In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 03-1575

WILLIAM L. LUCAS,

Plaintiff-Appellant,

v.

CHICAGO TRANSIT AUTHORITY,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois,

Eastern Division.

No. 01 C 7075—Harry D. Leinenweber, Judge.

____________

ARGUED OCTOBER 24, 2003—DECIDED MAY 14, 2004

____________

Before BAUER, EASTERBROOK and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge. William L. Lucas filed discrimination and retaliation claims against the Chicago Transit

Authority (“CTA”), alleging violations of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. The CTA

filed a motion for summary judgment. The district court

granted the CTA’s summary judgment motion. Mr. Lucas

timely appealed. For the reasons set forth in the following

opinion, we affirm the judgment of the district court.
2 No. 03-1575

1 Because this is an appeal from the district court’s grant of

summary judgment, we must construe all facts in the light most

favorable to the non-moving party, Mr. Lucas. See Bellaver v.

Quanex Corp., 200 F.3d 485, 491-92 (7th Cir. 2000).

I

BACKGROUND

A. Facts1

1. 1997 Internal EEO Complaint of Discrimination

Mr. Lucas is an African-American male who has been

employed with the CTA since 1993. Mr. Lucas was hired as

a track inspector, maintaining and repairing sections of

track and surrounding right of ways to ensure the tracks

were safe for CTA trains. In 1997, Mr. Lucas briefly held

a different position within the Track Maintenance

Department as a machine operator. For this position,

Mr. Lucas trained to operate a “Tie Inserter/Extractor

machine” and a “Tie Handler machine.” As their names

suggest, the Tie Inserter/Extractor enables CTA employees

to remove and replace railroad ties, and the Tie Handler

machine is used to stack railroad ties prior to their insertion

or after their extraction. Mr. Lucas had the most seniority

and obtained the highest passing score for employees

learning to use the Tie Inserter/Extractor machine; however,

he only was permitted to operate that machine three times.

Instead, he was often assigned to work on the Tie Handler

machine, a machine he considered less desirable. Mr. Lucas

asked Senior Roadmaster James Blatz for assignments to

operate the inserter/extractor machine, but Blatz denied the

request. Mr. Lucas then asked another supervisor, Joe Ryan,

but he refused to intervene. Finally, Mr. Lucas asked

General Manager Ray Schriks for assistance, but this request

also was to no avail.
No. 03-1575 3

2 The defendant correctly points out that Mr. Lucas did not

allege any racial slurs in his 1997 complaint to the CTA. Mr.

Lucas has not pointed to any complaint, grievance or correspondence between 1997 and 2002 that alleged racial comments, nor

(continued...)

After his unsuccessful attempts to gain experience on the

Tie Inserter/Extractor machine, Mr. Lucas filed an internal

complaint with the CTA Affirmative Action Unit on September 27, 1997. In that complaint, Mr. Lucas checked the

box that indicated that he was alleging race discrimination

by his supervisor, Blatz. Mr. Lucas elaborated by explaining

that Blatz had denied him the opportunity to operate the

inserter/extractor machine, and that General Manager

Schriks had responded to Mr. Lucas’ complaints about this

issue in a “rude and discourteous manner.” R.22, Ex.13 at 2.

Mr. Lucas details the days he was permitted to work on the

machine and his efforts in securing more work for himself

on the machine he preferred. After the complaint, the CTA’s

Affirmative Action Unit began its investigation, and, as part

of this examination, a CTA investigator met with Blatz. The

following day Blatz sent Mr. Lucas home. Mr. Lucas then

amended his internal CTA complaint to allege retaliation by

Blatz.

At the time, Mr. Lucas claimed that Blatz sent him home

without an explanation. More recently, in his November 27,

2002 deposition, Mr. Lucas testified that, when Blatz sent

him home in September of 1997, Blatz stated: “If you don’t

like it here, nigger, go home.” R.28-1, Ex.13 at 70. Additionally, Mr. Lucas’ more recent submissions allege that his

supervisors repeatedly used racial slurs and the “N word.”

Specifically, in his January 2003 affidavit, Mr. Lucas states

that Blatz used racial slurs toward him in 1997.2
4 No. 03-1575

(...continued)

does the record reveal any specific complaint by Mr. Lucas

available during the CTA’s investigation. Mr. Lucas supports his

assertion only by citing his November 2002 deposition and a

January 2003 affidavit.

Before the CTA completed its internal investigation,

Mr. Lucas requested to work the daytime hours as a machine operator; this request was denied. Mr. Lucas then

requested a transfer to another position so that he could

work days to accommodate his family needs. Sometime

around December 1, 1997, the CTA granted this second

request by transferring Mr. Lucas back to his original track

inspector position, a position in which he was no longer

supervised by Blatz.

Following Mr. Lucas’ transfer, on July 7, 1998, the CTA

sent him a letter indicating its investigation supported a

finding of cause on his race discrimination and retaliation

claims against Blatz and Schriks. After a subsequent review

by the Track Maintenance Department, however, CTA Vice

President, Pat Harney, told Blatz and Schriks that he disagreed with the finding of cause and decided not to discipline either employee. Mr. Lucas asserts that he was aware

of the finding of cause but not aware either that the finding

was discredited upon review or that the managers were not

disciplined in any way.

Mr. Lucas did not file a formal charge with the Equal

Employment Opportunity Commission (“EEOC”) or its

corresponding state agency within 300 days of the 1997

incident. Mr. Lucas attributes his failure to the fact that the

CTA communicated its finding of possible racial discrimination. Mr. Lucas thought he had exposed the injustice in the

workplace and therefore accomplished what he set out to

do. He maintains that he relied on the CTA’s representa-
No. 03-1575 5

tions that it would investigate and resolve complaints. Had

he known that the CTA had failed to take corrective action

after its initial conclusion, he continues, he would have filed

a charge with the EEOC.

2. 2001 EEOC Charge and Related Events 

After his transfer in December 1997, Mr. Lucas again inspected and repaired track. As a result of this transfer, Mr.

Lucas was not managed by, and had no contact with, Blatz

from December 1, 1997, until January 18, 2001. Mr. Lucas

admits that he was “no longer subject to Blatz’s on-going

racial harassment until Jan[.] 18, 2001.” Appellant’s Br. at 7.

In January 2001, Mr. Lucas and co-worker, Jose Quintana,

stopped a CTA passenger train instead of walking to the

nearest station, apparently, so they could get to lunch faster.

Blatz coincidentally was riding the train that Mr. Lucas and

Quintana stopped. Blatz reprimanded Mr. Lucas and

Quintana by telling them not to stop trains unnecessarily in

violation of CTA rules. He asserts that Mr. Lucas would not

respond to his questions and, as a result, Blatz told Mr.

Lucas he was “out of service” for his insubordination. Mr.

Lucas, on the other hand, asserts that he promised not to

stop trains in the future but said nothing more in order to

avoid escalating the altercation. Blatz next allegedly

grabbed Mr. Lucas’ shoulder and bruised his neck. As a

result of this altercation, Mr. Lucas called emergency

paramedics and requested an ambulance, but upon their

arrival the paramedics found no serious injuries that warranted their transporting Mr. Lucas to the hospital. Mr.

Lucas next contacted the Chicago Police Department and

filed a criminal complaint against Blatz for battery. This

charge was later dismissed.
6 No. 03-1575

Mr. Lucas also filed an “Unusual Occurrence Report” with

the CTA describing his version of the events. CTA General

Manager of Power and Way Maintenance, Frank Machara,

along with another employee, Fred Tijan, investigated the

incident to determine what actually occurred. Mr. Lucas

remained out of service during this investigation. Machara

and Tijan, the Track Maintenance Manager, conducted

interviews of several witnesses, including, Blatz, Quintana,

Mr. Lucas’ partner, and Carlos Flores, another employee

who was at the scene and witnessed the altercation. After

this investigation, Machara initially concluded that Mr.

Lucas should be terminated because Mr. Lucas’ accusations

were incorrect and because the reports Mr. Lucas filed with

the CTA and the police were false. Mr. Lucas admits that

Machara determined that he had given a false account of the

incident, which had resulted in Blatz’s arrest for battery.

After consulting with the CTA’s Employee Relations

Department, however, Machara decided to suspend Mr.

Lucas for over twenty days, the length of the investigation.

Relying on these events as the basis for his claim,

Mr. Lucas filed a charge of discrimination with the EEOC on

February 1, 2001. Mr. Lucas filed a second charge with the

EEOC on July 3, 2003, alleging retaliation for his first

complaint.

3. Other 2001 Incidents

In addition to the 1997 and January 2001 incidents, Mr.

Lucas detailed the following actions in his charge of discrimination and retaliation. First, Mr. Lucas alleges his

supervisor, Roadmaster Emiliano Escorcia, discriminated

against him by imposing discipline for going to the credit

exchange during the hours of 7-9 a.m. Mr. Lucas contends

that he was singled out for discipline while others were
No. 03-1575 7

3 The single page of a deposition transcript, R.28-1, Ex.13 at 134,

cited in his reply brief contains no support for his laconic

description of the discipline. This practice of citation continues

throughout Mr. Lucas’ brief. We note at this point that, although

this case comes to us after the trial court granted the defendant’s

motion for summary judgment, and we therefore must construe

all facts in the light most favorable to the non-moving party, see

Bellaver, 200 F.3d at 491-92, Mr. Lucas has made this task particularly difficult. First, his presentation of the facts are in the form of

an argument, often without proper citation. See Cir. R. 28(c) (“The

statement of the facts required . . . shall be a fair summary

without argument or comment.”); Palmquist v. Selvik, 111 F.3d

1332, 1337 (7th Cir. 1997); see also L.S.F. Transp., Inc. v. N.L.R.B.,

282 F.3d 972, 975-76 n.1 (7th Cir. 2002) (noting that Circuit Rule

28(c) is “essential to meaningful judicial review” and cautioning

counsel that violations could lead to the brief being stricken or

summary affirmance, in addition to other sanctions). Further, as

defendant correctly points out, the “Plaintiff’s approach in this

case has been to present his claims non-chronologically, often

without reference to time or dates, and without discernable

logical flow.” Appellee’s Br. at 18. This practice also does not aid

plaintiff in demonstrating whether his claims are meritorious or

not.

permitted this liberty. In describing the discipline he

received, Mr. Lucas stated that he was “written up,”

Appellant’s Br. at 13, and he “alone was issued a caution

and instruct [sic] by Escorcia to create a paper trail,” Appellant’s Reply Br. at 15.3

Next, Mr. Lucas asserts he and his co-worker Quintana

were given written warnings for returning late from lunch

when other employees were not similarly disciplined.

Mr. Lucas offered, as an example, Francisco Garcia, a coworker, who went and arrived back from lunch at the same

times, but who was not similarly disciplined. In his reply

brief, Mr. Lucas explained that he was docked thirty

minutes of pay for this incident.
8 No. 03-1575

In a third event, Mr. Lucas asserts he was singled out for

refusing to go onto the tracks to remove a “pushcart” during

the rush-hour period while others were not disciplined for

also refusing the order. Mr. Lucas explains that CTA

employees were instructed not to enter the tracks during

rush hour unless there was an emergency. Therefore, when

Mr. Lucas and three other employees were asked to remove

the cart, no one complied. Mr. Lucas does not contest that

he was the only employee who called this order “stupid and

idiotic.” R.20 ¶ 109; R.26 ¶ 109. After a Track Maintenance

Department investigation of the matter, Mr. Lucas was

suspended for one day for showing disrespect.

Finally, Mr. Lucas asserts that there also was evidence of

a racially hostile working environment. Mr. Lucas does not

provide dates or even a time frame in his appellate brief

indicating when many of the statements occurred. In Mr.

Lucas’ statement of uncontested facts before the district

court, he indicated that his supervisor, Escorcia, “regularly

demeaned African-Americans with comments and slavery

gestures” from 1999 through 2002. R.28-1, Ex.11 ¶ 8.

Mr. Lucas quotes a few of Escorcia’s alleged racial slurs,

only noting that the slurs and gestures were “common

phrase[s].” R.28-1, Ex.13 at 92. Mr. Lucas also contends that

African-Americans were asked to work longer sections of

the track and were written up for reasons for which nonAfrican-Americans were not written up. Mr. Lucas offers, as

an undated example, an African-American worker who was

asked to go into a tunnel without a flashlight when nonAfrican-Americans were not so required. Finally, Mr. Lucas

contends, further evidence of a hostile work environment is

Escorcia’s discipline of Mr. Lucas after he refused Escorcia’s

order to remove the pushcart from the tracks.
No. 03-1575 9

B. District Court Proceedings

On September 13, 2001, Mr. Lucas filed his complaint. The

CTA asserted that Mr. Lucas’ claims were barred by the

statute of limitations, and it moved for summary judgment

shortly thereafter. The CTA subsequently filed a motion to

strike much of the statement of facts that Mr. Lucas had

submitted in response to its summary judgment motion.

The district court granted, in part, the motion to strike and

also granted the motion for summary judgment.

The district court first addressed whether Mr. Lucas’ 1997

claims were time-barred. The court noted that Mr. Lucas

had filed his EEOC charge on February 1, 2001, well outside

of the 300-day time requirement for filing a charge of

discrimination. The court then addressed Mr. Lucas’

argument that his claims were saved by equitable estoppel

or the continuing violation doctrine. The court reiterated

that equitable estoppel applies only in situations in which

a defendant takes active steps to prevent a plaintiff from

suing on time. The court found that the CTA had not taken

any steps to prevent Mr. Lucas from filing on time and that

the CTA actually had advised Mr. Lucas that he might have

a valid claim. 

The court also rejected Mr. Lucas’ continuous violation

argument for two reasons. First, the district court found that

Mr. Lucas had acknowledged that the past acts were

sufficiently severe to constitute a discrete act, and discrete

acts must be filed within the limitations period. The court

pointed to Mr. Lucas’ acknowledgment that he had told his

manager in 1999 that he was the victim of discrimination

but had decided not to file a legal claim. Second, the court

determined that Mr. Lucas was transferred away from Blatz

in 1997 and did not have any contact with him until 2001.

The district court next addressed Mr. Lucas’ claims that he

was disciplined in a discriminatory manner. The district
10 No. 03-1575

court found that Mr. Lucas could not come forward with

evidence that similarly situated non-African-American

employees were treated less severely. The court first addressed Mr. Lucas’ discipline for returning late from lunch;

according to the court, the record indicated that Escorcia

wrote up both Mr. Lucas and Lucas’ Hispanic partner,

Quintana, for returning late. The court then addressed the

January 18 train incident and related discipline. It found

that Mr. Lucas had failed to come forward with any evidence that another CTA employee had filed a false police

report against a fellow employee, but had not been punished. Finally, the court dismissed Mr. Lucas’ contention

that he was subject to improper discipline after refusing to

obey a supervisor’s order. The court found that Mr. Lucas

had called the direction of his superior “stupid and idiotic”;

however, Mr. Lucas had failed to offer evidence of another

employee who had engaged in similar conduct without

being subject to discharge. The court therefore granted

CTA’s motion for summary judgment.

Finally, the district court addressed, and ultimately

granted, the CTA’s motion to strike the allegations that Mr.

Lucas’ supervisor, Escorcia, regularly demeaned AfricanAmerican employees or discriminated against Mr. Lucas.

The court found that Mr. Lucas “provided no support for

his general statements as to such comments, such as time,

place, and who was present.” R.37 at 9. Accordingly, the

court could not assess whether the statements fell within the

statute of limitations period or not. The court struck Mr.

Lucas’ “statements of uncontested facts with regard to

Escorcia’s alleged comments for lack of foundation.” Id.

II

DISCUSSION

We review the district court’s grant of summary judgment

de novo, “viewing all of the facts and drawing all rea-
No. 03-1575 11

sonable inferences therefrom in favor of” Mr. Lucas, the

non-moving party. Franzoni v. Hartmarx Corp., 300 F.3d 767,

771 (7th Cir.); see Hilt-Dyson v. City of Chicago, 282 F.3d 456,

462 (7th Cir.), cert. denied, 537 U.S. 820 (2002). Summary

judgment should be granted only when the “pleadings,

depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.” Fed. R.

Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986). The decision of the district court to strike several

factual allegations because they were without foundation or

support is an evidentiary ruling that is reviewed under a

deferential abuse of discretion standard even on a motion

for summary judgment. See Bradley v. Work, 154 F.3d 704,

708-09 (7th Cir. 1998); Eisenstadt v. Centel Corp., 113 F.3d 738,

744 (7th Cir. 1997).

We first turn to whether the 1997 claims are barred by the

statute of limitations and then address the remaining clams.

A. 1997 Claims

“Section 2000e-5(e)(1) requires that a Title VII plaintiff file

a charge with the Equal Employment Opportunity Commission (EEOC) either 180 or 300 days ‘after the alleged unlawful employment practice occurred.’ ” Nat’l R.R. Passenger

Corp. v. Morgan, 536 U.S. 101, 104-05 (2002) (citing 42 U.S.C.

§ 2000e-5); see Hardin v. S.C. Johnson & Son, Inc., 167 F.3d

340, 344 (7th Cir. 1999); Russell v. Delco Remy Div. of Gen.

Motors Corp., 51 F.3d 746, 750 (7th Cir. 1995). Mr. Lucas filed

his first charge of discrimination with the EEOC on February 1, 2001. Accordingly, the CTA contends that any claim

before April 1, 2000 (300 days before Mr. Lucas’ first EEOC

charge) is time-barred unless Mr. Lucas can demonstrate an
12 No. 03-1575

4 Mr. Lucas concedes that, if this court does not accept his

equitable estoppel or continuing violation arguments, he is

limited to recovering for only those actions that occurred after

April 1, 2000.

exception to this limitations period.4 Mr. Lucas offers two

theories to avoid this result and to reach claims prior to

April of 2000.

1. Equitable Estoppel

Mr. Lucas first contends that the CTA’s secret rejection of

the initial discrimination finding equitably estops the CTA

from employing the statute of limitations as a defense. Mr.

Lucas explains that he relied upon the CTA’s communications and its finding of cause for discrimination. He asserts

that the CTA claimed it investigated and resolved the discrimination claims but then allowed higher management to

disregard the findings regarding his claim. Mr. Lucas characterizes this review process as “nothing but a deliberate,

misleading illusion to employees.” Appellant’s Br. at 18.

According to Mr. Lucas, CTA management’s disregard of

the initial internal finding of discrimination justifies the

application of equitable estoppel.

a. legal framework

Equitable estoppel will operate as a bar to the defense of

statute of limitations if “the defendant t[ook] active steps to

prevent the plaintiff from suing in time, such as by hiding

evidence or promising not to plead the statute of limitations.” Thelen v. Marc’s Big Boy Corp., 64 F.3d 264, 267 (7th

Cir. 1995) (internal citations omitted); see Soiginer v. Am. Bd.

of Plastic Surgery, 92 F.3d 547, 554 (7th Cir. 1996); Cada v.
No. 03-1575 13

Baxter Healthcare Corp., 920 F.2d 446, 451 (7th Cir. 1990).

However, Mr. Lucas does not allege that the CTA somehow

prevented him from suing or that it promised not to plead

the limitations as a defense. He only contends that he would

have filed his claim if the CTA had not misled him into

thinking the internal review would remedy the situation.

Mr. Lucas’ hope that internal review would resolve his

complaint in a manner he desired is not the type of claim

that equitable estoppel is designed to address.

Our resolution of Mr. Lucas’ claim is guided by the decision of the Supreme Court in Delaware State College v. Ricks,

449 U.S. 250 (1980), and our subsequent case law interpreting Ricks. See Lever v. Northwestern Univ., 979 F.2d 552,

556 (7th Cir. 1992) (noting that to treat the opportunities

of internal review as a source of equitable estoppel would

reverse the Court’s conclusion in Ricks); Soignier, 92 F.3d

at 554. In Ricks, the Court reiterated that the limitations

period begins to run when the discrimination occurs. It

further determined that the “pendency of a grievance, or

some other method of collateral review of an employment

decision does not toll the running of the limitations periods.” Ricks, 449 U.S. at 261. The existence of these internal

procedures, the Court explained, does “not obscure the

principle that limitations periods normally commence when

the” discriminatory act occurs. Id.

In Lever v. Northwestern University, the plaintiff attempted

to pursue claims outside the 300-day limitations period by

characterizing the internal review process as a “snare[ ] for

the unwary” that kept her from filing with the EEOC in

time. Lever, 979 F.2d at 556. The defendant university

offered many channels of internal review through which a

professor could attempt to persuade school officials to

change their employment decisions. Lever pursued these

procedures without success and without filing a charge with
14 No. 03-1575

5 Lever was an assistant professor who was notified by the Dean

of the College that she would not be recommended for promotion. The dean then subsequently received further evidence and

reviewed his initial decision several times. The dean did not

reverse his decision, and an internal panel agreed to hear Lever’s

appeal of the dean’s decision. As a result, Lever delayed filing her

complaint.

the EEOC within the limitations period.5 We rejected Lever’s

claim that these multiple and varied opportunities for

internal review were the type of deception that could

support equitable estoppel. See Lever, 979 F.2d at 556

(“Excessive kindness in providing many and varied opportunities for internal review is not the sort of deception that

supports equitable estoppel.”). We noted that “[t]o treat

such opportunities as a source of equitable estoppel would

reverse the Court’s conclusion in Ricks . . . that appeals and

requests for reconsideration do not permit delay.” Id.

We held similarly in Soignier v. American Board of Plastic

Surgery. In that case, the plaintiff alleged that his internal

review was delayed until the last day of the month in which

he could file an EEOC charge and that his employer only

explained the internal review process without informing

him of the option of filing a lawsuit. Soignier, 92 F.3d at 554.

This court held that neither act supported equitable

estoppel. Id. Specifically, with respect to the contention that

internal appeals should toll the statute of limitations, we

determined that permitting internal review to delay the

statute of limitations would be contrary to Ricks:

An employee’s pursuit of an internal grievance procedure does not affect the date on which his claim accrued. Unlike an EEOC investigation . . . , internal

appeals are not part of the . . . statutory procedure and

do not toll the time for filing suit. . . . His internal
No. 03-1575 15

appeal was only an added forum—an opportunity to

get two bites at the apple. 

Id. Internal review was not, therefore, an act that implicated

equitable estoppel. 

b. application

As we have stated, to invoke equitable estoppel, the

plaintiff must demonstrate that the defendant took “active

steps to prevent the plaintiff from suing in time.” Cada, 920

F.2d at 450-51. Our decisions clearly demonstrate that

merely providing internal review, as in the present situation, is not the type of active step that warrants the application of equitable estoppel. Mr. Lucas chose to trust that

the internal review process would resolve his complaint to

his satisfaction without following through to see that the

desired result was actually achieved. His lack of satisfaction

does not equate to an affirmative concealment on the part of

the CTA.

That the CTA’s actions do not warrant application of

equitable estoppel finds further support in the correspondence between the parties. The only action the CTA took

was to inform Mr. Lucas the internal investigation supported a finding of cause on Mr. Lucas’ race discrimination

and retaliation claims against Blatz and Schriks. The letter

sent by the CTA stated that “the evidence supported a

finding of race discrimination and retaliation” and that the

“Affirmative Action Unit will make various recommendations to the Vice President of Engineering and

Construction.” R.28-1, Ex.1. Contrary to hiding or destroying evidence, the CTA stated that the evidence supported a

claim. Further, the CTA only promised to make recommendations to the Vice President of Engineering. It appears

uncontested that the CTA did just that. The evidence
16 No. 03-1575

6 In Delaware State College v. Ricks, 449 U.S. 250 (1980), the discriminatory act was the denial of tenure and the Court held that

the subsequent lawful termination should not be the starting

point for the statute of limitations. Id. at 257-58; Chardon v.

Fernandez, 454 U.S. 6, 7-8 (1981) (per curiam).

indicates that the CTA Vice President disagreed with the

investigation and decided not to discipline Blatz or Schriks.

At no time did the CTA hide evidence helpful to Mr. Lucas’

discrimination claim; the CTA only informed Mr. Lucas of

their findings in his favor and that they would make

“recommendations” to management. The letter actually

alerted Mr. Lucas to his potentially meritorious claim and

did not amount to active steps preventing a plaintiff from

filing a claim within the limitations period.

Finally, Mr. Lucas asserts that the CTA’s failure to inform

him that the findings had been reversed by management

qualifies as an act that implicates the doctrine of equitable

estoppel. Mr. Lucas explains that he did not learn that the

CTA disregarded the findings of the investigation until May

28, 2002. He therefore contends that he did not learn of his

injury until this time. The proper focus, however, is when

Mr. Lucas discovered the discriminatory act that violated the

applicable statute and not when Mr. Lucas discovered some

other act that was not itself the subject of a violation. See

Ricks, 449 U.S. at 258 (“[T]he proper focus is upon the time

of the discriminatory acts, not upon the time at which the

consequences of the acts became most painful.” (quoting

Abramson v. Univ. of Hawaii, 594 F.2d 202, 209 (9th Cir. 1979)

(emphasis added))).6

 As we have explained, “[a]n employer’s refusal to undo a discriminatory decision is not a

fresh act of discrimination.” Lever, 979 F.2d at 552. The fact

that the CTA disregarded the initial finding of cause upon

review is not alleged to be a discriminatory violation of Title
No. 03-1575 17

VII, but the alleged discriminatory act occurred, and was

discovered, in 1997 before Mr. Lucas even filed his internal

complaint. Mr. Lucas’ equitable estoppel argument fails,

and we now turn to whether the continuing violation

doctrine will save his otherwise time-barred claims.

2. Continuing Violation

Mr. Lucas next contends that his 1997 Title VII claims

should be treated as a single continuing violation. He explains that “it would have been unreasonable for Mr. Lucas

to sue given the EEO Department’s findings. Mr. Lucas was

told the racial discrimination had been resolved.”

Appellant’s Br. at 19. 

a. case law

In National Railroad Passenger Corp. v. Morgan, the Supreme

Court explained when a plaintiff may rely on the continuing

violation doctrine to recover for discriminatory acts that fall

outside the 300-day limitations period. The doctrine operates differently according to the type of discriminatory act

alleged—-“discrete” discriminatory acts or acts contributing

to a hostile work environment. Morgan, 536 U.S. at 114-15.

With respect to the first category—“discrete” acts—each act

“starts a new clock for filing charges,” and the clock starts

on the date that the act “occurred.” Id. at 113. Any discrete

discriminatory acts that fall outside the statute of limitations

are time-barred even though they may relate to other

discrete acts that fall within the statute of limitations. See id.

at 112-13. Similarly, timely filed discrete acts cannot save

discrete acts that are related but not timely filed. See id. at

112 (“[D]iscrete acts that fall within the statutory time

period do not make timely acts that fall outside the time
18 No. 03-1575

period.”). The Court provided further guidance with respect

to application of the continuing violation doctrine by giving

specific examples of discrete acts “such as termination,

failure to promote, denial of transfer, or refusal to hire.”

Id. at 114. The Court noted that these acts “are easy to

identify” because “[e]ach incident of discrimination and

each retaliatory adverse employment decision constitutes a

separate actionable ‘unlawful employment practice.’ ” Id. 

However, as noted above, the Court in Morgan distinguished “discrete” acts from a second category of acts, those

contributing to a hostile work environment. The Court

explained that the “very nature” of hostile work environment claims involves “repeated conduct” that “may not be

actionable on its own.” Id. at 115. Rather, “[s]uch claims are

based on the cumulative effect of individual acts.” Id. In

contrast to discrete acts of discrimination, 

[i]t does not matter, for purposes of the statute, that

some of the component acts of the hostile work environment fall outside the statutory time period. Provided

that an act contributing to the claim occurs within the

filing period, the entire time period of the hostile

environment may be considered by a court for the

purposes of determining liability. 

Id. at 117; see also Hildebrandt v. Illinois Dept. of Nat. Res., 347

F.3d 1014, 1027 (7th Cir. 2003). The Court reasoned that the

“incidents constituting a hostile work environment are part

of one unlawful employment practice.” Morgan, 536 U.S. at

118.

b. discrete acts

Applying the framework set forth in Morgan to Mr. Lucas’

claims, we believe that at least some of the allegedly
No. 03-1575 19

discriminatory acts identified by Mr. Lucas are “discrete”

acts, and therefore claims based on these acts cannot be

rendered timely by application of the continuing violation

doctrine. For instance, Mr. Lucas’ claim that, in 1997, Blatz

sent him home without pay in retaliation for filing his internal grievance is a discrete act. Because it occurred prior

to April 1, 2000, 300 days prior to Mr. Lucas’ filing, it is not

actionable. Other discrete acts that were actionable standing

alone were the CTA’s decision to suspend Mr. Lucas for one

day after he refused Escorcia’s order to enter the track and

his twenty-two-day suspension in January 2001. These

discrete acts fell within the limitations period and are

addressed separately below. 

c. hostile environment

In addition to discrete acts, Mr. Lucas also maintains that

he endured hostile harassment from 1997 forward. We set

forth the incidents that allegedly form a hostile environment

claim, keeping in mind the Court’s instruction in Morgan

that our task “is to determine whether the acts about which

an employee complains are part of the same actionable

hostile work environment practice.” Id. at 120. If we conclude that they are part of the same hostile work environment practice, then, we must determine “whether any act

falls within the statutory period.” Id. Without a hostile act

within the limitations period, we cannot consider component hostile acts that occurred outside the limitations

period. See id. 

We are hindered in our efforts in assessing Mr. Lucas’

claim, however, by his failure to point to the specific actions

that he believes contributed to a hostile work environment

claim. In addressing the continuing violation doctrine, Mr.

Lucas only submits that “[i]t would have been unreasonable
20 No. 03-1575

7 See United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991);

United States v. Giovannetti, 919 F.2d 1223, 1230 (7th Cir. 1990).

for Lucas to sue given the EEO Department’s findings.

Lucas was told the racial discrimination had been resolved.”

Appellant’s Br. at 19. This laconic contention does not

demonstrate a hostile work environment. We therefore look

to the remainder of Mr. Lucas’ brief to assess whether he

may have a hostile work environment claim that merits the

inclusion of otherwise barred actions. However, even there,

Mr. Lucas makes only two references to his hostile work

environment claim. The first is based on his assertion that

“Blatz had previously retaliated against Lucas in October of

1997” and that the Affirmative Action Unit found cause for

discrimination but failed to discipline Blatz. Appellant’s Br.

at 28. Mr. Lucas therefore concluded that “a jury could

reasonably find that Blatz retaliated, discriminated and

maintained a hostile work environment against Lucas on

Jan[.] 18, 2002.” Id. Mr. Lucas also contends that on June 29,

2001, “[t]he CTA’s discipline of Mr. Lucas for speaking up

to challenge Escorcia’s . . . order to violate CTA safety rules

was a clear example of racial discrimination and is an aspect

of Mr. Lucas’ hostile work environment.” Id. at 30.

Although Mr. Lucas’ brief attempt to invoke the principles

of the continuing violation doctrine well might warrant the

application of forfeiture principles,7

 even a charitable review

of the entire record reveals that the continuing violation

doctrine is inapplicable. The record reveals that Mr. Lucas

asserted in his statement of uncontested facts before the

district court that, when he addressed Blatz as “Sir,” Blatz

would respond to Mr. Lucas as “asshole.” R.27 ¶¶ 1-3. Mr.

Lucas also offered testimony of an experienced employee

who said Blatz treated African-Americans with disrespect
No. 03-1575 21

and, consequently, the work environment was hostile. Mr.

Lucas further contended that Blatz allowed him to work on

the Tie Inserter/Extractor machine only two times despite

Mr. Lucas’ high test score. Finally, Mr. Lucas maintains that,

in 1997, Blatz wrote on a railroad tie that “Lucas is a dumb

nigger.” R.27 ¶ 29. However, the acts set forth above, which

all occurred outside the limitations period, cannot be

considered unless Mr. Lucas can point to an act that is part

of the same hostile work environment and that falls within

the limitations period.

Mr. Lucas attempts to fulfill this requirement by pointing

to various actions that occurred after 1997. However, many

of these incidents are nothing more than undated, unspecific

assertions. First, Mr. Lucas asserts that Escorcia used racial

slurs and that “racial slurs were commonly used in the

workplace.” Appellant’s Br. at 14. Mr. Lucas also offered

deposition testimony from a co-worker who asserted that

Escorcia treated African-Americans “more harshly than non

African-Americans.” Id. Mr. Lucas also claims (1) that

African-Americans were asked to change the rail ties more

frequently; (2) that Escorcia wrote an African-American

employee up for his first time being thirty minutes late to

work while other non-African-Americans were not written

up their first time; (3) that Escorcia ordered an AfricanAmerican employee, McGee, to enter a tunnel without a

flashlight, a dangerous undertaking with the electrified,

high-voltage rail; and (4) that Escorcia finally gave McGee

an inadequate flashlight of lower intensity than the flashlights given to non-African-Americans.

Although the above actions could possibly support Mr.

Lucas’ hostile environment claim, there must be evidence in

the record from which a trier of fact could conclude that the

acts were committed after April 1, 2000, within the limitations period. First, we address Escorcia’s comments and

racial slurs. 
22 No. 03-1575

8 The district court granted, in part, the defendant’s motion to

strike, but was less than precise in stating what it had stricken.

R.37 at 9. The court referred to Mr. Lucas’ allegations that

Escorcia regularly demeaned African-Americans. The court

granted the plaintiff’s motion “to strike Lucas[’] additional

statements of uncontested facts with regard to Escorcia’s alleged

comments for lack of foundation.” Id. The court apparently struck

all the statements allegedly made by Escorcia that were not

supported by time or other detail.

The evidence concerning Escorcia’s actions was the subject

of the CTA’s motion to strike, which was granted by the

district court. The district court explicitly held that Mr.

Lucas failed to provide support for his general allegations

against Escorcia. The court specifically noted that the

allegations did not contain the time, place of the actions, nor

did the allegations specify who was present. Therefore, the

court could not determine whether Escorcia’s comments

occurred within the limitations period. The court accordingly granted the CTA’s motion to strike Mr. Lucas’ general

allegations of Escorcia’s racial statements. As we previously

noted, we review the decision of the district court to strike

such allegations for an abuse of discretion. See Bradley v.

Work, 154 F.3d 704, 708-09 (7th Cir. 1998); Eisenstadt v. Centel

Corp., 113 F.3d 738, 744 (7th Cir. 1997). However, because

Mr. Lucas offers no argument as to why the district court’s

decision was erroneous, he has waived any argument as to

Escorcia’s comments.8

However, assuming arguendo that Mr. Lucas has not

waived his objection to this decision, the district court did

not abuse its discretion in excluding Escorcia’s statements.

Mr. Lucas proffered his affidavit that stated Escorcia treated

African-Americans “more harshly.” He asserts that AfricanAmericans were asked to change rail ties more frequently,
No. 03-1575 23

9 In Drake v. Minnesota Mining & Manufacturing Co., the plaintiff

offered an affidavit statement that every time the plaintiff or

another African-American employee complained about an

employee who was white, the employer would not investigate

the allegations against white employees. We determined that this

was “exactly the type of conclusory allegations that Rule 56

counsels should be disregarded.” 134 F.3d 878, 887 (7th Cir. 1998).

Likewise, conclusory allegations that African-Americans had to

do more work and received the tougher assignments cannot

support a claim of harassment.

work longer sections of the track and were written up for

reasons that non-African-Americans were not. See Appellant’s Br. at 14-15. Mr. Lucas does not set forth any of the

times, dates or places which led to these conclusions. We

repeatedly have held that conclusory statements, not

grounded in specific facts, are not sufficient to avoid

summary judgment. See Albiero v. City of Kankakee, 246 F.3d

927, 933 (7th Cir. 2001). “Rule 56 demands something more

specific than the bald assertion of the general truth of a

particular matter, rather it requires affidavits that cite specific concrete facts establishing the existence of truth of the

matter asserted.” Drake v. Minnesota Min. & Mfg. Co., 134

F.3d 878, 887 (7th Cir. 1998) (citations omitted).9

 Consequently, without specific instances of support, we cannot

consider Mr. Lucas’ assertions in support of his hostile work

environment claim. 

Excluding the unsupported claims of racially derogatory statements by Escorcia, we are left with only discrete
24 No. 03-1575

10 These discrete acts previously mentioned involve Mr. Lucas’

suspensions. Specifically, Machara suspended Mr. Lucas for filing

a false report after the January 2001 train incident with Blatz. Mr.

Lucas also was disciplined after visiting the credit exchange,

returning late from lunch, and in June 2001 the CTA suspended

him after he had disobeyed and called an order from Escorcia

“stupid and idiotic.” R.20 ¶ 109; R.26 ¶ 109.

acts10 and Mr. Lucas’ encounter with Blatz in January 2001

on the commuter train. With regard to the train incident

with Blatz, we accept as true Mr. Lucas’ version that Blatz

yelled at and physically grabbed him. These actions on

January 18, however, were not connected to any 1997 hostile

work environment. The altercation in 2001 occurred long

after 1997 with no incidents during the intervening years.

We believe that this chance meeting over three years later

stretches the application of a continuing violation theory

beyond any workable limit; it simply cannot be considered

part of the same hostile environment practice. Blatz was no

longer Mr. Lucas’ supervisor and had not supervised Lucas

since 1997. 

We have stated that “[t]he concept of cumulation suggests

a critical limiting principle. Acts . . . so discrete in time or

circumstances that they do not reinforce each other cannot

reasonably be linked together into a single chain, a single

course of conduct, to defeat the statute of limitations.”

Tinner v. United Ins. Co. of Am., 308 F.3d 697, 708 (7th

Cir. 2002) (quoting Galloway v. Gen. Motors Serv. Parts

Operations, 78 F.3d 1164, 1166 (7th Cir. 1996), and noting that

Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002)

abrogated Galloway on other grounds). In Tinner, for ex-
No. 03-1575 25

11 Although we do not consider it necessary to decide this point,

the defendant also contends that any hostile acts in 1997 were

waived by Mr. Lucas. Its argument is not without merit. The

Court in Morgan expressly left open the possibility of an employer’s use of equitable defenses. The record confirms that Mr.

Lucas admitted that as of August 1997 he believed that Blatz’s

use of racial slurs created a hostile working environment. Mr.

Lucas further acknowledged that he told his manager in 1999 that

(continued...)

ample, we reviewed our precedent and determined that an

eight-year gap between discriminatory incidents could not

constitute a single hostile work environment claim. Tinner

in turn relied upon Selan v. Kiley, 969 F.2d 560, 566-67 (7th

Cir. 1992). In this earlier case, we “held that a two-year gap

between alleged discriminatory acts could not support a

continuing violation claim.” Tinner, 308 F.3d at 708-09. This

court in Selan held that the almost two-year separation was

“considerable” and “weigh[ed] heavily against finding a

continuing violation.” Selan, 969 F.2d at 567.

The gap between alleged hostile acts in Mr. Lucas’ claim,

exceeding three years, was even greater than the two-year

gap in Selan. Although a brief passage of time will not defeat automatically the application of the continuing violation doctrine, we must conclude that the approximate

three-year gap between the discriminatory acts alleged, with

the last act occurring entirely by happenstance, was not part

of the same hostile work environment. Thus, Mr. Lucas puts

forth no evidence of a discriminatory act during the limitations period that contributed to a hostile work environment.

Accordingly, the 1997 claims are time-barred.11
26 No. 03-1575

(...continued)

he believed his work environment in 1997 was “‘hostile,’ but that

he did not wish to pursue his legal case against CTA any

further.” R.20 ¶ 49; R.26 ¶ 49.

B. Claims Filed Within the Limitations Period

Now that we have determined that the 1997 claims are

time-barred, we turn to Mr. Lucas’ discrete claims of discrimination that fell within the limitations period in order

to determine whether he has set forth a prima facie case of

discrimination.
No. 03-1575 27

12 Mr. Lucas alleges statements by CTA’s counsel calling Mr. Lucas

a derogatory name and asserting that the CTA was “out to get

Lucas” are direct evidence of discrimination. The statements were

allegedly made by CTA counsel, Eric Mennel, prior to a deposition

for the present litigation. The CTA claims that the affiant, Garza,

stated to Mennel that Mr. Lucas was out to “get money” from his

suit. The attorney then responded that the CTA would not give

Lucas any money and would go to trial if necessary and “get ‘em.”

R.31 ¶ 160. The CTA explains the comment was referring to

winning the case Mr. Lucas brought. See Appellee’s Br. at 35; R.31

¶ 160. Mr. Lucas states only that Mennel “referred to Lucas as an

asshole and told Garza that, ‘The CTA was out to get Lucas.’ ”

Appellant’s Br. at 14; R.28-2, Ex.40, Garza Aff. ¶¶ 4, 5.

Even if these statements were made as asserted, it is not direct

evidence of discrimination. Direct evidence of discrimination is

evidence that, without reference or explanation, ties the illicit

motive with the adverse employment action. In the present case,

the statements were not made by a decision maker nor did they

concern an adverse employment action. See Williams v. Seniff, 342

F.3d 774, 790 (7th Cir. 2003); Fyfe v. City of Ft. Wayne, 241 F.3d 597,

602 (7th Cir. 2001). Accordingly, neither statement is direct

evidence of discrimination, although they may be probative

indirect evidence of discrimination.

Mr. Lucas may provide direct12 evidence of discrimination

or he can rely on the indirect burden-shifting analysis of

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

Stone v. City of Indianapolis Pub. Utils. Div., 281 F.3d 640, 644

(7th Cir. 2002), cert. denied, 123 S. Ct. 79 (2003). Ordinarily,

to establish a prima facie case of discriminatory discipline

based on indirect evidence Mr. Lucas must demonstrate that

(1) he is a member of a protected class; (2) he was performing his job satisfactorily; (3) he suffered adverse employment action; and (4) the employer treated similarly situated
28 No. 03-1575

employees outside of the protected class more favorably. See

Ajayi v. Aramark Bus. Servs., Inc., 336 F.3d 520, 532 (7th Cir.

2003); Peters v. Renaissance Hotel Operating Co., 307 F.3d 535,

546 (7th Cir. 2002). To the extent that the plaintiff claims that

he was subject to disparate punishment, as Mr. Lucas does

here, the second and fourth prongs of McDonnell Douglas

merge. See Grayson v. O’Neill, 308 F.3d 808, 817 (7th Cir.

2002); Flores v. Preferred Technical Group, 182 F.3d 512, 515

(7th Cir. 1999). In those situations, there is no question that

the employee failed to meet his employer’s expectations.

Instead, the plaintiff must establish that he received

dissimilar—and more harsh—punishment than that received by a similarly situated employee who was outside

the protected class. See Grayson, 308 F.3d at 817; Flores, 182

F.3d at 515.

If Mr. Lucas meets his initial burden, the burden of

production shifts to the CTA to articulate a legitimate nondiscriminatory reason for its action. If the CTA comes

forward with a legitimate, non-discriminatory reason for its

action, the burden shifts back to Mr. Lucas to demonstrate

the reason offered was pretextual. See Peters, 307 F.3d at 545.

Mr. Lucas alleges several acts of discrimination, and we

now address each in turn. 

1. Train Incident Suspension

The facts are undisputed that Machara conducted an

investigation and concluded that Mr. Lucas filed a false

report that led to Blatz’s arrest and charges of battery. As a

result of this finding, Machara recommended that Mr. Lucas

be terminated. However, the Employee Relations Department recommended that Mr. Lucas only be suspended.

Machara accepted this recommendation and converted the
No. 03-1575 29

13 Mr. Lucas asserts he was suspended for 24 days. R.20 ¶ 96; R.26

¶ 96.

14 As support, Mr. Lucas offers two pieces of evidence on appeal.

Mr. Lucas first cites to a deposition transcript where Blatz recounted the events of January 18, 2001. Blatz testified that he told

Mr. Lucas he was out of service. Mr. Lucas also cites a letter from

Machara explaining the suspension to a union representative.

Machara explained in the letter that “[o]n Thursday, January 18,

2001, Mr. Lucas was taken out of service by Senior Roadmaster

James Blatz for insubordination. . . . Mr. Lucas made several

allegations of physical violence against him by Mr. Blatz and

requested police and medical attention.” R.28-2, Ex.48. This letter

goes on to explain that “[o]n Friday, January 19, 2001[,] during a

hearing at the West Shops, Mr. Lucas submitted an Unusual

Occurrence Report accusing Mr. Blatz of assaulting him. . . .

Because of the severity of the situation, Mr. Lucas was taken out

(continued...)

discharge into a suspension. Id. Machara suspended Mr.

Lucas for twenty-two days as a result of the January 18

incident.13

Mr. Lucas is a member of a protected class and suffered

an adverse employment action, suspension of twenty-two

days. Therefore, the critical element remaining for Mr. Lucas

to prove is that similarly situated employees received less

severe punishment. Mr. Lucas does not identify any other

employee who falsified a report or document, nor does Mr.

Lucas identify any employee who had lied. Despite the

admission that Machara made the suspension decision, Mr.

Lucas maintains that Blatz made the decision to suspend

him as part of an ongoing effort of discrimination. Mr.

Lucas contends that Blatz and Machara did not suspend

him for lying and filing a false report, but suspended him

for stopping the CTA train and remaining quiet. See Appellant’s Br. at 8-9, 16, 20, 23.14 Mr. Lucas claimed that Blatz
30 No. 03-1575

(...continued)

of service pending the results of a full investigation.” Id. The

investigation was completed on January 26 and a hearing was

scheduled for January 31.

Even this evidence, offered in an attempt to avoid his previously noted admission that Machara made the decision to fire

him based on a false report, does not demonstrate that Blatz

suspended Mr. Lucas. Taken in context, the evidence offered

demonstrates Blatz may have initiated the process by taking Mr.

Lucas “out of service” that day. However, on the following day,

Mr. Lucas submitted his report on the events, and it is undisputed that Machara then took Mr. Lucas out of service pending

an investigation into the assault charges. This evidence does not

alter the fact that Mr. Lucas has admitted Machara suspended

him based on the finding that he had filed false reports about the

incident.

initially told him not to stop the trains and asked whether

he understood this statement. Mr. Lucas responded by

stating he would no longer stop the trains, but subsequently

remained quiet and refused to answer Blatz’s questions. Mr.

Lucas asserts that Blatz continued to yell, but he remained

silent in order to diffuse the situation. However, the statement of uncontested facts indicates that Machara determined Mr. Lucas gave a false report. Machara originally

recommended termination, but, after consulting with the

Employee Relations Department, Machara agreed to convert

the termination into a suspension. Additionally, in his

response to the CTA’s statement of uncontested material

facts, Mr. Lucas does not deny that Machara suspended him

but only denies that his suspension was for twenty-two

days when it was actually for twenty-four. The CTA stated

that “Machara suspended Plaintiff for 22 days as a result of

the incident that occurred on January 18, 2001.” R.20 ¶ 96.

Mr. Lucas responded: “Denies. The suspension was for 24
No. 03-1575 31

15 At oral argument counsel for Mr. Lucas also asserted that “at

the time of the decision that Machara made,” Machara did not

have enough information to determine the report was false.

16 Even assuming Mr. Lucas’ asserted reasons for the suspension—stopping a train between stations and remaining silent—

were accepted, his discrimination claim is still untenable in light

of the fact that Mr. Lucas never points to any specific person

outside the protected class who also stopped a train or committed

a similar rules infraction and did not get suspended or reprimanded. He does provide general statements that no one had

been suspended for this conduct. These statements neither inform

us as to whether these individuals were members of a protected

class, nor describe the situations in which the trains were

stopped. His conclusory statements do not satisfy his burden to

put forth a similarly situated employee who is directly comparable in all respects and was treated more favorably. See Grayson v.

O’Neill, 308 F.3d 808, 818-19 (7th Cir. 2002).

days.” R.26 ¶ 96. Further, in his appellate brief, Mr. Lucas

contends that “[t]he Court wholly ignored Blatz’s acts of

discrimination and retaliation alleged in the complaint and

focused instead on Machara’s decision to suspend Mr. Lucas

at the hearing.” Appellant’s Br. at 8 (emphasis added).15

As we have demonstrated at some length, the defendant

asserts and Mr. Lucas admits that Machara suspended him

because of Mr. Lucas’ filing a false report and not merely

because Mr. Lucas had stopped the train.16 Mr. Lucas’ failure to put forth any similarly situated employee is fatal to

his claim.

Nor can Mr. Lucas argue that Blatz’s racial animus was

the basis for Machara’s conclusion that Mr. Lucas lied in the

report he filed. Generally speaking, comments by a nondecision maker do not suffice as evidence of discriminatory

intent. See Williams v. Seniff, 342 F.3d 774, 790 (7th Cir. 2003)
32 No. 03-1575

(quoting Gorence v. Eagle Foods Ctrs., Inc., 242 F.3d 759, 762

(7th Cir. 2001)). However, we have cautioned that “[i]t is

different when the decision makers themselves, or those

who provide input into the decision, express such feelings

(1) around the time of, and (2) in reference to, the adverse

employment action complained of.” Hunt v. City

of Markham, 219 F.3d 649, 652 (7th Cir. 2000). If a person

with racial animus “provides input” into the decision

making process then, in some circumstances, “it may be

possible to infer that the decision makers were influenced

by those feelings in making their decision.” Id. at 652-53.

Blatz did provide indirect input into the decision to suspend Mr. Lucas. He was one of the witnesses interviewed

by Machara during the investigation. There are no facts,

however, to support the conclusion that his allegedly racial

animus influenced Machara’s conclusion that Mr. Lucas had

lied about the event. Blatz’s statement was only one element

of a comprehensive investigation into the event and into the

veracity of Mr. Lucas’ allegations. Tijan and Machara

conducted an investigation of several witnesses; Blatz was

not the only witness interviewed. Machara participated in

interviews of Blatz, Quintana, who was Mr. Lucas’ partner

and boarded the train with him that day, and another CTA

employee, Carlos Flores, who also witnessed part of the

events. Not only was Blatz’s participation limited to providing a statement, but the parties also agree that Machara and

the investigators were unaware of Mr. Lucas’ allegations

stemming from the 1997 incidents. Relying on these witnesses and each party’s statement, Machara and Tijan’s

report indicated, contrary to Mr. Lucas’ statements, that

Blatz only had put his hand upon Mr. Lucas’ shoulder.

Neither believed, after talking with the witnesses, that there

was any hostility, and, therefore, both signed the report

finding Mr. Lucas lied about the incident.
No. 03-1575 33

In sum, Mr. Lucas’ submissions do not indicate the CTA’s

proffered reason for Mr. Lucas’ discipline—that he filed a

false report against Blatz—was a lie. Mr. Lucas, himself,

admits that the false report was the reason Machara suspended Mr. Lucas. Mr. Lucas cannot show that the CTA’s

reason was “a dishonest explanation, a lie, rather than an

oddity or an error.” Kulumani v. Blue Cross Blue Shield Ass’n,

224 F.3d 681, 685 (7th Cir. 2000). Mr. Lucas may believe that

his suspension was incorrect, ill-advised, or undesirable; he

has not established, however, that the CTA did not honestly

believe that Mr. Lucas filed a false report that justified his

suspension. See Wade v. Lerner New York, Inc., 243 F.3d 319,

323 (7th Cir. 2001). Therefore, Mr. Lucas cannot rely on the

January 2001 incident to establish discrimination.

2. Credit Exchange

Mr. Lucas next contends that he was the only employee

disciplined for going to the credit exchange during the

hours of 7-9 a.m. In explaining what discipline he received,

Mr. Lucas merely asserts that he was “disciplined,”

Appellant’s Br. at 12-13, and “written up,” id. at 29-30. In

response to the CTA’s argument that Mr. Lucas failed to

assert any adverse employment action, Mr. Lucas only

elaborates in his reply brief that he “was issued a caution

and instruct[ed] by Escorcia to create a paper trail” after

going to the credit union. Appellant’s Reply Br. at 15. However, at no point does Mr. Lucas indicate what the tangible

consequences of the “write up” and “discipline” were.

Mr. Lucas fails to allege adequately any adverse employment action resulting from this “discipline.” Our past decisions indicate that a negative evaluation or admonishment

by an employer does not rise to the level of an adverse

employment act. See Sweeney v. West, 149 F.3d 550, 556-57
34 No. 03-1575

17 In his complaint, Mr. Lucas contends that he was not late

returning from lunch, R.1 ¶ 42, but on appeal he asserts that he

was singled out for returning late when others also were late,

Appellant’s Br. at 13 & 30.

(7th Cir. 1998) (“[N]egative performance evaluations,

standing alone, cannot constitute an adverse employment

action.”); Smart v. Ball State Univ., 89 F.3d 437, 442 (7th Cir.

1996) (same). There must be some tangible job consequence

accompanying the reprimand to rise to the level of a material adverse employment action; otherwise every reprimand

or attempt to counsel an employee could form the basis

of a federal suit. See Sweeny, 149 F.3d at 557. Mr. Lucas

failed to prove such a tangible consequence existed. Because

Mr. Lucas failed to put forth the appropriate facts to demonstrate an adverse employment act regarding the discipline he received for visiting the credit exchange, his

discrimination claim must fail.

3. Returning Late from Lunch

Mr. Lucas next asserts that he “and his partner Jose

Quintana were singled out for written warnings for returning late from lunch when co-workers were returning at the

same time or later and they were not written up.”

Appellant’s Br. at 13. Mr. Lucas continues to explain that

“the evidence is that Francisco Garcia also returned late

from lunch at the same time as Lucas17 and Quintana but he

was not written up by Escorcia.” Id. Mr. Lucas concludes

this argument by stating that the district court “ignored this

evidence of different, adverse treatment of African-Americans.” Id.

Even assuming these allegations are true, Mr. Lucas fails

to meet his prima facie burden. First, Mr. Lucas failed to
No. 03-1575 35

18 Although, Mr. Lucas did contend that he was docked pay

several times in his pleadings to the district court, see R.1 ¶ 42;

R.28-1, Ex.22 at 15; R.27 ¶ 125, he only asserted he was “written

up” for the lunch incident in his opening appellate brief. It was

not until his reply brief that Mr. Lucas asserted he was actually

“docked 1/2 hour of pay.” Appellant’s Reply Br. at 13.

19 See Fed. R. App. P. 28(a)(9)(A) (The argument must contain

“appellant’s contentions and the reasons for them, with citations

to the authorities and parts of the record on which the appellant

relies.”). “A skeletal ‘argument,’ really nothing more than an assertion, does not preserve a claim.” United States v. Dunkel, 927

F.2d 955, 956 (7th Cir. 1991) (internal citations omitted).

explain in his opening brief that he suffered a tangible employment action as a result of his tardiness.18 Second, Mr.

Lucas failed to demonstrate that he was singled out for

discipline on the basis of his race. Mr. Lucas identifies three

people who, he asserts, were similarly situated in returning

late from lunch. Mr. Lucas is an African-American,

Quintana, who was also disciplined, is a Hispanic, and the

third person, a person not disciplined and allegedly given

better treatment, was Francisco Garcia. We are not told

whether Francisco Garcia is also a member of a protected

class; this fact is apparently not in the record.19 It was

incumbent upon Mr. Lucas to demonstrate that other similarly situated employees who were not members of the

protected class were treated more favorably. See Peters, 307

F.3d at 546. All Mr. Lucas has demonstrated is that he and

his Hispanic partner were both disciplined in a similar

fashion and another individual of unknown race and

ethnicity was not. Mr. Lucas, therefore, has not met his burden with respect to this element.

In his complaint, Mr. Lucas also alleged that his discipline

for returning late from lunch was retaliation for filing his
36 No. 03-1575

20 Cf. EEOC v. Kohler Co., 335 F.3d 766, 772 (8th Cir. 2003).

To recover for retaliation some courts have employed a test that

requires the plaintiff to show “(1) he engaged in statutorily protected activity; (2) he suffered an adverse employment action; and

(3) there was a causal connection between the adverse employment action and the protected activity.” Id.

discrimination claim. R.1 ¶ 43. However, he does not

forward this argument on appeal. Although this argument

is subject to waiver principles, we also dismiss Mr. Lucas’

retaliation argument for similar reasons as his discrimination claim. To establish a prima facie case for retaliation

under the indirect burden-shifting method, a plaintiff must

demonstrate that “after filing the charge only he, and not

any similarly situated employee who did not file a charge,

was subjected to an adverse employment action even

though he was performing his job in a satisfactory manner.”

Stone v. City of Indianapolis Pub. Utils. Div., 281 F.3d 640, 644

(7th Cir. 2002), cert. denied, 123 S. Ct. 79 (2003); see Hilt-Dyson

v. City of Chicago, 282 F.3d 456, 465 (7th Cir.), cert. denied, 537

U.S. 820 (2002).20 Mr. Lucas admits that his partner,

Quintana, who presumably did not file a discrimination

complaint, also received similar discipline. Stone instructs,

however, that the plaintiff has to demonstrate that “he, and

not any similarly situated employee who did not file a

charge, was subjected to an adverse employment action.”

Stone, 281 F.3d at 644. Mr. Lucas did not satisfy the requirement set forth in Stone. Because Mr. Lucas waived his

retaliation claim, and because he failed to meet the standards set forth in Stone to show that he was singled out for

adverse employment action, his claim of retaliation was

properly dismissed on summary judgment.
No. 03-1575 37

4. Refusing the Order to Enter the Track

Mr. Lucas finally contends that he was singled out for

discipline after refusing a June 29, 2001 order issued by

Escorcia to remove the pushcart from the tracks during rush

hour. Mr. Lucas maintains that the order was against CTA

rules and that three other trackmen also refused to comply

but were not similarly disciplined. The CTA asserts that Mr.

Lucas was suspended for one day due to “disrespect to

management” after Mr. Lucas told Escorcia the order was

“stupid and idiotic.” Mr. Lucas admits that he told Escorcia

that his order was “stupid and idiotic” and that no other

employee made a similar remark but nevertheless maintains

that he was singled out for discipline on the basis of race.

R.20 ¶ 109; R.26 ¶ 109; Appellant’s Reply Br. at 14.

We previously have stated that 

in disciplinary cases—in which a plaintiff claims that he

was disciplined by his employer more harshly than a

similarly situated employee based on some prohibited

reason—a plaintiff must show that he is similarly

situated with respect to performance, qualifications, and

conduct. This normally entails a showing that the two

employees dealt with the same supervisor, were subject

to the same standards, and had engaged in similar

conduct without such differentiating or mitigating

circumstances as would distinguish their conduct or the

employer’s treatment of them.

Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617-18 (7th Cir.

2000) (internal citations omitted); see Peters v. Renaissance

Hotel Operating Co., 307 F.3d 535, 546 (7th Cir. 2002);

Patterson v. Avery Dennison Corp., 281 F.3d 676, 680 (7th

Cir. 2002). It is uncontested that Mr. Lucas was the only

employee who made a comment disparaging the supervisor’s order after refusing to comply. Mr. Lucas provides no
38 No. 03-1575

similarly situated employee who engaged in the same or

similar type of conduct. Mr. Lucas has failed to meet his

burden with respect to this allegedly discriminatory action.

Conclusion

For the foregoing reasons, we affirm the judgment of the

district court.

AFFIRMED

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—5-14-04