case of
discrimination.
(...continued)
he believed his work environment in 1997 was “‘hostile,’ but that
he did not wish to pursue his legal case against CTA any
further.” R.20 ¶ 49; R.26 ¶ 49.
No. 03-1575 27
12
Mr. Lucas may provide direct evidence of discrimination
or he can rely on the indirect burden-shifting analysis of
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See
Stone v. City of Indianapolis Pub. Utils. Div., 281 F.3d 640, 644
(7th Cir. 2002), cert. denied, 123 S. Ct. 79 (2003). Ordinarily,
to establish a prima facie case of discriminatory discipline
based on indirect evidence Mr. Lucas must demonstrate that
(1) he is a member of a protected class; (2) he was perform-
ing his job satisfactorily; (3) he suffered adverse employ-
ment action; and (4) the employer treated similarly situated
12
Mr. Lucas alleges statements by CTA’s counsel calling Mr. Lucas
a derogatory name and asserting that the CTA was “out to get
Lucas” are direct evidence of discrimination. The statements were
allegedly made by CTA counsel, Eric Mennel, prior to a deposition
for the present litigation. The CTA claims that the affiant, Garza,
stated to Mennel that Mr. Lucas was out to “get money” from his
suit. The attorney then responded that the CTA would not give
Lucas any money and would go to trial if necessary and “get ‘em.”
R.31 ¶ 160. The CTA explains the comment was referring to
winning the case Mr. Lucas brought. See Appellee’s Br. at 35; R.31
¶ 160. Mr. Lucas states only that Mennel “referred to Lucas as an
asshole and told Garza that, ‘The CTA was out to get Lucas.’ ”
Appellant’s Br. at 14; R.28-2, Ex.40, Garza Aff. ¶¶ 4, 5.
Even if these statements were made as asserted, it is not direct
evidence of discrimination. Direct evidence of discrimination is
evidence that, without reference or explanation, ties the illicit
motive with the adverse employment action. In the present case,
the statements were not made by a decision maker nor did they
concern an adverse employment action. See Williams v. Seniff, 342
F.3d 774, 790 (7th Cir. 2003); Fyfe v. City of Ft. Wayne, 241 F.3d 597,
602 (7th Cir. 2001). Accordingly, neither statement is direct
evidence of discrimination, although they may be probative
indirect evidence of discrimination.
28 No. 03-1575
employees outside of the protected class more favorably. See
Ajayi v. Aramark Bus. Servs., Inc., 336 F.3d 520, 532 (7th Cir.
2003); Peters v. Renaissance Hotel Operating Co., 307 F.3d 535,
546 (7th Cir. 2002). To the extent that the plaintiff claims that
he was subject to disparate punishment, as Mr. Lucas does
here, the second and fourth prongs of McDonnell Douglas
merge. See Grayson v. O’Neill, 308 F.3d 808, 817 (7th Cir.
2002); Flores v. Preferred Technical Group, 182 F.3d 512, 515
(7th Cir. 1999). In those situations, there is no question that
the employee failed to meet his employer’s expectations.
Instead, the plaintiff must establish that he received
dissimilar—and more harsh—punishment than that re-
ceived by a similarly situated employee who was outside
the protected class. See Grayson, 308 F.3d at 817; Flores, 182
F.3d at 515.
If Mr. Lucas meets his initial burden, the burden of
production shifts to the CTA to articulate a legitimate non-
discriminatory reason for its action. If the CTA comes
forward with a legitimate, non-discriminatory reason for its
action, the burden shifts back to Mr. Lucas to demonstrate
the reason offered was pretextual. See Peters, 307 F.3d at 545.
Mr. Lucas alleges several acts of discrimination, and we
now address each in turn.
1. Train Incident Suspension
The facts are undisputed that Machara conducted an
investigation and concluded that Mr. Lucas filed a false
report that led to Blatz’s arrest and charges of battery. As a
result of this finding, Machara recommended that Mr. Lucas
be terminated. However, the Employee Relations Depart-
ment recommended that Mr. Lucas only be suspended.
Machara accepted this recommendation and converted the
No. 03-1575 29
discharge into a suspension. Id. Machara suspended Mr.
Lucas for twenty-two days as a result of the January 18
13
incident.
Mr. Lucas is a member of a protected class and suffered
an adverse employment action, suspension of twenty-two
days. Therefore, the critical element remaining for Mr. Lucas
to prove is that similarly situated employees received less
severe punishment. Mr. Lucas does not identify any other
employee who falsified a report or document, nor does Mr.
Lucas identify any employee who had lied. Despite the
admission that Machara made the suspension decision, Mr.
Lucas maintains that Blatz made the decision to suspend
him as part of an ongoing effort of discrimination. Mr.
Lucas contends that Blatz and Machara did not suspend
him for lying and filing a false report, but suspended him
for stopping the CTA train and remaining quiet. See Appel-
14
lant’s Br. at 8-9, 16, 20, 23. Mr. Lucas claimed that Blatz
13
Mr. Lucas asserts he was suspended for 24 days. R.20 ¶ 96; R.26
¶ 96.
14
As support, Mr. Lucas offers two pieces of evidence on appeal.
Mr. Lucas first cites to a deposition transcript where Blatz re-
counted the events of January 18, 2001. Blatz testified that he told
Mr. Lucas he was out of service. Mr. Lucas also cites a letter from
Machara explaining the suspension to a union representative.
Machara explained in the letter that “[o]n Thursday, January 18,
2001, Mr. Lucas was taken out of service by Senior Roadmaster
James Blatz for insubordination. . . . Mr. Lucas made several
allegations of physical violence against him by Mr. Blatz and
requested police and medical attention.” R.28-2, Ex.48. This letter
goes on to explain that “[o]n Friday, January 19, 2001[,] during a
hearing at the West Shops, Mr. Lucas submitted an Unusual
Occurrence Report accusing Mr. Blatz of assaulting him. . . .
Because of the severity of the situation, Mr. Lucas was taken out
(continued...)
30 No. 03-1575
initially told him not to stop the trains and asked whether
he understood this statement. Mr. Lucas responded by
stating he would no longer stop the trains, but subsequently
remained quiet and refused to answer Blatz’s questions. Mr.
Lucas asserts that Blatz continued to yell, but he remained
silent in order to diffuse the situation. However, the state-
ment of uncontested facts indicates that Machara deter-
mined Mr. Lucas gave a false report. Machara originally
recommended termination, but, after consulting with the
Employee Relations Department, Machara agreed to convert
the termination into a suspension. Additionally, in his
response to the CTA’s statement of uncontested material
facts, Mr. Lucas does not deny that Machara suspended him
but only denies that his suspension was for twenty-two
days when it was actually for twenty-four. The CTA stated
that “Machara suspended Plaintiff for 22 days as a result of
the incident that occurred on January 18, 2001.” R.20 ¶ 96.
Mr. Lucas responded: “Denies. The suspension was for 24
(...continued)
of service pending the results of a full investigation.” Id. The
investigation was completed on January 26 and a hearing was
scheduled for January 31.
Even this evidence, offered in an attempt to avoid his previ-
ously noted admission that Machara made the decision to fire
him based on a false report, does not demonstrate that Blatz
suspended Mr. Lucas. Taken in context, the evidence offered
demonstrates Blatz may have initiated the process by taking Mr.
Lucas “out of service” that day. However, on the following day,
Mr. Lucas submitted his report on the events, and it is undis-
puted that Machara then took Mr. Lucas out of service pending
an investigation into the assault charges. This evidence does not
alter the fact that Mr. Lucas has admitted Machara suspended
him based on the finding that he had filed false reports about the
incident.
No. 03-1575 31
days.” R.26 ¶ 96. Further, in his appellate brief, Mr. Lucas
contends that “[t]he Court wholly ignored Blatz’s acts of
discrimination and retaliation alleged in the complaint and
focused instead on Machara’s decision to suspend Mr. Lucas
15
at the hearing.” Appellant’s Br. at 8 (emphasis added).
As we have demonstrated at some length, the defendant
asserts and Mr. Lucas admits that Machara suspended him
because of Mr. Lucas’ filing a false report and not merely
16
because Mr. Lucas had stopped the train. Mr. Lucas’ fail-
ure to put forth any similarly situated employee is fatal to
his claim.
Nor can Mr. Lucas argue that Blatz’s racial animus was
the basis for Machara’s conclusion that Mr. Lucas lied in the
report he filed. Generally speaking, comments by a non-
decision maker do not suffice as evidence of discriminatory
intent. See Williams v. Seniff, 342 F.3d 774, 790 (7th Cir. 2003)
15
At oral argument counsel for Mr. Lucas also asserted that “at
the time of the decision that Machara made,” Machara did not
have enough information to determine the report was false.
16
Even assuming Mr. Lucas’ asserted reasons for the suspen-
sion—stopping a train between stations and remaining silent—
were accepted, his discrimination claim is still untenable in light
of the fact that Mr. Lucas never points to any specific person
outside the protected class who also stopped a train or committed
a similar rules infraction and did not get suspended or repri-
manded. He does provide general statements that no one had
been suspended for this conduct. These statements neither inform
us as to whether these individuals were members of a protected
class, nor describe the situations in which the trains were
stopped. His conclusory statements do not satisfy his burden to
put forth a similarly situated employee who is directly compara-
ble in all respects and was treated more favorably. See Grayson v.
O’Neill, 308 F.3d 808, 818-19 (7th Cir. 2002).
32 No. 03-1575
(quoting Gorence v. Eagle Foods Ctrs., Inc., 242 F.3d 759, 762
(7th Cir. 2001)). However, we have cautioned that “[i]t is
different when the decision makers themselves, or those
who provide input into the decision, express such feelings
(1) around the time of, and (2) in reference to, the adverse
employment action complained of.” Hunt v. City
of Markham, 219 F.3d 649, 652 (7th Cir. 2000). If a person
with racial animus “provides input” into the decision
making process then, in some circumstances, “it may be
possible to infer that the decision makers were influenced
by those feelings in making their decision.” Id. at 652-53.
Blatz did provide indirect input into the decision to sus-
pend Mr. Lucas. He was one of the witnesses interviewed
by Machara during the investigation. There are no facts,
however, to support the conclusion that his allegedly racial
animus influenced Machara’s conclusion that Mr. Lucas had
lied about the event. Blatz’s statement was only one element
of a comprehensive investigation into the event and into the
veracity of Mr. Lucas’ allegations. Tijan and Machara
conducted an investigation of several witnesses; Blatz was
not the only witness interviewed. Machara participated in
interviews of Blatz, Quintana, who was Mr. Lucas’ partner
and boarded the train with him that day, and another CTA
employee, Carlos Flores, who also witnessed part of the
events. Not only was Blatz’s participation limited to provid-
ing a statement, but the parties also agree that Machara and
the investigators were unaware of Mr. Lucas’ allegations
stemming from the 1997 incidents. Relying on these wit-
nesses and each party’s statement, Machara and Tijan’s
report indicated, contrary to Mr. Lucas’ statements, that
Blatz only had put his hand upon Mr. Lucas’ shoulder.
Neither believed, after talking with the witnesses, that there
was any hostility, and, therefore, both signed the report
finding Mr. Lucas lied about the incident.
No. 03-1575 33
In sum, Mr. Lucas’ submissions do not indicate the CTA’s
proffered reason for Mr. Lucas’ discipline—that he filed a
false report against Blatz—was a lie. Mr. Lucas, himself,
admits that the false report was the reason Machara sus-
pended Mr. Lucas. Mr. Lucas cannot show that the CTA’s
reason was “a dishonest explanation, a lie, rather than an
oddity or an error.” Kulumani v. Blue Cross Blue Shield Ass’n,
224 F.3d 681, 685 (7th Cir. 2000). Mr. Lucas may believe that
his suspension was incorrect, ill-advised, or undesirable; he
has not established, however, that the CTA did not honestly
believe that Mr. Lucas filed a false report that justified his
suspension. See Wade v. Lerner New York, Inc., 243 F.3d 319,
323 (7th Cir. 2001). Therefore, Mr. Lucas cannot rely on the
January 2001 incident to establish discrimination.
2. Credit Exchange
Mr. Lucas next contends that he was the only employee
disciplined for going to the credit exchange during the
hours of 7-9 a.m. In explaining what discipline he received,
Mr. Lucas merely asserts that he was “disciplined,”
Appellant’s Br. at 12-13, and “written up,” id. at 29-30. In
response to the CTA’s argument that Mr. Lucas failed to
assert any adverse employment action, Mr. Lucas only
elaborates in his reply brief that he “was issued a caution
and instruct[ed] by Escorcia to create a paper trail” after
going to the credit union. Appellant’s Reply Br. at 15. How-
ever, at no point does Mr. Lucas indicate what the tangible
consequences of the “write up” and “discipline” were.
Mr. Lucas fails to allege adequately any adverse employ-
ment action resulting from this “discipline.” Our past deci-
sions indicate that a negative evaluation or admonishment
by an employer does not rise to the level of an adverse
employment act. See Sweeney v. West, 149 F.3d 550, 556-57
34 No. 03-1575
(7th Cir. 1998) (“[N]egative performance evaluations,
standing alone, cannot constitute an adverse employment
action.”); Smart v. Ball State Univ., 89 F.3d 437, 442 (7th Cir.
1996) (same). There must be some tangible job consequence
accompanying the reprimand to rise to the level of a mater-
ial adverse employment action; otherwise every reprimand
or attempt to counsel an employee could form the basis
of a federal suit. See Sweeny, 149 F.3d at 557. Mr. Lucas
failed to prove such a tangible consequence existed. Because
Mr. Lucas failed to put forth the appropriate facts to dem-
onstrate an adverse employment act regarding the disci-
pline he received for visiting the credit exchange, his
discrimination claim must fail.
3. Returning Late from Lunch
Mr. Lucas next asserts that he “and his partner Jose
Quintana were singled out for written warnings for return-
ing late from lunch when co-workers were returning at the
same time or later and they were not written up.”
Appellant’s Br. at 13. Mr. Lucas continues to explain that
“the evidence is that Francisco Garcia also returned late
17
from lunch at the same time as Lucas and Quintana but he
was not written up by Escorcia.” Id. Mr. Lucas concludes
this argument by stating that the district court “ignored this
evidence of different, adverse treatment of African-Ameri-
cans.” Id.Even assuming these allegations are true, Mr. Lucas fails
to meet his prima facie burden. First, Mr. Lucas failed to
17
In his complaint, Mr. Lucas contends that he was not late
returning from lunch, R.1 ¶ 42, but on appeal he asserts that he
was singled out for returning late when others also were late,
Appellant’s Br. at 13 & 30.
No. 03-1575 35
explain in his opening brief that he suffered a tangible em-
18
ployment action as a result of his tardiness. Second, Mr.
Lucas failed to demonstrate that he was singled out for
discipline on the basis of his race. Mr. Lucas identifies three
people who, he asserts, were similarly situated in returning
late from lunch. Mr. Lucas is an African-American,
Quintana, who was also disciplined, is a Hispanic, and the
third person, a person not disciplined and allegedly given
better treatment, was Francisco Garcia. We are not told
whether Francisco Garcia is also a member of a protected
19
class; this fact is apparently not in the record. It was
incumbent upon Mr. Lucas to demonstrate that other sim-
ilarly situated employees who were not members of the
protected class were treated more favorably. See Peters, 307
F.3d at 546. All Mr. Lucas has demonstrated is that he and
his Hispanic partner were both disciplined in a similar
fashion and another individual of unknown race and
ethnicity was not. Mr. Lucas, therefore, has not met his bur-
den with respect to this element.
In his complaint, Mr. Lucas also alleged that his discipline
for returning late from lunch was retaliation for filing his
18
Although, Mr. Lucas did contend that he was docked pay
several times in his pleadings to the district court, see R.1 ¶ 42;
R.28-1, Ex.22 at 15; R.27 ¶ 125, he only asserted he was “written
up” for the lunch incident in his opening appellate brief. It was
not until his reply brief that Mr. Lucas asserted he was actually
“docked 1/2 hour of pay.” Appellant’s Reply Br. at 13.
19
See Fed. R. App. P. 28(a)(9)(A) (The argument must contain
“appellant’s contentions and the reasons for them, with citations
to the authorities and parts of the record on which the appellant
relies.”). “A skeletal ‘argument,’ really nothing more than an as-
sertion, does not preserve a claim.” United States v. Dunkel, 927
F.2d 955, 956 (7th Cir. 1991) (internal citations omitted).
36 No. 03-1575
discrimination claim. R.1 ¶ 43. However, he does not
forward this argument on appeal. Although this argument
is subject to waiver principles, we also dismiss Mr. Lucas’
retaliation argument for similar reasons as his discrimina-
tion claim. To establish a prima facie case for retaliation
under the indirect burden-shifting method, a plaintiff must
demonstrate that “after filing the charge only he, and not
any similarly situated employee who did not file a charge,
was subjected to an adverse employment action even
though he was performing his job in a satisfactory manner.”
Stone v. City of Indianapolis Pub. Utils. Div., 281 F.3d 640, 644
(7th Cir. 2002), cert. denied, 123 S. Ct. 79 (2003); see Hilt-Dyson
v. City of Chicago, 282 F.3d 456, 465 (7th Cir.), cert. denied, 537
20
U.S. 820 (2002). Mr. Lucas admits that his partner,
Quintana, who presumably did not file a discrimination
complaint, also received similar discipline. Stone instructs,
however, that the plaintiff has to demonstrate that “he, and
not any similarly situated employee who did not file a
charge, was subjected to an adverse employment action.”
Stone, 281 F.3d at 644. Mr. Lucas did not satisfy the require-
ment set forth in Stone. Because Mr. Lucas waived his
retaliation claim, and because he failed to meet the stan-
dards set forth in Stone to show that he was singled out for
adverse employment action, his claim of retaliation was
properly dismissed on summary judgment.
20
Cf. EEOC v. Kohler Co., 335 F.3d 766, 772 (8th Cir. 2003).
To recover for retaliation some courts have employed a test that
requires the plaintiff to show “(1) he engaged in statutorily pro-
tected activity; (2) he suffered an adverse employment action; and
(3) there was a causal connection between the adverse em-
ployment action and the protected activity.” Id.No. 03-1575 37
4. Refusing the Order to Enter the Track
Mr. Lucas finally contends that he was singled out for
discipline after refusing a June 29, 2001 order issued by
Escorcia to remove the pushcart from the tracks during rush
hour. Mr. Lucas maintains that the order was against CTA
rules and that three other trackmen also refused to comply
but were not similarly disciplined. The CTA asserts that Mr.
Lucas was suspended for one day due to “disrespect to
management” after Mr. Lucas told Escorcia the order was
“stupid and idiotic.” Mr. Lucas admits that he told Escorcia
that his order was “stupid and idiotic” and that no other
employee made a similar remark but nevertheless maintains
that he was singled out for discipline on the basis of race.
R.20 ¶ 109; R.26 ¶ 109; Appellant’s Reply Br. at 14.
We previously have stated that
in disciplinary cases—in which a plaintiff claims that he
was disciplined by his employer more harshly than a
similarly situated employee based on some prohibited
reason—a plaintiff must show that he is similarly
situated with respect to performance, qualifications, and
conduct. This normally entails a showing that the two
employees 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 distinguish their conduct or the
employer’s treatment of them.
Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617-18 (7th Cir.
2000) (internal citations omitted); see Peters v. Renaissance
Hotel Operating Co., 307 F.3d 535, 546 (7th Cir. 2002);
Patterson v. Avery Dennison Corp., 281 F.3d 676, 680 (7th
Cir. 2002). It is uncontested that Mr. Lucas was the only
employee who made a comment disparaging the supervi-
sor’s order after refusing to comply. Mr. Lucas provides no
38 No. 03-1575
similarly situated employee who engaged in the same or
similar type of conduct. Mr. Lucas has failed to meet his
burden with respect to this allegedly discriminatory action.
Conclusion
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-14-04