In the

United States Court of Appeals

For the Seventh Circuit

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No. 04-2849

MAMAN D. BIO,

Plaintiff-Appellant,

v.

FEDERAL EXPRESS CORPORATION,

Defendant-Appellee.

____________

Appeal from the United States District Court 

for the Southern District of Indiana, Indianapolis Division.

No. 1:03-cv-010-LJM-WTL—Larry J. McKinney, Chief Judge.

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ARGUED JANUARY 12, 2005—DECIDED SEPTEMBER 16, 2005

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Before FLAUM,Chief Judge,andEASTERBROOK and WOOD,

Circuit Judges.

WOOD, Circuit Judge. Maman D. Bio sued his former

employer, Federal Express Corporation (FedEx), under Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et

seq., and 42 U.S.C. § 1981, claiming that it took disciplinary

action against him and terminated his employment for

racially discriminatory reasons. The district court granted

FedEx’s motion for summary judgment, finding that Bio

had failed to submit evidence showing that a similarly

situated employee received more favorable treatment. We

affirm.
2 No. 04-2849

I

Bio began working for FedEx in 1994 as a Material

Handler at FedEx’s Hub facility in Indianapolis, Indiana.

Around November 1996, he was promoted to the position of

Engineering Specialist in the Engineering Department,

where he was responsible for preparing and monitoring

long-range operational plans, planning for and assisting

with the implementation of required changes in operations,

and providing engineering support to the operating and

corporate departments of the Indianapolis Hub.

FedEx has a Performance Improvement Policy that guides

its supervisors in addressing employees’ performance

problems. The “tools” (as the Policy describes them) include

verbal counseling, written counseling, and performance

reminders. When evaluating a performance issue, a supervisor may take an employee’s past performance into account

to determine which tool is appropriate. The Policy describes

a performance reminder as “a written disciplinary notification that is normally warranted when: there is a severe

performance problem or the same or similar performance

problem has occurred on at least [two] or more occasions

within the last 12 months.” It provides that an employee

can be terminated if she receives three “performance

reminders” or disciplinary notifications within a

twelve-month period. Verbal counseling and written

counseling do not count toward the three disciplinary

notifications required before termination. FedEx also has

an Acceptable Conduct Policy, which states that employees

can be disciplined or discharged for misconduct such as

insubordination, refusal to follow instructions, or not

performing work in a timely manner without valid reason.

Bio received copies of both policies.

Bio’s employment history was not problem-free. Over

time, he received oral and written counseling on numerous

occasions about difficulties he had in performing his duties
No. 04-2849 3

as an Engineering Specialist. In September 1999, Bio was

counseled about erroneous volume entries, calculation

errors, failure to meet deadlines, and failure to communicate with internal customers. He was counseled in writing

on November 11, 1999, for failing to complete a volume

projections assignment on time and for failing to give timely

notice that he was unable to meet the deadline. In December 2000 and January 2001, Bio was counseled about

deficiencies in two operational plans and a project memo he

published. None of these incidents resulted in the issuance

of a performance reminder.

Bio received his first performance reminder on March 16,

2001, for poor quality of work related to a plan that he

published. At first he contested the performance reminder,

but later he withdrew his complaint. On May 14, 2001, Bio

received an annual performance evaluation stating that he

had problems with prioritizing and completing tasks and

with following through on assignments without prompting.

On August 29, Bio received his second performance reminder, this time for failing to complete an assignment

from the previous night. At the beginning of his shift on

August 28, Bio’s supervisors asked him to revise the volume

projections of the September 2001 Monthly Operating Plan.

He was instructed to post the revised file on the facility’s

computer network and then notify the Operations Control

Room that he had completed this task before the end of his

shift. Bio’s supervisor, Robin Damm, testified that she went

to Bio’s cubicle at approximately 4:30 a.m. and saw that he

had cleaned up his work area and left for the night. She

then looked for Bio’s revisions on the computer network but

did not find the updated files that Bio was supposed to

complete.

Bio tells a different story. He claims that the September

2001 Plan was originally prepared by another Engineering

Specialist, Ken Scoda, and that his assignment on the night

of August 28 was to help Scoda by correcting the errors in
4 No. 04-2849

the file. While Bio does not contest that he was required to

post the updated file on the network and to notify the

Control Room afterwards, neither of which he did, he

maintains that he completed the assignment and left a

voicemail message to that effect with the Control Room

before he left work that night.

The next night, Damm told Bio that she was unable to

find the updated volume reports and asked why he had not

completed his assignment. Bio responded that he had given

her a printed copy of the updated file the night before and

that he had left a voicemail message as well as a hard copy

with the Control Room. According to FedEx, neither Damm

nor anyone else had seen these alleged updates, either on

the network or in printed form. After reviewing Bio’s

employment file and checking with her supervisor, Joseph

Stephens, as well as a Human Resources representative,

Damm issued the August 29 performance reminder for his

failure to complete the assignment. Because Bio had failed

to show improvement over the course of his employment,

Damm also gave him a “Decision Day” in accordance with

FedEx’s policies. A Decision Day is a day off granted to an

employee so that he can determine whether he desires to

remain employed at the company. If the employee decides

to continue employment, he is required to prepare a

Personal Performance Agreement demonstrating his

commitment to improve his performance. Damm warned

Bio that FedEx would consider a failure on his part to

develop and produce a Personal Performance Agreement to

be a violation of the Acceptable Conduct Policy and a

voluntary resignation of employment. 

When Bio returned to work the next evening, he told

Damm that he wanted to remain employed at FedEx but

that he refused to prepare a Personal Performance Agreement because he believed that the August 29 performance

reminder was unwarranted. Later that night, Damm issued

a Warning Letter to Bio for failing to prepare the required
No. 04-2849 5

Personal Performance Agreement. FedEx fired Bio on

September 5, 2001, because he had received three disciplinary notifications within a twelve-month period: the two

performance reminders on March 16, 2001, and August 29,

2001, and the Warning Letter on August 31, 2001.

Four days later, Bio filed an internal complaint stating

his disagreement with the last two disciplinary actions

taken against him, claiming that he had been treated

unfairly. Notably, he did not mention racial discrimination

in this complaint. On June 3, 2002, Bio filed charges of

racial discrimination against FedEx with the Equal Employment Opportunity Commission (EEOC) and the Indiana

Civil Rights Commission. After he received his Notice of

Right to Sue from the EEOC, he filed this action in district

court on January 3, 2003, complaining about both the

disciplinary actions and the firing. 

At the end of discovery, FedEx moved for summary

judgment, arguing that Bio had failed to identify a similarly

situated white employee who received more favorable

treatment and that Bio’s performance did not meet its

legitimate expectations. It also contended that it had

legitimate reasons for disciplining and terminating Bio. In

opposition to FedEx’s motion, Bio argued that he had

established a prima facie case and that there was a sufficient dispute of material fact to place the issue of pretext

before the jury. The district court granted summary

judgment in favor of FedEx on the ground that Bio had not

identified a similarly situated employee who was treated

more favorably. Bio now appeals. 

II

We review a district court’s grant of summary judgment

de novo, construing all facts and inferences in the light most

favorable to the party opposing the motion. See Brummett

v. Sinclair Broad. Group, Inc., 414 F.3d 686, 692 (7th Cir.
6 No. 04-2849

2005). We will affirm if the summary judgment record

shows that “there is no genuine issue as to any material

fact and that the moving party is entitled to judgment as a

matter of law.” FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett,

477 U.S. 317, 322-23 (1986). A court must grant a motion

for summary judgment against a party who fails to make a

showing sufficient to establish the existence of an element

essential to that party’s case, and on which that party will

bear the burden of proof at trial. See Celotex, 477 U.S. at

322.

Title VII of the Civil Rights Act of 1964 makes it unlawful

for an employer “to fail or refuse to hire or to discharge any

individual, or otherwise to discriminate against any

individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual’s race.” 42 U.S.C. § 2000e-2(a)(1). Section 1981 provides

that “[a]ll persons within the jurisdiction of the United

States shall have the same right . . . to make and enforce

contracts . . . as is enjoyed by white citizens.” 42 U.S.C. §

1981. To prevail on his race discrimination claim under

Title VII or § 1981, Bio must either show direct evidence of

discriminatory motive or intent or rely on the indirect

burden-shifting method outlined in McDonnell Douglas

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

Ingersoll Milling Mach. Co., 133 F.3d 1025, 1035 (7th Cir.

1998). Lacking direct evidence of discrimination, Bio has

elected to proceed under the indirect method. 

To establish a prima facie case of discrimination under

this approach, a plaintiff must present evidence that, if

believed by the trier of fact, would show: (1) he was a

member of a protected class; (2) his performance met his

employer’s legitimate expectations; (3) he suffered an

adverse employment action; and (4) he was treated less

favorably than similarly situated employees who are in a

different class. Brummett, 414 F.3d at 692. If a plaintiff

meets this burden, the defendant has the opportunity to
No. 04-2849 7

articulate a legitimate nondiscriminatory reason for its

action; if it does so, the burden shifts back to the plaintiff to

show that this reason is pretextual. Id. The failure to

establish any one of the initial four elements defeats a

discrimination claim. 

Bio, who is African American, is a member of a protected

class. He bases his discrimination claim on three adverse

employment actions taken against him: the August 29

performance reminder, the August 31 Warning Letter, and

the September 5 discharge. Because the district court found

that Bio could not point to a similarly situated non-African

American employee who was more favorably treated, we

turn first to this inquiry. 

A similarly situated employee is one who is “directly

comparable to [the plaintiff] in all material respects.”

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

Cir. 2002). In evaluating whether two employees are

directly comparable, the court must look at all relevant

factors, including whether the employees “(i) held the same

job description, (ii) were subject to the same standards, (iii)

were subordinate to the same supervisor, and (iv) had

comparable experience, education, and other qualifications

—provided the employer considered these latter factors in

making the personnel decision.” Ajayi v. Aramark Bus.

Servs., Inc., 336 F.3d 520, 532 (7th Cir. 2003).

Bio failed to identify a similarly situated employee with

respect to the August 31 Warning Letter. Bio received this

disciplinary letter for insubordination and not merely for

poor quality of work: he refused to comply with FedEx’s

requirement that he submit a Personal Performance

Agreement as a condition of continuing his employment

with the company. It is no sign of racial discrimination on

FedEx’s part if it decides to request such a document from

an employee who fails to show improvement over the course

of his employment. Moreover, Bio does not dispute that he
8 No. 04-2849

was counseled on numerous occasions about his failure to

complete assignments on time and inaccuracies in his work.

Bio has not identified another employee who was also

required to prepare a Personal Performance Agreement to

remain on the job, flatly refused to do so, and evaded

disciplinary action. Thus, he cannot prevail on his claim

with respect to this disciplinary action. See Radue v.

Kimberly-Clark Corp., 219 F.3d 612, 617-18 (7th Cir. 2000).

Putting the August 31 letter to one side, Bio argues that

Ken Scoda, a white Engineering Specialist at the same

facility, is the similarly situated employee whose experiences at FedEx should be compared to Bio’s. He contends

that Scoda received more favorable treatment because

FedEx did not issue any performance reminders against

him from April through August 2001 even though it had

received numerous complaints regarding inaccuracies and

other problems in Scoda’s work. Although both Scoda and

Bio held the same position and reported to the same

supervisor, the record cannot support the conclusion that

they were directly comparable. As the district court pointed

out, there was a considerable gap in experience between the

two men. Bio had been working as an Engineering Specialist for over four years when he was disciplined for the

August 28 incident. Scoda, on the other hand, was a novice.

He had been on the job only since December 2000, and the

performance complaints to which Bio alludes occurred

within the first eight months of his employment, while he

was still learning how to perform his duties. This substantial gap in experience precludes a finding that the two were

similarly situated. See Wyninger v. New Venture Gear, Inc.,

361 F.3d 965, 979 (7th Cir. 2004) (identifying work experience as a relevant consideration); Patterson, 281 F.3d at 680

(same). 

Bio argues that the experience gap between the two men

is irrelevant because after six months on the job, Scoda was

held to the same standards as all other Engineering
No. 04-2849 9

Specialists. He points to a June 22, 2001, e-mail in which

Stephens, in response to Scoda’s continuing deficiencies in

job performance, wrote: “[T]he HONEYMOON IS OVER for

Mr. Scoda,” and instructed Damm to communicate to Scoda

that his repeated errors would no longer be tolerated and to

begin documenting Scoda’s performance lapses. Damm

testified that she interpreted this memo to mean that

Scoda’s training period was over and that he had enough

training to handle his job responsibilities. Bio argues that

these comments are enough to present a genuine dispute as

to whether Scoda and Bio were held to the same standards

and thus, were similarly situated employees.

Bio reads too much into these comments. Even if the end

of Scoda’s training period meant that he would henceforth

be subject to the same standards as a four-year veteran on

the job, Bio still cannot show that Scoda received more

favorable treatment. While it is true that Damm received

complaints regarding Scoda’s performance between June 22

and August 29 and did not issue any performance reminders for these deficiencies, Bio also received numerous

performance complaints against him before he was issued

the first performance reminder. In fact, Scoda received his

first performance reminder on September 11, 2001—three

months after his training period had ended, and nine

months after he started working as an Engineering Specialist. Bio, on the other hand, did not receive his first performance reminder until March 16, 2001, more than four years

after his promotion to the position, notwithstanding the fact

that his supervisors had received numerous complaints

concerning his job performance during this time. This

evidence tends to indicate that Bio in fact received more

favorable treatment than Scoda, because his deficiencies

were tolerated much longer than Scoda’s. 

Along the same lines, Bio cannot show that he was

treated less favorably than Scoda when he was terminated

after receiving three formal disciplinary letters within a
10 No. 04-2849

twelve-month period. Scoda was likewise terminated in

February 2002 after he received his third performance

reminder. In this regard, Bio and Scoda were treated the

same.

III

Because Bio cannot show that a similarly situated

employee was treated more favorably than he was, he

cannot prevail under either theory of racial discrimination

he has presented. We therefore AFFIRM the judgment of the

district court. 

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—9-16-05