# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Submitted November 2 , 201 8 * Decided November 1 4 , 201 8

Before

DIANE P. WOOD , Chief Judge

FRANK H. EASTERBROOK , Circuit Judge
AMY J. ST. EVE , Circuit Judge

No. 17

- 3372
CARLOS VASQUEZ , Plaintiff

- Appellant ,

v
. CATERPILLAR LOGISTICS, INC. , and EA STAFFING SERVICE, INC., Defendants

- Appellees

. Appeal from the United States District Court for the Northern District of Indiana , Fort Wayne Division

.
No. 1:15

- CV

- 398
Theresa L. Springmann , Chief Judge

.

O R D E R
Carlos Vasquez, an African

- American man, was 5 3 years old when EA Staffing Services, Inc. , a placement service, assigned him as a warehouse worker for Caterpillar Logistics, Inc

. Caterpillar fired him after four months . He sued EA Staffing and Caterpillar for race and sex discrimination under Title VII of the 1964 Civil Rights Act , 42 U.S.C. § 2000e

- 2 , for race discrimination under 42 U.S.C

. § 1981 , and for age

* We have agreed to decide the case without oral argument because the briefs and
re cord adequately present the facts and legal arguments, and oral argument would not significantly aid the court. See F ED

. R. A PP

. P. 34(a)(2)(C)

. NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1No. 1 7

- 3372 Page 2

discrimination under the Age Discrimination in Employment Act , 29 U.S.C. § 621

. The district court entered summary judgment for Caterpillar and EA Staffing

. Because Vasquez supplies no evidence suggesting that forbidden reasons motivated his firing,

w e affirm the judgment.
We recite the evidence in the light most favorable to Vasquez. Bellaver v. Quanex Corp. , 200 F.3d 485, 491

– 92 (7th Cir. 2000). EA Staffing temporarily assigned Vasquez in October 2014 to one of Caterpillar’s warehouse facilities

. Eventually , his job was to prepare orders for delivery by gathering machine parts ( e.g. , ignition coils, air filters, brackets) into kits to be shipped to another Caterpillar facility for assembly

. H e was required to stamp his name on each filled order so that Caterpillar could track errors, known as “mispicks

. ”
After Caterpillar rated Vasquez’s performance from December 2014 t hrough February 2015 (while he worked in the order

- preparer position) as subpar , it fired him

. Caterpillar saw many problems with his work. He had one of the worst mispick rate s in the warehouse

. A t least once he did not stamp an order , causing him to fail an au dit , and his supervisors found him argumentative. Also , Caterpillar maintains , Vasquez did not wear steel

- toed shoes to work on February 17, contrary to Caterpillar’s safety policy. After reviewing these problems, Vasquez’s supervisor, Luis Araiza , and his manager, Tom Ropp, deci ded to fire him . Araiza recounted Vasquez’s infractions in an email to EA Staffing dated February 17. EA Staffing then told Vasquez of his discharge

. In a
memo that EA Staffing dated February 16 (but which EA S taffing says was incorrectly dated because of a clerical error ), it reported that Vasquez had returned (“offboarded”) all of his workplace credentials from Caterpillar

. Before his discharge, Vasquez experienced two incidents that he believes show that race and ag e discrimination prompted his dismissal. First, he asserts that Araiza grew distant from him after Araiza unsuccessfully attempted to speak Spanish to Vasquez (who does not speak Spanish ). Vazquez concedes, though, that Araiza never made a ny racially derog atory comment s . Second, Vasquez says that a coworker once told him that he would probably remember doo

- wop (a genre of music) because he was so old.

This suit followed the discharge

. As relevant to this appeal , Vasquez c ontend s that Araiza’s “distant” beh avior after he learn ed that Vasquez did not speak Spanish and the coworker’s comment about his age show that he was fired for discriminatory
reasons. Caterpillar and EA Staffing moved for summary judgment, arguing that Vasquez was fired for poor performance. Vasquez responded (with no evidence ) thatNo. 1 7

- 3372 Page 3

the records of his mispicks were forged to set him up for discharge

. He also asserted that he always wore his steel

- toed shoes while employed . He not ed that EA Staffing’s
memo about “offboarding ” w as dated February 16, the day before he supposedly failed to wear steel

- toed shoes . So, he concluded, the memo ’s date showed that the defendants fired him , not beca use of shoes, but in part to obtain a tax saving s. The district court granted Caterpillar and EA Staffing’ s motions for summary judgment. It reasoned that Vasquez failed to provide sufficient evidence that unlawful discrimination motivated the discharge. Vasquez’s appellate brief is difficult to follow. Both Caterpillar and EA Staffing argue that its incoherence is grounds for affirmance

. See F ED

. R. A PP

. P. 28( a); Mathis

v. N.Y. Life Ins. Co. , 133 F.3d 546, 548 (7th Cir. 1998) (holding that even pro se li tigants must file a legal argument and supporting authority). But Vasquez is pro se . Liberally construing his brief , see Erickson v. Pardus , 551 U.S. 89, 94 (2007) , we discern an attack on the d efendants’ rationale that Vasquez was fired for poor performan ce. In evaluating Vasquez’s appeal, w e consider whether the evidence as a whole would permit a reasonable finding that his race, age, or sex motivated his dismissal

. Ortiz v. Werner Enters., Inc. , 834 F.3d 760, 765 (7th Cir. 2016) ; Johnson v. Kleppers, Inc. , 726 F.3d 910, 914

– 15 (7th Cir. 2013) ; Gorence v. Eagle Food Ct r s
. , Inc. , 242 F.3d 7 5 9, 762 (7th Cir. 2001)

. A s the district court correctly noted, the record would not allow a reasonable factfinder to conclude that unlawful discrimination influenced the decision to fire Vasquez. Vasquez points to the coworker who once referred to Vasquez’s old age (in connection with doo

- wop). B ut Vasquez does not contend that th is coworker was in volved in his dismissal. So even if that comment reflected age bias, it could not support an inference that Vasquez’s dismissal was motivated by it. See Gorence , 242 F.3d at 762 . Vasquez also relies on how “distant” Araiza became after learning that Vasquez was not a Spanish speaker. But Vasquez concedes that Araiza never made any racially

- based comments, so a factfinder could only speculate on why Araiza became “distant,” a nd speculation is not a basis for finding discrimination. Springer v. Durflinger , 518 F.3d 479 , 484

– 85 (7th Cir. 2008). The absence of evidence of discrimination is enough to affirm, but we can affirm for another reason as well. Caterpillar supplied evidence that it fired him for a legitimate reason

— it believed that Vasquez was a poor performer

— and Vasquez has not furnished sufficient evidence s uggesting that Caterpillar did not believe its rationale. See 5443 Suffield Terrace , 607 F.3d 504, 510 (7th Cir. 2010); Bellaver , 200 F.3d at 491

- 92

. In particular, h e offered no evidence to support his contention that his poorNo. 1 7

- 3372 Page 4
mispic k rate was forged (let alone by someone involved in the decision to fire him ) , to counter that he failed to stamp an order, to refute that he failed an audit, or to show that he was not argumentative . More to the point, e ven if those who fired Vasquez mist akenly believed that these infractions had occurred, so long as their belief was honest, see Har t ley v. Wis. Bell, Inc. , 124 F.3d 887, 890 (7th Cir. 1997), Caterpillar’s reasons for firing him were not a pretext for discrimination. See St. Mary’s Honor Ctr . v. Hicks , 509 U.S. 502, 515

- 16 (1993) (Title VII) ; Mullin v. Temco Mach., Inc. , 732 F.3d 772, 776 (7th Cir. 2013) (ADEA). And Vasquez furnished no evidence that Caterpillar was dishonest about these infractions. Vasquez responds that because the “ offboarding ” memo from EA Staffing is dated one day before the da te that he supposedly failed to wear steel

- toed shoes , a jury could infer that the shoe rationale was a pretext

. But a pretext for what? Vasquez argues that the shoe rationale w as not only a pretext for discrimination, but a pretext for tax savings

. I f he is correct, then he has added a non

- prohibited reason to the reason for his discharge

. But we need not sort out the possibility of a mixed motive. E ven if a jury could infer that the shoe rat ionale was dishonest , Vasquez must lose. A s we have already observed , Vasquez has not supplied evidence that discrimination motivated his discharge. And beyond that fatal flaw, he has not contradicted ( except by an unsubstantiated assertion of a forgery and set up) that the many other infractions motivating his firing did occur

. T he district court’s judgment is AFFIRMED

.