In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 14-2622

ROBERT E. SMITH and

JOSEPH A. BALDI, Trustee,

Plaintiffs-Appellants,

v.

CHICAGO TRANSIT AUTHORITY,

Defendant-Appellee.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 10-cv-1585 — Sharon Johnson Coleman, Judge.

____________________

ARGUED DECEMBER 10, 2014 — DECIDED NOVEMBER 23, 2015

____________________

Before EASTERBROOK, SYKES, and HAMILTON, Circuit 

Judges.

SYKES, Circuit Judge. Robert Smith alleges that the 

Chicago Transit Authority (“the CTA”) fired him because of

his race in violation of Title VII of the Civil Rights Act of 

1964 and 42 U.S.C. § 1981. The CTA says it fired Smith because he violated its policy against sexual harassment. The 

district court granted summary judgment for the CTA, con-
2 No. 14-2622

cluding that Smith’s case failed under the direct and indirect 

methods of proof. We affirm.

I. Background

Smith, who is black, began working at the CTA in 1986. 

In the fall of 2006, he held the position of Transportation 

Manager and was assigned to the Bus Services Management 

unit, which was responsible for the movement of buses and 

monitoring bus service in the field. 

The CTA has a policy prohibiting sexual harassment, including “[u]nwelcomed sexual advances, requests for sexual 

favors, and other verbal or physical conduct of a sexual nature” when the “conduct has the ... effect of ... creating an 

intimidating, hostile or offensive work environment.” The 

CTA’s EEO Unit is tasked with investigating sexualharassment complaints brought to its attention. Operations

managers who learn of sexual-harassment allegations are

required to pass them on to the EEO Unit. Managers are instructed to collect written statements from the employees 

involved in the complaint and submit them to the EEO staff

for investigation. An EEO staff member then investigates the 

complaint and prepares a report. Based on a review of the 

investigator’s file and report, the general manager of the 

EEO Unit determines whether the accused employee violated the sexual-harassment policy. All disciplinary decisions, 

however, are made by department managers; the EEO Unit 

has no disciplinary authority.

On November 6, 2006, bus operator Marcella McCall reported that on October 28 Smith asked her to perform a 

striptease for his wife and to join him and his wife in a sexual relationship. He repeated the proposition the next day. At 
No. 14-2622 3

the time Smith was McCall’s supervisor, so she reported 

these incidents to another manager who forwarded the complaint to the EEO Unit. Pamela Beavers was the general 

manager of the unit, and she had three staff members: 

Thelma Crigler, Alenda Young, and Salvador Ramirez. 

(Beavers, Crigler, and Young are black; Ramirez is Hispanic.)

Young was assigned to investigate McCall’s report.

Young began by interviewing McCall and Robert 

McCullough, a bus supervisor who was working with 

McCall on the dates in question. Young also interviewed 

Smith, and she quickly recognized him from a prior unwelcome encounter. According to Young, on this earlier occasion 

Smith approached her for no apparent work-related reason, 

told her she “looked lonely,” and asked her to lunch. This

made her uncomfortable, but she completed the interview

anyway and then handed the matter off to Ramirez, who 

took over as lead investigator.

During Young’s interview with Smith, he told her that on 

October 28 he had allowed McCall to sit in his truck when 

she was cold, but he said there hadn’t been any sexual talk 

between them on either of the dates in question. Smith told 

Young that he thought McCall made up the sexualharassment story to cover for leaving work early on 

October 29.

Ramirez completed the investigation and prepared a report concluding that Smith had violated the CTA’s sexualharassment policy. The report included summaries of various employee interviews, including one with a second female employee who also accused Smith of inappropriate 

sexual remarks. Ramirez explained that his conclusion was
4 No. 14-2622

based on the following information: 

McCullough stated that he saw both Smith and 

McCall in the truck together for approximately 

20 minutes; McCall made a contemporaneous 

complaint regarding Smith’s unwelcome conduct; Smith’s incongruous account of the incident with McCall is contradicted by his behavior subsequent to his observance of her as a 

manager with suspicion of her misconduct. Also, Smith’s forward and aggressive approach of 

an identified EEO Officer [Young] gives example of his proclivity for inappropriate workplace behavior toward female coworkers.

Ramirez recommended that “corrective action” be taken by 

the appropriate operations unit. The report also noted that 

“Smith will be counseled by the EEO[] Unit on what actions 

would be in his best interest to prevent inappropriate actions, or claims of retaliation, in the future.” Beavers approved the report on December 18.

Responsibility for any disciplinary action fell to William 

Mooney, the vice president of bus operations at the CTA, 

who oversaw about 164 managers, including Smith. After 

receiving the report from the EEO Unit, Mooney asked 

Walter Thomas, the general manager of Bus Service Management, to investigate further. Thomas interviewed Smith 

and asked the CTA’s lawyers for advice on whether the EEO 

Unit investigation had been properly completed. (He apparently didn’t have direct access to many of the EEO Unit’s

materials or staff.) This additional investigation didn’t turn 

up anything to refute the EEO Unit’s findings, so Thomas 

and Mooney concluded that Smith had indeed violated the 
No. 14-2622 5

sexual-harassment policy. On January 24, 2007, Mooney fired 

Smith, citing (among other reasons) the violation of the 

CTA’s sexual-harassment policy.

Smith filed a charge with the Equal Employment Opportunity Commission (“EEOC”) alleging that he was fired because of his race. The EEOC investigated and issued a Right 

to Sue letter on December 10, 2009. Smith then filed a pro se 

complaint against the CTA in federal court. Smith had filed 

for bankruptcy earlier in 2009, so Joseph A. Baldi, the bankruptcy trustee, intervened in the action.

Smith eventually obtained counsel, who twice amended 

the complaint. The latest version alleges that the CTA fired 

Smith because of his race in violation of Title VII of the Civil 

Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and 42 U.S.C. 

§ 1981, and that the CTA defamed him by speaking about the 

circumstances of his discharge to the Chicago Tribune.

Following discovery, the CTA moved for summary 

judgment. The CTA argued that the defamation claim was 

time-barred. Smith didn’t contest that argument, and he says 

nothing more about this claim here, so we don’t need to address it further. Regarding the two discrimination claims, 

Smith argued that he had enough evidence to get to a jury. 

The district court disagreed, concluding that Smith’s evidence was insufficient to create a triable issue under either 

the direct or indirect methods of proving unlawful discrimination. Accordingly, the court granted the CTA’s motion.

This appeal followed.

II. Discussion

We review the district court’s order granting summary 

judgment de novo, construing the evidence and drawing all 
6 No. 14-2622

reasonable inferences in Smith’s favor. See Arizanovska v. WalMart Stores, Inc., 682 F.3d 698, 702 (7th Cir. 2012). The legal 

analysis for discrimination claims under Title VII and § 1981 

is identical, so we merge our discussion of the two claims. 

See Johnson v. Gen. Bd. of Pension & Health Benefits of United 

Methodist Church, 733 F.3d 722, 728 (7th Cir. 2013).

At the summary-judgment stage, claims of employment 

discrimination are evaluated under the “direct” method of 

proof or the “indirect” method of proof announced in

McDonnell Douglas v. Green, 411 U.S. 792 (1973), depending 

on the kind of evidence the plaintiff presents in opposition 

to the motion. The “direct” method is a bit of a misnomer: it 

simply refers to anything other than the McDonnell Douglas

indirect approach. Under the direct method of proof, the 

plaintiff can defeat summary judgment by presenting sufficient direct evidence of the employer’s discriminatory intent

or “a convincing mosaic of circumstantial evidence ... that 

point[s] directly to a discriminatory reason for the employer’s action.” Davis v. Con-Way Transp. Cent. Express, Inc., 

368 F.3d 776, 783 (7th Cir. 2004) (internal quotation marks 

omitted). Examples of relevant circumstantial evidence include “suspicious timing, ambiguous oral or written statements, or behavior toward or comments directed at other 

employees in the protected group.” Good v. Univ. of Chi. Med. 

Ctr., 673 F.3d 670, 675 (7th Cir. 2012) (internal quotation 

marks omitted).

The indirect method is a formal way of analyzing a discrimination case when a certain kind of circumstantial evidence—evidence that similarly situated employees not in the 

plaintiff’s protected class were treated better—would permit 
No. 14-2622 7

a jury to infer discriminatory intent.1 The plaintiff must first 

meet his burden of production on the familiar four-part test 

for establishing a prima facie case: (1) he is a member of a 

protected class; (2) he performed his job to his employer’s 

expectations; (3) he suffered an adverse employment action; 

and (4) one or more similarly situated individuals outside 

his protected class received better treatment. Antonetti v. Abbott Labs., 563 F.3d 587, 591 (7th Cir. 2009). If the plaintiff 

does so, the burden of production shifts to the employer to 

articulate a legitimate, nondiscriminatory reason for the adverse employment decision. Id. The burden then shifts back 

to the plaintiff to provide evidence establishing a genuine 

dispute about whether the employer’s stated reason was a 

pretext for prohibited discrimination. “Pretext means more 

than a mistake on the part of the employer; pretext means a 

lie, specifically a phony reason for some action.” Wolf v. Buss 

(Am.) Inc., 77 F.3d 914, 919 (7th Cir. 1996) (internal quotation 

marks omitted). Summary judgment for the defendant is 

appropriate if the plaintiff fails to carry his burden to establish a prima facie case or is unable to show a genuine dispute 

about whether the neutral reason advanced by the employer

was merely pretextual.

Taking a cue from some of our recent cases, Smith criticizes the direct and indirect approaches as too rigid and 

formalistic. See, e.g., Hitchcock v. Angel Corps, Inc., 718 F.3d 

 1 This is purely a tool for summary-judgment analysis. “At the trial, as 

we have explained before, the burden-shifting process came to an end, 

and the only question was whether [the defendant] presented enough 

evidence to allow a rational jury to find that she was the victim of discrimination.” Massey v. Blue Cross-Blue Shield of Ill., 226 F.3d 922, 925 (7th 

Cir. 2000).
8 No. 14-2622

733, 737 (7th Cir. 2013) (“[W]e hasten to join in the growing 

chorus of opinions in this circuit, signed onto by a majority 

of active judges, that have expressed frustration with the 

confusing ‘snarls and knots’ of this ossified direct/indirect 

paradigm, and that have suggested a more straight-forward 

analysis of whether a reasonable jury could infer prohibited 

discrimination.”); Naficy v. Ill. Dep't of Human Servs., 697 F.3d 

504, 514 (7th Cir. 2012) (similar); Good, 673 F.3d at 680 (“[T]he 

direct and indirect methods ... have become too complex, 

too rigid, and too far removed from the statutory question of 

discriminatory causation.”).

Even more recently, however, we’ve said that although 

“serious questions” have been raised about the utility of the 

established methods of proof, “litigants and courts still 

properly discuss racial discrimination claims ... using the 

language of either the direct or indirect method[s] of proof.” 

Simpson v. Beaver Dam Cmty. Hosps., Inc., 780 F.3d 784, 789–90 

(7th Cir. 2015). As long as the Supreme Court’s precedents in 

this area are still good law, we’re not authorized to abandon 

the established framework. Orton-Bell v. Indiana, 759 F.3d 

768, 773 (7th Cir. 2014) (“While all relevant direct and circumstantial evidence is considered (in its ‘totality’) in both

methods, we do indeed consider the ‘direct’ and ‘indirect’ 

methods separately when reviewing summary judgment 

because we are not authorized to abjure a framework that 

the Supreme Court has established.”) (internal quotation 

marks omitted). Indeed, the Supreme Court recently applied 

a variation of the McDonnell Douglas analysis to a claim of 

pregnancy discrimination—suggesting that the doctrine is 

here to stay. See Young v. United Parcel Serv., Inc., 135 S. Ct. 

1338, 1353 (2015).
No. 14-2622 9

So we’ll evaluate Smith’s evidence under the direct and 

indirect methods, as the district court did, recognizing of 

course that “the continued focus [is] on whether the plaintiff 

has introduced sufficient evidence to give rise to an inference of intentional discrimination.” Id. at 1355.

Generally speaking, an employer can only be liable under 

Title VII when the relevant decision-maker—here, 

Mooney—is shown to have acted with discriminatory intent. 

See Schandelmeier-Bartels v. Chi. Park Dist., 634 F.3d 372, 378–

79 (7th Cir. 2011). But there’s no evidence that Mooney was 

himself racially biased, and indeed he replaced Smith with 

another black man. Smith’s case can succeed only under the 

“cat’s paw” theory, which holds an employer liable if the 

decision-maker was manipulated by another employee acting with discriminatory intent. See, e.g., Staub v. Proctor 

Hosp., 562 U.S. 411, 422 (2011). The evidence suggests that 

Mooney fired Smith largely because of the EEO Unit’s findings on McCall’s sexual-harassment complaint, although he 

did conduct some additional investigation. Accordingly, 

we’ll assume that Smith is right that he’s entitled to a trial if 

his evidence shows that the EEO Unit tried to get him fired 

because of his race.

A. Direct Method

We begin with the direct method. Smith asserts that the 

CTA had an unwritten policy that the EEO Unit had exclusive authority to investigate sexual-harassment complaints 

but routinely violated this policy by permitting the operations departments to conduct their own investigations when 

white employees were accused of harassment. Smith posits 

that investigations by the EEO staff were more rigorous than 

those conducted by operations managers, so that by allow-
10 No. 14-2622

ing white employees to escape the EEO Unit’s scrutiny, the 

CTA intentionally discriminated against black employees. 

Smith argues that this is direct evidence of discriminatory 

intent because the EEO Unit investigated McCall’s complaint 

against him.

The record contains some evidence of a general policy 

that the EEO Unit had exclusive authority to investigate and 

resolve sexual-harassment complaints. Ramirez testified that 

the EEO Unit is the “exclusive body ... doing the investigations” of sexual-harassment complaints. Beavers said that 

although operations managers were encouraged to do their 

own interviews, the EEO Unit wouldn’t rely on those interviews and would always conduct its own investigation.

But no evidence supports Smith’s theory that the CTA 

regularly channeled investigations of white employees to the 

operations departments while keeping investigations of 

nonwhite employees under the auspices of the EEO Unit. It’s 

undisputed that the EEO Unit was understaffed in 2006–

2007, and some sexual-harassment investigations were conducted by managers in the operations department. Of the 

eight identified cases in which this occurred, however, four 

involved black employees and two involved Hispanics. A 

jury could not reasonably infer discriminatory intent from 

this evidence.

Nor is there any evidence to support Smith’s theory that 

the operations departments went easy on employees when 

they investigated in the EEO Unit’s place. And no evidence

suggests that anyone in the EEO Unit was biased against 

Smith because of his race. Smith argues that Ramirez was 

trying to protect Cesar Lovera, McCall’s boyfriend, who 

worked as a timekeeper at the CTA. Smith thinks McCall 
No. 14-2622 11

made up the sexual-harassment story as a cover for leaving 

work early on October 29 and that Lovera helped her commit time-card fraud when she recorded her work hours that 

day. This conspiracy theory lacks evidentiary support. More 

to the point, the only apparent link between Ramirez and 

Lovera is that they’re both Hispanic; Smith has no evidence 

suggesting that they harbored racial animus.

Finally, Smith points to what he thinks are failures in the 

investigative process. He claims, for example, that Young 

should have recused herself immediately rather than after 

taking his statement. He also argues that the EEO Unit

should have interviewed a witness he identified and that its

final report didn’t adequately account for certain (minor) 

inconsistencies in McCall’s story. It’s true that “[s]ignificant, 

unexplained or systematic deviations from established policies or practices” can sometimes be probative of unlawful 

discriminatory intent. Hobgood v. Ill. Gaming Bd., 731 F.3d 

635, 645 (7th Cir. 2013) (internal quotation marks omitted). 

Here, however, Smith hasn’t explained why these supposed

infirmities in the investigative process support an inference 

of discriminatory intent. Smith’s case fails under the direct 

method of proof.

B. Indirect Method

Smith’s case also fails under the indirect method of proof.

The parties haggle over whether Smith was meeting the 

CTA’s legitimate expectations: The CTA says that Smith 

wasn’t meeting expectations because he committed sexual 

harassment, while Smith says the sexual-harassment finding 

was just a pretext for discrimination. The debate doesn’t 

matter. Smith hasn’t identified a similarly situated employee 

who was accused of similar misconduct but was treated 
12 No. 14-2622

more leniently. He points to only one managerial-level employee as a comparator: David Schaefer, a white manager 

who was assigned to the same terminal and was also accused of sexually harassing other employees on several occasions. But the record contains no further information about 

Schaefer. Smith doesn’t tell us, for example, who Schaefer’s

supervisor was or what Schafer was accused of doing. We 

don’t know the results of any sexual-harassment investigation, whether he was disciplined, and if so, what discipline 

was meted out. With such significant gaps in the evidentiary 

record, Smith plainly hasn’t carried his burden of establishing a prima facie case of discrimination under the indirect 

method of proof. 

AFFIRMED.