                             In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 05-3621
JOHN SOUTH,
                                               Plaintiff-Appellant,
                                v.

ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
                                              Defendant-Appellee.
                         ____________
            Appeal from the United States District Court
                for the Central District of Illinois.
              No. 03 C 3275—Jeanne E. Scott, Judge.
                         ____________
       ARGUED APRIL 12, 2007—DECIDED JULY 27, 2007
                         ____________


  Before RIPPLE, EVANS and SYKES, Circuit Judges.
  RIPPLE, Circuit Judge. John South filed charges of dis-
crimination with the Equal Employment Opportunity
Commission (“EEOC”) against his employer, the Illinois
Environmental Protection Agency (“IEPA”); he also
testified in a colleague’s discrimination case. After his
subsequent termination, he filed this action in the district
court alleging that the IEPA had retaliated against him in
violation of Title VII of the Civil Rights Act of 1964 (“Title
VII”) because of his protected activities. The district court
granted the IEPA’s motion for summary judgment on the
2                                                No. 05-3621

ground that Mr. South had failed to state a prima facie
case of retaliation. Mr. South timely appealed this decision.
For the reasons set forth in this opinion, we affirm the
judgment of the district court.


                              I
                     BACKGROUND
  In 1993, Mr. South began working as a chemist for the
IEPA. In September 1999, and again in March 2000, Mr.
South filed charges of discrimination with the Illinois
Department of Human Rights and the EEOC. In these
charges, Mr. South alleged that, due to his attention deficit
disorder and chronic severe depression, he was a disabled
individual. Mr. South also was deposed and testified in a
co-worker’s discrimination case in April 2000. Mr. South
contends that his filing of a discrimination charge and his
testimony in the fellow worker’s case resulted directly in
the termination of his employment.
  On September 7, 2000, Mr. South sent an e-mail to his
supervisor, Gary Germann, in which he stated that,
effective the following day, he desired to take a medical
leave of absence. In support of his request for a leave of
absence, Mr. South submitted a certification from his
psychiatrist, Dr. Terry Killian, that indicated that Mr. South
was disabled temporarily and would not be able to work
for at least two months. On the form, Dr. Killian wrote that
Mr. South had been diagnosed with “MDD-R” (depres-
sion). The IEPA stated that the form submitted by Dr.
Killian was incomplete and requested that the physician
provide a full and complete “Physician’s Statement for the
Authorization for Disability Leave and Return to Work
Authorization.” Dr. Killian had checked the “Limitation”
No. 05-3621                                               3

box on the form but had not provided further elaboration
about the nature of Mr. South’s limitation; he simply had
written “psychological.” R.13, Ex.3 at 18. On September 8,
2000, Ann Price, Manager of the Office of Human Re-
sources, provisionally granted Mr. South’s leave under the
Family and Medical Leave Act (“FMLA”), subject to his
timely submission of a completed certificate from his
health care provider. Dr. Killian sent updating statements
on September 22, 2000, and December 20, 2000, in an
attempt to describe and clarify the nature of Mr. South’s
disability. These statements indicated that Dr. Killian had
diagnosed Mr. South with both depression and Attention
Deficit Hyperactivity Disorder (“ADHD”) and noted Mr.
South’s symptoms and the medications he had been
prescribed. The December 20th physician’s statement
indicated that Mr. South would be medically unable to
return to work for at least three months. Mr. South went
on medical leave beginning September 8, 2000.
  The IEPA received another updated statement from Dr.
Killian in mid-March, which caused the IEPA to become
concerned about Mr. South’s ability to return to work.
More specifically, the physician’s report caused concern as
to whether Mr. South would be unable to perform two of
the essential functions of his job: concentrating and han-
dling stress. Dr. Killian subsequently released Mr. South to
return to work on April 16, 2001.
  Following Mr. South’s return to work, he received a letter
from Ann Price notifying him that the IEPA requested that
he submit to an independent medical evaluation as out-
4                                                 No. 05-3621

lined under § 303.145(b)(6) of the State Personnel Rules.1
Mr. South met with two different physicians selected by
the IEPA. Both physicians requested that he sign full
medical releases; Mr. South refused to do so because he
desired to keep the non-relevant portions of his medical
records private. Price notified Mr. South that he would be
found to be insubordinate if he continued to refuse to
sign the medical releases; Mr. South nevertheless continued
to refuse. Mr. South proposed a modified medical release
agreement disclosing a smaller amount of confidential
information, but the IEPA advised him that it would not
consent to his proposed changes.
  The IEPA terminated Mr. South’s employment on
December 4, 2001. It based his discharge on his insubordi-
nation in refusing to consent to the disclosure of his
medical records and on his failure to perform various job
duties. Mr. South allegedly had failed to follow laboratory
standard operating procedure and likewise did not adhere
to the National Environmental Laboratory Accreditation


1
 80 Ill. Admin. Code § 303.145(b)(6) of the State Personnel
Rules provides in full:
    b) In granting [a medical leave of absence] or use of sick
    leave as provided in Section 303.90, the agency shall apply
    the following standards:
        6) If the Agency has reason to believe that the employee
        is able or unable to perform a substantial portion of
        his/her regularly assigned duties, it may seek and rely
        upon the decision of an impartial physician chosen by
        agreement of the parties or in the absence of such
        agreement upon the decision of an impartial physician
        who is not a State employee and who is selected by
        the State Employee’s Retirement System.
No. 05-3621                                                       5

Program protocols. These deficiencies involved failing to
calibrate properly his instruments, indicating falsely that
the proper calibration had been performed, submitting
data with misidentified compounds, submitting reports
with missing data, failing to verify calibrations and run-
ning samples that failed quality control criteria.
  Mr. South’s union grieved his termination, and he
returned to the IEPA as an Environmental Protection
Specialist III on April 28, 2003. As part of his return, Mr.
South submitted to an independent medical examination
and signed the required releases.


                                B.
  In ruling on the IEPA’s motion for summary judgment,
the district court noted that Mr. South was proceeding
under the indirect method of establishing retaliation
announced by this court in Stone v. City of Indianapolis
Public Utilities Division, 281 F.3d 640, 642 (7th Cir. 2002).2



2
   The district court also ruled that Mr. South had not waived his
right to bring the action because he had accepted the benefits of
a settlement. The district court concluded that the settlement
agreement contained no waiver language, and, in fact, expressly
preserved Mr. South’s ability to bring a claim under Title VII of
the Civil Rights Act, 42 U.S.C. § 2000e et seq. The district court’s
finding on the waiver issue has not been appealed and therefore
is not before this court. Mr. South, in his complaint, requested
that the district court enter a declaratory judgment stating that
the IEPA had violated Title VII and issue a mandatory injunc-
tion requiring the IEPA to return Mr. South to all his prior duties
and to take affirmative steps to ensure that the IEPA refrains
                                                     (continued...)
6                                                 No. 05-3621

The parties agreed, according to the district court, that Mr.
South had been engaged in statutorily protected activity
and furthermore that he had suffered an adverse employ-
ment action when he was terminated.
   The court then turned to whether Mr. South was meet-
ing the IEPA’s legitimate expectations. In the district
court’s view, the evidence in the record was conflicting.
The record contained testimony indicating that Mr. South
was not meeting expectations and had been insubordinate;
it also contained, for the same period, a satisfactory em-
ployment evaluation.
   The district court also discussed Mr. South’s submission
that he was not insubordinate because the IEPA’s order
that he undergo an independent medical evaluation was
improper. Mr. South contended that the regulation under
which he was asked to submit to a medical evaluation, 80
Ill. Admin. Code § 303.145(b)(6), allowed an independent
medical evaluation only if the IEPA had reason to believe
he was unable to perform a substantial portion of his
regularly assigned duties. He urged that, because the IEPA
knew he was able to perform his duties based upon his
physician’s statement, the order requesting him to submit
to a medical evaluation was improper. The district court
concluded that the evidence, viewed in the light most
favorable to Mr. South, created a genuine issue of triable
fact as to whether Mr. South was meeting the IEPA’s
legitimate expectations.


2
  (...continued)
from engaging in discriminatory actions. Mr. South also
requested damages sufficient to compensate him for economic
losses he suffered as a result of his termination, compensatory
and exemplary damages and attorneys’ fees.
No. 05-3621                                                  7

  The district court spent the bulk of its analysis discussing
whether Mr. South had identified a similarly situated
employee who had not engaged in protected activity and
was treated more favorably than he. The court discussed in
detail one of Mr. South’s coworkers, Shirlene South. The
court noted that, although Mr. South had presented
evidence that Shirlene South was a coworker with the
same supervisor and that she never had filed a charge of
discrimination, he had failed to present any other evidence
to establish that she was similarly situated to Mr. South.
The evidence provided did not indicate the quality of her
work performance, whether she had ever been disciplined,
whether she had ever been on medical leave, and/or
whether she had engaged in other conduct similar to the
protected conduct in which Mr. South had engaged. The
district court determined that the evidence of similarity
was simply insufficient, and, therefore, that Mr. South had
failed to state a prima facie case of retaliation. The district
court thus granted the defendant’s motion for summary
judgment.


                              II
                       DISCUSSION
  This case comes to us from the district court’s grant of
summary judgment in favor of the IEPA. We review a
district court’s grant of summary judgment de novo. Magin
v. Monsanto Co., 420 F.3d 679, 686 (7th Cir. 2005). All facts
and reasonable inferences must be construed in favor of the
non-moving party. Id. It is not our role to evaluate the
weight of the evidence, to judge the credibility of witnesses
or to determine the ultimate truth of the matter, but
simply to determine whether there exists a genuine issue of
8                                                 No. 05-3621

triable fact. Anderson v. Liberty Lobby, 477 U.S. 242, 249-50
(1986). Summary judgment is proper if “the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the
moving party is entitled to a judgment as matter of law.”
Magin, 420 F.3d at 686 (citing Fed. R. Civ. Pro. 56(c); Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).
   Mr. South submits that he was a victim of unlawful
retaliation; he contends that he was terminated because he
had filed an employment discrimination claim with the
EEOC and testified in a colleague’s discrimination case. As
noted by the district court, Mr. South elected to proceed
under the indirect method elucidated in Stone. Therefore,
he must show that “(1) [he] engaged in statutorily pro-
tected activity; (2) [he] performed [his] job according to
[his] employer’s legitimate expectations; (3) despite [his]
satisfactory job performance, [he] suffered an adverse
employment action; and (4) [he] was treated less favorably
than similarly situated employees who did not engage in
statutorily protected activity.” Haywood v. Lucent Techs.,
Inc., 323 F.3d 524, 531 (7th Cir. 2003) (citing Stone, 281 F.3d
at 644). If a plaintiff meets the burden of presenting a
prima facie case for retaliation, the burden then shifts to
the employer to articulate a legitimate, non-discriminatory
reason for the adverse employment action. Stewart v.
Henderson, 207 F.3d 374, 376 (7th Cir. 2000). If the employer
meets this burden, then the burden shifts back to the
plaintiff to demonstrate that the established reasons for the
action were in fact pretextual. Id. In sum, in this burden-
shifting framework, the burden of production shifts
temporarily to the employer if a prima facie case is estab-
lished, but “the burden of persuasion rests at all times on
No. 05-3621                                                       9

the plaintiff.” Haywood, 323 F.3d at 531 (internal citations
and quotation marks omitted).
  The IEPA conceded that Mr. South was engaged in a
statutorily protected activity3 and that he suffered an
adverse employment action. The IEPA contends, however,
that Mr. South was not performing according to its legiti-
mate expectations and that he has not been able to show
that he was treated less favorably than a similarly situated
employee who did not engage in statutorily protected
activity. We shall focus on the latter inquiry because we
concur with the district court that this issue is dispositive.
  In Humphries v. CBOCS West, Inc., 474 F.3d 387 (7th Cir.
2007), we analyzed at length the “similarly situated”
requirement.4 Id. at 404. We emphasized that this require-
ment ought not be construed so rigidly or inflexibly that
it became a useless analytical tool. We stated that the


3
   Title VII prohibits discrimination against an employee
“because he has opposed any practice made an unlawful
employment practice by this subchapter, or because he has made
a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this subchapter.”
Contreras v. Suncast Corp., 237 F.3d 756, 764-65 (7th Cir. 2001)
(citing 42 U.S.C. § 2000e-3(a)).
4
  In Humphries v. CBOCS West, Inc., 474 F.3d 387 (7th Cir. 2007),
the plaintiff was proceeding under § 1981 and not Title VII.
However, we emphasized that “we generally have applied the
same prima facie requirements to discrimination claims brought
under Title VII and section 1981.” Id. at 403-04 (internal citations
omitted). Therefore, because we apply the same methods of
proof and require the same elements of the case for plaintiffs
proceeding under Title VII and § 1981, Humphries is relevant and
instructive.
10                                                No. 05-3621

similarly situated requirement “normally entails a showing
that the two employees dealt with the same supervisor,
were subject to the same standards, and had engaged in
similar conduct without such differentiating or mitigating
circumstances as would distinguish their conduct or the
employer’s treatment of them.” Id. at 404-05 (internal
citations omitted) (emphasis in original). At the same time,
we noted that this requirement must be a flexible one that
considers “all relevant factors, the number of which
depends on the context of the case.” Id. at 405. “It is not an
unyielding, inflexible requirement that requires near one-
to-one mapping between employees—distinctions can
always be found in particular job duties or performance
histories or the nature of the alleged transgressions.” Id. We
noted explicitly that there is no requirement that a plaintiff
show complete identity to a “similarly situated” employee;
rather, substantial similarity will suffice. Id. In short,
common sense must guide this inquiry. Id. “[T]he inquiry
simply asks whether there are sufficient commonalities on the
key variables between the plaintiff and the would-be com-
parator to allow the type of comparison that, taken together
with the other prima facie evidence, would allow a jury
to reach an inference of discrimination or retaliation.” Id.
(emphasis added). The important question is therefore
whether others similarly situated to the plaintiff, with
respect to important matters characterizing the employ-
ment relationship, had been treated one way, and the
plaintiff, having engaged in statutorily protected activity,
was treated differently. If this is the case, a jury reasonably
might draw the inference that the employer took adverse
action against the plaintiff because of his protected activi-
ties. See Crawford v. Indiana Harbor Belt R.R. Co., 461 F.3d
844, 845 (7th Cir. 2006).
No. 05-3621                                                11

  Here, in an effort to support his retaliation claim, Mr.
South merely points to other employees with the same
employment responsibilities and the same supervisor. The
record does not tell us, however, whether these other
employees are similarly situated in any other relevant
respects. Without this information, we cannot tell whether
these individuals present employment characteristics that
would permit a reasonable trier of fact to conclude that
the IEPA had treated them differently from Mr. South.
The record fails to identify specifically any coworker
who was on medical leave or otherwise had an employ-
ment history that would have suggested the ordering of
an independent medical examination as a precondition to
continued employment.
   Mr. South emphasizes that a similarly situated employee
need not be identical in all respects to the complaining
plaintiff. As our earlier discussion demonstrates, we do
not dispute with this contention. However, Mr. South
fails to demonstrate that any of the alleged similarly
situated employees to whom he points were, in fact, sim-
ilar to him with respect to the employment characteristics
that are germane to this case. Before the district court, and
now on appeal, Mr. South points to eight coworkers, Leslie
Holt, Shirlene South, Catherine Siders, Khawaja Tayyab,
David Reed, Jerome Reichle, Ricky Nimmons and Bill
Jankouski. These eight individuals were employed by the
IEPA in the same position as was Mr. South, Chemist II,
and reported to the same supervisor. Mr. South further
submits that none of those individuals were fired nor
disciplined in any way; nor were any of the eight individu-
als ever required to submit to a health evaluation. How-
ever, Mr. South does not provide, nor does the record
reveal, any other salient characteristics of these individuals
12                                             No. 05-3621

that would render them “similarly situated” to Mr. South
for purposes of the retaliatory discharge analysis that the
district court had to undertake.
  On the record, we must conclude that Mr. South has
failed to establish that similarly situated individuals who
had not engaged in the protected activity in which he
engaged were treated differently. Accordingly, he has
failed to establish a prima facie case.


                       Conclusion
  For the foregoing reasons, the judgment of the district
court is affirmed.
                                                 AFFIRMED

A true Copy:
       Teste:

                         _____________________________
                         Clerk of the United States Court of
                           Appeals for the Seventh Circuit




                   USCA-02-C-0072—7-27-07
