In the

United States Court of Appeals

For the Seventh Circuit

No. 08-1647

SCOTT ANTONETTI, JERALD FUHRER and CINDY NADIGER,

Plaintiffs-Appellants,

v.

ABBOTT LABORATORIES,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 1:07-cv-00768—David H. Coar, Judge.

ARGUED DECEMBER 4, 2008—DECIDED APRIL 21, 2009

Before BAUER, POSNER and WILLIAMS, Circuit Judges.

BAUER, Circuit Judge. After their termination from

employment with Abbott Laboratories, plaintiffs Scott

Antonetti, Jerald Fuhrer, and Cindy Nadiger sued their

former employer, claiming that they were terminated

on account of their race and national origin. Nadiger

also claimed that her termination constituted unlawful

retaliation in response to her complaints of sex discrim-
2 No. 08-1647

Plaintiffs now claim that the breakfast was a working break- 1

fast because they used the time to discuss their strategy for

accomplishing the day’s tasks. This explanation for the breakfast was never presented to management and cannot be considered now.

ination. The district court granted summary judgment

in favor of Abbott, which Plaintiffs appeal and we affirm.

I. BACKGROUND

Plaintiffs worked as Instrument Technicians for Abbott

Laboratories. During a typical eight-hour shift, Abbott

allows hourly employees like Plaintiffs to take two ten

minute paid breaks, which may be combined, and one

thirty minute unpaid meal break. Employees clock in and

out of work and also manually fill out a time card. The

time-keeping program that Abbott uses automatically

deducts thirty minutes from the time an employee was

clocked in each day as an unpaid meal break.

On June 10, 2006, Plaintiffs, who are each Caucasian,

worked a Saturday overtime shift with Marvin Gloria, who

is Filipino, and Juan Luna, of Hispanic descent. During

their shift, the group decided to leave Abbott’s facilities

for a sit-down breakfast at Little Nick’s restaurant.

1

Although the precise timing of the event is disputed, the

break lasted approximately thirty to forty-five minutes.

Because of a technical problem, the group was not able

to complete their project that day and only worked

about five or six hours instead of the scheduled eight

hours.
No. 08-1647 3

Fuhrer admits that he told Gravander that he did not take a 2

lunch break. Antonetti and Nadiger do not remember, but do

not dispute Gravander’s testimony that they told him they

did not take a lunch break.

On Monday, Plaintiffs and Gloria each told their group

leader, Brian Gravander, who was in charge of their time

cards, that they did not take a lunch break during the

Saturday shift. Accordingly, Gravander wrote “NL” on 2

those four time cards to indicate that the employees took

no lunch. Luna did not work on Monday so he did not

tell Gravander that he took no lunch break during the

Saturday shift. Gravander asked the other employees

collectively if Luna had taken a lunch break and one of

them reported that he did not. Gravander did not write

“NL” on Luna’s card. However, he manually overrode

the time-keeping program so that all five employees

were paid as if they had not taken any unpaid breaks.

In late July or early August 2006, Luna’s former supervisor, Larry Adams, approached Luna and asked if he

knew of any incidents where employees went to breakfast

during a weekend shift. Luna told Adams that his group

ate an off-site breakfast on June 10, 2006 and also reported

a similar off-site meal that Luna participated in with

Antonetti. Although Luna asked Adams to keep the

information in confidence, Adams relayed the June 10

incident to more senior management.

Managers Mike Patterson and Ray Hess, both Caucasian,

subsequently began an investigation into the June 10

overtime shift. On August 23, 2006, they met with
4 No. 08-1647

Plaintiffs’ argument that Luna was given preferential treat- 3

ment because he was first confronted by Adams instead of

Patterson and Hess, as well as their argument that Luna had

an unfair advanced notice of the investigation so that Plaintiffs did not have an equal opportunity to explain what happened, are both presented to this Court for the first time in

this litigation and are therefore waived. They are also unpersuasive.

Antonetti, Fuhrer, Nadiger, and Gloria individually,

showed each individual his or her time card from June 10

bearing the “NL” notation, and asked about the events of

that day. When asked if the group went off-site that day

and where they went to breakfast, Antonetti could not

remember where they had gone to breakfast and said

that sometimes they would go to McDonald’s. Fuhrer did

not remember going off-site for breakfast during the

June 10 shift. Nadiger did not remember whether they

had taken a break that day. Gloria did not recall where

the technicians went or how long they were gone during

their break on June 10.

That same day, Hess interviewed Luna by phone

because Luna was on an assignment in Mexico. Luna told

Hess that the group went out for breakfast and that they

were gone thirty to forty-five minutes. Although Luna

could not remember the name of the restaurant, he told

Hess where the restaurant was located.3

Plaintiffs and Gloria conferred after their interviews and

remembered the breakfast at Little Nick’s. Patterson met

with Antonetti a second time that same day and
No. 08-1647 5

Antonetti told Patterson about the incident, supposedly

on behalf of all three Plaintiffs. At his deposition,

Antonetti confirmed Patterson’s summary notes of the

investigation by admitting that he may have told

Patterson something like, “I’m taking a risk by telling you

the truth or changing my story,” though he later denied

memory of such a statement.

Patterson found it implausible that the technicians did

not remember going off-site for breakfast during the

Saturday overtime shift, since it was unusual to work on a

Saturday, and unusual to leave Abbott’s premises for a

meal in the middle of a shift. Patterson also found the

technicians’ inability to remember the break implausible

because during the interviews they did recall other

details about the shift.

Plaintiffs and Gloria were subsequently terminated; Luna

was not. Patterson made these decisions in consultation

with others in management.

II. DISCUSSION

On appeal, Plaintiffs claim that the district court erred

by granting summary judgment for Abbott on the discrimination and retaliation actions. Abbott argues that the

district court acted properly because Plaintiffs could not

establish a prima facie case of race or national origin

discrimination, and had no evidence of retaliation. We

review a district court’s grant of summary judgment de

novo. Darst v. Interstate Brands Corp., 512 F.3d 903, 907 (7th

Cir. 2008). Summary judgment is appropriate when
6 No. 08-1647

Plaintiffs brought this action under Title VII as well as 42 4

U.S.C. § 1981. However, because both authorities require a

plaintiff to prove the same elements to make out a prima facie

case, the claims rise or fall together. Lalvani v. Cook County,

Ill., 269 F.3d 785, 789 (7th Cir. 2001).

there is no genuine issue as to any material fact and the

moving party is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(c). “We view the record in the light

most favorable to the non-moving party and draw all

reasonable inferences in that party’s favor.” Darst, 512

F.3d at 907 (citation omitted).

A. Race and National Origin Discrimination

Title VII of the Civil Rights Act of 1964 forbids an

employer “to discriminate against any individual with

respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race,

color, religion, sex, or national origin.” 42 U.S.C. § 2000e2(a)(1). A plaintiff may prove illegal discrimination 4

either directly or indirectly. In this case, Plaintiffs rely on

the indirect burden-shifting method of proof explained

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

Under this approach, Plaintiffs must first establish a

prima facie case of discrimination by proving that:

“(1) [they are] member[s] of a protected class; (2) [they

were] performing [their] job[s] satisfactorily; (3) [they]

suffered an adverse employment action; and (4) similarly

situated employees outside of [their] protected class were

treated more favorably.” Goodwin v. Bd. of Trustees of

the Univ. of Ill., 442 F.3d 611, 617 (7th Cir. 2006).
No. 08-1647 7

If Plaintiffs can demonstrate these four elements, the

burden “shift[s] to the employer to articulate some legitimate, nondiscriminatory reason for the” adverse employment action. McDonnell Douglas Corp., 411 U.S. at 802.

If Abbott satisfies this burden of production, Plaintiffs

“must then establish that there is an issue of material

fact as to whether the employer’s proffered reasons

are merely pretext for unlawful discrimination or retaliation, in order to survive summary judgment.” Hudson

v. Chicago Transit Authority, 375 F.3d 552, 561 (7th Cir.

2004) (citing McDonnell Douglas Corp., 411 U.S. at 804).

The district court granted summary judgment on this

claim because Plaintiffs could not satisfy the fourth

element of their prima facie case—identifying a similarly

situated employee outside of their protected class who

was treated more favorably than they. Plaintiffs claim

that Luna qualified as a similarly situated employee

because he worked the same job, in the same department, and under the same supervisors as Plaintiffs, and

because he worked the same June 10 overtime shift, took

the same break, did not report the break, and was paid

for the entire shift. Abbott argues that Luna was not

similarly situated to Plaintiffs in the two areas that

prompted Plaintiffs’ terminations: (1) he did not tell

Gravander that he took no lunch break during the June 10

overtime shift; and (2) he admitted to the breakfast

when questioned by Adams.

When “a plaintiff claims that he was disciplined . . . more

harshly than a similarly situated employee based on some

prohibited reason—a plaintiff must [typically] show
8 No. 08-1647

that . . . the two employees . . . 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). The similar conduct to be

examined must be material to the cause of the discipline.

See id. at 617 (“In determining whether two employees

are similarly situated a court must look at all relevant

factors . . . .” (emphasis added)).

In this case, Plaintiffs were fired for time card fraud:

saying that they took no break when they did and then

suspiciously failing to remember the off-site meal when

confronted. Luna did not engage in either of these

material actions. Patterson’s summary notes of the investigation make this distinction between the employees abundantly clear:

Basic issue is the 4 techs documented “no lunch” on

their time cards although they did go off site for a

meal. . . .

In addition, when questioned by Ray Hess, 4/5 techs

either lied about or did not recall going off site for

the breakfast. One technician, Scott Antonetti

changed his story later in the day and admitted the

truth.

One technician, Juan Luna came forward during a

discussion with Larry Adams to bring the situation

to light in the first place. Juan also did not request a

“no lunch” on his timecard but was apparently paid

for the entire duration regardless. . . . Juan also was

the only technician interviewed who told the truth

during the initial discussion. 
No. 08-1647 9

Plaintiffs argue that the relevant conduct to be compared in 5

this case is taking and not reporting the break—not affirmatively

lying about it to Gravander, or lying or failing to remember

it when questioned by management. Patterson’s investigation

notes do not support this theory, but, even if Plaintiffs are

correct, Luna was not similarly situated because he did not

tell Gravander that he took no lunch, and he was honest about

the incident when questioned—mitigating circumstances

that differentiate his conduct and Abbott’s treatment of him.

Radue, 219 F.3d at 617-18. In other words, whether the fact that

Luna did not personally lie to Gravander and told the truth

when confronted by Adams are the relevant factors to consider in the first place, or mitigating factors distinguishing

the degree of Luna’s misconduct from that of the other employees who took the break and did not report it, Luna was

not similarly situated to Plaintiffs.

Many of Plaintiffs’ arguments address the issue of pretext; 6

because Plaintiffs cannot survive the first step in the McDonnell

Douglas analysis, we do not need to consider the third. See Peele

v. Country Mut. Ins. Co., 288 F.3d 319, 331 (7th Cir. 2002) (under

indirect method, failure to offer comparable employee

dooms Title VII claim).

Therefore, Luna was not similarly situated.5

Without a similarly situated employee, Plaintiffs cannot

present a prima facie case and their claim must fail.6
10 No. 08-1647

B. Retaliation

Nadiger also claimed that she was terminated in retaliation for her past and imminently approaching complaints of sex discrimination in relation to being denied

a promotion in February 2006. Title VII protects employees “from retaliation for complaining about the types

of discrimination it prohibits.” Miller v. Am. Family Mut.

Ins. Co., 203 F.3d 997, 1007 (7th Cir. 2000); 42 U.S.C.

§ 2000e-3(a). Like other discrimination claims, a plaintiff

may prove retaliation through the direct or indirect

method. In this case, Nadiger relies on the direct method.

To survive summary judgement, Nadiger must present

sufficient direct or circumstantial evidence for the trier

of fact to infer that there was a “causal link” between

her complaints of sex discrimination and her termination. Culver v. Gorman & Co., 416 F.3d 540, 545-46 (7th Cir.

2005); Sylvester v. SOS Children’s Vills. Ill., Inc., 453 F.3d 900,

902 (7th Cir. 2006) (direct method requires plaintiff to

prove “that he engaged in protected activity (filing a

charge of discrimination) and as a result suffered the

adverse employment action” (quoting Stone v. City of

Indianapolis Public Utilities Div., 281 F.3d 640, 644 (7th

Cir. 2002))). If she could produce this inference, but her

evidence is contradicted, which it is, then “the case must

be tried unless [Abbott] presents unrebutted evidence

that [it] would have taken the adverse employment

action against [Nadiger] even if [it] had no retaliatory

motive; in that event [Abbott] is entitled to summary

judgment because [it] has shown that [Nadiger] wasn’t

harmed by retaliation.” Stone, 281 F.3d at 644.
No. 08-1647 11

In this case, even if Abbott was partially motivated by

Nadiger’s complaints in its termination decision, it would

have fired Nadiger without such motivation. Abbott

terminated Antonetti, Fuhrer, and Gloria for time card

fraud and Nadiger makes no attempt to, nor can she,

distinguish herself from those employees, other than

stating that unknown factors besides time card fraud

could have partially motivated the decision to terminate

those employees. Nadiger does not deny her participation in the June 10 breakfast or reporting that she took no

lunch. Neither does Nadiger dispute that Patterson

found her lack of memory implausible when questioned

about the incident. Therefore, Abbott had a legitimate

and independent justification for terminating Nadiger,

would have terminated her even without any retaliatory

motive, and is entitled to summary judgment. Id.

III. CONCLUSION

For the reasons discussed above, we AFFIRM the

district court’s grant of summary judgment.

4-21-09