In the

United States Court of Appeals

For the Seventh Circuit

No. 09-2443

ROBERT LEONARD,

Plaintiff-Appellant,

v.

EASTERN ILLINOIS UNIVERSITY,

Defendant-Appellee.

Appeal from the United States District Court 

for the Central District of Illinois.

No. 07 C 2172—Michael P. McCuskey, Chief Judge.

SUBMITTED FEBRUARY 8, 2010—DECIDED MAY 26, 2010

Before BAUER, EVANS, and TINDER, Circuit Judges.

TINDER, Circuit Judge. Robert Leonard, a Native American, worked at Eastern Illinois University (“EIU”) for

nearly twenty years, during which time EIU passed him

over for several promotions. Believing that the most

recent denied promotion was motivated by anti-Native

American bias, Leonard sued EIU under Title VII of the

Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-1 - 2000e-17.

The district court granted summary judgment in favor
2 No. 09-2443

of EIU, and in Leonard’s appeal, we consider de novo

whether the following evidence, construed in Leonard’s

favor, creates a triable issue on his Title VII claim. See

Turner v. The Saloon, Ltd., 595 F.3d 679, 683 (7th Cir. 2010).

Leonard is a Native American through the family history

of his father, who was a member of the Saginaw Band of

the Ojibway Nation. While at EIU, Leonard worked as a

“building services worker,” a janitorial and mechanical

support position, but his time on campus was more than

a job for a paycheck. Leonard was an outspoken advocate

on Native American issues, and he frequently complained to the EIU student newspaper about NativeAmerican-related articles or advertisements that he

found offensive.

Leonard was a particular critic of “Chief Illiniwek,” the

image formerly used by the University of Illinois at

Urbana-Champaign (“U of I”) to represent University

athletics. Leonard was not alone in opposing the Chief,

which had generated controversy for decades. See, e.g.,

Jodi S. Cohen, Hail to the Chief—and Farewell, Chi. Trib.,

Feb. 22, 2007, at 1; Tracy Dodds, Illinois Fans Still Divided

Over Use of Mascot, Indianapolis Star, Sept. 4, 2005, at C1.

But Leonard’s opposition even led to a nationally publicized lawsuit. Sometime around 2005, Leonard sued the

“Honor the Chief Society” for denying him entry to the

showing of a pro-Chief movie, allegedly based on his

Native American status. Leonard’s involvement in the

lawsuit, which ultimately settled out of court, received

CNN news coverage.

As mentioned, in between his civil rights activities,

Leonard had a regular job at EIU as a building services
No. 09-2443 3

worker. Over the years, Leonard participated in several

interviews (four or five, he didn’t recall exactly) for

promotion to the more supervisory “building services

subforeman,” but none led to a promotion. One of the

more recent interviews, on March 24, 2005, triggered the

dispute that is the basis of this lawsuit.

Leonard interviewed before a panel of six EIU supervisors: Herb McElwee, Travis Magee, Valerie Leonard

(no relation), Kevin Larkin, Steven Gilbert, and John Sigler.

Although the appellant had worked with all of these

people before, the interview started out tensely for him

when McElwee and Magee removed their jackets to

reveal shirts with the Chief Illiniwek logo.

McElwee’s and Magee’s choice to wear Chief shirts that

day might have been unremarkable given the “March

Madness” context. During the 2005 college basketball season, the U of I men’s team was making a strong

showing in the NCAA tournament. In fact, on the very

March 24 date of Leonard’s interview, the Fighting Illini

were scheduled to play (and ultimately won) a Sweet

Sixteen match against the University of Wisconsin—

Milwaukee. This Illini basketball hype provides one

possible, innocuous explanation for McElwee’s and

Magee’s Chief shirts. As Leonard acknowledged during

his deposition, the EIU campus was home to many Illini

fans, who frequently wore Chief apparel during the

2005 season.

Still, March Madness aside, Leonard thought that

McElwee and Magee wore their Chief shirts as a statement against Leonard’s opposition to Chief Illiniwek. He
4 No. 09-2443

was offended by the shirts and felt that his anger came

across during the interview, negatively affecting his

performance. As it turned out, Leonard didn’t get the

promotion after his March 2005 interview, but notably,

no one else was promoted to building services subforeman at that time. The record does not reveal how many

other candidates, if any, participated in the March 2005

interviews, how Leonard performed compared to those

candidates, or why no one was promoted.

Shortly after his interview, in April 2005, Leonard made

a complaint to EIU’s Office of Civil Rights about

McElwee’s and Magee’s Chief shirts. After hearing Leonard’s complaint, a representative from the civil rights

office told McElwee and Magee not to wear Chief apparel

when dealing with Leonard, and Leonard said that he

was satisfied with this outcome.

Several months later, in October 2005, Leonard interviewed again for the building services subforeman job

along with seven other candidates. The interview panel

consisted of the same six supervisors, none of whom

wore anything Illini-related or otherwise offensive to

Leonard. Leonard thought that he interviewed well, but

unfortunately, he didn’t do well enough to get the promotion. Based on the numerical scoring system used by

the panel, Leonard ranked seventh out of the eight candidates. Only the candidates with the top three scores

were promoted.

Leonard sued EIU under Title VII, claiming that the

interview panel’s decision not to promote him was retaliation for his April 2005 civil rights complaint about
No. 09-2443 5

the Chief Illiniwek shirts. The district court granted

summary judgment in favor of EIU, concluding that

Leonard had no evidence linking the denied promotion

to the civil rights complaint. Leonard appeals.

The controversy surrounding the use of Chief Illiniwek

to symbolize U of I athletics is not new to this court. In

Crue v. Aiken, 370 F.3d 668, 678-80 (7th Cir. 2004), we

addressed the tension between students’ First Amendment right to protest the Chief and the smooth operation

of the University’s athletic programs. (While the free

speech issues in Crue were important, the Crue opinion’s

lasting contribution may be its scholarly discussion of

great college nicknames, including the all-time favorite

“Banana Slug” of the University of California—Santa

Cruz. Id. at 671-72.) Fortunately, this case does not

require us to delve into the Chief controversy, which is

relevant only insofar as it relates to the April 2005

civil rights complaint underlying Leonard’s Title VII

retaliation claim.

Title VII prohibits an employer from retaliating

against an employee for conduct that is protected under

the Act. See 42 U.S.C. § 2000e-3(a). A plaintiff may

make out a Title VII retaliation claim using either the direct

or indirect method of proof, although the distinction

between the two methods “is often fleeting.” Turner, 595

F.3d at 688 (quoting Martino v. MCI Commc’ns Servs., Inc.,

574 F.3d 447, 452 (7th Cir. 2009)). The direct method

requires “evidence of (1) a statutorily protected activity;

(2) a materially adverse action taken by the employer;

and (3) a causal connection between the two.” Id. at 687
6 No. 09-2443

(citation omitted). The indirect method also requires

evidence of the first two elements, “but instead of proving

a direct causal link, the plaintiff must show that he was

performing his job satisfactorily and that he was treated

less favorably than a similarly situated employee who

did not complain of discrimination.” Stephens v. Erickson,

569 F.3d 779, 786-87 (7th Cir. 2009) (citation omitted).

Leonard argues that he has shown a triable issue

under the direct method of proof, and EIU responds that

Leonard’s case fails on each of the three direct-method

elements. We need only focus on the third element,

whether Leonard can establish a causal connection between his civil rights complaint and EIU’s failure to

promote him.

From our review of the record, Leonard simply lacks

any evidence linking his April 2005 Chief-related complaint to his denied promotion. Leonard has presented

no evidence that any of his interviewers, or anyone else

at EIU, was angered by the complaint. On the contrary,

although Leonard testified that he didn’t have “great

respect” for EIU’s civil rights office, he acknowledged

that EIU encouraged its employees to bring forth complaints of discrimination whenever they felt necessary.

The scoring results for Leonard’s October 2005 interview also contain no hint of unlawful discrimination.

Under the interview process, the interview panel asked

each candidate a series of standardized, pre-written

questions. Each interviewer then gave the candidate a

score of 1 to 5 points in each of five job-related categories,

for a possible total score of 5 to 25 from each interviewer
No. 09-2443 7

and, with six interviewers, a possible combined total

score of 30 to 150. The interviewers were all consistent

in scoring Leonard among the bottom 50% of the candidates. Leonard’s resulting combined total score of 109

placed him only seventh out of the eight candidates, far

from the top three who earned a promotion.

Given the standardized interview format and the consistency of the interviewers’ scoring, Leonard cannot

show that any interviewer(s) denied him a promotion

in retaliation for his civil rights complaint. See id. at 788

(describing a similar interview process with standardized

questions and numerical scoring as “reasonable and fair”).

Notably, McElwee and Magee, the Chief shirt wearers

most likely to be upset over Leonard’s complaint, gave

Leonard scores that were within the mainstream.

McElwee’s and Magee’s total scores for Leonard were

19 and 18, respectively, which were actually higher than

the 17 given by Larkin and the 16 given by Sigler. True,

McElwee and Magee gave Leonard the lowest score of

any candidate, but so did Valerie Leonard and Gilbert.

This consistent scoring pattern by the interviewer panel

suggests only that Leonard was outperformed by other

candidates, not that he was the target of retaliation.

Leonard argues that “suspicious timing” between his

civil rights complaint and his denied promotion implies

a causal relationship, but we are unpersuaded. The sixmonth lag between Leonard’s April 2005 complaint to

the civil rights office and his October 2005 unsuccessful

interview is too long to infer a link between the two.

See Turner, 595 F.3d at 687 (finding no connection
8 No. 09-2443

between a firing and the employee’s complaints of

sexual harassment more than a half year earlier);

Argyropoulos v. City of Alton, 539 F.3d 724, 734 (2008) (same

where time interval was seven weeks); cf. Spiegla v. Hull,

371 F.3d 928, 943 (7th Cir. 2004) (inferring causation

where an unfavorable job transfer occurred just four

days after the employee’s protected speech).

The timing issue might be closer if we considered the

period immediately after Leonard’s March 2005 interview, rather than after his October 2005 interview, as

the time when the denied promotion took place. If the

interview panel’s decision not to promote Leonard based

on his March interview came shortly after Leonard’s Chiefrelated complaint against McElwee and Magee, this

close temporal connection could bolster a circumstantial

case of retaliation. Unfortunately for Leonard, his

evidence does not establish such a close sequence of

events. The record shows that Leonard interviewed on

March 24, 2005, and then made his civil rights complaint sometime in April 2005, but Leonard offered no

evidence on when the panel made its decision in relation

to these two events. Very conceivably, the decision not

to promote Leonard after his March interview came

well before he made his April civil rights complaint, in which case Leonard’s claim of suspicious

timing unquestionably fails. For a suspicious-timing

retaliation theory, the order of events is even more important than the time between them; the theory doesn’t

work if the retaliatory act precedes the protected activity.

Even assuming that the decision not to promote

Leonard came “on the heels” of his April 2005 civil rights
No. 09-2443 9

complaint, Spiegla, 371 F.3d at 943, Leonard still could not

avoid summary judgment because “suspicious timing

alone is insufficient” to support a Title VII retaliation

claim. Turner, 595 F.3d at 687 (quotation omitted). The

timing issue is even less significant in this case given

the fact that, during his career at EIU, Leonard had

several unsuccessful interviews for a promotion. Since

Leonard repeatedly failed to get a promotion in prior

years, EIU’s decision not to promote him in 2005 was not

“suspicious.” Cf. Spiegla, 371 F.3d at 943 (noting that the

adverse job transfer occurred after seven years of uninterrupted postings on the plaintiff’s preferred job).

In a last effort to avoid summary judgment, Leonard

points to comments by two of his interviewers, Larkin

and Gilbert, that purportedly show an anti-Native American bias. We may easily dismiss these as “stray remarks”

that do not show that either Larkin or Gilbert used

the interview process to retaliate against Leonard’s

civil rights complaint. Petts v. Rockledge Furniture LLC,

534 F.3d 715, 721 (7th Cir. 2008).

The Larkin comment came in 1994 or 1995, after Leonard

had filed a complaint with the civil rights office about

EIU students making Chief-related statements towards

him. Following that complaint, Larkin allegedly told

Leonard “that if I [Leonard] cut my hair and act like

others, I wouldn’t have as many problems as I did.”

Assuming that Larkin’s comment could suggest some

level of anti-Native American bias, it is far too remote

from the 2005 denied promotion to help Leonard’s case.

To support an inference of retaliation, a discriminatory
10 No. 09-2443

comment must be related in both time and subject matter

to the adverse employment action. See id. Larkin’s comment was neither, as it came a decade before Leonard’s

2005 interview and had nothing to do with his prospects

for promotion. See id. (dismissing an offhand, sexist

comment that occurred more than a year before the employee’s firing).

The Gilbert comment identified by Leonard is equally

remote. Sometime during the 1990s, Leonard confronted

the Illinois governor during a town hall meeting, complaining that the governor had not responded to

Leonard’s multiple applications to meet and discuss

Native American issues. In connection with this

complaint to the governor, Gilbert allegedly commented

that Leonard “didn’t know his place.” Whatever Gilbert

meant by this ambiguous comment, it was entirely unrelated to the decision several years later not to promote

Leonard to a building services subforeman.

In sum, Leonard lacks evidence that EIU officials

refused to promote him in retaliation for his April 2005

civil rights complaint, or for that matter any reason

other than his relatively poor interview performance. We

AFFIRM the district court’s grant of summary judgment

in favor of EIU.

5-26-10