In the

United States Court of Appeals

For the Seventh Circuit

No. 12-1300

ERIC HUANG,

Plaintiff-Appellant,

v.

CONTINENTAL CASUALTY COMPANY,

Defendant-Appellee.

Appeal from the United States District Court for the 

Northern District of Illinois, Eastern Division.

No. 11 C 1049 — George W. Lindberg, Judge.

ARGUED DECEMBER 6, 2012 — DECIDED JUNE 13, 2014

Before FLAUM, EASTERBROOK, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge. Eric Huang, a former systems and

software engineer, appeals the grant of summary judgment

against him in this employment-discrimination action. He

principally asserts that, by firing him, Continental Casualty

Company discriminated against him because he is Chinese and

retaliated against him for complaining about workplace issues. 

(The parties refer to Continental as “CNA,” Continental’s
2 No. 12-1300

parent corporation; for consistency, we follow their convention

in this opinion.) Because the undisputed evidence shows that

Continental lawfully fired Huang because he refused to accept

legitimate work assignments, we affirm the district court’s

judgment. 

The events that precipitated this lawsuit largely began in

2007. At that time, Huang had been working for CNA, a

provider of commercial insurance products, for eight years. In

March, Huang’s supervisor transferred him to a new, fourmember team with different job duties. CNA required every

member of Huang’s four-person team to be on “pager duty”

every fourth weekend. Pager duty entailed carrying a pager at

home and being available to respond to it 24 hours a day

throughout the assigned weekend. 

Beginning in August 2007, Huang repeatedly refused to

work the weekend hours that CNA assigned him for pager

duty, citing family obligations. He persisted in his refusal even

after his supervisor and human resources reminded him that

pager duty is a work requirement, equally shared by all team

members, and told him that CNA could fire him for refusing

it. Huang offered to work from the office on Sundays in

exchange for having Mondays off but refused to carry a pager

and remain on call while at home during the weekends. 

Around this time, Huang made a workplace complaint.

Huang’s supervisor had told him, for reasons unrelated to his

refusal to comply with pager duty, that Huang was “pissing 

[him] off.” In response, Huang emailed the human resources

department to complain about the comment. (Two years

earlier, Huang had also complained to human resources about
No. 12-1300 3

another supervisor’s “favoritism” toward some co-workers,

but the nature of the complaint is not in the record.)

In December 2007, four months after first refusing to

comply with the on-call directive, Huang’s supervisor and a

human resources agent met with him and gave him one final

opportunity to commit to a weekend, work-from-home

schedule. They again warned him that CNA would fire him if

he did not comply with the weekend-hours job requirement.

When he again refused, CNA followed through and discharged him.

In compliance with CNA’s practice following termination

of employment, its human resources agent asked Huang for a

list of his belongings so that someone could retrieve them from

his desk. When Huang refused to provide the list and demanded to be let back to his work station, human resources

called a security guard. Police officers eventually escorted

Huang out of the building and arrested him, although CNA

did not press charges.

After pursuing his administrative remedies, Huang filed

this suit. Only two of his claims are relevant to this appeal.

First, he contends that the company discriminated against him

based on his race and national origin by firing him, in violation

of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964,

42 U.S.C. §§ 2000e–2000e-17. Second, he argues that by firing

him and having him arrested, CNA unlawfully retaliated

against him for his earlier complaints about supervisors. He

relies only on the indirect method of proving these claims.

The district court granted CNA’s motion for summary

judgment. The court determined that, because he ignored
4 No. 12-1300

pager duty, Huang did not provide evidence that he had met

the company’s legitimate job expectations. In reaching this

conclusion, the court rejected Huang’s argument that, because

the pager-duty requirement was not included in his job

description, it was not a legitimate requirement. The district

court also distinguished two employees that Huang cited as

similarly situated, explaining that neither refused to work from

home on weekends. Finally, Huang’s retaliation claims failed,

the court reasoned, because he did not supply evidence that he

had engaged in the protected activity of complaining about

unlawful discrimination. 

We review the district court's grant of summary judgment

de novo, examining the record in the light most favorable to

Huang and construing all reasonable inferences from the

evidence in his favor. See, e.g., Naficy v. Ill. Dep't of Human

Servs., 697 F.3d 504, 509 (7th Cir. 2012). Both Title VII and

§ 1981 forbid an employer from firing an employee on account

of his race or national origin, 42 U.S.C. § 2000e-2 (Title VII);

Andonissamy v. Hewlett-Packard Co., 547 F.3d 841, 849–50 (7th

Cir. 2008) (§ 1981), and retaliating against an employee who

protests unlawful employment discrimination, 42 U.S.C.

§ 2000e-3(a) (Title VII); CBOCS West, Inc. v. Humphries, 553 U.S.

442, 451 (2008) (§ 1981). 

We begin our analysis with Huang’s discrimination claim.

On appeal, Huang argues that he supplied evidence of a prima

facie case of race discrimination under the indirect method. To

establish a prima facie case of discrimination under either Title

VII or § 1981, Huang needed to provide evidence that (1) he is

a member of a protected class; (2) he was meeting his employer’s legitimate performance expectations; (3) he suffered
No. 12-1300 5

an adverse employment action; and (4) other similarly-situated, non-Chinese (or non-Asian) employees were treated

more favorably. See Montgomery v. Am. Airlines, Inc., 626 F.3d

382, 389, 394 (7th Cir. 2010); Hobbs v. City of Chicago, 573 F.3d

454, 460 n.1 (7th Cir. 2009); Antonetti v. Abbott Labs., 563 F.3d

587, 591 n.4 (7th Cir.2009). If he fails to provide evidence of any

one of these factors, his claim fails. Montgomery, 626 F.3d at 394.

Only the second and fourth elements of the prima facie case

are at issue on appeal, but because Huang contends that CNA

enforced its job expectations unequally, these two elements

merge. See Peele v. County Mut. Ins. Co., 288 F.3d 319, 329 (7th

Cir. 2002). Huang contends that for three reasons he presented

sufficient evidence that he met CNA’s legitimate expectations.

First, he contends that he offered the company a suitable

alternative to the weekend pager-duty requirement by proposing to come into work on Sundays instead of Mondays.

Second, he argues that he had good reason for refusing pagerduty: he wanted more time with his family. Third, he maintains

that pager duty was not legitimate because it was not written

in his job description. 

All three of Huang’s arguments are meritless. First,

employers are entitled to determine their scheduling needs,

see Foster v. Arthur Andersen, LLP, 168 F.3d 1029, 1035 (7th Cir.

1999), and decide whether employees are satisfying them,

see Collins v. American Red Cross, 715 F.3d 994, 1000 (7th Cir.

2013); Naik v. Boehringer Ingelheim Pharm., Inc., 627 F.3d 596, 600

(7th Cir. 2010). Huang’s offer to work Sundays could not

satisfy CNA’s needs because the company needed him on call

throughout all of Sunday and Saturday, and he refused to
6 No. 12-1300

comply. Second, although a longing to spend more time with

family is understandable, it does not undermine the legitimacy

of a work schedule that cuts into family time. Grube v. Lau

Indus. Inc., 257 F.3d 723, 729 (7th Cir. 2001). Nor does Huang’s

preference for home life invalidate CNA’s conclusion that

Huang did not meet the company’s work expectations.

See Robin v. Espo Eng'g Corp., 200 F.3d 1081, 1091–92 (7th Cir.

2000). Finally, CNA need not have memorialized its pager duty

in a job description to make it a valid employment expectation.

Renken v. Gregory, 541 F.3d 769, 773 (7th Cir. 2008) (explaining

that “[d]etermining what falls within the scope of an employee's duties is a practical exercise that focuses on the duties

an employee actually is expected to perform” because

“[f]ormal job descriptions often bear little resemblance to”

those duties) (internal quotation marks and citation omitted).

Huang also provides no evidence that CNA treated other

similarly situated non-Chinese workers more favorably. To

survive summary judgment, Huang needed to identify another

employee, outside of his protected class, who refused a

comparable work assignment but was not fired. Montgomery,

626 F.3d at 395; Hanners v. Trent, 674 F.3d 683, 692–93 (7th Cir.

2012). He has not. In the district court, he compared himself to

two other employees. One is a worker whom CNA permitted

to arrive and leave two hours early on some weekdays; the

other asked to work from home and was not fired for asking.

But Huang presented no evidence that either of these two

employees repeatedly refused, as Huang did, a company order

to remain on-call once every four weekends, so they are not

similarly situated. Without evidence of a comparably insubor-
No. 12-1300 7

dinate co-worker, Huang failed to show a prima facie case of

discrimination.

Despite failing to establish a prima facie case, Huang

maintains on appeal that CNA’s proffered reason for firing

him—his refusal to accept weekend on-call assignments—was

pretextual. But because Huang has not satisfied his prima facie

case, an argument about pretext does not even arise.

See Montgomery, 626 F.3d at 394. In any case, Huang’s pretext

argument just recycles his already rejected contention that the

on-call requirement was illegitimate and unequally applied.

Thus, for the same reasons that we rejected the prima facie

case, the pretext argument also fails. Collins, 715 F.3d at 1000;

Duncan v. Fleetwood Motor Homes of Ind., Inc., 518 F.3d 486, 491

(7th Cir. 2008).

Finally, Huang argues that he provided evidence that CNA

retaliated against him by firing him and having him arrested. 

But to survive summary judgment on this claim, he needed to

present evidence that he made a complaint about unlawful

discrimination. Tomanovich v. City of Indianapolis, 457 F.3d 656,

663 (7th Cir. 2006). Though he did complain about workplace

issues twice (an unelaborated protest about “favoritism” and

an objection to his supervisor saying that Huang was “pissing

[him] off”), Huang provided no evidence that these two

complaints were about unlawful discrimination. See id.; Miller

v. Am. Family Mut. Ins. Co., 203 F.3d 997, 1008 (7th Cir. 2000).

Without evidence that Huang engaged in protected conduct,

the retaliation claim fails. Id. 

Accordingly, we AFFIRM the judgment ofthe district court.