# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted August 20, 2012 *

Decided August 20, 2012

Before

RICHARD D. CUDAHY, Circuit Judge

MICHAEL S. KANNE

, Circuit Judge

DIANE S. SYKES, Circuit Judge

No. 12

‐ 1651

RAVI DARBHA,

Plaintiff

‐ Appellant,

v.

CAPGEMINI AMERICA

INCORPORATED,

Defendant

‐ Appellee. Appeal from the United States District

Court for the Northern District of Illinois,

Eastern Division.

No. 10 C 2581

Virginia M. Kendall,

Judge

.

O R D E R

Ravi Darbha appeals from the district court’s grant of summary judgment on his

claims against Capgemini America Inc., his former employer, charging age, race, and

national

‐ origin discrimination, retaliation, and a hostile work environment. Because Darbha

has not furnished sufficient evidence of unlawful discrimination or retaliation, we affirm. 

### NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1

* After examining the briefs and record, we have concluded that oral argument is

unnecessary. Thus, the appeal is submitted on the briefs and record. See F ED

. R. A PP

. P.

34(a)(2)(C).No. 12

‐ 1651 Page 2

In reviewing the district court’s grant of summary judgment, we take the record and

its reasonable inferences in the light most favorable to Darhba. See Kuhn v. Goodlow

, 678 F.3d

552, 555 (7th Cir. 2012). Capgemini is an information

‐ technology and software

‐ outsourcing

company. Darbha, who is of Indian descent, joined the company in 2004 as a software

consultant specializing in the software language Java. During his time at Capgemini,

Darbha worked on long

‐ term projects for Capgemini’s clients and moved from one client to

the next as technology projects ended.

Two years after joining Capgemini, Darbha began working on a software project for

Astellas, an Illinois pharmaceutical company. He received positive reviews from 2005 until

2008, when Capgemini found that Darbha mishandled some problems with the software

applications, and it received complaints from Astellas. Capgemini rated his performance for

2008 as “needs improvement” and placed him on a performance improvement plan. In

January 2009, Astellas decided to transfer information technology support for its research

and development from Capgemini to another consulting firm. Capgemini and Astellas then

signed a non

‐ solicitation agreement that forbade Astellas from soliciting any Capgemini

employees for one year. Capgemini told Darbha and the other employees working on this

project that they needed to find new positions within Capgemini or their employment

would end on May 1, 2009.

Darbha began looking for other positions within Capgemini; he had done this once

before when another project he was assigned to ended. He posted his name and skills on

Capgemini’s internal website so that human resources and project managers could see that

he was available to join a new project. But all available projects required skills with software

that Darbha lacked. And Darbha was not willing to relocate to find a position for which he

was qualified.

In March, a couple of months after he learned of the upcoming employment

‐ end

date, Darbha told his supervisor that he wanted to file an internal complaint about

discrimination based on unfair evaluations, unfair treatment, and harassment. Several days

later human resources spoke with Darbha and asked why he felt he was being

discriminated against, but Darbha did not provide a reason. Human resources attempted to

assist Darbha with finding another project in the organization, emailing a number of

managers to see if Darbha’s skills were a fit with their projects. But when a match could not

be found, Darbha was terminated on May 1. Capgemini gave him a termination letter that

listed “reduction

‐ in

‐ force” as the reason.

Two months later Darbha filed a charge of discrimination with the Equal

Employment Opportunity Commission. He asserted that he suffered race, national

‐ origin,

and age discrimination, see 42 U.S.C. §§ 2000e

‐ 2(a)(1), 1981; 29 U.S.C. § 623(a), when heNo. 12

‐ 1651 Page 3

received the negative performance review in 2008, was placed on a performance

improvement plan, and was terminated. He also alleged that he was retaliated against for

engaging in protected activity, 42 U.S.C. § 2000e

‐ 3(a); 29 U.S.C. § 623(d), namely bringing

his internal complaint about discrimination. After Darbha received a right

‐ to

‐ sue letter from

the EEOC, he sued in federal court, alleging the same bases of discrimination plus claims of

harassment and a hostile work environment.

Capgemini moved for summary judgment. It argued that Darbha could not make

out a case of discrimination under either the direct or indirect methods. Capgemini also

maintained that no evidence suggested retaliation because Darbha’s internal complaint of

discrimination to Capgemini did not cause his poor performance review or termination.

Finally, Capgemini contended that Darbha had not shown the severe or pervasive

harassment needed to support a hostile

‐ work

‐ environment claim.

The district court granted the motion for summary judgment. It first noted that

Darbha had not presented a case of discrimination under the direct method. And, the court

continued, he could not establish a prima facie case of discrimination under the indirect

method for two reasons: He failed to show that he was meeting Capgemini’s legitimate job

expectations, and he had no evidence that Capgemini had treated more favorably similarly

situated employees of a different race, national origin, or age. Darbha also failed to make

out a prima facie case of retaliation, the court added, because he complained of

discrimination to Capgemini after it told him that he would be terminated if he could not

find another position within the company. Thus, the court concluded, he could not show a

causal connection between his internal complaint and his termination. Finally the court

found that, without any evidence that Darbha’s race, national origin, or age prompted his

negative performance review, he had no claim of harassment or hostile work environment.

On appeal Darbha argues that he has evidence of discrimination under both the

direct and indirect methods. Specifically, he contends that the timing of his first

‐ ever poor

performance review in 2008, followed by the reduction in force the next year, was

suspicious and suggests discrimination. He also disagrees with the poor performance

review, believing it was unlawfully motivated, and argues that it prevented him from

finding other positions within Capgemini. Last, he asserts that the inconsistency in

Capgemini’s statements before his termination (first it criticized his poor performance, then

later it cited a reduction in force) shows that the company’s real reason for terminating him

was unlawful discrimination.

Darbha’s arguments, combined with the record evidence, are insufficient to survive

summary judgment on his discrimination claims. We begin with the direct method of proof.

In his deposition, Darbha conceded that he had no direct evidence that he wasNo. 12

‐ 1651 Page 4

discriminated against because of his age, race, or national origin. A plaintiff’s concession

that he lacks evidence to support his case is binding. Best v. City of Portland

, 554 F.3d 698,

700 (7th Cir. 2009). Although circumstantial evidence may support a claim of discrimination

under the direct method, see Hanners v. Trent

, 674 F.3d 683, 691–92 (7th Cir. 2012), the only

circumstantial evidence that Darbha cites is Capgemini’s “suspicious” decision to reduce its

labor force just a year after his poor performance review. Darbha’s evidence that the poor

performance review played a role in his termination is weak, but even if it did, nothing is

suspicious about an employer relying on a poor performance review to decide whom to lay

off during a reduction in force. See Martino v. MCI Commc’ns Servs., Inc.

, 574 F.3d 447, 451–53

(7th Cir. 2009); Balderston v. Fairbanks Morse Engine Div. of Coltec Indus.

, 328 F.3d 309, 323 (7th

Cir. 2003).

Nor has Darbha made out, under the indirect method, a prima facie case of

discrimination based on his age, race, or national origin. Because Darbha contends that the

poor performance review was itself discriminatory, he need not satisfy the legitimate

‐ expectations prong of his prima facie case. See Wyninger v. New Venture Gear, Inc.

, 361 F.3d

965, 979–80 (7th Cir. 2004); Curry v. Menard, Inc.

, 270 F.3d 473, 477–78 (7th Cir. 2001). Still, in

order to make out a prima facie case, Darbha had to identify similarly situated employees

outside his protected group who received more favorable treatment. See Montgomery v. Am.

Airlines, Inc.

, 626 F.3d 382, 389, 394 (7th Cir. 2010); Everroad v. Scott Truck Sys., Inc.

, 604 F.3d

471, 477 (7th Cir. 2010). It is not enough for Darbha to identify employees outside his

protected class whom Capgemini retained; if these employees actually had computer skills

that Darbha lacked and that Capgemini needed then they are not similarly situated.

See Lucas v. PyraMax Bank, FSB

, 539 F.3d 661, 667 (7th Cir. 2008); Warren v. Solo Cup Co., 516

F.3d 627, 631 (7th Cir. 2008). That is the case here: In the district court Darbha conceded that

he did not have the computer skills needed for the available projects at Capgemini, and

other Capgemini employees who had been working on the Astellas project and found new

positions at the company had skill sets different from Darbha’s.

Darbha next argues that he put forth sufficient evidence to survive summary

judgment on his claims for hostile work environment and harassment. As evidence, he cites

his unfavorable performance review in 2008 and the resulting performance improvement

plan. But to survive summary judgment, Darbha needs evidence of harassment so severe or

pervasive that it created an abusive working environment. See Jackson v. Cnty. of Racine

, 474

F.3d 493, 500 (7th Cir. 2007); Wyninger

, 361 F.3d at 975. An evaluation stating that Darbha’s

performance needed improvement does not meet this standard. Herron v. Daimlerchrysler

Corp.

, 388 F.3d 293, 303 (7th Cir. 2004); Speer v. Rand McNally & Co.

, 123 F.3d 658, 664 (7th

Cir. 1997). Moreover, although he has alleged in his complaint and briefs that he received a

negative performance review and was placed on a performance improvement plan becauseNo. 12

‐ 1651 Page 5

of his race, national origin, or age, he has offered no evidence to substantiate the allegations,

as he must. See Jackson

, 474 F.3d at 499–500; Wyninger

, 361 F.3d at 975.

Finally, Darbha includes in his brief a section entitled “retaliation claim.” But this

section is just a list of three actions that Darbha believes were unjust: placing him on a

performance improvement plan, terminating him, and creating a non

‐ solicitation agreement

between Darbha and Astellas. He does not argue that these actions were retaliation for

engaging in protected activity, and he has not challenged the district court’s determination

that he could not show a causal connection between his internal complaint to Capgemini of

discrimination and these actions. It is impossible to see how he could when Capgemini

placed Darbha on the performance improvement plan and notified him that he would be

terminated if he could not find another project before Darbha ever complained of

discrimination. Leitgen v. Franciscan Skemp Healthcare, Inc.

, 630 F.3d 668, 676 (7th Cir. 2011).

Thus the retaliation claims fail.

Accordingly, we AFFIRM the judgment of the district court.