                              In the

    United States Court of Appeals
                For the Seventh Circuit
                    ____________________
No. 14-2707
FRANK BURKS AND CORNELIUS L. JONES, JR.,
                                       Plaintiffs-Appellants,

                                v.

UNION PACIFIC RAILROAD COMPANY,
                                                Defendant-Appellee.
                    ____________________

        Appeal from the United States District Court for the
           Northern District of Illinois, Eastern Division.
        No. 1:12-cv-08164 — Maria Váldez, Magistrate Judge.
                    ____________________

    ARGUED FEBRUARY 12, 2015 — DECIDED JULY 13, 2015
                ____________________

   Before EASTERBROOK, KANNE, and HAMILTON, Circuit
Judges.
    KANNE, Circuit Judge. Appellants Frank Burks and Cor-
nelius Jones were, at the relevant times, employed by the
Union Pacific Railroad Company (“Union Pacific”). They
claim that Union Pacific denied them the opportunity to take
a test that was required for promotion, and did so based on
impermissible retaliation. Burks and Jones each argue that
Union Pacific retaliated against them for having engaged in
2                                                          No. 14-2707

protected activity—namely, filing complaints of racial dis-
crimination. The district court granted summary judgment
for Union Pacific. For the reasons explained below, we affirm
the judgment of the district court.
                             I. BACKGROUND
     Burks and Jones were hired as “Signal Helpers” by Union
Pacific. They both reported to orientation in Boone, Iowa, on
January 3, 2011. During orientation, they were informed that
they would be employed through December 31, 2015, or un-
til the company “moved in a different direction.” A Signal
Helper’s job duties included construction, installing wire,
digging trenches, and climbing poles. The position carried a
90-day probationary period, and both Burks and Jones were
subject to a collective bargaining agreement that covered the
terms and conditions of their employment. Burks and Jones
were the only African-American members of their Signal
Helper class.
    A. Employment History
        1. Burks
    Following orientation, Burks was assigned to Zone 5,1
where he reported to foreman Chad Smith. Burks was as-
signed primarily to dig trenches. On February 9, 2011—
twenty days into Burks’s employment and probationary pe-
riod—Manager of Signal Construction Morgan Riley di-
rected Chad Smith to terminate Burks’s employment. Chad
Smith stated to Burks that “it wasn’t working out.”


1 Union Pacific appears to divide its rail areas into numbered geographic
zones, but the parties do not offer background information on this topic.
No. 14-2707                                                 3

    In April 2011, Burks lodged a complaint with Melissa
Schop in Union Pacific’s Equal Employment Opportunity
department alleging racial discrimination in connection with
his termination. After investigating the complaint, Schop
found no evidence that Burks had been fired because of his
race. She did, however, conclude that he had not been
properly coached or given an opportunity to improve his
performance before his employment was terminated. She
offered Burks reinstatement in exchange for signing a gen-
eral release that included a new 90-day probationary period.
Burks signed the form and returned to work on May 24,
2011.
    Burks was again assigned to Zone 5. He reported to
foreman George Hoy, who in turn reported to Riley. Burks
worked for Hoy for seven days before requesting a transfer.
He was transferred to Zone 4 and reported to Rod Storbeck,
with the same job responsibilities. Burks completed his pro-
bationary period on August 23, 2011. He was later notified
that Union Pacific abolished the Signal Helper position, ef-
fective October 10, 2011. He was subsequently furloughed.
      2. Jones
    Like Burks, Jones was assigned to Zone 5 following his
orientation, reporting to foreman Clay Smith. He was later
assigned to Zone 4, reporting to foreman Jeremy Bates, and
then returned to Zone 5, reporting once again to Clay Smith.
Jones primarily dug trenches. He completed his probation-
ary period in April 2011.
   On June 8, 2011, Jones called Schop to report a comment
that he perceived as racially discriminatory. Referring to ei-
ther a gate or a truck, Clay Smith had commented that it was
4                                                         No. 14-2707

“working like a striped monkey” or “running like a striped-
ass monkey.” Jones agrees that the remark was not made di-
rectly to him or another person, but it was made in his pres-
ence. He perceived the comment to be a derogatory refer-
ence to his biracial children.
    After investigating the complaint, Schop concluded that
the comment was not racially motivated. Jones claims that
after he made the complaint, Clay Smith would only com-
municate with him through intermediaries.
    Like Burks, Jones was notified that the Signal Helper po-
sition was being abolished, and he was subsequently fur-
loughed.
    B. Plaintiffs’ Applications for Promotion
    A Signal Helper could, through a multi-step process, be-
come eligible for promotion to the position of Assistant Sig-
nal Person. 2 First, he must successfully complete his 90-day
probationary period. Second, he must apply for an open As-
sistant Signal Person position. Third, he must be invited to
take the “Skilled Craft Battery Test” (the “SCBT”). After
passing the SCBT, he would be considered eligible for pro-
motion to Assistant Signal Person.
    The plaintiffs’ claims center on whether they were denied
the opportunity to take the SCBT as a result of impermissible
retaliation. So we delve rather deeply into the facts sur-


2 The duties of Signal Helpers and Assistant Signal Persons overlapped
to some degree. Assistant Signal Persons, however, could perform
skilled tasks, such as connecting electrical wiring, that Signal Helpers
were not permitted to perform.
No. 14-2707                                                         5

rounding the SCBT and Union Pacific’s promotion proce-
dures. It is worth noting at the outset, however, that neither
the plaintiffs’ briefs nor materials in the record below fully
explain Union Pacific’s promotion procedures. So gaps exist
in the factual background as it has been presented to us.
   It is uncontested that both Burks and Jones passed their
90-day probationary periods, so both were eligible to apply
for open Assistant Signal Person positions. According to
Schop, whose account of the application process appears to
be uncontested, employees could apply in two ways.
    Under what we’ll term the “external” method, the em-
ployee could submit an application through Union Pacific’s
public website. The company listed its open Assistant Signal
Person positions in every geographic zone and “seniority
district” 3 on the site. The employee would then apply sepa-
rately to each open position that was of interest—say, a posi-
tion in Addis, Louisiana, or in Waco, Texas. The applicant
could apply for positions in any seniority district through
this method.
    Under the “internal” route, the employee could apply
into a centralized applicant pool. That pool would be open
only to current Union Pacific employees. If an Assistant Sig-
nal Person position became available in the applicant’s sen-
iority district, the employee would be invited to take the
SCBT. Applications to the pool eventually expire, after which
time an applicant must reapply if he remained interested in
taking the SCBT.

3 The term “seniority district” appears throughout the record, but re-
mains undefined. The parties shed no light on its meaning.
6                                                 No. 14-2707

    An employee could elect to apply through either or both
of the application methods. Under either method, it is un-
clear whether any additional “screening” steps were taken
by Union Pacific between an application’s submission and
any subsequent invitation to take the test. Some record in-
formation suggests that someone—either a human resources
official or someone else—would review the applicants to
make sure they met all listed qualifications. Other evidence
suggests that applicants must have obtained positive refer-
rals from their current managers in order to be considered,
implying that some form of review occurred after the initial
submission. In any event, the plaintiffs provide no infor-
mation about this portion of the promotion process, so the
factual description on this point remains absent.
      1. Burks
    After Burks completed his probationary period in August
2011, he spoke to foreman Storbeck about his promotion po-
tential to Assistant Signal Person. According to Burks, Stor-
beck made a phone call to an employee named Nate Gut-
mann to ask how a signal helper could be promoted to As-
sistant Signal Person. Gutmann in turn asked another em-
ployee, Bernard Kachnowski, what actions were required.
According to Burks, Kachnowski faxed a response to Gut-
mann, which was then sent to Storbeck, stating that “to be
promoted, the signal helpers have to take a series of tests to
see if they [sic] capable of learning electronic background.”
   The record suggests that Burks was mistaken about the
form this communication took—it appears to have been an
email exchange between Storbeck, Gutmann, and Ka-
chnowski. In any event, the email stated substantially what
Burks related—that the Signal Helpers must take a series of
No. 14-2707                                                  7

tests to see if they were “capable of learning the electronic
part of being a Signalman.” In that email, Kachnowski also
stated that “Jesse [Stearns] can call someone from HR to set
up the testing.”
    From this point, the facts of Burks’s application process
become muddled. In his brief, Burks claims that he believed
that Stearns was setting him up with HR to take the SCBT.
He cites to his own deposition testimony in support of that
contention, but the cited testimony does not indicate wheth-
er Burks was at the time aware of the communications pass-
ing between Storbeck, Gutmann, and Kachnowski. Nor does
it indicate that anyone told Burks that the SCBT was being
arranged for him.
    Burks also claims that he was not informed that he was
required to apply for an open position in order to be invited
to take the SCBT, either prior to or immediately following
his 90-day probationary period. He states that he was in-
formed of the need to apply for an open position only at the
time that he was notified that his Signal Helper position was
being abolished. The record indicates, however, that in either
June or July, Burks became aware that other employees from
his Signal Helper class had been told to go online to apply to
open positions.
    According to Union Pacific, and this appears to be uncon-
tested by Burks, Burks applied for an open Assistant Signal
Person position in October of 2011. He applied only via the
“internal” application method, joining the “pool” of eligible
applicants. Union Pacific claims that no positions became
available in Burks’s seniority district, and his application to
the pool expired in January of 2012. Burks did not reapply,
and he was never invited to take the SCBT.
8                                                  No. 14-2707

       2. Jones
    As for Jones, recall that he completed his probationary
period in April 2011. Jones claims that he submitted an
online application for open positions, apparently using the
internal method, in May 2011. After hearing nothing from
the railroad (or being told there were no positions availa-
ble—the evidence is contradictory on this point), he contact-
ed his union representative, Harry Doucet, for help. Doucet
in turn contacted Union Pacific by email. Employee Tonya
Eggspuehler responded that there was no application on file
for Jones. She provided by email the link through which
Jones should apply to the pool. Doucet told Jones to reapply
on or about June 28, 2011, the same day he communicated by
email with Eggspuehler. Jones did not apply to the pool until
September 2011, and his application expired in January 2012.
He did not reapply, and he was never invited to take the
SCBT.
    C. District Court Proceedings
    Burks and Jones filed suit in the Northern District of Illi-
nois alleging, among other claims, that Union Pacific retali-
ated against them for having engaged in protected activities,
in violation of Title VII of the Civil Rights Act of 1964. They
claimed that Union Pacific denied them the opportunity to
take the SCBT, and thereby denied them a promotion. In
Burks’s case, he alleges that Union Pacific retaliated against
him for having filed a racial discrimination complaint fol-
lowing his termination in February 2011. In Jones’s case, he
alleges retaliation for having filed the racial discrimination
complaint against Clay Smith.
No. 14-2707                                                 9

     Following discovery, Union Pacific moved for summary
judgment on all claims. Along with their response, the plain-
tiffs electronically filed a number of exhibits. Under Docket
Number 71, the plaintiffs filed a series of documents num-
bered 1 through 9. Under Docket Number 72, the plaintiffs
filed more documents, numbered 11 through 15. Those doc-
uments, however, were actually duplicates of several of the
exhibits that had been filed as 1 through 9. No document
numbered “10” was electronically filed, and at Docket Num-
ber 73, a second Exhibit 11 was filed.
   This error resulted in several deposition transcripts never
being electronically filed or served on opposing counsel: the
depositions of Burks, Doucet, Riley, Schop, and Clay Smith.
Hard copies of the depositions were included, however,
along with copies of other documents that were delivered to
the judge’s courtroom deputy clerk. The court did not con-
sider these depositions in conducting its summary judgment
analysis.
    The district court granted summary judgment to Union
Pacific on all claims, including the retaliatory failure-to-
promote claims. The court analyzed those claims under both
the direct and indirect methods of proof and concluded that
the plaintiffs put forward no evidence to show that Union
Pacific prevented either applicant from applying for open
positions or taking the SCBT. The court also found that the
plaintiffs offered no facts showing that there were any open
Assistant Signal Person positions during the time their ap-
plications were active. And finally, the court concluded that
the plaintiffs offered no examples of other employees out-
side the protected class who were not better qualified but
promoted during that time period.
10                                                   No. 14-2707

     The plaintiffs appeal the grant of summary judgment.
                             II. ANALYSIS
    The plaintiffs argue that the district court erred in grant-
ing summary judgment because: (1) the court erroneously
disregarded the deposition transcripts that the plaintiffs neg-
ligently failed to e-file; and (2) the plaintiffs established gen-
uine issues of material fact regarding a retaliatory failure to
promote.
    We conclude that the plaintiffs have not raised any genu-
ine issues of material fact regarding a retaliatory failure to
promote, and they point to no evidence in the disregarded
transcripts that would have created any genuine issues of
material fact. Therefore, we need not decide whether the dis-
trict court erred in disregarding the transcripts that were not
properly e-filed.
     A. Standard of Review
    We review a grant of summary judgment de novo, “re-
viewing the record and the inferences drawn from it in the
light most favorable to the nonmoving party.” Grayson v. City
of Chicago, 317 F.3d 745, 749 (7th Cir. 2003). Summary judg-
ment is appropriate when “the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
     B. Retaliatory Failure to Promote
   Title VII makes it unlawful “for an employer to discrimi-
nate against any of his employees or applicants for employ-
ment … because he has opposed any practice made an un-
lawful employment practice by [Title VII].” 42 U.S.C.
§ 2000e-3(a). In order to prove unlawful retaliation, Jones
No. 14-2707                                                     11

and Burks may proceed under the familiar direct and indi-
rect methods of proof. See Tomanovich v. City of Indianapolis,
457 F.3d 656, 662 (7th Cir. 2006).
    Under the direct route, they may provide either “smok-
ing gun” or circumstantial evidence. Smoking gun evidence
typically requires an admission of discriminatory intent. See
Tank v. T-Mobile USA, Inc., 758 F.3d 800, 805 (7th Cir. 2014).
Individual pieces of circumstantial evidence, on the other
hand, may be combined to raise an inference of discrimina-
tory intent. Such circumstantial evidence may include
“(1) suspicious timing, ambiguous oral or written state-
ments, or behavior toward or comments directed at other
employees in the protected group; (2) evidence, whether or
not rigorously statistical, that similarly-situated employees
outside the protected class received systematically better
treatment; and (3) evidence that the employee was qualified
for the job in question but was passed over in favor of a per-
son outside the protected class and the employer’s reason is
a pretext for discrimination.” Hutt v. AbbVie Products LLC,
757 F.3d 687, 691 (7th Cir. 2014).
    Under the indirect route, Jones and Burks must operate
within the familiar burden-shifting approach. They must
first establish a prima facie case of discrimination. In the retal-
iatory failure-to-promote context, they must show that:
(1) they engaged in statutorily protected activity; (2) they
applied for and were qualified for the positions sought;
(3) they were rejected for those positions; and (4) the em-
ployer granted the promotions to others who did not engage
in statutorily protected activity, and who were not better
qualified than the plaintiffs. See Carter v. Chicago State Uni-
versity, 778 F.3d 651, 660 (7th Cir. 2015).
12                                                 No. 14-2707

    If they establish that prima facie case, the burden then
shifts to Union Pacific to articulate a legitimate, non-
discriminatory reason for the employment action. The bur-
den then shifts back to Jones and Burks to prove that Union
Pacific’s stated reasons were pretextual. Vaughn v. Vilsack, 715
F.3d 1001, 1006 (7th Cir. 2013).
     We discuss the appellants’ claims in turn.
     C. Burks
    Under both the direct and indirect methods, Burks has
not established a genuine issue of material fact regarding his
retaliation claim, because he has not put forward any facts to
show that Union Pacific denied him the ability to take the
SCBT.
   Burks appears to argue that he was denied the oppor-
tunity to take the SCBT on two separate occasions—first,
when he thought his supervisor was arranging it for him;
and second, after he submitted his internal application to the
pool.
    As for the first denial, Burks argues that he was “trying
to take the test” in August 2011, after he had completed his
probationary period. From the record, it appears that the on-
ly effort Burks made at that time to seek promotion was to
ask his supervisor, Storbeck, about whether he might be
promoted. Burks makes the repeated assertion that this con-
stituted an “application” under the internal application pro-
cedure, and that the internal method did not require “apply-
ing through the internet.” He asserts that any Union Pacific
claims to the contrary are “less than truthful.”
    There are at least two problems with Burks’s argument.
First, he presents no evidence to support the contention that
No. 14-2707                                                13

merely speaking to a supervisor about promotion constitut-
ed an “application” under Union Pacific’s procedures. Nor
has he presented any evidence that the recommendation of a
supervisor to another party—a human resources official or
anyone else—would constitute an application. He repeatedly
references a letter written by Schop as supporting his posi-
tion, but it does nothing of the sort. The relevant portion of
that letter simply stated that “[t]he second way to be pro-
moted from a Signal Helper to an Assistant Signal Person is
to go through the internal promotion process. In this case,
Signal Helpers apply to a pool.” It did not outline what pro-
cedures such an internal application would take, and it no-
where suggested that communicating interest to a supervi-
sor would be enough.
    Second, other evidence submitted by Burks shows that
the “internal” application was, in fact, submitted via an
online system. In an email responding to plaintiff Jones, for
example, Eggspuehler confirmed that she didn’t have an ap-
plication on file for him. So she sent the hyperlink through
which Jones could apply online. Eggspuehler stated, “I’ve
included the link where he needs to put in his application.
As you know, we are only posting a pool and they only have
to submit their application once every six months.” The
“pool” language clearly refers to the internal method, as the
external method required applicants to apply to each open
job individually. Based on this record evidence, Burks’s oral
inquiry was not enough.
   Burks next relies on the email communication between
Storbeck, Gutmann, and Kachnowski to show that he was
denied the opportunity to take the SCBT shortly after he
completed his probationary period. In that email exchange,
14                                                 No. 14-2707

Gutmann asks Kachnowski, “What are the steps needed to
get the helpers into the assistant signalman training?” Ka-
chnowski responds, “They need to take a series of tests to
see if they are capable of learning the electronic part of being
a Signalman. Jesse [Stearns] can call someone from HR to set
up the testing.” But other evidence—including, at least,
Schop’s account of the hiring procedures, and Riley’s deposi-
tion testimony—suggests that Kachnowksi’s statement about
Stearns was incorrect. Burks argues that this statement by
Kachnowski shows that Burks was “given the run-around,”
and reflects a retaliatory denial of a promotion opportunity.
He argues, it seems, that he was somehow misled into be-
lieving that he was not required to apply for an open posi-
tion, and that Stearns was taking care of it for him.
    We cannot draw the conclusion that Burks was “given
the run-around,” for the following reasons. First, Burks has
not provided any evidence that anyone—Storbeck or any
other individual—communicated to Burks that Stearns was
setting up the SCBT for him. In order for Kachnowski’s
statement to carry any retaliatory force, Burks must show
that it prevented him from following the proper application
procedures. Burks has not provided any facts to show he
was even aware of Kachnowski’s statement—let alone that
he acted upon it. Second, Burks has provided no evidence
that Kachnowski had any knowledge of Burks’s prior race-
discrimination complaint. Without that knowledge, Ka-
chnowski would have had no basis for retaliatory behavior.
And third, in order to impute a retaliatory motive to the oth-
er two members of the communication—Storbeck and Gut-
mann—one would have to believe that the email communi-
cation constitutes evidence of a silent conspiracy to mislead
Burks into believing that the SCBT was being set up for him.
No. 14-2707                                                   15

That is not a reasonable inference to draw from the evidence
presented.
    As for the second denial, Burks argues that he was again
prevented from taking the SCBT during the period that he
had an application on file. Burks does not dispute Union Pa-
cific’s contention that an applicant would be invited to take
the SCBT only if an Assistant Signal Person job became
available. He argues that Union Pacific has outright lied in
stating that no jobs became available during the time that
Burks had an application on file.
    Burks makes this argument, quite simply, by misstating
the record evidence. According to Burks, Schop stated in a
letter that Burks was eligible for a position “in any seniority
district.” Schop’s letter, however, stated that applicants ap-
plying through the external method could apply for positions
“in any seniority district.” As for the internal method,
Schop’s letter is exceedingly clear: “When a position opens in
the applicant’s seniority district, he/she is invited to take the
Skilled Craft Battery Test” (emphasis added). Burks never
applied for any positions through the external method—
only the internal one. So even if positions in other seniority
districts became available, those positions would not have
affected Burks’s eligibility to take the SCBT.
   Burks does not present any facts to suggest that positions
within his own seniority district became available while he
had an application on file. Burks asks us to consider the
deposition transcript, and related exhibits, from union rep-
resentative Doucet. He claims that Doucet’s testimony shows
that “the railroad was hiring Assistant Signal Persons during
the time when plaintiffs were being given the run-around.”
16                                                No. 14-2707

    Doucet’s testimony did nothing more than establish that
some individuals started work as Assistant Signal Persons
between October 2011 and January 2012 in Zones 4 and 5.
Doucet explicitly stated that he had no idea when those posi-
tions became available, when those applicants applied, or
whether they were internal or external applicants. He also
said nothing about the seniority districts of those positions
or applicants. Even considering Doucet’s testimony, which
was likely not considered by the district court, Burks simply
does not put forward any facts to show that positions be-
came available in his seniority district at the time he had an
application on file.
   Because Burks cannot establish that Union Pacific denied
him the opportunity to take the SCBT, he cannot prevail un-
der either the direct or the indirect method of proof.
     D. Jones
    Jones also appears to argue that he was twice denied the
opportunity to take the SCBT. First, Jones argues that he
tried to apply for an open position internally in June 2011
and was “given the run-around.” In his deposition, Jones
testified that he submitted an online application in June and
never received a response from Union Pacific. Jones then re-
quested assistance from Doucet, who emailed employees at
Union Pacific on June 28, 2011. Union Pacific employee Egg-
spuehler responded within three hours, stating that Jones
had no application on file. She provided the link through
which Jones should reapply, as well as an explanation of the
process. Doucet testified that he communicated this infor-
mation to Jones immediately. Jones did not reapply until
September 3, 2011.
No. 14-2707                                                 17

    This chain of events does not represent a “run-around.”
First, Jones provides no factual basis upon which to con-
clude that the initial application he claims he submitted was
somehow lost or scuttled due to retaliatory motives. As the
district court stated, “[h]is supposition about possible nefar-
ious motives on UP’s part does not create a triable issue of
fact.” Burks v. Union Pacific Railroad, No. 12 C 8164, 2014 WL
3056529, at *6 (N.D. Ill. Jul. 7, 2014). Second, Jones provides
no basis upon which to infer retaliatory motives on the part
of Eggspuehler, or any other unnamed Union Pacific em-
ployees, after they were made aware of his attempts to ap-
ply. Eggspuehler provided Jones, through Doucet, with the
information he needed to submit an application. She did so
in a timely and transparent manner. And Jones provides no
evidence that Eggspuehler, or anyone else in her depart-
ment, knew of his prior race-discrimination complaint. Final-
ly, Jones does not provide any evidence to suggest that his
delay in applying (or reapplying)—over two months after
this communication—was due to anyone else’s involvement.
This chain of events does not constitute a denial of the op-
portunity to take the SCBT.
    Jones’s second argument is identical to Burks’s—that he
was denied the opportunity to take the SCBT while his ap-
plication was on file. We will not belabor the point—his ar-
gument fails for the same reasons that Burks’s argument
failed.
                        III. CONCLUSION
    For the reasons explained above, the judgment of the dis-
trict court is AFFIRMED.
