In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 13-1912

RAJESH TANK,

Plaintiff-Appellant,

v.

T-MOBILE USA, INC.,

Defendant-Appellee.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 11 C 4619 — Ronald A. Guzmán, Judge.

____________________

ARGUED JANUARY 24, 2014 — DECIDED JULY 10, 2014

____________________

Before BAUER, EASTERBROOK, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge. Rajesh Tank, who was born in India, worked for T-Mobile as a vice president and after two 

investigations relating to his treatment of colleagues, he was 

fired. Tank filed suit alleging discrimination, retaliation, and 

disparate pay but summary judgment was granted for TMobile. On appeal, Tank argues that T-Mobile discriminated 

against him based on his national origin and race, but he has 

not provided sufficient evidence that could allow a reasona-
2 No. 13-1912

ble jury to conclude that he was discriminated against. Alternatively, he claims that T-Mobile is liable because a human resources director with alleged discriminatory animus 

was involved in the decision to fire him. However, this argument is waived because it was not raised below. Second, 

he contends that he was fired because he spoke out against 

purported discrimination at T-Mobile. This claim fails as 

well because he did not provide evidence that demonstrated 

that T-Mobile’s reason for firing him was pretextual. Third, 

he alleges T-Mobile engaged in pay discrimination by paying him less than his comparable non-Indian colleagues. 

Once again, we do not agree because the employees Tank 

compares himself to are not valid comparators so he cannot 

survive summary judgment.

I. BACKGROUND

Rajesh Tank joined T-Mobile in 2000 as an area director. 

In 2006, Tank was promoted by Neville Ray to vice president, a position Tank held until he was terminated on August 4, 2010. As one of four T-Mobile vice presidents, Tank 

reported directly to Ray. In September 2007, a T-Mobile employee complained to the Human Resources (HR) Department that Tank had engaged in unprofessional conduct that 

hurt team morale, showed favoritism towards one employee, and pressured people to hire a contractor, Barry Sias. In 

2008, T-Mobile conducted an investigation (the “2008 investigation”), after which the company placed Tank on a corrective action coaching plan. Ray also told Tank to fire Sias.

In January 2010, Tank learned that one of the employees 

in Kansas City that indirectly reported to him mocked the 

accents of Indian employees during conference calls with 

other managers and engaged in other racially insensitive be-
No. 13-1912 3

havior. Lisa McAuliffe, the HR representative assigned to 

Tank’s region, recommended putting the employee on a corrective action plan. Tank objected to the HR recommendation (the “Kansas City decision”) and told McAuliffe, Ray,

and HR Director John Mavers that the employee should be 

fired for his racially discriminatory behavior.

What happens next is disputed by the parties, but by 

both accounts the relationship between Tank and McAuliffe 

deteriorated to the point where T-Mobile investigated Tank 

a second time. Tank alleges that McAuliffe retaliated against 

him because he disagreed with HR’s recommendation and 

complained repeatedly about his harassment. McAuliffe 

maintains that Tank was demeaning, hostile, and treated her 

so badly she felt the need to resign.

Following McAuliffe’s resignation, Mavers wanted to 

better understand how Tank interacted with employees so 

he traveled to Chicago and conducted interviews with Tank 

and his team on May 19 and 20, 2010. On May 19, according 

to Tank, he met with Mavers and explained that McAuliffe 

was harassing him because of the Kansas City decision. 

Mavers then asked Tank whether the Kansas City managers 

might have a reason to be upset with Tank. Offended by the 

notion this question may have implied that the bigotry was

justified, Tank pressed Mavers to explain his question. 

Mavers refused and tried to change the subject. In addition 

to meeting with Tank, Mavers met with Tank’s team and encouraged them to critique Tank’s leadership. After completing his interviews on May 20, Mavers met with Tank who 

gave Mavers a memo documenting and complaining of discrimination and retaliation by McAuliffe and HR. Mavers 

denied seeing the memo.
4 No. 13-1912

On May 20, an in-house attorney filed a complaint 

against Tank that questioned his decision to retain an outside law firm and alleged that Tank may have improperly 

used company resources. On May 22, the Corporate Investigations Department received an anonymous complaint,

which stated among other things, that Tank was destroying 

employee morale and that he allowed Sias to work for the 

company again against the wishes of Tank’s supervisor, Ray.

As a result of these allegations, T-Mobile’s Corporate Investigations team initiated an investigation (the “2010 investigation”). At the conclusion of the investigation, the company prepared a report (the “Report”), which documented a 

number of instances where Tank violated T-Mobile policy. 

The Report was given to Ray, who determined that Tank 

was not meeting T-Mobile’s legitimate performance expectations and decided to terminate his employment. T-Mobile 

fired Tank because he: (1) allowed a subcontractor to return 

to work on a T-Mobile project in defiance of his boss’s directive; (2) authorized questionable expenditures of TMobile funds for his apparent personal gain without prior 

approval; and (3) engaged in favoritism amongst his staff.

Tank does not agree with the findings of the Report.

After being fired, Tank filed a complaint against TMobile under 42 U.S.C. § 1981 alleging that T-Mobile: (1) 

paid him less than his comparable non-Indian counterparts; 

(2) unlawfully terminated him because of his Indian race and 

national origin; and (3) unlawfully retaliated against him for 

opposing unlawful discrimination and complaining of discriminatory harassment. T-Mobile filed a motion for summary judgment on all claims, which the district court granted. With regard to his discrimination claim, the court con-
No. 13-1912 5

cluded that the circumstantial evidence he presented did not 

create an inference of discrimination. On Tank’s retaliation 

claim, the court found that Tank failed to show that TMobile did not honestly believe the reasons the company 

fired him. In deciding Tank’s pay discrimination claim, the 

court ruled that Tank did not compare himself to valid comparators. This appeal followed.

II. ANALYSIS

On appeal, Tank argues that the district court erred in 

granting summary judgment in favor of T-Mobile because 

genuine issues of material fact remained as to whether Tank 

suffered discrimination and was retaliated against. We review the district court’s grant of summary judgment de novo, drawing all reasonable inferences in favor of Tank. See

Kotwica v. Rose Packing Co., Inc., 637 F.3d 744, 747 (7th Cir. 

2011). We address each of Tank’s arguments in turn.

A. Tank’s Termination Was Not Discriminatory

Tank asserts that T-Mobile violated 42 U.S.C. § 1981 

when it discriminated against him. Section 1981 bars employers from discriminating and retaliating against employees based on the employee’s race or national origin. Ptasznik 

v. St. Joseph Hosp., 464 F.3d 691, 695 n.4 (7th Cir. 2006). Race 

and national origin discrimination claims can be established 

in one of two ways: the direct and indirect methods of proof. 

Nancify v. Ill. Dept. of Human Servs., 697 F.3d 504, 509 (7th Cir. 

2012). Tank tries to establish his claim under the direct 

method, which requires him to provide either direct or circumstantial evidence of intentional racial discrimination by 
6 No. 13-1912

the person that made the decision to fire him.1 SchandelmeierBartels v. Chicago Park Dist., 634 F.3d 372, 379 (7th Cir. 2011); 

Montgomery v. Am. Airlines, Inc., 626 F.3d 382, 393 (7th Cir. 

2010). Direct evidence requires an admission of discriminatory intent, while circumstantial evidence typically includes:

(1) suspicious timing, ambiguous oral or written statements, 

or behavior toward, or comments directed at, other employees in the protected group; (2) evidence, whether or not rigorously statistical, that similarly situated employees outside 

the protected class received systematically better treatment; 

or (3) evidence that the employer offered a pretextual reason 

for an adverse employment action. Alexander v. Casino Queen, 

Inc., 739 F.3d 972, 979 (7th Cir. 2014).2 “Each type of evidence 

is sufficient by itself (depending of course on its strength in 

relation to whatever other evidence is in the case) to support 

a judgment for the plaintiff; or they can be used together.”

Coleman v. Donahoe, 667 F.3d 835, 860 (7th Cir. 2012) (quoting 

Troupe v. May Dep’t Stores Co., 20 F.3d 734, 736 (7th Cir. 

1994)). Tank may avoid summary judgment only by presenting sufficient evidence that could lead a rational jury to conclude that T-Mobile fired him because of his race or national 

origin. See Hanners v. Trent, 674 F.3d 683, 691 (7th Cir. 2012).

Tank provides no direct evidence of discrimination, but 

instead relies on circumstantial evidence of suspicious timing and alleged pretextual reasons for being fired. Specifical-

 1 Tank also tries to establish his discrimination claim under the indirect 

method in his appellate brief, but his claim is waived because the argument was not presented to the district court. See Stevens v. Umsted, 131 

F.3d 697, 705 (7th Cir. 1997).

2 Alexander is a Title VII and § 1981 case, but the elements and methods 

of proof for both claims are essentially identical. 739 F.3d at 979 n.2.
No. 13-1912 7

ly, he alleges that: (1) T-Mobile’s 2010 investigation was suspicious; (2) when conducting the investigation, the company 

departed from its normal procedures in extraordinary ways; 

and (3) ambiguous employee comments and behavior were 

directed towards Indians.

Based on the circumstantial evidence Tank provides, we 

find that no reasonable jury could conclude that T-Mobile 

fired Tank because of his national origin or race. Tank alleges that HR insisted on investigating him immediately after 

he complained to Mavers about discrimination at the company. While T-Mobile’s investigation did begin two days after Tank presented HR with a memo describing what he believed to be discrimination and complaining of retaliation, 

the timing of the investigation was not suspicious. T-Mobile 

sent Mavers to investigate what caused the tumultuous relationship between Tank and McAuliffe to determine whether

there was a larger problem. On May 19, Tank met with

Mavers and told him that he felt that McAuliffe was harassing him. On the same day, Mavers, in addition to meeting 

with Tank, met with Tank’s team and encouraged them to 

critique Tank’s leadership. From those meetings, two complaints from separate sources alleged that Tank engaged in 

misconduct. The first complaint, dated May 20, was from an 

in-house attorney that questioned the billing practices of an 

outside law firm that worked for an employee that indirectly 

reported to Tank. The attorney was concerned that the employee may have inappropriately used T-Mobile resources to 

help Tank obtain a position at a science and technology nonprofit organization. The second complaint, dated May 22,

was filed anonymously and alleged that Tank had a problematic leadership style, exercised improper influence over 

day-to-day affairs, and allowed a former contractor that had 
8 No. 13-1912

been fired to be rehired, even though Tank’s boss ordered 

otherwise. The complaint also alleged that Tank used a 

“vengeful and vindictive initiative” to undermine or drive 

away anyone who was connected to Tank’s predecessor. 

Although Tank gave Mavers a memo that outlined what he 

believed was McAuliffe’s discriminatory treatment on May 

20, the record indicates that the impetus of the 2010 investigation were two complaints filed against Tank. Tank has 

presented no evidence that the complaints were orchestrated 

by Mavers or HR as a way to undermine him. Without more, 

even in the light most favorable to Tank, we do not conclude 

that a reasonable jury could find the timing of the investigation suspicious. 

Second, no inference of discrimination can be raised from 

the manner in which the investigation was conducted. Tank

alleges that T-Mobile’s investigation involved “extraordinary departures” from the company’s normal procedures 

because, according to him, HR is not supposed to work directly with the Corporate Investigations Department when 

the latter performs an investigation and it is contrary to TMobile practice for HR to personally select a Corporate Investigations investigator to handle an investigation. But 

Tank did not offer any corporate policy or other evidence 

that forbade Corporate Investigations and the HR Department from conducting joint investigations. Moreover, Tank 

did not point to a T-Mobile policy, procedure, or other evidence that demonstrated that it was improper for HR to personally select a Corporate Investigations investigator to

handle an investigation.

Finally, Tank argues that he presented evidence that Ray 

and Mavers uttered discriminatory comments, which he ar-
No. 13-1912 9

gues helps demonstrate that he was fired because of his national origin or race. A remark can raise an inference of discrimination when it was: “(1) made by the decision-maker, 

(2) around the time of the decision, and (3) in reference to 

the adverse employment action.” Egonmwan v. Cook Cnty. 

Sheriff’s Dep’t, 602 F.3d 845, 850 (7th Cir. 2010). Tank alleges 

that Ray mocked Indian accents while at T-Mobile. Tank was 

fired in August 2010 and Ray’s comment was made more 

than three years before, in May or June 2007. We have said

that isolated comments made over a year before the adverse 

action are not evidence of discrimination under the direct 

method. Id. 

Tank also alleges that Mavers uttered a discriminatory 

comment when he asked Tank whether T-Mobile managers 

may have had a reason to be hostile towards Tank and that 

because Mavers was a decision-maker in his firing, his 

comment is evidence of discriminatory animus. As a preliminary matter, even in the light most favorable to Tank, the 

question Mavers asked Tank was not discriminatory in nature. Mavers was tasked with investigating why the relationship between Tank and HR Manager McAuliffe had degraded to the point where McAuliffe felt the need to quit. In 

the course of investigating the incident, Tank told Mavers 

that he felt that another T-Mobile team showed hostility towards him and that he felt harassed because of his decision 

to recommend a stronger sanction in the Kansas City decision. Mavers asked, “why do you think there’s so much hostility or resentment from that team?” Tank argues that 

through this question Mavers insinuated that the T-Mobile 

team might have a good reason to resent or be hostile toward Indians. However, given the context in which the 

comment was made and without more evidence, no reason-
10 No. 13-1912

able jury could conclude that the comment was discriminatory in nature. Mavers was simply asking whether the other 

team had a reason for being upset at Tank. The question is 

justifiable given the level of animosity between Tank and 

McAuliffe and that Mavers was tasked with understanding 

why relations between two employees had so badly degraded.

Even if we did consider the remark to be discriminatory 

in nature, Tank’s argument fails Egonmwan’s first prong because Mavers is not a decision-maker. “A decision-maker is 

the person responsible for the contested decision.” Schandelmeier-Bartels, 634 F.3d at 379 (internal quotation marks omitted). Ray was Tank’s immediate supervisor, not Mavers, and 

it was Ray that made the decision to fire Tank. While Mavers 

was involved in the process to fire tank and recommended 

that Ray fire Tank, Mavers worked for HR and did not have 

the authority to fire Tank. Tank provides no evidence that 

suggests otherwise. Without such evidence, we conclude 

that Mavers was not a decision-maker. Alternatively, Tank 

argues that under the cat’s paw theory of liability T-Mobile 

is liable for Mavers’s actions. This argument is waived because it was not raised before the district court. Hannemann 

v. Southern Door Cnty., 673 F.3d 746, 754 (7th Cir. 2012). Finally, Tank’s argument fails Egonmwan’s third prong because 

Mavers’s statement does not at all refer to Tank being fired.

B. Tank’s Termination Was Not Retaliatory

Tank also alleges that he was fired in retaliation for complaining about purportedly racist conduct towards other 

employees. “Unlawful retaliation occurs when an employer 

takes an adverse employment action against an employee for 

opposing impermissible discrimination.” See Smith v. Bray, 
No. 13-1912 11

681 F.3d 888, 896 (7th Cir. 2012) (quoting Rogers v. City of 

Chicago, 320 F.3d 748, 753 (7th Cir. 2003)). Like discrimination, retaliation may be established by either the direct or indirect method of proof. Coleman, 667 F.3d at 859. Tank proceeds under the direct method of proof, which requires Tank 

to show that: (1) he engaged in a protected activity; (2) TMobile took an adverse employment action against him; and 

(3) there was a causal connection between his protected activity and the adverse employment action. See id. As in his

discrimination claim, Tank attempts to meet his burden 

through circumstantial evidence, including suspicious timing, and HR’s involvement in overseeing the investigation. 

Tank’s argument lacks merit because as we discussed above 

the timing of the HR investigation was not suspicious and 

Tank did not provide any evidence that showed that HR was 

prohibited from being involved in investigations. 

In addition, Tank argues that T-Mobile’s reasons for firing him were pretextual.3 To show pretext, Tank bears the 

burden of demonstrating that T-Mobile’s “ostensible justification for its decision is unworthy of credence.” Gordon v. 

United Airlines, Inc., 246 F.3d 878, 888 (7th Cir. 2001). Tank 

“may make the requisite showing by providing evidence 

tending to prove that the employer’s proffered reasons are 

factually baseless, were not the actual motivation for the discharge in question, or were insufficient to motivate the discharge.” Id. at 888–89 (quoting Adreani v. First Colonial Bank-

 3 The evidence used to show pretext in the indirect method may also be 

used under the direct method. See Huff v. UARCO, Inc., 122 F.3d 374, 380 

(7th Cir. 1997) (stating that the circumstantial pretextual evidence used 

in a direct method proof case is substantially the same as the evidence 

required in an indirect or McDonnell Douglas case).
12 No. 13-1912

shares Corp., 154 F.3d 389, 395 (7th Cir. 1998)) (internal quotation marks omitted).

Tank argues that T-Mobile’s claimed reasons for discharging him were baseless, but we disagree. Tank was 

fired, among other reasons, because he showed favoritism 

toward one employee. Tank argues that T-Mobile’s investigation determined that allegation to be untrue. His characterization misrepresents the conclusions of that investigation, as the Report actually confirmed that particular allegation. Tank also argues that the Report found that another 

employee, not Tank, misused company assets by hiring a 

law firm for personal gain. Once again, Tank mischaracterizes the Report’s findings. The Report found that technically 

the person to whom Tank showed favoritism hired the law 

firm, but that he knew about her activities. Finally, the Report supported the conclusion that Tank was insubordinate 

and allowed a subcontractor to continue to work for the 

company after Tank’s supervisor told Tank to fire the subcontractor.

Second, Tank argues that T-Mobile’s explanation for why 

the company fired him was not the actual motivation for firing him because the company’s explanation shifted over 

time, but the record does not support his claim. T-Mobile’s 

reason for firing Tank was consistent throughout the process. From the beginning, T-Mobile said that it fired Tank, 

among other reasons, because of insubordination. In 2008, 

Tank’s boss ordered Tank to fire Sias. Tank did so, but at 

some point later a report by the company showed that Sias 

worked for a new vendor under an alias with Tank’s 

knowledge. Moreover, Ray and Mavers point to this incident 

as the reason Tank was fired.
No. 13-1912 13

Third, Tank argues T-Mobile’s explanations for firing 

him are insufficient to motivate his discharge because TMobile disciplined other employees for comparable infractions far less harshly. To show that co-workers are similarly 

situated, Tank must demonstrate that the putative similarly 

situated employees were directly comparable to him in all 

material respects. Patterson v. Ind. Newspapers, Inc., 589 F.3d 

357, 365–66 (7th Cir. 2009). This requires Tank to show that 

he and an alleged comparator “engaged in similar conduct 

without such differentiating or mitigating circumstances as 

would distinguish their conduct or the employer’s treatment 

of them.” Hanners v. Trent, 674 F.3d 683, 692–93 (7th Cir. 

2012). As circumstantial evidence, Tank offers Ray and another VP as comparators to support his retaliation claim.4

Tank alleges that T-Mobile did not investigate Ray when he 

allowed a vendor to award itself 90% of T-Mobile’s outside 

contracts for the region or when a VP was found to have accepted gifts from a vendor whom he was perceived as favoring. Ray and the other VP are not valid comparators, however, because neither engaged in the litany of misconduct

that Tank engaged in. Tank was found not only to have 

demonstrated favoritism towards one of his employees, he 

was also found to have engaged in unprofessional conduct, 

and insubordination. In addition, the VP that Tank claims 

was not investigated was indeed investigated. Moreover, 

Tank was fired after being investigated a second time for 

breaking company rules. Neither of the T-Mobile employees 

 4 Comparator evidence is usually offered when a plaintiff uses the indirect method. See, e.g., Montgomery, 626 F.3d at 395. However, comparator 

evidence can be relevant circumstantial evidence demonstrating retaliation under the direct method of proof. Coleman, 667 F.3d at 861 n.9.
14 No. 13-1912

Tank points to as comparators broke the rules a second time 

so they are not actually comparators. 

Alternatively, Tank alleges he complained to Mavers 

about retaliation, but that Mavers did not investigate his allegation. Tank argues, and uses circumstantial evidence to 

try and show that, Mavers’s failure to investigate his complaints demonstrates Mavers’s discriminatory motive and 

incentive to retaliate. We disagree. We have said that a supervisor standing by while an employee complained of race 

discrimination could be evidence of discriminatory animus. 

See id. at 906. However, none of Tank’s record citations support his assertion. In his deposition, Tank alleges that he 

gave Mavers a two-page memorandum that described how 

McAuliffe and the HR team retaliated against him for the 

Kansas City decision. Tank Dep. 509:20-510:24; Tank Dep. 

Ex. 16. Mavers denied seeing the memo. Although a header 

contained in the memo suggests that Tank accused 

McAuliffe and the HR Department of discrimination and retaliation, the substance of the memo shows that Tank’s complaint to Mavers was related to personal grievances rather 

than discrimination. For example, the memo discussed how 

an HR employee made fun of another employee’s stutter, 

Tank’s disagreement with McAuliffe about eliminating a position at the company, and McAuliffe’s failure to attend 

weekly director meetings. The complaint that comes closest

to pointing to a § 1981 violation is the one that alleges that

HR’s behavior towards Tank changed significantly after the 

Kansas City decision. However, this comment is insufficient

given the deteriorating relationship between Tank and 

McAuliffe, even if read in the light most favorable to Tank. 

Complaining about a co-worker’s actions is not statutorily 

protected expression when the complained of conduct does
No. 13-1912 15

not relate to race or national origin. See Bray, 681 F.3d at 907 

n.8 (citing Durkin v. City of Chicago, 341 F.3d 606, 615 (7th Cir. 

2003)). Evidence that Mavers ignored Tank’s complaint is 

not evidence that he harbored unlawful animus and without 

evidence that Tank complained about discrimination directly to Mavers, a reasonable jury could not conclude that 

Mavers harbored discriminatory animus or was deliberately

indifferent to Tank’s claim. 

C. Tank’s Pay Discrimination Claim Fails

Tank also contends that T-Mobile engaged in pay discrimination. Tank does not point to any direct evidence of 

pay discrimination and appears to rely on the indirect method of proof with respect to this claim. The indirect method 

requires Tank to proceed under the burden-shifting approach set forth in McDonnell Douglas Corporation v. Green, 

411 U.S. 792, 801–02 (1973). Under this method, a plaintiff 

has the burden of establishing a prima facie case of discrimination by showing that: (1) he is a member of a protected 

class; (2) he met the employer’s legitimate business expectations; (3) he suffered an adverse employment action; and (4) 

similarly situated employees outside of the protected class 

were treated more favorably. Keeton v. Morningstar, Inc., 667 

F.3d 877, 884 (7th Cir. 2012). A similarly situated employee is 

one whose performance, qualifications, and conduct are 

comparable in “all material respects.” Dandy v. United Parcel 

Serv., Inc., 388 F.3d 263, 274 (7th Cir. 2004) (citing Durkin v. 

City of Chi., 341 F.3d 606, 613 (7th Cir. 2003)). If Tank establishes a prima facie case of discrimination, then the burden 

shifts to T-Mobile to state a legitimate, nondiscriminatory 

reason for the employment action. See McDonnell Douglas, 

411 U.S. at 802. If T-Mobile does so, the burden shifts back to 
16 No. 13-1912

Tank, who must present evidence that the stated reason is a 

“pretext,” which in turn permits an inference of unlawful 

discrimination. Id. at 804.

Tank fails to satisfy the fourth element regarding disparate treatment. He alleges that he was paid a lower salary 

than comparable non-Indian VPs, but a close review of the 

record shows that his alleged comparators are not valid 

comparators who are similarly situated. Under T-Mobile’s 

policies, base salary was based on an employee’s position, 

work experience, qualifications, educational background 

and achievements within T-Mobile. An employee’s manager 

or direct report was responsible for determining an employee’s starting base salary and annual adjustments. In addition, geographical location also figured into base salary. 

Tank points to no evidence that shows that these employees 

were subject to the same standards and compensation 

scheme, or had comparable experience, education, or qualifications. Tank assumes that because his alleged comparators 

were also T-Mobile regional VPs, the fact that he was paid 

less is enough to survive summary judgment. It is not. See 

Diaz v. Kraft Foods Global, Inc., 653 F.3d 582, 590 (7th Cir. 

2011). Absent valid comparators, Tank cannot survive summary judgment under the indirect method of proof because 

he failed to establish a prima facie case that T-Mobile engaged in pay discrimination.

III. CONCLUSION

The judgment of the district court is AFFIRMED.