United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted February 13, 2014*

Decided February 13, 2014

Before

RICHARD A. POSNER, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 13‐2048

VERA D. ERVINGTON,

Plaintiff–Appellant,

v.

LTD COMMODITIES, LLC,

Defendant–Appellee.

Appeal from the United States District

Court for the Northern District of

Illinois, Eastern Division.

No. 09 C 7313

William T. Hart,

Judge.

O R D E R

Vera Ervington, an African‐American Christian, appeals the grant of summary

judgment against her in this employment‐discrimination action, alleging that her

employer retaliated against her, failed to promote her because of her race, and

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1

*

After examining the briefs and the record, we have concluded that oral

argument is unnecessary. Thus the appeal is submitted on the briefs and record.

See FED. R. APP. P. 34(a)(2).
No. 13‐2048 Page 2

discharged her because of her religion. Because Ervington has not provided evidence of

retaliation or discrimination, we affirm.

LTD Commodities, LLC, a catalog company specializing in business‐to‐business

sales, hired Ervington in 2002 and promoted her multiple times over the next three

years. But tensions arose between Ervington and the company in 2005, following a team

meeting about the company’s Halloween potluck. Ervington supervised this meeting of

around ten employees and told them that, according to her religion, Halloween could

not be celebrated because it mocked God and praised witches. Some of the other team

members agreed and expressed their concerns to a manager, who renamed the event

the Harvest potluck.

A couple of months later, Ervington reprimanded Lois Vallot (one of her

subordinates) in front of the team, and Vallot responded by telling Ervington to “shut

up.” Vallot complained about this incident to a manager, who then advised Ervington

to criticize employees in private. A few days later, Vallot told management that

Ervington began treating her adversely after she had expressed discomfort at the

potluck discussion with Ervington imposing her religious beliefs on the team.

Ervington’s managers admonished Ervington that personal beliefs had no place in a

business meeting and should be discussed only during breaks with willing participants.

The company also issued Vallot a warning for telling Ervington to shut up.

These incidents affected Ervington’s October 2006 performance appraisal, which,

though positive overall, noted that she had been advised to focus on business issues

and not to share her personal and spiritual views at work. The appraisal urged her to

soften her supervisory approach and improve her computer skills. Ervington contested

the appraisal with management, requesting, among other things, the expungement of

any reference to her personal and spiritual beliefs. Management eventually agreed to

remove the references to the Halloween discussion from the appraisal in one year if no

similar problems recurred.

The 2006 appraisal was used to evaluate Ervington’s candidacy for assistant

supervisor, a position that she had applied for earlier that year. In January 2007, the

company passed over Ervington and offered the position to another African‐American

candidate, who declined. The company then promoted Amelia Coleman Martinez, a

Hispanic woman, to the position. Coleman had been at the company four years longer

than Ervington, and her most recent performance appraisal lauded her strong

supervisory and organizational skills. Ervington filed a charge with the Equal
No. 13‐2048 Page 3

Employment Opportunity Commission, alleging that she was denied the promotion

because of her race and religion. A few months later, Ervington’s managers asked her if

she would like to apply for another assistant supervisor position, but she declined.

The incident that led to Ervington’s discharge occurred in October 2009, when

LTD Commodities held a Halloween celebration during work hours. As she had done

in the past, Ervington handed out bags that contained candy and pamphlets known as

“gospel tracts.” Some of the tracts negatively depicted Muslims and Catholics, and

stated that they would go to hell. Asad Tanwir, a Muslim employee, told Ervington that

he did not share her beliefs and returned the bag he had received. Another employee

complained to her supervisor about Ervington’s tracts and disparaging comments to

Tanwir (which Ervington denies making). During the company’s subsequent

investigation of the complaint, Tanwir stated that one tract angered him because it

disrespected the Prophet Muhammad and that Ervington rebuffed his attempt to return

the tracts by telling him that her religion was right. The investigation also revealed that

Ervington, Tanwir, and another employee had discussed religion about a week before

the Halloween celebration, and that Tanwir had told the other employee to study Islam

because it is “the right way to learn about God.”

At the end of the investigation, the company fired Ervington for violating the

company’s anti‐harassment policy (by distributing tracts that were offensive to other

employees). The investigators concluded that Tanwir had also violated the policy—by

telling an employee that her religion was wrong—and the company warned him in

writing that he would be discharged if he violated the policy again.

Ervington filed a second EEOC charge based on the discharge and then sued

LTD Commodities. She alleged (1) that the company violated Title VII of the Civil

Rights Act of 1964, 42 U.S.C. §§ 2000e‐2, 2000e‐3, by firing her because of her religion

and in retaliation for filing her earlier EEOC charge, and (2) that the company violated

Title VII and 42 U.S.C. § 1981 by failing to promote her because of her race and because

she challenged her performance appraisal. (Ervington also alleged that the company

failed to promote her because of her religion, but she does not pursue this claim on

appeal.)

The district court granted summary judgment for the company, concluding that

Ervington failed to make out a prima facie case of retaliation or discrimination. The

judge found that the company could not have retaliated against Ervington by denying

her a promotion because the denial occurred before she filed her first charge with the
No. 13‐2048 Page 4

EEOC. Analyzing the discrimination claims under the indirect method, the judge

concluded that Ervington’s failure‐to‐promote claim based on race could not succeed

because undisputed evidence showed that management reasonably believed that

Coleman was the more qualified candidate. The claims related to Ervington’s discharge

also failed, the court explained, because there was no evidence that Ervington had been

singled out: Tanwir received a written warning for violating the anti‐harassment policy,

and Ervington submitted no evidence that other employees who, like her, had repeatedly

violated the policy had been treated more favorably. Moreover, enforcing a neutral anti‐

harassment policy, the judge concluded, does not violate Title VII.

On appeal, Ervington reiterates the arguments she presented to the district court.

She maintains that, under Title VII, the company wrongfully discharged her for

distributing the tracts because proselytizing is a part of her religious practice. The legal

basis for Ervington’s assertion is unclear, but to the extent that she relies on a failure‐to‐

accommodate theory, her argument fails because LTD Commodities was not required

to accommodate Ervington’s religion by permitting her to distribute pamphlets

offensive to other employees. See Peterson v. Hewlett‐Packard Co., 358 F.3d 599, 607–08

(9th Cir. 2004); Chalmers v. Tulon Co. of Richmond, 101 F.3d 1012, 1021 (4th Cir. 1996).

To the extent that Ervington’s argument is based on a disparate‐treatment theory,

it also fails because she cannot show that the company would have applied its anti‐

harassment policy differently if she belonged to another religion. See Moranski v. Gen.

Motors Corp., 433 F.3d 537, 540–42 (7th Cir. 2005). Tanwir may have received only a

written warning for violating the anti‐harassment policy, but as the district court

explained, he was not similarly situated to Ervington because he had not previously

been counseled by management against imposing his religious beliefs on other

employees. See Patterson v. Ind. Newspapers, Inc., 589 F.3d 357, 365–66 (7th Cir. 2009);

Dear v. Shinseki, 578 F.3d 605, 610 (7th Cir. 2009). Ervington also maintains that her

discharge violated Title VII because she was not engaged in unlawful harassment of

other employees. But Title VII does not prohibit employers from enforcing an anti‐

harassment policy that defines harassment more broadly than does Title VII. Vaughn v.

Vilsack, 715 F.3d 1001, 1006–07 (7th Cir. 2013).

Ervington reiterates that the company failed to promote her because she is

African‐American.1 But as the district court explained, the company articulated

1 Ervington brings her claim of race‐based discrimination under both Title VII

and 42 U.S.C. § 1981. Our analysis is the same under either statute. See Hobbs v. City of
No. 13‐2048 Page 5

nondiscriminatory reasons for selecting another candidate, and Ervington offers no

evidence that those reasons are pretextual. See Hester v. Ind. State Dep’t of Health, 726

F.3d 942, 947 (7th Cir. 2013); Jajeh v. Cnty. of Cook, 678 F.3d 560, 572 (7th Cir. 2012);

Stockwell v. City of Harvey, 597 F.3d 895, 903 (7th Cir. 2010). Affidavits submitted by the

company show that the hiring managers chose Coleman because of her greater

supervisory and technical skills. And before promoting Coleman, the company offered

the position to an African‐American woman who turned it down.

Finally, Ervington generally contests the grant of summary judgment on her

retaliation claims. With regard to her claim that the company did not promote her

because she complained about her 2006 performance appraisal, we agree with the

district judge that the denial could not have been retaliatory because Ervington had not

yet filed an EEOC charge (and her earlier complaint to management is not protected

under Title VII because she did not show that she was opposing any unlawful

employment practice). See Northington v. H & M Int’l, 712 F.3d 1062, 1066 (7th Cir. 2013).

With regard to her claim that she was discharged in 2009 in retaliation for filing an

EEOC charge in 2007, the district court properly concluded that she failed to show that

she was treated differently from similarly situated employees or that the company’s

stated reason for discharging her was pretextual. See Majors v. Gen. Elec. Co., 714 F.3d

527, 539–40 (7th Cir. 2013); Harper v. C.R. England, Inc., 687 F.3d 297, 311–13 (7th Cir.

2012).

AFFIRMED.

Chicago, 573 F.3d 454, 460 n.1 (7th Cir. 2009).