In the

United States Court of Appeals

For the Seventh Circuit

Nos. 09-1347, 09-2177

TRENT L. CHAPIN,

Plaintiff-Appellee,

v.

FORT-ROHR MOTORS, INC.,

Defendant-Appellant.

Appeals from the United States District Court 

for the Northern District of Indiana, Fort Wayne Division.

No. 1:06-CV-00034—Theresa L. Springmann, Judge.

ARGUED DECEMBER 9, 2009—DECIDED SEPTEMBER 3, 2010

Before FLAUM, WILLIAMS, and SYKES, Circuit Judges.

WILLIAMS, Circuit Judge. Trent L. Chapin was employed by the Bob Rohrman Auto Group as a car salesman. Following his termination at one Rohrman-owned

dealership, Chapin filed a complaint with the Equal

Employment Opportunity Commission, alleging that

the manager discriminated against white Christians

in favor of Pakistani Muslims. His new employer, a

second Rohrman-owned dealership, heard about this
2 Nos. 09-1347, 09-2177

Although the parties refer to Mid-States as “Acura” and Fort- 1

Rohr as “Toyota” in their briefs, we will refer to them by

their legal names, Mid-States and Fort-Rohr, when it is necessary to distinguish between the two.

and threatened to fire Chapin unless the complaint was

withdrawn. After this threat was made, Chapin left

work and never returned, despite Fort-Rohr Motors,

Inc.’s (“Fort-Rohr”) repeated efforts to have him return.

Chapin sued both dealerships, alleging discrimination because of his race and retaliation under Title VII

of the Civil Rights Act of 1964. After a jury trial, the

jury returned a favorable verdict on Chapin’s retaliation claim. Fort-Rohr appeals, arguing that it was

entitled to judgment as a matter of law because Chapin

failed to show that Fort-Rohr actually or constructively

discharged Chapin in retaliation for his complaint.

We agree that Fort-Rohr was entitled to judgment as a

matter of law because Chapin did not produce sufficient evidence to support an actual or constructive

discharge. Therefore, we reverse the judgment of the

district court.

I. BACKGROUND

Bob Rohrman owns multiple car dealerships in

Indiana and Illinois, including several in the Fort

Wayne, Indiana area. One of these is Mid-States Motors,

Inc. (“Mid-States”), and another is Fort-Rohr Motors, Inc.

(“Fort-Rohr”). The two dealerships are separate corpora1

tions with separate management and employees.
Nos. 09-1347, 09-2177 3

Chapin had been employed at various Rohrman-owned

dealerships in his many years as a salesman, working

specifically for Larry Kruse on and off at various dealerships beginning in the early 1990s. At some point,

Chapin left Indiana and spent a few years elsewhere,

returning to the Fort Wayne area in the spring of 2004.

Again, as he had done many times in the past, Kruse

offered him a position in the spring of 2004 as a used car

sales manager at Mid-States. Nadeem Baig, a Pakistani

Muslim, became General Manager of the Mid-States

dealership in April 2004, taking over this position from

Kruse. On April 30, 2004, Baig called Chapin into a

meeting and terminated Chapin’s employment. During

trial, Baig testified that as a new manager, he made

the decision to replace Chapin because Chapin failed to

be available, to train the sales force, and had failures

in production. Chapin claimed he was terminated

because he was a white Christian and Baig wished to

replace the current employees with Pakistani Muslims.

In June 2004, Rohrman opened its Fort-Rohr dealership

under the management of Kruse, who recruited and

hired Chapin to work as a used car sales manager.

Chapin worked without incident from July 2004 until

February 2005. On February 10, 2005, Chapin filed a

charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”), alleging that

the Mid-States dealership had discriminated against him

on the basis of his race. Chapin alleged that Baig was

systematically replacing white Christians with Pakistani

Muslims. Mid-States’s management informed Kruse

about Chapin’s EEOC complaint. 
4 Nos. 09-1347, 09-2177

Kruse asked Chapin to meet with him on February 28,

2005. Also present at this meeting were Sales Manager

Shane Housholder and Human Resources Manager

Luke Luther. Chapin surreptitiously brought a tape

recorder to this meeting and secretly recorded it.

During this meeting, which only lasted a minute, Kruse

raised his voice and was very upset. The recorded conversation, in transcript form, went as follows:

KRUSE: I need to ask you, what is your mentality in filing the EEOC claim against

Bob Rohrman?

CHAPIN: What do you mean?

KRUSE: What do I mean?

CHAPIN: It is actually against Nadeem, is that

correct?

KRUSE: Who does Nadeem work for?

CHAPIN: Rohrman.

KRUSE: Who do you work for?

CHAPIN: Rohrman.

KRUSE: What the hell is your mentality? Did

you have a brain fart or what?

CHAPIN: I suppose. I didn’t think that - 

KRUSE: Do you want to work here?

CHAPIN: Yes, I do.

KRUSE: If I wanted to work here on the floor, I

wouldn’t file suit against him.
Nos. 09-1347, 09-2177 5

CHAPIN: I think that I was misfairly treated

down there.

KRUSE: It had nothing to do—he brought his

own people in. It had nothing to do

with anything with you. If you want to

file a claim, you need to work somewhere else, because you are not performing here. I can let you go for nonperformance.

CHAPIN: No, I want to work here.

KRUSE: Then you need to fucking reverse the

claim right away, and it needs to be

done today.

CHAPIN: Okay. I have to go down there.

KRUSE: Go do it right now. You aren’t going to

work here until you get it reversed.

Period.

CHAPIN: Okay.

KRUSE: You decide if you are working here or

not.

CHAPIN: All right. I am going to do it. I want to

work here.

KRUSE: Go get it handled.

Following this conversation, Chapin did not withdraw

his EEOC complaint, and he did not return to work.

Kruse testified that he made multiple calls attempting

to reach Chapin after this meeting. A woman who
6 Nos. 09-1347, 09-2177

lived with Chapin also testified that she had taken a

message from Kruse wishing to speak to Chapin, and

that she had delivered the message. Chapin denied receiving any phone calls or messages. He stated that

he called Fort-Rohr to send him his February commission check but that Fort-Rohr refused to mail it until

he came in for a meeting.

On March 4, 2005, Chapin met again with Kruse,

Housholder and Luther, and again, secretly taped

the meeting. As compared to the first tape-recording,

this tape-recording was considerably less clear and the

transcript is not verbatim. A transcribed version of the

relevant parts of the conversation states:

KRUSE: What is going on?

. . . 

CHAPIN: You told me, don’t come back unless I

reversed it. That is your exact words.

You made it very clear.

KRUSE: I didn’t tell you that.

CHAPIN: Yes, you did. You said, until I can clear

that, I didn’t have a job.

KRUSE: —I didn’t fire you, if that is what—

CHAPIN: I took it as me being fired. You said I

didn’t have a job.

KRUSE: I didn’t fire you.

. . . 

KRUSE: I suggest that you go get dressed and

report back to work.
Nos. 09-1347, 09-2177 7

. . .

CHAPIN: I was under the impression that you

didn’t want me up here.

KRUSE: That is not the—.

CHAPIN: That was the total impression. You

said I was going to get fired for production.

KRUSE: I didn’t say anything about getting

fired.

CHAPIN: You said, “I could fire you.”

KRUSE: I said I could fire you. I didn’t say I

was firing you.

. . . 

KRUSE: So, my question is, do you want to

work here?

CHAPIN: I do. I need a little time off.

KRUSE: Time off?

CHAPIN: I am in the middle of a painting project, and I want to get it done.

Following this conversation, Fort-Rohr sent several

letters to Chapin. One dated March 8, 2005 states that

“you clearly understood that you are still employed

with us and expected to be at work” and that “you

would be able to return to work.” Another letter dated

March 14, 2005 states that “[d]espite numerous attempts

to contact you by mail as well as by phone, we have

failed to receive any response from you regarding your
8 Nos. 09-1347, 09-2177

intentions to continue your employment with us.”

Chapin also acknowledges receiving a letter dated

March 18, 2005 from Luther indicating that he still had

a position at Fort-Rohr. Chapin never formally resigned

his position or returned to work. 

Chapin filed this lawsuit, alleging racial discrimination

and retaliation in violation of Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e, et seq., and a jury returned

a verdict in favor of Mid-States on Chapin’s reverse

discrimination claim. It also found for Chapin on his

retaliation claim, awarding him $100,000 in compensatory damages and $1,000,000 in punitive damages.

After the trial, the district court denied Fort-Rohr’s

motion for judgment as a matter of law, and Fort-Rohr

appealed.

II. ANALYSIS

We review de novo the district court’s denial of a

motion for judgment as a matter of law under Rule 50(b).

Fed. R. Civ. P. 50(b); Tate v. Executive Mgmt. Servs., Inc.,

546 F.3d 528, 531 (7th Cir. 2008). We construe the facts

in favor of the party who prevailed before the jury, and

we will only overturn a jury verdict for the plaintiff if

we conclude that no rational jury could have found for

the plaintiff. Tate, 546 F.3d at 532.

At trial, Chapin presented two alternatives to the jury

as to how Fort-Rohr retaliated against him for filing his

EEOC complaint—that Fort-Rohr either actually or constructively terminated his employment. The jury was
Nos. 09-1347, 09-2177 9

instructed that Chapin could succeed on his claim

only if he proved by a preponderance of the evidence

that Fort-Rohr “either directly or constructively discharged him for filing a charge of discrimination.” FortRohr argues that it was entitled to judgment as a matter

of law because Chapin did not establish that Fort-Rohr

actually or constructively discharged Chapin in retaliation for making his EEOC complaint of discrimination.

Title VII prohibits an employer from taking an adverse

employment action against an employee simply because

he has filed an unfair employment charge. 42 U.S.C.

§ 2000e-3(a); Burlington Northern & Santa Fe Ry. Co. v.

White, 548 U.S. 53, 62 (2006). The antiretaliation provision

prohibits employers from taking actions that would

be likely to deter victims of discrimination from complaining to the EEOC. Stephens v. Erickson, 569 F.3d 779, 786

(7th Cir. 2009). Under the direct method of proof, to

establish a prima facie case of retaliation, the plaintiff

was must show that: (1) he engaged in a statutorily protected activity; (2) he suffered a materially adverse

action by his employer; and (3) a causal link between

the two. Id. While Chapin proceeds under the direct

method of proof, a materially adverse action is required

in the indirect method of proof as well. Id.

A. Chapin Was Not Actually Terminated

The parties agree that Chapin engaged in a protected

activity because he filed a charge of discrimination with

the EEOC. See 42 U.S.C. § 2000e-3(a). The primary issue

in this appeal is whether any adverse employment
10 Nos. 09-1347, 09-2177

action was taken against Chapin because of his complaint. “The antiretaliation provision protects an individual not from all retaliation, but from retaliation

that produces an injury or harm.” Burlington Northern,

548 U.S. at 67. To determine if an action is “materially

adverse,” we ask whether the action would dissuade

a reasonable worker from making or supporting a

charge of discrimination. Id. at 68; Nagle v. Vill. of Calumet

Park, 554 F.3d 1106, 1119 (7th Cir. 2009). In determining

the significance of any given act of retaliation, the test

is objective but “context matters” and we look at the

“constellation of surrounding circumstances, expectations, and relationships which are not fully captured by

a simple recitation of the words used . . . .” Burlington

Northern, 548 U.S. at 69; Fischer v. Avanade, Inc., 519

F.3d 393, 401 (7th Cir. 2008).

As an initial matter, Chapin claims he was actually

fired on February 28, 2005, and that this firing establishes an adverse action. The quintessential example of

an adverse action is a tangible employment action, such

as the termination of the employment relationship. See

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998);

Crady v. Liberty Nat. Bank & Trust Co. of Ind., 993 F.2d 132,

136 (7th Cir. 1993). Chapin argues that the jury could

have reasonably concluded that, because he did not

withdraw his EEOC complaint after his meeting with

Kruse, Chapin was then immediately and automatically

fired. If Chapin had filed suit on February 28 after his

meeting with Kruse, and all we had to analyze was

his first tape-recorded conversation with Kruse, Chapin

could plausibly argue that it was a question of fact
Nos. 09-1347, 09-2177 11

whether he was actually fired. But here, where several

exchanges occurred after February 28, we would need to

look at the February 28 events in a vacuum and ignore

all subsequent actions of the parties to conclude that

there was an actual termination.

The sequence of events was as follows: Kruse became

aware that Chapin filed an EEOC charge, and he asked

Chapin to meet with him. During this short, heated

meeting, Kruse asked him why he would file an EEOC

claim and then stated that if Chapin wanted to work on

the floor, he would need to withdraw the claim. Chapin

responded by saying that he did want to work there and

he would withdraw his claim. Chapin left work that

day, but did not withdraw his claim.

Chapin claims that he was automatically terminated

as soon as he left work on February 28 because the withdrawal of the EEOC claim was a precondition to

him keeping his job. However, the actions of Fort-Rohr

when Chapin did not return to work, show that an automatic termination never occurred. Kruse and FortRohr did not consider Chapin to be fired and Kruse

actively and continually encouraged Chapin to return to

work. Most importantly, Chapin himself testified that

his understanding from the February 28 meeting was

that “I assumed Kruse would fire me if I didn’t reverse

the claim, which I did not,” and not that he was

terminated at the meeting itself. Furthermore, Chapin

returned to Fort-Rohr on March 4, 2005 to pick up his

commission check because Fort-Rohr refused to mail it

to him without having him come in for a meeting.
12 Nos. 09-1347, 09-2177

During this meeting, Chapin acknowledged that he was

still employed by Fort-Rohr and claimed to want to

return to work once he was done with a painting project. Kruse never fired Chapin, and so an actual termination from Fort-Rohr cannot be the basis of Chapin’s

retaliation claim. Based on the record and evidence produced at trial, no rational juror could have found that

Kruse actually fired Chapin on February 28.

B. No Constructive Discharge

In the alternative, Chapin claimed that he was constructively discharged from his employment, and that

this constructive discharge provides the basis of his

retaliation claim. A constructive discharge constitutes

an adverse employment action. Pa. State Police v. Suders,

542 U.S. 129, 147 (2004). It occurs when the plaintiff

shows that he was forced to resign because his working

conditions, from the standpoint of the reasonable employee, had become unbearable. Id. at 147; Roby v. CWI,

Inc., 579 F.3d 779, 785 (7th Cir. 2009); see also EEOC v.

Univ. of Chi. Hosps., 276 F.3d 326, 331 (7th Cir. 2002).

Our circuit has recognized two different forms of constructive discharge, but neither dispenses with the requirement that the work environment had become intolerable. See Pa. State Police, 542 U.S. at 141 (“Under

the constructive discharge doctrine, an employee’s reasonable decision to resign because of unendurable

working conditions is assimilated to a formal discharge

for remedial purposes.”); Cigan v. Chippewa Falls Sch.

Dist., 388 F.3d 331, 333 (7th Cir. 2004); Univ. of Chi. Hosps.,

276 F.3d at 332.
Nos. 09-1347, 09-2177 13

In the first form, an employee resigns due to alleged

discriminatory harassment. Such cases require a plaintiff to show working conditions even more egregious

than that required for a hostile work environment claim

because employees are generally expected to remain

employed while seeking redress, Roby, 579 F.3d at 785,

thereby allowing an employer to address a situation

before it causes the employee to quit. Boumehdi v. Plastag

Holdings, LLC, 489 F.3d 781, 789-90 (7th Cir. 2007). For

example, we have found constructive discharge when

there is a threat to a plaintiff’s personal safety. See, e.g.,

Porter v. Erie Foods, Int’l, Inc., 576 F.3d 629, 640 (7th Cir.

2009) (claim for constructive discharge possible where

harassment includes repeated use of noose and implied

threats of physical violence); Taylor v. W. & S. Life Ins. Co.,

966 F.2d 1188, 1198-99 (7th Cir. 1992) (constructive discharge where supervisor brandished a firearm and held

it to the plaintiff’s head). Chapin can have no success

under this form of constructive discharge, as he has not

suggested he has suffered any harassment. One threat

and raised voices would not rise to the level of a hostile

work environment, and so it also cannot be the basis

for Chapin’s constructive discharge claim. See Tutman v.

WBBM-TV, Inc./CBS, Inc., 209 F.3d 1044, 1050 (7th Cir.

2000).

The second form of constructive discharge we have

recognized occurs “[w]hen an employer acts in a

manner so as to have communicated to a reasonable

employee that she will be terminated. . . .” Univ. of Chi.

Hosps., 276 F.3d at 332. In this situation, if the plaintiff employee resigns, the employer’s conduct may
14 Nos. 09-1347, 09-2177

amount to constructive discharge. Id. This form of constructive discharge, however, does not eliminate the

need for the plaintiff to show that his working conditions had become intolerable. Id.; Cigan, 388 F.3d at 333.

And a working condition does not become intolerable

or unbearable merely because a “prospect of discharge

lurks in the background.” Cigan, 388 F.3d at 333.

In EEOC v. University of Chicago Hospitals, we ruled

that a claim of constructive discharge could move

forward to trial where an employee, Victoria Leyva,

arrived at work to find her belongings packed and her

office being used as storage. 267 F.3d at 332. In that

case, the packing of belongings came after a supervising employee was fired for refusing to fire Leyva,

Leyva received suddenly negative performance evaluations, and she was told a minor mistake was “the

last straw.” Id. at 329-30. We similarly found a constructive discharge in another case, where it was undisputed

by both parties that had the employee not resigned he

would have been terminated immediately. Kodish v.

Oakbrook Terrace Fire Prot. Dist., 604 F.3d 490, 502 (7th

Cir. 2010). In contrast, we found there was no constructive discharge where an employee was asked derisively

about her motives for filing an EEOC claim, the employer

required the employee to transfer offices or move, and

only offered one unattractive transfer option, among

other claims. Fischer, 519 F.3d at 410. We also observed

that the employee may have been able to survive summary judgment if she stayed in her transferred position

long enough to show that it truly was a dead-end path

towards termination. Id. at 411.
Nos. 09-1347, 09-2177 15

Here, even construing all the evidence in Chapin’s

favor, no reasonable employee standing in Chapin’s

shoes would believe that had he not resigned, he would

have been immediately fired. Unlike in University of

Chicago Hospitals, there is nothing to indicate that a firing

here was an imminent and inevitable event. This is not

a situation where the “handwriting was on the wall” and

the plaintiff quit “just ahead of fall of the axe.” Lindale

v. Tokheim Corp., 145 F.3d 953, 956 (7th Cir. 1998).

Instead, Chapin quit after the axe had been put away. On

February 28, 2005, Chapin may have had ample reason

to believe his termination to be imminent—Kruse threatened to fire him and very clearly tied that threat to

his EEOC complaint. But, Chapin had no reason to continue to believe that after his subsequent and multiple

contacts with Fort-Rohr. Fort-Rohr made efforts to

have Chapin return to work, explained that Chapin’s

employment was not terminated, and expressed a desire

to keep Chapin on as an employee. At that point,

Chapin’s decision not to return to work was his own:

he had a painting project to finish. Cf. Levenstein v.

Salafsky, 414 F.3d 767, 774 (7th Cir. 2005) (stating that a

person who leaves employment because of a distaste or

impatience for investigation or termination procedures

voluntarily resigns and is not compelled to resign).

In fact, Chapin never formally resigned and indeed just

never returned to work. If Chapin had returned to work,

without having withdrawn the EEOC charge, perhaps

Kruse would have fired him. Or, his supervisors or coworkers may have constantly harassed him to the point

where his safety was at risk. See Boumehdi, 489 F.3d at 790.
16 Nos. 09-1347, 09-2177

Kruse may also have done nothing. Any of these possibilities would require speculation on our part, as

would a finding that the workplace would have become

intolerable if Chapin had resumed his position, because

Chapin unilaterally gave up his position. Chapin himself asks us to speculate when he argues that “constructive discharge would have occurred given the setup

created by Kruse under the pretext of nonperformance.”

Appellee’s Br. at 8 (emphasis added). In Cigan, we emphasized that it is not a court’s position to speculate on

“what ifs,” stating that “[t]he only way to know how

matters will turn out is to let the process run its course.

Litigation to determine what would have happened . . . is

a poor substitute for the actual results of real deliberation within the employer’s hierarchy.” Cigan, 388 F.3d at

333-34. This is particularly true in the constructive discharge context, where we recognize that the burden

remains on the employee to show why he would have

had to “quit immediately, before he found the other job;

why, in other words, his duty to mitigate damages

did not require him to remain.” Lindale, 145 F.3d at 956;

see Boumehdi, 489 F.3d at 790.

To find that one singular threat, followed by multiple

reassurances that the employee has retained his job, was

a constructive discharge is to lower the threshold

of the “intolerable” workplace so far as to be unrecognizable. A reasonable person in Chapin’s position would

not have felt that he had no choice but to resign. No

rational jury could have concluded that Fort-Rohr constructively discharged Chapin. Because there was no

adverse action under either of the theories Chapin pre-
Nos. 09-1347, 09-2177 17

We briefly note that we do not foreclose the possibility that a 2

plaintiff could argue that a singular threat of termination

had the impact of dissuading a reasonable worker from supporting a discrimination complaint, which might act as the

necessary adverse action underlying his retaliation claim.

See, e.g., Pantoja v. Am. NTN Bearing Mfg., 495 F.3d 840, 849

(7th Cir. 2007) (allowing warnings of termination or other

adverse actions to proceed to jury); Beckel v. Wal-Mart Assocs.,

301 F.3d 621, 624 (7th Cir. 2002) (suggesting that a threat to

fire would be an actionable “anticipatory retaliation.”). But see

Dunn v. Washington County Hosp., 429 F.3d 689, 690 (7th Cir.

2005) (stating that one unfulfilled threat could not be

actionable and finding that “nasty” requests to withdraw a

complaint did not cause injury). Neither here or at the

district court has either party explored this possibility, and

we decline to do so as well. See Ocean Atlantic Dev. Corp. v.

Aurora Christian Schs., Inc., 322 F.3d 983, 1005 (7th Cir. 2003).

9-3-10

sented to the jury, Chapin’s retaliation claim under

Title VII fails and we reverse the district court’s denial

of Fort-Rohr’s motion for judgment as a matter of law.2

III. CONCLUSION

We REVERSE the jury verdict and REMAND the case to

the district court to enter judgment as a matter of law

for Fort-Rohr Motors, Inc. Because we reverse the

jury verdict, we do not reach the remaining issues in

the appeal.