                              In the

    United States Court of Appeals
                For the Seventh Circuit
No. 12-3207

PAUL HESTER,
                                               Plaintiff-Appellant,

                                v.


INDIANA STATE DEPARTMENT OF
HEALTH,
                                              Defendant-Appellee.

         Appeal from the United States District Court for the
          Southern District of Indiana, Indianapolis Division.
    No. 1:10-cv-1570-JMS-DML — Jane E. Magnus-Stinson, Judge.


      ARGUED JUNE 6, 2013 — DECIDED AUGUST 9, 2013


   Before POSNER, ROVNER, and WOOD, Circuit Judges.

    WOOD, Circuit Judge. Until mid-2009, Paul Hester was
employed by the Indiana State Department of Health (the
Department). The Department was not satisfied with Hester’s
work, however, and so it terminated his employment. Hester
believes that this action was motivated by his gender, race, or
age. Initially, he sued the Department in Indiana state court,
2                                                  No. 12-3207

alleging violations of the Age Discrimination in Employment
Act (ADEA), 29 U.S.C. § 621, and Title VII of the Civil Rights
Act, 42 U.S.C. §§ 2000e-2000e17, but the Department removed
the action to federal court. The district court granted summary
judgment for the Department on all claims. It concluded that
Indiana was immune from liability for private damages under
the ADEA, and it found that Hester had failed to identify
enough evidence to permit a trier of fact to find that the
Department discharged Hester because of a protected charac-
teristic.
    We agree with the district court that Hester’s evidence
could not support a finding that the Department’s action was
motivated by race or gender. Hester conceded at oral argument
in this court that the record contains no more evidence of age
discrimination than of race or gender bias. His age-based claim
has thus dropped out of the case. This means that we have no
occasion to delve into the interesting questions of sovereign
immunity that have occupied the parties in their briefing,
although we outline them briefly.
                                 I
   Hester (who is white, male, and at the time he lost his job,
in his mid-50s) began working as a microbiologist at the
Department’s immunology laboratory in 1994. It appears that
his tenure was uneventful until 2007, when he was repri-
manded for failing to report test results on time. Later that
year, Hester applied for the position of Bench Supervisor. Lixia
Liu interviewed him for that slot, but in the end she chose Rich
DuFour, another white male, for the job. In 2008, Hester told
DuFour (then his supervisor) that the lab was using an in-
No. 12-3207                                                  3

correct procedure for syphilis tests. (Hester thought that the
lab should be using a “moistened chamber” for conducting the
tests, and it was not doing so.) While DuFour did not respond
directly to Hester’s complaint, it appears that the Department
has since modified its standard operating procedure and now
follows the protocol Hester had identified.
   At the end of 2008, DuFour left the position of Bench
Supervisor. Hester again applied for the position and was
again interviewed for it by Liu. This time Liu awarded the
position to a white female in her mid-twenties, Jessica Gentry,
who had been working in the lab for four years. Liu explained
that she chose Gentry for several reasons: Gentry was one of
the top performers in the lab; Liu had more confidence that
Gentry’s test results would be returned on time; and Liu was
concerned that Hester did not have a good working relation-
ship with other employees.
    In April 2009, Hester’s supervisors met with him for a
performance appraisal, at which he received a document
entitled “Work Improvement Plan, Notice of Substandard
Performance.” The form listed a number of Hester’s “perfor-
mance deficiencies.” In particular, it said, he “[did] not meet
expectations”; he “need[ed] improvement” in “job knowl-
edge”; and he had “competency in only one of four testing
areas … due to hesitance in cross-training.” It recommended
that Hester “work to improve knowledge retention and
putting new knowledge into routine use,” develop “more
thorough understanding of instruments … and … use of
[standard operating procedures],” and “embrace more oppor-
tunities for learning and … attain[] knowledge related to daily
functions.” Hester was also reminded that he had failed to
4                                                     No. 12-3207

satisfy the Department’s request that he attend training to gain
proficiency in hepatitis C and syphilis testing.
    The Work Improvement Plan required Hester to demon-
strate perfect accuracy in syphilis and Ortho ECi testing within
30 days, or else he would face termination. (Ortho ECi is a
proprietary immunodiagnostic system. See
h t t p : / / w w w. o r t h o c l i n i c a l . c o m / e n - u s /
localehome/whoweare/Pages/OverviewHistory.aspx (last
visited Aug. 8, 2013).) In May 2009, Hester passed the syphilis
examination, but he recorded one sample on the Ortho ECi test
inaccurately. A second performance appraisal report for the
period between April 24 and May 24, 2009, found that Hester
did not meet expectations in the areas of “job knowledge” and
“communication.” That report noted that Hester failed
satisfactorily to complete the Ortho ECi testing “despite the
fact that he was given extensive hands-on training[,] … much
longer and more extensive training than anyone else in the
Serology Lab required.” It also noted he “displayed a reluc-
tance to read or consult the written test procedures, and he
refused to take notes or write down many key facts that he
seemed to have a difficult time remembering.” When he was
instructed to take notes, he refused to do so because he did not
want them to become a “crutch.” On June 9, the Department
provided Hester with a 30-day notice of the termination of his
job.
   Hester was a merit employee, and under state law he could
be fired only for just cause. The State Employees Appeals
Commission (SEAC) rejected Hester’s challenge to the Depart-
ment’s action. He appealed to the Marion Superior Court,
which initially remanded Hester’s case, instructing SEAC to
No. 12-3207                                                    5

correct evidentiary and procedural errors in the proceeding.
The Department filed a motion addressing these errors, and
the Superior Court suspended the remand pending its decision
on that motion. These proceedings were ongoing at the time of
the district court’s decision.
    Meanwhile, Hester filed this parallel suit in state court
alleging that the Department’s decision not to promote him to
Bench Supervisor and to fire him violated Title VII and the
ADEA. The Department removed the suit to federal court. In
granting summary judgment for the Department, the district
court held that Indiana was immune from suit under the
ADEA pursuant to Kimel v. Florida Board of Regents, 528 U.S. 62
(2000). The court found that Indiana waived its immunity from
suit by removing the case to federal court, but it found that the
state could nonetheless assert immunity from liability in a
private damages claim under the ADEA, as the state would
have been immune from a comparable claim in state court. The
court also concluded that Hester’s suit could not survive
summary judgment in any event, because he lacked evidence
that race or gender, rather than shortcomings in performance,
motivated the Department’s decisions. Even if the Department
were mistaken in believing that it had cause to discharge
Hester on competency grounds, that type of complaint is
properly addressed through the wrongful termination pro-
ceedings ongoing in state court; it says nothing about unlawful
discrimination once pretext is ruled out.
6                                                      No. 12-3207

                                   II
                                   A
    We review the district court’s grant of summary judgment
de novo, construing all evidence in the light most favorable to
Hester. We will affirm if there are no genuine issues of material
fact and, on the basis of the uncontested facts, the Department
is entitled to judgment as a matter of law. Finally, “summary
judgment may be granted based on any ground that finds
support in the record, so long as the non-moving party had an
opportunity to submit affidavits or other evidence and contest
the issue.” William v. U. S. Steel, 70 F.3d 944, 947 (7th Cir. 1995);
see also Stanley v. The Int’l Amateur Athletic Fed’n, 244 F.3d 580,
597 (7th Cir. 2001) (“[A]n appellate court can affirm the district
court’s dismissal based on any ground supported by the
record, even if different from the grounds relied upon by the
district court.”).
                                   B
    Rather than beginning with the Department’s sovereign
immunity defense, as the district court did, we proceed directly
to the points that we believe resolve this appeal in the most
straightforward manner. We are entitled to do so because the
state’s sovereign immunity does not automatically destroy the
subject-matter jurisdiction of the federal courts, particularly in
a case (such as ours) that does not rest on diversity jurisdiction.
See Wis. Dep’t of Corr. v. Schacht, 524 U.S. 381, 389 (1998). In
order to move beyond summary judgment on his discrimina-
tion claims, Hester had to submit evidence showing that the
Department’s adverse actions were motivated by his gender,
race, or age, rather than his unsatisfactory performance. “[T]he
No. 12-3207                                                        7

plaintiff one way or the other must present evidence showing
that … a rational jury could conclude that the employer took
that adverse action on account of her protected class, not for
any non-invidious reason.” Coleman v. Donahoe, 667 F.3d 835,
863 (7th Cir. 2012) (Wood, J., concurring); Pitasi v. Gartner Grp.,
Inc., 184 F.3d 709, 714 (7th Cir. 1999) (age discrimination claim);
Good v. Univ. of Chi. Med. Ctr., 673 F.3d 670, 674-75 (7th Cir.
2012) (race discrimination claim). We consider first his allega-
tions of race or gender discrimination.
    Hester may prove this by evidence, direct or circumstantial,
that would allow a trier of fact to find that he was in a pro-
tected group, that he suffered an adverse employment action,
and that the adverse action was caused by his protected status.
In the alternative, he may use the well-worn “indirect,”
burden-shifting method of proof recognized in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), under which the
plaintiff first establishes a prima facie case of discrimination, the
employer responds by articulating a legitimate, nondiscrimina-
tory reason for its action, and the plaintiff then has the oppor-
tunity to show that the employer’s explanation is pretextual.
See Raytheon Co. v. Hernandez, 540 U.S. 44, 49-50 & n.3 (2003).
If the plaintiff is not using the burden-shifting approach,
however, then he is entitled to present any evidence he can
muster to show that discrimination was the reason for the
adverse action. An outright confession of discriminatory intent
would suffice, but outside the world of fiction, one does not
ordinarily see that kind of evidence. Short of that, examples of
pertinent circumstantial evidence include suspicious timing,
ambiguous statements or behavior directed at others in the
8                                                    No. 12-3207

protected group; and evidence that similarly situated employ-
ees outside the protected class were treated more favorably.
Good, 673 F.3d at 675, 678.
    Hester has not presented any evidence, no matter how
characterized, that would cast doubt on the Department’s
decision not to promote him. His supervisors never mentioned
either his race or his gender. This case is thus not like Pitasi,
where the employer asked the employee “[w]hat would you
think if we gave you early retirement, with some extra com-
pensation because of your age?” 184 F.3d at 713. Nor was there
a pattern of the Department’s disfavoring males for the
position of Bench Supervisor. Compare Mills v. Health Care
Serv. Corp., 171 F.3d 450, 457 (7th Cir. 1999) (“Between 1988-
1995, nearly all promotions at the office went to women, and
at the time the challenged hiring decision was made, females
dominated the supervisory positions in the relevant office.”).
To the contrary, the first time Hester applied for the position of
Bench Supervisor, Liu gave the position to DuFour, another
white male. Over the period in question, one man and one
woman were promoted to the Bench Supervisor position. This
shows gender balance, not gender bias.
   As we noted earlier, Liu gave three neutral reasons for her
decision to promote Gentry over Hester: Gentry performed her
work in a timely manner; Gentry was a top performer; and
Gentry got along better with other workers in the lab. None of
those things could have been said about Hester. To the
contrary, he was disciplined in 2007 for failing to submit a
sample in time; his Work Improvement Plan reveals that the
Department did not regard him as a “top performer”; and
Hester’s performance evaluation states that he fell short of
No. 12-3207                                                   9

expectations in communication because he did not follow
directions well. Hester has provided no reason for suspecting
that these negative assessments were pretextual.
    Hester’s effort to defeat summary judgment on his termina-
tion claim fares no better. Hester argues that three allegations
in his affidavit would (if believed by the trier of fact) demon-
strate that the Department subjected him to disparate treat-
ment based on his race or gender: (1) a male African-American
employee, Douglas, had “serious performance deficiencies,”
but Douglas was reassigned rather than fired; (2) Gentry and
four other female employees performed syphilis testing
improperly, but the women were not fired or disciplined; and
(3) another female employee, Espinosa, was permitted to
retake the Ortho ECi test when she failed it, rather than being
fired. (The district court excluded the last allegation from
evidence because Hester failed to show that he had personal
knowledge about Espinosa’s situation and the evidence lacked
foundation, including information about when Espinosa’s
failure and retake occurred. We mention it only because it
would not have helped Hester even if the district court had
taken it into account.)
    Even if all of Hester’s evidence were credited, it does not
add up to a showing that he was treated differently because of
his race or gender. None of these employees was comparable
to him. None was placed on a Work Improvement Plan after
unsatisfactory performance. None was required to pass an
examination with 100% accuracy in order to remain employed.
And none failed the test despite this condition. Hester suggests
that employees who improperly conducted syphilis tests were
comparable because they too made mistakes, yet the Depart-
10                                                No. 12-3207

ment treated them more favorably because it did not fire them.
But the Department explains that all employees at one point
conducted syphilis tests “incorrectly” pursuant to its former
operating procedure, which did not involve the use of a
moistened chamber. During the time when the five female
employees performed syphilis tests improperly, the entire lab,
including Hester, was doing the same thing. Since they were
complying with the operating procedure in place at the time,
the employees who incorrectly performed syphilis tests are not
similarly situated to Hester. Only Hester continued to have
performance problems so serious that the Department deemed
his work unsatisfactory.
    To support an inference that the Department treated
similarly situated employees of a different race or gender more
favorably, Hester needed evidence that employees of a
different race or gender were put on a “Work Improvement
Plan” with the same terms as Hester’s, but allowed to continue
working after failing one of the tests. He could also have
shown that employees of a different race or gender received
notices of unsatisfactory performance similar to Hester’s, but
were not placed on a “Work Improvement Plan.” Hester did
none of these things.
    The fact that Douglas, an African-American male over the
age of 50 who had been with the Department for 50 years, was
not let go for poor performance cuts against Hester’s allega-
tions of age and gender discrimination. One would expect
Douglas to have been fired if the Department were biased
against male (or older) employees. Similarly, that the Depart-
ment treated Gentry and several other white employees
favorably undermines Hester’s claim of race discrimination.
No. 12-3207                                                   11

    Hester finally urges that his firing must have been attribut-
able to forbidden reasons because (he says) the Department
mistakenly concluded that he failed the Ortho ECi exam.
Indeed, he charges, Gentry fabricated his failure of the Ortho
ECi exam and withheld information that would allow him to
show he actually passed it. Even if this were so, and even if the
Department was wrong in determining that Hester performed
unsatisfactorily, nothing in this account points to discrimina-
tion as the real reason for the Department’s action. Gentry and
other supervisors may have treated Hester poorly out of
personal animosity. That might violate the state’s law prohibit-
ing merit employees from being terminated without “just
cause,” but it does not leave gender or race as the only alterna-
tive explanation.
    The district court thus properly concluded that Hester’s
evidence was insufficient to survive summary judgment on his
claims of race and gender discrimination. While that court did
not rule on the sufficiency of the age discrimination evidence,
at oral argument Hester’s counsel admitted that there is no
more evidence that the Department was motivated by age than
the evidence we have described here. Hester’s ADEA claim
could have been dismissed just as readily on the evidentiary
shortcomings that prevent Hester’s Title VII claims from going
forward, and that ground is available to this court on our de
novo review of the judgment.
                                 C
    Before concluding, we offer a few remarks about the
elephant in the room: the district court’s sovereign immunity
ruling. As we noted earlier, the court found that by removing
12                                                   No. 12-3207

the case from the state court, the Department waived its
immunity from suit, but not its immunity from damages
liability under the ADEA. This implicates a question that we
have not yet had occasion to answer, and that has divided our
sister circuits: Does a state waive the immunity it would have
in state court by removing a suit to federal court? In Lapides v.
Board of Regents of University System of Georgia, 535 U.S. 613
(2002), the Supreme Court held that by removing the case to
federal court, the state of Georgia waived immunity in a
federal forum from state law claims from which it would not
have been immune had the case stayed in state court. The
Court stated that “removal is a form of voluntary invocation of
a federal court’s jurisdiction sufficient to waive the State’s
otherwise valid objection to litigation of a matter (here of state
law) in a federal forum.” Id. at 624. The Court emphasized its
concern that the state would gain an unfair advantage by
removing to federal court if it could declare immunity in a
federal forum that it would not have in state court.
    The courts of appeals have interpreted Lapides differently:
at least one court has read Lapides as suggesting that by
removing to federal court, a state waives any immunity that it
would have had in state court. Estes v. Wyo. Dep’t of Transp.,
302 F.3d 1200, 1206 & n.1 (10th Cir. 2002) (holding that the state
waived immunity from suit under the Americans with Disabili-
ties Act (ADA) even though the state would have been
immune from the claim in state court). Other circuits have read
Lapides as holding that, by removing to federal court, a state
waives only its immunity from the jurisdiction of the federal
forum, but it retains immunity as a defense to liability to the
extent the defense would be available in state court. Stroud v.
No. 12-3207                                                    13

McIntosh, No. 12-10436, 2013 WL 3790961 (11th Cir. July 23,
2013) (“We do not understand Lapides to require the state to
forfeit an affirmative defense to liability simply because it
changes forums. But the Lapides Court’s reasoning supports the
propositions that a state consents to federal jurisdiction over a
case by removing and that it cannot then challenge that
jurisdiction by asserting its immunity from a federal forum.”);
Lombardo v. Pa. Dep’t of Pub. Welfare, 540 F.3d 190, 198 (3d Cir.
2008) (“We hold that while voluntary removal waives a State’s
immunity from suit in a federal forum, the removing State
retains all defenses it would have enjoyed had the matter been
litigated in state court, including immunity from liability.”);
Meyers ex rel. Benzing v. Texas, 410 F.3d 236, 255 (5th Cir. 2005)
(“[W]hen Texas removed this case to federal court it volun-
tarily invoked the jurisdiction of the federal courts and waived
its immunity from suit in federal court. Whether Texas has
retained a separate immunity from liability is an issue that
must be decided according to that state’s law.” (citation
omitted)).
    Several other courts have reached the same result by
slightly different reasoning. These decisions hold that waiver-
by-removal occurs only if, as in Lapides, the removing state
stands to gain an unfair advantage by asserting immunity that
it would not have enjoyed in its state courts. Bergemann v. R.I.
Dep't of Envtl. Mgmt., 665 F.3d 336, 342 (1st Cir. 2011) (“Rhode
Island’s sovereign immunity defense is equally as robust in
both the state and federal court. Consequently, there is nothing
unfair about allowing the state to raise its immunity defense in
the federal court after having removed the action. Simply put,
removal did not change the level of the playing field.”); Stewart
14                                                      No. 12-3207

v. North Carolina, 393 F.3d 484, 490 (4th Cir. 2005) (“North
Carolina had not consented to suit in its own courts for the
relevant claims … . Therefore, by removing the case to federal
court and then invoking sovereign immunity, North Carolina
did not seek to regain immunity that it had abandoned previ-
ously. Instead, North Carolina merely sought to have the
sovereign immunity issue resolved by a federal court rather
than a state court.”(citations omitted) (emphasis in original)).
    The closest we have come to addressing this question is our
holding that, by filing suit in federal court based on federal
copyright law, Wisconsin waived immunity to the defendant’s
counterclaims under the same federal law, even though it
would ordinarily be immune from suit in federal court. Bd. of
Regents of the Univ. of Wis. Sys. v. Phoenix Int’l Software, Inc., 653
F.3d 448 (7th Cir. 2011). Phoenix, however, does not answer the
question we are discussing, because there we said nothing
about whether the state would have been immune from the
copyright claims in state court, nor did we address how this
hypothetical state-court immunity would affect immunity in
federal court. Since Wisconsin was the plaintiff asserting
federal claims in federal court, albeit in an appeal from a
federal agency decision, there was no need to reach those
issues.
    The case for waiver is significantly different here because
Indiana was the defendant and in no way invoked federal law
as a basis for any claims. The Department explains that it
removed Hester’s suit because it prefers to defend Title VII
actions (which, because they rest on Section 5 of the Fourteenth
Amendment, validly abrogate immunity, see Fitzpatrick v.
No. 12-3207                                                      15

Bitzer, 427 U.S. 445 (1976)) in federal court, and it wanted to
litigate those claims even while it asserted its immunity
defense from ADEA liability pursuant to Kimel.
    Kimel held that Congress was not empowered by the
Fourteenth Amendment to subject the states to suits for private
damages based on age discrimination. The Indiana Supreme
Court has held that there is no private civil damages remedy
under Indiana’s state Age Discrimination Act, Ind. Code § 22-9-
2-1, and thus (in that court’s view) Indiana is under no obliga-
tion to recognize comparable claims under the federal ADEA.
Montgomery v. Bd. of Trustees of Purdue Univ., 849 N.E.2d 1120
(Ind. 2006). Compare Erickson v. Bd. of Governors of State Coll. &
Univ., 207 F.3d 945, 952 (7th Cir. 2000) (Illinois did open its
courts to claims based on state law, including a prohibition
against disability discrimination, and so state courts could not
exclude such claims based on federal law).
    These cases raise a number of interesting questions: is it
correct to distinguish between immunity from suit and
immunity from a forum? May a state court, consistently with
Testa v. Katt, 330 U.S. 386 (1947), refuse to entertain a case
based on federal law when the state has an analogous statute
that differs only in the remedies afforded? Are the rules
different when the state freely chooses the federal forum by
removing? What if the state not only removes, but it files a
counterclaim? To the extent that Hester might have been
seeking injunctive relief, did the district court act too hastily in
assuming that Indiana’s sovereign immunity would also bar
that aspect of his case, despite Ex parte Young, 209 U.S. 123
(1908)? Rather than plunge into those delicate topics in a case
16                                                   No. 12-3207

where the answers ultimately do not matter, we are content to
save them for another day.
                               ***
     We AFFIRM the judgment of the district court.
