### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 13

- 1912
R AJESH T ANK , Plaintiff

- Appellant ,

v.

T

- M OBILE USA, I NC

. , Defendant

- Appellee

.

____________________ Appeal from the United States District Court for the Northern District of Illinois , Eastern Division. No. 11 C 4619

— Ronald A. Guzm á n , Judge

.

____________________
A RGUED J ANUARY 24, 2014

— D ECIDED J ULY 10, 2014

____________________

Before B AUER , E ASTERBROOK , and W ILLIAMS , Circuit Judges

. W ILLIAMS , Circuit Judge

. Rajesh Tank , who was born in I ndia, worked for T

- Mobile as a v ice p resident and a fter 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 T

Mobile

. On appeal , Tank argues that T

- Mobile discriminated against him based on his national origin and race , but h e has not provided sufficient evidence that c ould allow a reason a-2 No. 13

- 1912

ble jury to conclude that he was discriminated against. A lternatively, he claims that T

- Mobile is liable because a h uman resources director with alleged discriminatory animus was involved in the decision t o fire him . H owever, this a rgument 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. T his claim fails as well because he did not provide evidence that demonstrated that T

- Mobile’s reason for firing him was pretextual. Third, he a lleges T

- Mobile engaged in pay discrimination by pa ying him less than his comparable non

- Indian colleagues. Once again , we do not agree because t he employees Tank compares himself to are not valid comparators so h e cannot survive summary judgment

. I. BACKGROUND Rajesh Tank joined T

- Mobile in 2000 as an area d irector. In 2006, Tank was promoted by Neville Ray to vice p res ident, a position Tank held until he was terminated on A ugust 4, 2010. As one of four T

- Mobile v ice p residents, Tank reported directly to Ray. In September 2007, a T

- Mobile e mployee complained to the Human Resources ( HR ) Depar tment that Tank had engaged in unprofessional conduct that hurt team morale, showed favoritism towards one emplo yee, and press ured people to hire a contractor, Barry Sias. In 2008, T

- Mobile conducted an investigation (the “2008 inve stigation”) , after which the company placed Tank on a corre ctive 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 b e-No. 13

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havior. Lisa McAuliffe, the HR representative assigned t o Tank’s region, recommended putting the employee on a co rrecti ve action plan. Tank objected to the HR recommend ation (the “Kansas City decision”) and told McAuliffe, Ray , and HR Director John Mavers that the employee should be fired for his racially discr iminatory 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 a lleges 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 be tter 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 de cision. 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 e ncouraged them to critique Tank’s leadership. After comple ting his interviews on May 20, Mavers met with Tank who gave Mavers a memo document ing and complaining of di scrimination and retalia tion by McAuliffe and HR. Mavers denied seeing the memo.4 No. 13

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On May 20, an in

- house attorney filed a complaint against Tank that questioned his decision to retain an ou tside law firm and alleged that Tank m ay ha ve improperly used company resources. On May 22, the Corporate Invest igations 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 again st the wishes of Tank’s supervisor, Ray

. As a result of these allegations, T

- Mobile’s Corporate I nvestigations team initiated an investigation (the “2010 inve stigation”). At the conclusion of the investigation, the comp any prepared a report (the “Report”), which documented a number of instances where Tank violat ed T

- Mobile policy. The R eport was given to Ray, who determined that Tank was not meeting T

- Mobile’s legitimate performance expect ations and decided to terminate his employment. T

- Mobile fired Tank b ecause he: (1) allowed a subcontractor to return to work on a T

- Mobile project in defiance of his boss’s d irective; (2) authorized questionable expenditures of T

Mobile funds for his apparent personal gain without prior approval; and (3) engaged in favoritism among st his staff. Tank does not agree with the findings of the Report. After being fired, Tank filed a complaint against T

Mobile under 42 U.S.C. § 1981 alleging that T

- Mo bile: (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 di scriminatory harassment. T

- Mobile filed a motion for su mmary judgment on all claim s , which the district court gran ted. With regard to his discrimination claim, the court co n-No. 13

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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 T

Mobile 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 co mparators. This appeal follow ed

. II. ANALYSIS On appeal, Tank argues that t he 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 r eview the district court’s grant of summary judgment de n ovo, 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 W as N ot Discriminatory
Tank a sserts that T

- Mobile violated 42 U.S.C. § 1981 when it discriminated against him. Section 1981 bars e mployers from discriminating and retaliating against emplo yees based on the employee’ s race or national origin

. Ptasznik v. St. Joseph Hosp. , 464 F.3d 691, 695 n.4 (7th Cir. 20 06). Race and national origin discrimination claims can be established in one of two ways : the direct and indirect method s 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 direc t method , which requires him to provide either direct or ci rcumstantial evidence of intentional racial discrimination by6 No. 13

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the person that made the decision to fire him

. 1 Schandelmeier

Bartels 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 discrimin atory intent, while c ircumstantial evidence typically includes : (1) suspicious timing, ambiguous oral or written statements, or behavior toward , or comments directed at , other emplo yees in the protected group; (2) evidence, whether or not ri gorously statistical, that similarly situated employees outside the protected class received systematically better treatment;

or (3) evidence that the e mployer 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 evi dence 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 presen ting sufficient evidence that c ould lead a rational jury to co nclude 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 ti ming and alleged pretext ual reasons for being fired

. Specifica l-

1 Tank also tries to establish his discrimination claim under the indirect method in his appellate brief, but his claim is waived because the arg ument 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

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ly, he a lleges that : ( 1 ) T

- Mobile’s 2010 investigation was su spicious ; ( 2 ) when conducting the investigation , the company departed from its normal procedures in extraordi nary ways; and ( 3 ) ambiguous employee comments and b ehavior were directed t owards Indians

. Based on the circumstantial evidence Tank provides, we find that no reasonabl e jury cou ld conclude that T

- Mobile fired Tank because of his national origin or race

. Tank alle ges that HR insisted on investigating him immediately after he complained to Mavers about discrimination at the co mpany. W hile T

- Mobile’s investigation did begin two days a fter Tank presented HR with a memo describing what he b elieved to be discrimination and complaining of retaliation, the timing of the investigation wa s not suspicious. T

- Mobile sent Mavers to investigate what caused the tumultuous rel ationship 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 McAul i f fe was haras sing 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 co mplaints from separate sources alleged that Tank engaged in misconduct. The first com plaint, dated May 20, was from an in

- house attorney that questioned the billing practices o f an outside law firm that work ed for an employee that indirectly reported to Tank. The attorney was concerned that the e mployee may have inappropriately used T

- Mobile resources to help Tank obtain a position at a science and technology non

profit organizat ion

. The second complaint , dated May 22, was filed anonymously and alleged that Tank had a pro blematic leadership style, exercised i mproper influ ence over day

- to

- day affairs, and allowed a former contractor that had8 No. 13

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been fired to be rehired , even though Ta nk’s boss ordered otherwise. The complaint also alleged that Tank used a “vengeful and vindictive initiative” to undermine or drive away anyone who was connect ed 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 invest igation were two complaints filed against Tank. Tank has presented no evidence that the complaints were orchestrated by Mavers or HR as a way to undermi ne him. Without more,

even in the light most favorable to Tank, we do not conclude that a reasonable jury c ould find the timing of the investig ation suspicious.
Second , no inference of discrimination can be raised from the manner in which the investigatio n was conducted

. Tank alleges that T

- Mobile’s investigation involved “extraord inary departures” from the company’s normal procedures because, according to him, HR is not supposed to work d irectly with the Corporate Investigations Department when the latter performs an investigation and it is contrary to T

Mobile practice for HR to personally select a Corporate I nvestigations investigator to handle an investigation. But Tank did not offer any corpo rate policy or other evidence that forbade Corporate Investig ations and the HR Depar tment from conducting joint investigations . Moreover, Tank did not point to a T

- Mobile policy , procedure , or other ev idence that demonstrate d that it was improper for HR to pe rsonally 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 a r-No. 13

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gues helps demonstrate that he was fired because of his n ational origin or race . A remark can raise an inference of di scrimination 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. Sher iff’ 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. W e 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 discriminato ry 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, hi s
comme nt is evidence of discriminatory animus. As a preli minary matter, even in the light most favorable to Tank, the question Mavers asked Tank was not discriminatory in n ature. M avers was tasked with investigating why the rel ationship between Tank and HR Manag er McAuliffe had d egraded 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 t owards him and that he felt harassed because of his decisi on to recommend a stronger sanction in the Kansas City dec ision. Mavers asked , “why do you think there’s so much ho stili ty 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 t oward Indians. However, given the contex t in which the comment was made and without more evidence, no reaso n-10 No. 13

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able jury could conclude that the comment was discrimin atory 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 emplo yees had so badly degra ded. Even if we did consider the remark to be discriminatory in nature, Tank’s argument fails Egonmwan’s first prong b ecause Mavers is not a decision

- maker. “ A decision

- maker is the per son responsible for the contested decision.” Sc hande lmeier

- Bartels , 634 F.3d at 379 (internal quotation marks omi tted)

. Ray was Tank’s immediate supervisor , not Mavers, and i t was Ray that made the decision to fire Tank. While Mavers was involved in the process to fire tank and recommended that Ray fir e 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 b ecause it was not raised before the district court. Hannemann v. Southern Door Cnty. , 673 F.3d 746, 754 (7th Cir. 2012). F ina l ly, Tan k’s argument fails Egonmwan’s third prong because Mavers’s statement does not at all refer to Tank being fired.

B. Tank’s Termination W as N ot Retaliatory Tank also alleges that he was fired in retaliation for co mplaining about purportedly racist conduct towa rds 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

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681 F.3d 888, 896 (7th Cir. 2012) (quoting Rogers v. City of Chicago , 320 F.3d 748, 753 (7th Cir. 2003)). Like discrimin ation, retaliation may be established by either the direct or i ndirect method of proof. Coleman , 667 F.3d at 859. Tank pr oceeds under the direct method of proof , which requires Tank to show that : (1) he eng aged in a protected activity; (2) T

M o bile took an adverse employment action against him; and (3) there was a causal connection between his protected a ctivity and the adverse employment action. See i d

. As in his di s cri m ination claim, Tank attempts to meet his burden through circumstantial evidence , including suspicious ti ming, 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 fi ring him were pretextual. 3 To show pretext, Tank bears the burden of demonstrating that T

- Mobile’s “ostensible justif ication 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 provid ing evidence tending to prove that the employer’s proffered reasons are factually baseless, were not the actual motivation for the di scharge in question, or were insufficient to motivate the di scharge. ” Id . at 888

– 89 (quoting Adreani v. First Colonial Ban k-

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

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shares Corp ., 154 F.3d 389, 395 (7th Cir. 1998)) (internal quot ation marks omitted). Tank argues that T

- Mobile’s claimed reasons for di scharging him were baseless, but we disagree. Tank was fired , among other reasons, because he showed favoritism toward on e employee. Tank argues that T

- Mobile’s invest igation determined that allegation to be untrue. His chara cterization misrepresents the conclusions of that investig ation, as the Report actually confirmed that particular alleg ation. 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 mischaracteri zes 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 R eport 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 su bcontractor. Second, Tank argues that T

- Mobile’s explanation for why the company fired him was not the actual motivation for fi ring 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 t hroughout the pr ocess. 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 work ed 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

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Third, Tank argues T

- Mobile’s explanations for firing him are insufficient to motivate his discharge because T

Mobile di sciplined other employees for comparable infra ctions far less harshly. To show that co

- workers are similarly situated, Tank must demonstrate that the putative similarly situated employees w ere 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 empl oyer’s treatment of them.” Hanners v. Trent , 674 F.3d 683, 692

– 93 (7th Cir. 2012). A s circumstantial evidence, Tank offers Ray and a nother 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 outsi de contracts for the region or when a VP was found to have a ccepted gifts from a vendor whom he was perceived as favo ring. Ray and the other VP are not valid comparators, ho wever, because neither enga ged 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 t o have engaged in unprofessional conduct, and insubordination

. In addition, the VP that Tank clai ms 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 ind irect method. See , e.g. , Montgomery , 626 F.3d at 395. However, comparator evidence can be relevant circumstantial evidence demonstrating retali ation under the direct method of proof. Coleman , 667 F.3d at 861 n. 9.14 No. 13

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Tank points to as comparators broke the rules a second time

so they are not actua lly comparators. Alternatively, Tank alleges he complained to Mavers about retaliation, but that Mavers did not investigate his a llegation

. Tank argues , and use s circumstantial evidence to try and show that , Maver s’s failure to investigate hi s co mplaints demonstrates Maver s ’s discriminatory motive and incentive to retaliate

. We disagree

. We have said that a s upervisor st anding 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 su pport his assertion. In his deposition, Tank alleges that he gave Mavers a two

- page memo randum that described how McAuliffe and the HR team retaliated against him for the Kansas City decision. Tank Dep. 509:20

- 510:24; Tan k 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 r etaliation, the substance of the memo shows that Tank’s co mplaint to Mavers was related to personal grievances rather than discrimination. For example , the memo discusse d how

an HR employee made fun of another employee’s stutter, Tank ’s disagreement with McAuliffe about eliminating a p osition at the company , and McAuliffe ’s failure to attend weekly d irector m eetings

. The complaint that comes closes t 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 insuffi cient given the deteriorating relationship between Tank and McAuliffe , even if read in the light most favorable to Tank. C omplaining about a co

- worker ’s actions is not statutorily protected expression when the complained of conduct do esNo. 13

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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 th at he harbored unlawful animus and w ithout evidence that Tank complaine d about discrimination direc tly to Mavers, a reasonable jury could not conclude that Mavers harbored discriminatory animus or was deliberate ly indifferent to Tank’s claim.
C. Tank’s P ay D iscrimination C laim F ails
Tank also contends that T

- Mobile en gaged in pay di scrimination. Tank does not point to any direct evidence of pay discrimination and appears to rely on the indirect met hod of proof with respect to this claim. The indirect method requires Tank to proceed under the burden

- shifting a pproach set for th 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 discrim in a tion by showing that: (1) he is a member of a protected class; (2) he met the employer’ s legitimate business expect ations; (3) he suffered an adverse employment action; and (4) sim i larly 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 s ituated employee is one whose performance, qualifications, and conduct are comp a rable 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 T ank esta blishes a prima facie case of discrimination, then the burden shift s 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 to16 No. 13

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Tank, who must present evidence that the stated reason is a “pretext,” which in turn permits an inference of unlawful discrimin a tion. Id . at 804.
Tank fails to satisfy the fourth element regarding dispa rate treatment. He alleges that he was paid a lower sa lary 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, qual ifications, educational background and achievements within T

- Mobile. An employee’s manager or direct report was responsible for determining an emplo yee’s starting base salary and annual adjustments. In add ition, 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 qualif ications. Tank assumes that because his alleged com parators

we re 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 su mmary judgment under the indirect metho d of proof because he failed to establish a prima facie case that T

- Mobile e ngaged in pay discrimination

. III. CONCLUSION The judgment of the district court is A FFIRMED

.