### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 14

- 2622
R OBERT E. S MITH and J OSEPH A. B ALDI , Trustee , Plaintiffs

- Appellants ,

v.

C HICAGO T RANSIT A UTHORITY , 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

.

____________________
A RGUED D ECEMBER 10 , 2014

— D ECIDED N OVEMBER 23, 2015

____________________

Before E ASTERBROOK , S YKES , and H AMILTON , Circuit Judges

. S YKES , Circuit Judge

. Robert Smith alleges that t he 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 b ecause he violated its policy against sexual harassment. The district court gran ted summary judgme nt for the CTA
, co n-2 No. 14

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clud ing that Smith’s case failed under the direct and indir ect methods of proof . W e affirm. I. Background
Smith , who is black, began work ing at the CTA in 1986

. I n 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.

T he CTA ha s a policy prohibiting sexual harassment, i ncluding “[u]n welcomed sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual n ature” when the “conduct has the ... effect of ... creating an intimidating, hostile or offensive work environment

. ” T he CTA’s EEO Unit i s tasked with investigating sexual

harassment complaint s brought to its attention. Operations managers who learn of sexual

- harassment allegations are required to pass them on to the EEO Unit . Managers are i nstructed t o collect written statement s from the employees invo lved in the complaint and submit them t o the EEO staff for investigation

. An EEO staff member th en investigate s the complaint and prepares a report. B ased on a review of the investigator’s file and report , the general manager of the EEO Unit determin e s whe ther the accused employee viola ted the sexual

- harassment policy

. All d isciplinary decisions, however, are made by department managers ; the EEO U nit has no disciplinary authority

. On November 6, 2006, bus operator Marcella McCall r eported that on October 28 Smith asked her to perform a striptease for his wife and to join him and his wife in a sex ual relationship

. He repeated the proposition the next day

. AtNo. 14

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the time Smith was McCall’s supervisor, so she reported the se incidents to another manage r who forwarded the co mplaint to the EEO Unit. Pamela Beavers was the general manager of the u nit , and s he had three staff members : Thelma Crigler, Alenda Young, and Salvador Ramirez

. ( Beavers , Crigler , and Young are black; Ramirez i s His panic

. ) Young was assigned to investigate McCall’s report

. Young began by interviewing McCal l and Robert McCullough, a bus s upervisor who was working with McCall on the dates in question. Young also inter viewed Smith , and she quickly recognized him from a prior un we lcome encounter

. According to Young, on this earlier occasion S mith a pproached 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 t here 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 sexual

harassment story to cover for leav ing work early on Octo ber 29

. Ramirez completed the investigation and prepared a r eport concluding that Smith had violated the CTA’s sexual

harassment policy. The report included summaries of var ious employee interviews, including one with a second f emale employee who also accused Smith of inappropriate sexual remarks. Ramirez explained that his conclusion was4 No. 14

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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 co nduct; Smith’s incongr uous account of the inc ident with McCall is contradicted by his beha vior subsequent to his observance of her as a manager with suspicion of her misconduct. A lso, Smith’s forward and aggressive approach of an identified EEO Officer [Young] gives exa mple of his proclivity for inappropriate wor kplace behavior toward female coworkers.

Ramirez recommended that “correc tive action” be taken by the appropriate operations unit. The report also noted that “Smith will be counseled by the EEO [] Unit on what actions

wou ld be in his best interest to prevent inappropriate a ctions, or claims of retaliation, in the future.” Beavers a pproved the report on December 18.

R esponsibility for any disciplinary action fell to William Mooney , the vice president of bus operations at th e CTA, who oversaw about 164 managers , including Smith. After receiving the report from the EEO Unit, Mooney asked Walter Thomas, the general manager of B us S ervice M a nagement, 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 appa rently didn’t have direct access to many of the EEO Unit ’s materials or staff. ) This additional in vestigation didn’t turn up anything to refute the EEO Unit’s findings, so T homas and Mooney concluded that Smith had indeed violated theNo. 14

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sexual

- harassment policy . O n January 24, 2007 , Moone y fired Smith , citing (among other reasons) the violation of the CTA’s sexual

- harassment policy

. Smith filed a charge with the Equal Emplo yment Oppo rtunity Commission (“EEOC”) alleging that he was fired b ecause 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 ban kruptcy earlier in 2009 , so Joseph A. Baldi, the ban kruptcy trustee , intervened in the action.
Smith eventually obtained counsel, who twice amended the complaint . T he latest version allege s 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 argu ed that the defamation claim was time

- barred

. S mith didn’t contest that argument , and h e says nothing more about th is claim here , so we d on’t need to a ddress it further . Regarding the two discrimination claims, Smith argued that he had en ough evide nce to get to a ju ry. The district court disagreed, conclud ing that Smith’s ev idence was insufficient to create a triable issue under either the direct or indirect methods of proving unlawful discrim ination. Accordingly, t he court granted the CTA ’s motion. T his appeal followed

. II. Discussion

We review the district court’s order granting summary judgment de novo, construing the evidence and drawing a ll6 No. 14

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reasonable inferences in Smith’s favor

. See A ri zanovska v. Wal

Mart Stores, Inc. , 682 F.3d 698, 702 (7th Cir. 2012). T he 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 Ci r. 2013).
At the summary

- judgment stage, claims of employ ment 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 present s 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 t he direct method of proof , the p laintiff can defeat summary judgment by present ing suff icient direct evidence of the employer’s discriminatory intent or “a convincing mosaic of circumstantial evi dence ... that point[s] directly to a discriminatory reason for the emplo yer’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 i nclude “suspicious timing, ambiguous oral or written stat ements, 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 analyz ing a di scrimination case when a certain kind of circumstantial ev idence

— evidence that similarly si tuated employees not in the plaintiff’s protected class were treated better

— would permitNo. 14

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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. A bbott 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 a dverse employment deci sion. 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 r eason 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 appr opriate if the plaintiff fails to carry his burden to esta blish 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 crit icizes 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 di scrimination.” Massey v. Blue Cross

- Blue Shield of Ill. , 226 F.3d 922, 925 (7th Cir. 2000).8 No. 14

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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 ossifie d 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.”).
E ven 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 eithe r the direct or indirect method [ s ] of proof.” Simpson v. Beaver Dam Cmty. Hosps

. , Inc. , 780 F.3d 784, 7 89

– 90 (7th Cir. 2015) . As long as t he Supreme Court’s precedents in this area are still good law, we’re not authorized to abandon th e established framework

. Orton

- Bell v. Indiana , 759 F.3d 768, 773 (7th Cir. 2014) (“While all relevant direct and ci rcumstan tial 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 o f 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

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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 infe rence 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. C hi. 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 ca n succeed only under the “cat’s paw” theory, which holds an employer liable if the decision

- maker was manipulated by another employee ac ting 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 fin dings on McC all’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 ge t him fired because of his race.
A. Direct Method

W e begin with the direct method. Smith assert s that the CTA had an unwritten policy that the EEO Unit had excl usive authority to investigate sex ual

- harassment complaints but routinely violated this policy by permitting the oper ations departm ents 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 allo w-10 No. 14

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ing white employees to escape the EE O Unit’s scrutiny, the CTA intentionally discriminate d against black employees. Smith argues that this is direct evidence of discriminat ory intent because the EEO Unit investigated McCall’s complaint against him

. The record contain s some evidence of a gene ral 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 investig ation s” of sexual

- harassment complaints

. Beavers said that although operation s managers were encouraged to do their own interviews, the EEO Unit wouldn’t rely on those inte rviews and would always conduct its own investigation

. But no evidence supports Smith’s theory that the CTA regularly channeled inves tigations of whit e 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 co nducted by ma nagers in the operations department. Of the

e ight identified cases in which this occurred , however, four involved black employees and two involved Hispanic s . A jury could n o t reasonably in fer discriminatory intent from th is evidence

. Nor is there any evid ence to support Smith’s theory that the operations departments went easy on employees when they investigated in the EEO Unit’s place. And n o evidence suggest s that anyone in the EEO Unit was biased against Smith because of his race

. Smith argues that Ramir e z was trying to protect Cesar Lovera, M c Call’s boyfriend, who worked as a timekeeper at the CTA

. Smith thinks McCallNo. 14

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made up the sexual

- harassment story as a cover for leaving work early on October 29 and that Lovera helped her co mmit time

- card fraud when she record ed her work h ours that da y

. Th is conspiracy theory lacks evidentiary support . M or e to the point , the only apparent link between Ramirez and Lovera is that they’re both Hispani c ; Smith has no evidence suggest ing that they harbored racial animus

. Finally, Smith points to what he thinks are failures in the investigative process. He claims, for example, t hat Young should have r ecuse d herself immediately rather than after taking his statement. He also argues that the EEO Unit should have interview ed 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 pol icies or practices” can sometimes be p robative of unlawful discriminatory intent

. Hobgood v. Ill

. Gaming Bd. , 731 F.3d 635, 645 (7th Cir. 2013) (internal quotation marks omitted)

. Here, however, Smith ha sn’t explain ed 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 t he ind irect method of proof

. The parties haggle over whether Smith was meeting the CTA’s legi timate expectations : T h e 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 identif ied a similarly situated employee who was accused of similar misconduct but was treated12 No. 14

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more leniently

. He points to only one manager ial

- level e mployee as a comparator : David Schaefer , a white manager who was assigned to the same terminal and was also a ccused of sexually harassing other employees on several o ccasions. 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 invest ig ation, 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 o f establis hing a prima facie case of discrimination under the indirect method of p roof

. A FFIRM ED

.