In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 18-2948 

TERRY L. SMITH, 

Plaintiff-Appellant, 

v.

ILLINOIS DEPARTMENT OF TRANSPORTATION, 

Defendant-Appellee. 

____________________ 

Appeal from the United States District Court for the 

Northern District of Illinois, Eastern Division. 

No. 1:15-cv-02061 — Edmond E. Chang, Judge. 

____________________ 

ARGUED MAY 30, 2019 — DECIDED AUGUST 21, 2019 

____________________ 

Before FLAUM, MANION, and BARRETT, Circuit Judges. 

BARRETT, Circuit Judge. After a rocky probationary period, 

the Illinois Department of Transportation discharged its employee Terry Smith. Smith sued the Department under Title 

VII, arguing that it had subjected him to a hostile work environment and fired him in retaliation for his complaints about 

racial discrimination. The district court granted summary 

judgment to the Department on both claims, and Smith insists 

that it was wrong to do so. He contends that the district court 
2 No. 18-2948 

mistakenly concluded that testimony from two of his witnesses was inadmissible and that he has enough evidence to 

make it to a jury in any event. We disagree and affirm the district court. 

I. 

Smith began working as an Emergency Traffic Patrol Minuteman with the Department late in 2013. Minutemen perform various duties related to traffic and roadways. Smith’s 

employment began with a probationary period starting August 1. To be certified, he had to successfully complete three 

stages of training over the course of six months. His probationary period did not go well. 

According to the Department, Smith was far from a model 

employee. Early in his training, one of his supervisors reported that he challenged the instructions that he was given, 

which created a “serious issue” for his training and development. Another supervisor said that Smith regularly “fail[ed] 

to remember info” and “ha[d] a very hard time following 

basic instructions.” Particularly troubling, however, was 

Smith’s record of unsafe conduct. Once, while driving in an 

express lane with Marcello Valle, one of his supervisors, 

Smith approached a place where the lanes divided. Valle told 

him to pick a lane; instead, Smith stopped short in traffic—

only thirty feet from the concrete pillar dividing the lanes. On 

another occasion, Smith drove away from a gas pump with 

the nozzle still inserted in the truck. Smith also “almost hit a 

trooper police car” on a drive with a supervisor. Most dangerous of all, Smith ignored instructions to put his truck in neutral and pull the brake—nearly causing a supervisor to be 

pinned between the tow truck and another vehicle. Incidents 

like these led one of his supervisors, Lloyd Colbert, to send an 
No. 18-2948 3

email to some of his coworkers warning that if Smith continued to work on the road, “someone else will pay the ultimate 

price.” 

The Department gave Smith negative reviews from the beginning, and its assessments of his performance became progressively worse. In a performance evaluation in mid-September, Smith received two marks of “unsatisfactory.” In October, one of Smith’s supervisors emailed another saying that 

Smith was “not getting any better and cannot get it.” By the 

end of November, Smith was described as “very behind” 

where he ought to have been at his stage of training. The problems continued into December: emails between the Department employees described him as being argumentative, unstable, reckless, unsafe, and “in no way ready to go on his 

own.” In January, Smith received another performance evaluation, this one giving him unsatisfactory marks in five different categories. 

From Smith’s perspective, however, the Department was 

the problem. On August 22, 2013, he filed an internal complaint with the Department asserting that Valle had used 

“abusive language” toward him and that another supervisor, 

Zen McHugh, had threatened to fire him for being confrontational. That same day, Smith also wrote a memorandum to his 

union representative in which he claimed that the Department had discriminated against him because he was black 

and had subjected him to a hostile work environment. In October, Smith sent another memorandum to the Department. 

The subject line was “Illegally docked hours from my pay. 

Discrimination/harassment.” The memorandum claimed that 

on October 13, Colbert had told him to sign out two hours before he had stopped working, which had the effect of 
4 No. 18-2948 

withholding two hours of pay from his paycheck. (He was 

eventually compensated for those hours.) 

In December, Smith wrote more memoranda to the Department complaining about his treatment. Two of them, 

dated December 5 and 6, complained that Colbert had denied 

Smith overtime pay after he responded to a call for assistance 

with a disabled vehicle late in his shift. He attributed the refusal to racial discrimination, harassment, and retaliation. He 

submitted two more memoranda in late December. He addressed the first—which had the subject line “discrimination 

retaliation”—to a supervisor at the Department. In it, he 

claimed that he was being treated differently than a fellow 

employee who had been allowed to work only four hours on 

a certain day while Smith had been required to work a full 

day. The second was also addressed to the Department, and 

it requested a shift change due to “discrimination, harassment, retaliation.” 

On December 31, 2013, Smith filed another complaint, this 

time with the Department’s internal Equal Employment Opportunity office. He listed three dates on which the Department had allegedly discriminated and retaliated against him: 

October 13, December 5, and December 28. From the record, 

we know that each of those dates corresponds to a specific incident. On the first date, Colbert had allegedly docked hours 

from his paycheck. On the second, Colbert had allegedly denied Smith overtime pay. On the third, Roman McGhee, a supervisor, had supposedly yelled and sworn at Smith for saying that he was going to back two cars that had been in an 

accident down a highway ramp. Smith’s complaint did not 

offer his side of those events; it simply stated that he had been 
No. 18-2948 5

treated differently than another coworker and denied overtime pay. 

On January 3, 2014, the Department sent Smith a “Statement of Charges,” which sought to fire him on the ground of 

his unsatisfactory work performance. On January 16, Smith 

had a run-in with Colbert, who had recently learned that 

Smith had charged him, along with other supervisors, of racial discrimination and retaliation. According to Smith, Colbert, who was also black, was “very angry” and made several 

confrontational remarks: that there would be “eighty-one of 

us against one of you when we go to trial”; that Smith was 

going to lose everything that he owned, including his house 

and car; and that he was a “stupid ass ni[].” 

The Department terminated Smith on January 30, 2014. In 

March, Smith sued the Department under Title VII, alleging 

that it had subjected him to a hostile work environment and 

fired him in retaliation for his complaints about racial discrimination. The district court granted summary judgment to 

the Department, concluding that Smith had not introduced 

enough evidence to permit a jury to decide in his favor on either claim.1

Smith insists that the district court took several wrong 

turns. To begin with, he contends that the court erroneously 

excluded the testimony of two of his witnesses—Maria Veronico, an expert, and Marvin Harrison, a former 

 

1 We note that Smith’s counsel failed to include the district court’s 

opinion in the appendix as required by Circuit Rule 30(a)—notwithstanding his certification that he had done so. We do not take either the omission or the misrepresentation lightly, and counsel is admonished to observe our rules in the future. 
6 No. 18-2948 

supervisor—as inadmissible. But even if we disagree with 

him about that, Smith says, he still has enough evidence to 

make it to a jury on both his retaliation and hostile work environment claims. We discuss each of his arguments below. 

II. 

We begin with the admissibility of Veronico’s expert testimony, on which Smith relied in his opposition to the Department’s motion for summary judgment. Veronico, an expert in 

industrial relations, testified at her deposition that Smith’s 

trainers had created a hostile work environment based on his 

race when they “scolded, ridiculed, and threatened” him; she 

also opined that the Department had fired Smith for complaining about racial discrimination. The district court declined to consider Veronico’s opinion, explaining that it was 

not based on “sufficient facts or data” as required by Federal 

Rule of Evidence 702(b). That decision was well within the 

district court’s discretion. 

Veronico concluded that Smith had been subjected to a 

hostile work environment after reading Smith’s evaluations 

and portions of the Department’s training manual and Employee Policies Manual. She admitted that even though it was 

her usual practice to interview actors on both sides of a discrimination claim, she did not talk to either Smith or his supervisors. Indeed, she did not even bother to review any 

sworn deposition testimony. By Veronico’s own admission, 

her conclusion was based on an incomplete picture—as the 

district court put it, she “omitted a substantial set of facts from 

her analysis, and instead relied only on what appears to be 

plaintiff-curated records.” Veronico’s reliance on an anemic 

and one-sided set of facts casts significant doubt on the 

soundness of her opinion, and the court did not abuse its 
No. 18-2948 7

discretion by excluding it. See Huey v. United Parcel Serv., Inc., 

165 F.3d 1084, 1086 (7th Cir. 1999) (excluding an expert who 

“did not attempt to reconstruct the underlying facts to determine whether [the opposing party] had a good explanation ... 

[and] did not do anything except talk to [the plaintiff], read 

documents [plaintiff's] counsel sent, and write a letter”). 

Veronico’s opinion that the Department retaliated against 

Smith for registering complaints of racial discrimination rests 

on even shakier ground. That conclusion was drawn from the 

same incomplete information that formed the basis of her 

opinion about Smith’s hostile work environment. But the 

opinion about retaliation was undermined still further by Veronico’s inability to connect the conclusion that she drew to 

the facts that she had. We have explained before that “[i]t is 

critical under Rule 702 that there be a link between the facts 

or data the expert has worked with and the conclusion the expert’s testimony is intended to support.” United States v. 

Mamah, 332 F.3d 475, 478 (7th Cir. 2003). Veronico’s testimony 

lacked that link. She maintains that Smith’s evaluations became more negative after he filed his complaints—which 

might suggest a retaliatory motive that could have inspired 

his dismissal. But she admitted that she had no information 

about whether any of these supervisors even knew about 

Smith’s complaints at the time that they submitted negative 

evaluations of his performance. And if the supervisors were 

unaware of the complaints, there would be no reason to suspect that their negative evaluations demonstrated any kind of 

retaliatory motive. In short, Veronico’s opinion was fundamentally flawed, and we affirm the district court’s decision 

that it was inadmissible. 
8 No. 18-2948 

III. 

We now turn to the admissibility of an affidavit sworn by 

one of Smith’s supervisors, Marvin Harrison, who said several things that were helpful to Smith. The district court ruled 

that Harrison’s affidavit was inadmissible because it lacked a 

proper foundation and was “replete with generalized assertions.” For instance, the affidavit states that Harrison “witnessed [Smith] being discriminated against on many different 

occasions by the department and its agents.” But without 

knowing who discriminated, what they did, and when they 

did it, the court had no way of knowing what to make of this 

evidence. The same problem plagues the affidavit’s assertion 

that Colbert called Smith the n-word “frequently.” Harrison 

did not specify whether he heard these slurs himself, nor did 

he offer any detail about the contexts in which they were uttered. Without that information, the court could not evaluate 

whether Harrison was describing events of which he had personal knowledge or simply relaying inadmissible hearsay. See

FED. R. CIV. P. 56(c)(4) (requiring that affidavits used to support or oppose a motion for summary judgment be “made on 

personal knowledge, set out facts that would be admissible in 

evidence, and show that the affiant or declarant is competent 

to testify on the matters stated”). Indeed, the affidavit was so 

vague that even Smith himself concedes that it is at least “partially true” that it “lacked a proper evidentiary foundation.” 

The district court did not abuse its discretion in declining to 

consider Harrison’s affidavit. 

IV. 

To survive summary judgment on his Title VII retaliation 

claim, Smith must show that a reasonable jury could find that 

he engaged in a protected activity, that he suffered an adverse 
No. 18-2948 9

employment action, and that the adverse action was motivated by a protected activity. Lord v. High Voltage Software, 

Inc., 839 F.3d 556, 563 (7th Cir. 2016). The Department concedes that Smith engaged in protected activity and that the 

termination of his employment was an adverse employment 

action. The only dispute is whether the Department terminated Smith because he complained about racial discrimination. We agree with the district court that a reasonable jury 

could not find in Smith’s favor on this issue. 

To raise an inference that he was fired because of his complaints rather than because of his performance, Smith maintains that he was fired even though he was meeting the Department’s legitimate expectations. See Vaughn v. Vilsack, 715 

F.3d 1001, 1006 (7th Cir. 2013). Yet as we recounted above, 

Smith’s tenure at the Department was distinguished in all the 

wrong ways. He received multiple ratings of “unsatisfactory” 

in two different formal performance reviews. His failings as 

an employee were chronicled in conversations and emails 

from a number of different supervisors and coworkers, who 

considered him unsafe, argumentative, and unable to follow 

instructions. 

Smith does not dispute the Department’s long list of grievances against him. But he argues that the district court “cherry 

picked” negative evidence about his employment record to 

create a misleading narrative. He points out that in addition 

to bad reviews, he also received some positive feedback from 

some of his supervisors at the Department. But a smattering 

of decent reviews doesn’t overcome the overwhelming number of documented problems—including serious safety issues—that the Department had with Smith’s performance. See 

Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1125 (7th Cir. 
10 No. 18-2948 

1994) (“The mere submission of materials from a co-worker 

or supervisor indicating that an employee’s performance is 

satisfactory ... does not create a material issue of fact.”). Given 

the extensive evidence that Smith was not meeting his employer’s legitimate expectations, a reasonable jury could not 

find that the Department fired him because of his protected 

activity rather than for his poor performance. 

V. 

Finally, we address Smith’s hostile work environment 

claim. A hostile work environment claim contains four elements: (1) the employee was subject to unwelcome harassment; (2) the harassment was based on a reason forbidden by 

Title VII—here, race; (3) the harassment was so severe or pervasive that it altered the conditions of employment and created a hostile or abusive working environment; and (4) there 

is a basis for employer liability. Huri v. Office of the Chief Judge 

of the Circuit Court of Cook Cty., 804 F.3d 826, 834 (7th Cir. 

2015). 

Smith’s case largely founders on the second prong, because the majority of the harassment he identifies was unconnected to his race. Smith says that Valle, McGhee, and a 

trainer identified only as “Washington” created a hostile 

work environment by directing profanity at him. Valle confronted him and used the f-word several times, in contexts 

like “shut the f[] up.” McGhee called Smith a “stupid dumb 

motherf[]” and told him he was going to “kick [his] ass.” 

Washington used the f-word once. As the district court 

pointed out, however, Smith fails to connect any of these epithets to his race. Smith himself acknowledged that Valle was 

“equal opportunity” when it came to dishing out profanity. 

McGhee’s outburst was connected to a dangerous traffic 
No. 18-2948 11

situation for which Smith was responsible. And Washington’s 

lone use of the f-word is presented without any context at all. 

While the epithets may have made for a crude or unpleasant 

workplace, “Title VII imposes no ‘general civility code.’” 

Vance v. Ball State Univ., 570 U.S. 421, 452, (2013) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998)).

Because Smith introduced no evidence that his supervisors 

swore at him because he was black, the profanity that he describes does not establish a hostile work environment under 

Title VII. 

Smith describes one incident, however, that plainly constitutes race-based harassment: Colbert, one of his former supervisors, called Smith a “stupid ass ni[]” after finding out that 

Smith had filed a complaint with the Equal Employment Opportunity office. The n-word is an egregious racial epithet.

Nichols v. Mich. City Plant Planning Dep’t, 755 F.3d 594, 601 (7th 

Cir. 2014) (“[W]hile there is no ‘magic number of slurs’ that 

indicates a hostile work environment, an ‘unambiguously racial epithet falls on the more severe end of the spectrum.’” (citation omitted)). That said, Smith can’t win simply by proving 

that the word was uttered. He must also demonstrate that 

Colbert’s use of this word altered the conditions of his employment and created a hostile or abusive working environment. Huri, 804 F.3d at 834. And he must make this showing 

“from both a subjective and an objective point of view.” EEOC 

v. Costco Wholesale Corp., 903 F.3d 618, 625 (7th Cir. 2018). In 

other words, he must show not only that a reasonable person 

would find the workplace hostile or abusive as a result of Colbert’s slur, but also that he himself perceived it that way. Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998). 
12 No. 18-2948 

We need not address the objective prong of the analysis, 

because Smith falters on the subjective prong. He introduced 

no evidence that Colbert’s use of the n-word changed his subjective experience of the workplace. To be sure, Smith testified 

that his time at the Department caused him psychological distress. But that was for reasons that predated his run-in with 

Colbert and had nothing to do with his race. His tenure at the 

Department was rocky from the outset because of his poor 

track record. He clashed with his supervisors over pay, and 

they confronted him with foul language. As early as August—

the first month of his employment—he sent memoranda to 

the Department complaining of a “hostile work environment.” On Smith’s own account, his supervisors made him 

miserable throughout his employment at the Department. But 

as we have already discussed, he has no evidence that his supervisors were lashing out at him because he was black. 

The first incident in which race played a part was his January 16th run-in with Colbert. By then, things were already at 

a breaking point. The Department had initiated termination 

proceedings against Smith two weeks before, so he knew that 

he was about to be fired. And while things certainly could 

have gotten worse for Smith after the racially charged confrontation with Colbert, he offers no evidence that they did. 

Instead, Smith presents the confrontation as yet another instance of the same ill treatment that he had been receiving all 

along. 

That won’t do under Title VII. Because the statute does not 

give employees a remedy for workplace abuse unrelated to a 

protected characteristic, Smith needs to point to evidence—

even if in his own testimony—that he suffered harm from Colbert’s race-based harassment that was distinct from the 
No. 18-2948 13

distress that non-race-based harassment was already causing 

him. Put differently, Smith has to be able to persuade a jury 

that Colbert’s race-based harassment was severe enough “to 

alter the conditions of [his] employment.” Huri, 804 F.3d at 834 

(emphasis added). Smith did not even try to make that showing—he points to no evidence that Colbert’s slur caused him 

either additional or different distress. Without evidence that 

Colbert’s outburst changed Smith’s subjective experience 

during his last two weeks at the Department, a reasonable 

jury could not resolve the hostile work environment claim in 

Smith’s favor. 

*** 

The district court’s grant of summary judgment to the Department is AFFIRMED.