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

No. 06-1252
JUAN PANTOJA,
                                             Plaintiff-Appellant,
                                v.

AMERICAN NTN BEARING
MANUFACTURING CORPORATION,
                                            Defendant-Appellee.
                         ____________
           Appeal from the United States District Court
      for the Northern District of Illinois, Eastern Division.
         No. 03 C 4961—Charles R. Norgle, Sr., Judge.
                         ____________
   ARGUED JANUARY 3, 2007—DECIDED AUGUST 6, 2007
                   ____________


 Before EASTERBROOK, Chief Judge, and WOOD and
WILLIAMS, Circuit Judges.
  WOOD, Circuit Judge. After working for nine years for
American NTN Bearing Manufacturing Corporation
(“NTN”), Juan Pantoja was fired within days of his man-
agers’ learning that he had complained about discrimina-
tion to the EEOC. Pantoja had not been a perfect employee
during the last year and a half of his tenure there; to the
contrary, he had been disciplined on a number of occa-
sions. Around the same time, however, he allegedly began
complaining to management that his supervisors were
mistreating him because he is Hispanic.
2                                             No. 06-1252

  Not long after his termination, Pantoja brought this
suit against NTN under 42 U.S.C. § 1981 and Title VII of
the Civil Rights Act, 42 U.S.C. § 2000e et seq., alleging
discrimination, harassment, and retaliation based on his
race and national origin. The district court granted NTN’s
motion for summary judgment on all of the claims. Review-
ing Pantoja’s claims de novo, we too conclude that his
discrimination and harassment claims cannot go forward.
Pantoja has, however, identified material issues of fact
with respect to his retaliation claims. We therefore affirm
the district court’s grant of summary judgment to NTN
on the discrimination and harassment claims but remand
the retaliation claims for further proceedings.


                            I
  Pantoja began his employment with NTN in 1993 as a
machine operator. In 1997, he became a mechanic in the
maintenance department, where he worked under the
supervision of Robert Cloyd and Joe Maney. Eventually,
Pantoja was promoted from the entry-level mechanic’s
position (M-0) to a higher one (M-3). James Cusimano, a
white male, had moved up the ranks more quickly. NTN
hired Cusimano as a janitor in the maintenance depart-
ment in 1998, but by the end of that year Cloyd and Maney
promoted him to the M-0 entry-level mechanic’s position.
In 2001, Cusimano was promoted from the M-2 level to the
M-4 level, thereby skipping over the M-3 rank where
Pantoja remained.
  At some point around early 2001, Pantoja began com-
plaining to upper level management officials, including
NTN Human Resources Director Stuart Moir. The specifics
of these complaints are in dispute. Pantoja contends that
his complaints included allegations that he was being
treated badly, in comparison to Cusimano, because of his
race and national origin. NTN characterizes the com-
No. 06-1252                                               3

plaints as expressions of frustration over Cusimano’s
promotion, devoid of any allegations of unlawful discrimi-
nation. NTN admits, however, that “Maney confirms that
he was aware that Pantoja had complained to Moir in 2001
about Cusimano’s rapid advancement.” Pantoja contends
that there were meetings among Cloyd, Maney, and Moir
to discuss his concerns, but that those three reached no
decisions.
  In February 2002, Pantoja, still at the M-3 level, sought
a promotion to the M-4 level. Cloyd prepared his employ-
ment review. This was Pantoja’s first formal evaluation
after his complaints to HR. Although Pantoja had received
an “exceeds expectations” rating in his previous formal
evaluation, on this evaluation he received the lower “meets
expectations” rating. NTN contends that Pantoja was
performing adequately at the M-3 level, but was not
meeting the higher expectations in place for the M-4 level.
Part of its evaluation was based on a September 2001 skill
check that Maney described as “very subjective.”
   In the wake of his unsuccessful bid for a promotion,
Pantoja complained again to HR. In March or early April
2002, Assistant HR Director Darlene Myles met with
Pantoja. Pantoja told Myles that he believed that his
supervisors were discriminating against him. He recounted
his belief that the company had unfairly promoted
Cusimano ahead of him, and that Cloyd and Maney were
giving Cusimano special treatment, including better
assignments. He was also concerned that there might
be disciplinary warnings in his file that he had never seen,
because Cloyd had threatened to write him up. Myles
passed along these concerns to Peter Datka (who had
replaced Moir as HR Director) and reviewed Pantoja’s
file. As Pantoja had feared, she found a notice of a verbal
warning that had not been signed by management, con-
trary to NTN’s policy.
4                                             No. 06-1252

  Pantoja’s record showed two of these procedurally
irregular warnings from April 2001, one for creating an
inaccurate record about maintenance of a pump and the
other for failing properly to maintain a grinding system. A
year later, in April 2002, more warnings appear, but once
again they were incomplete and Pantoja was not given
proper notice of them. This occurred on April 17, April 23,
and May 14, 2002. On June 3, 2002, Cloyd gave Pantoja
his first formal warning that HR had approved. It accused
him of faulty work on April 23 that had caused a spill.
(Pantoja asserts that the delay in processing this warning
violated company policy.) In June 2002, Myles and Pantoja
had another meeting, at which Pantoja complained of
continued harassment by Cloyd. Myles promised to talk to
Datka. She claims that she did so, but Datka denies that
any such conversation took place, either about Pantoja or
about the general treatment of Hispanic employees at
NTN. In August 2002, Pantoja received another warning
from Cloyd for causing a spill, but he protested. Pantoja
claims that the latter warning, on which he wrote that
he was being singled out and “Employee refuses to sign,”
has not been produced in this case, but has been replaced
with a phony document in the record.
  On Saturday, August 10, 2002, Pantoja was assigned
to work for four hours. He arrived at work at 5:00 am. At
approximately 7:00 am he received a page from another
employee, Shannon Garcia, who was nearby with a flat
tire and could not get to work. Pantoja tried to reach
someone in the plant to let them know about the situa-
tion, but he could not. He left NTN anyway without
punching out, drove to the place where Garcia was wait-
ing, attempted to fix her car but could not, and then drove
Garcia back to NTN. He was gone for approximately
30 minutes. Later that day, Garcia paged Pantoja again,
because she needed to use the telephone in a locked office.
He met her at that office and let her in. He punched out of
No. 06-1252                                               5

work at 9:00 am. On Monday, August 12, Maney ques-
tioned Pantoja about the incident. Later, Maney spoke to
Datka about whether the incident warranted terminating
Pantoja’s employment.
   On August 29, Cloyd wrote in his diary that Myles had
told him about Pantoja’s EEOC complaint. That same day,
Datka told Maney that the company was going to fire
Pantoja because he had left the company’s premises
without permission on August 10. In that meeting, Datka
and Maney discussed how to explain to Pantoja that he
was being fired for the specific reason of violating company
policy by leaving the premises without permission on
August 10. Then Datka and Maney met with Pantoja on
August 30. Contrary to the script, however, Datka did not
focus on the August 10 incident. Instead, according to
Maney, Datka told Pantoja he was being fired for “a
number of failures” and his performance generally. This
was the first in a succession of shifting accounts from
NTN. During the EEOC investigation, NTN stated that
Pantoja was fired for “repeated absenteeism.” In the course
of the present litigation, NTN stated that Pantoja was
fired “for numerous reasons, including, but not limited to,
unsatisfactory work record, job negligence[,] endangering
persons and/or property, absence from work position
without leave or authorization, dishonesty in representa-
tions to supervisors, and insubordination.” Later, NTN
stated that Pantoja was discharged because of his “unau-
thorized and/or unreported absence from his work station
on August 10, 2002” and his “[d]ishonesty in statements
made by him . . . in describing his absence from his
workstation during his shift on 8/10/2002.” Yet during his
deposition Datka said that Pantoja was not fired for
dishonesty, but rather for leaving work without permis-
sion on August 10, 2002.
6                                               No. 06-1252

                             II
  Pantoja alleges that illegal discrimination on the basis
of race and national origin lay behind NTN’s refusal to
promote him, its disciplinary actions, and its ultimate
decision to fire him. Pantoja is proceeding under the so-
called indirect method of proving employment discrimina-
tion. This compels us to begin with the barnacle-laden
burden-shifting inquiry inaugurated by McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973).
  It is worth noting, in this connection, that there has
been a subtle evolution in the way that courts describe the
McDonnell Douglas requirements for a prima facie case of
discrimination, at least when the adverse action at issue
is the employee’s termination. The district court described
the required elements as follows: “(1) that [plaintiff] is a
member of a protected class; (2) that he was meeting his
employer’s legitimate performance expectations; (3) that
he suffered an adverse employment action; and (4) that he
was treated less favorably than similarly situated individ-
uals who are not members of his protected class.” If we
trace back the source of that particular formulation, we
come to our decision in Coco v. Elmwood Care, Inc., 128
F.3d 1177 (7th Cir. 1997). Coco involved employment
termination allegedly based on the plaintiff ’s age. It did
not, in so many words, require the plaintiff to point to
someone else who was “similarly situated.” Rather, Coco
stated that a person complaining of age discrimination
had to show, among other things that he or she was
“replaced by a much younger person.” Id. at 1178.
  McDonnell Douglas itself was a failure to hire case. The
Supreme Court there said that, as the fourth element of a
prima facie case, the plaintiff had to show that “after his
rejection, the position remained open and the employer
continued to seek applicants from persons of complain-
ant’s qualifications.” 411 U.S. at 802. This is not quite the
No. 06-1252                                               7

same as requiring plaintiff to introduce evidence into the
record of one or more people “similarly situated” to him
in all pertinent respects. Indeed, the Court in McDonnell
Douglas warned against an unduly rigid approach to
Title VII cases. In a termination case, for example, an
inflexible rule requiring plaintiff to point to a similarly
situated comparator would automatically doom a suit
brought by, for example, any employee who is the sole
occupant of a particular job class at her employer. We
criticized just this sort of narrowness in Crawford v.
Indiana Harbor Belt R.R., 461 F.3d 844 (7th Cir. 2006).
There, we held that “the plaintiff should have to show
only that the members of the comparison group are
sufficiently comparable to her to suggest that she was
singled out for worse treatment.” Id. at 846.
  Canvassing the many employment cases that have dealt
with terminations, we find the description in Matthews v.
Allis-Chalmers, 769 F.2d 1215 (7th Cir. 1985), closest to
the mark in the way it applies the approach of McDonnell
Douglas. There we said that the plaintiff had to show, as
the fourth element of his prima facie case, “that his
employer sought someone to perform the same work after
he left.” Id. at 1217. Once an employee can show (in the
sense of raising an issue of material fact at the summary
judgment stage) that he is meeting his employer’s legiti-
mate expectations (the second element), then the fact
that the employer needs to find another person to perform
that job after the employee is gone raises the same infer-
ence of discrimination that the continuation of a search
does in the hiring situation. This is the approach we will
take to our review of Pantoja’s discrimination claims.


                            A
  The district court focused almost exclusively on Pantoja’s
termination, and so we begin our review there. As in any
appeal from a grant of summary judgment, we construe
8                                              No. 06-1252

the facts in the light most favorable to the non-moving
party, here Pantoja. Tanner v. Jupiter Realty Corp., 433
F.3d 913, 915 (7th Cir. 2006).
  No one disputes that Pantoja, a Hispanic, is a member of
a protected class and that his termination constitutes an
adverse employment action. The question is whether
Pantoja could convince a trier of fact that he was meeting
NTN’s legitimate expectations and that NTN sought
someone to do Pantoja’s work after Pantoja’s termination.
The district court concluded that he failed on both points.
  These two inquiries, however, are not hermetically
sealed off from one another. In some cases the employer’s
job expectations themselves may be tainted with discrimi-
nation. Thus, in Peele v. Country Mutual Insurance Co.,
288 F.3d 319, 329-330 (7th Cir. 2002), we held that
    [w]hen a plaintiff produces evidence sufficient to raise
    an inference that an employer applied its legitimate
    employment expectations in a disparate manner (i.e.,
    applied expectations to similarly situated male and
    younger employees in a more favorable manner), the
    second and fourth prongs of McDonnell Douglas
    merge—allowing the plaintiff to establish a prima
    facie case, stave off summary judgment for the time
    being, and proceed to the pretext inquiry.
Id. In such a case, the plaintiff needs some evidence to
raise the inference of discriminatory expectations. (This
raises the specter of an infinitely regressing set of
McDonnell Douglas inquiries, but we have done our best to
avoid that outcome.) In Peele, this court found adequate
evidence indicating that the employer had applied certain
standards to the plaintiff but not to similarly situated
employees who were not members of the same protected
class. 288 F.3d at 330. Pantoja, therefore, might try to
show that NTN had two different sets of employment
expectations, one for Hispanics and the other for non-
Hispanics.
No. 06-1252                                               9

  That is precisely what he did. Rather than argue that
he was meeting NTN’s standards, Pantoja alleged he was
subject to particularly strict employment standards
because he is Hispanic. (This was probably a wise tactic,
given the fact that rules requiring competent use of
equipment and permission to leave the workplace are
hardly exceptional.) Pantoja contends that Cusimano—a
similarly situated, non-Hispanic employee—was not
subjected to discipline for the same poor performance,
namely failing to prevent spills from overflowing coolant
tanks. Even if we were to assume, however, that Cusimano
was responsible for the same number of spills, of the
same degree of severity, that is not enough to save
Pantoja’s case. In addition to causing spills, Pantoja also
left work without notifying a supervisor. There is no
evidence that Cusimano also committed some other
form of misconduct, whether leaving the workplace
without permission or something comparable, other than
failing to prevent spills. In short, Pantoja has not offered
any evidence that would support the proposition that
NTN’s expectations were tailored to the race or national
origin of the employee.
   Pantoja tries to save his claim by pointing to two other
disciplinary warnings that NTN gave to employees for time
card violations. This evidence is unhelpful, though,
because the race and national origin of these employees is
not recorded. Moreover, only one of the warnings was
for leaving the building without notifying a supervisor. The
other was for failing to punch a time card. In addition, the
warning received by the employee who left without notify-
ing a supervisor was his second warning overall, while
Pantoja’s warning for the same infraction was his third
warning overall. The other employee’s warning stated that
“[f]urther disciplinary action will be taken on the next
occurrence up to and including discharge,” which is
consistent with Pantoja’s treatment.
10                                             No. 06-1252

  No matter which way we slice it, Pantoja has failed to
put forth enough evidence to raise an inference of discrimi-
nation with regard to his termination. Therefore, the
district court properly granted summary judgment to NTN
on this claim.


                            B
  Pantoja also alleges that unlawful discrimination was
the reason for the discipline he received and for NTN’s
refusal to promote him. But not every criticism or disci-
plinary measure is an “adverse employment action” for
Title VII purposes. Here, Pantoja made no showing that
the disciplinary measures NTN imposed, whether consis-
tently with its own internal policies or not, affected his
“compensation, terms, conditions or privileges of employ-
ment.” 42 U.S.C. § 2000e-2(a)(1). There is no evidence of a
constructive demotion or a loss of pay or other benefits.
Nor has Pantoja presented evidence tending to show that
the promotion tests were applied differently to him as
compared to his fellow, non-minority employees. We
understand that he suspects that this is the case, but his
own subjective belief cannot substitute for evidence. His
previous year’s evaluation is not enough to show discrimi-
natory treatment, both because it is too remote from the
time of the company’s action and because later evidence
casts a different light on his job performance. See Clay v.
City of Chi. Dep’t of Health, 143 F.3d 1092, 1094 (7th Cir.
1998). Pantoja’s contention that there was a company
policy under which he was entitled to earlier considera-
tion for a promotion also offers him no support, because
there is no evidence in the record that this policy is
actually enforced.
  In the end, Pantoja failed to submit evidence in response
to NTN’s motion for summary judgment that created a
genuine issue of fact under the indirect method of proving
No. 06-1252                                                 11

discrimination. NTN was therefore entitled to prevail on
these theories.


                             III
  Pantoja also alleges that NTN retaliated against him
because he complained about harassment based on his
national origin and race. He raised these claims under
both Title VII and § 1981, but the district court did not
consider the § 1981 retaliation claim because it viewed this
court’s decision in Hart v. Transit Mgmt. of Racine, Inc.,
426 F.3d 863, 866 (7th Cir. 2005), as holding that § 1981
does not provide a cause of action for retaliation claims.
As we have since clarified,
    [o]ur analysis in Hart was limited to the narrow issue
    of whether an individual who was not the subject of
    discrimination could assert claims of retaliation for
    complaining about the discrimination of others. We
    held that section 1981 did not protect against retalia-
    tion in such circumstances. But Hart has no applica-
    tion . . . where the plaintiff is plainly asserting retalia-
    tion stemming from discriminatory acts targeting him.
Humphries v. CBOCS West, Inc., 474 F.3d 387, 398 (7th
Cir. 2007). See also Jackson v. Birmingham Bd. of Educ.,
544 U.S. 167, 173-74 (2005). Because the analysis for these
two claims is the same, Humphries, 474 F.3d at 404, and
because our review is de novo in any event, the district
court’s decision to limit its inquiry is of no consequence
at this point. The discussion that follows applies equally
to both theories of recovery.


                              A
  In Stone v. City of Indianapolis Pub. Util. Div., 281 F.3d
640 (7th Cir. 2002), we reviewed the two ways in which a
Title VII plaintiff can establish retaliation:
12                                               No. 06-1252

      The plaintiff in a retaliation case should have two (and
      only two) distinct routes to obtaining/preventing sum-
      mary judgment. One, the more straightforward, the
      one that is unrelated to McDonnell Douglas, is to
      present direct evidence (evidence that establishes
      without resort to inferences from circumstantial
      evidence) that he engaged in protected activity (filing
      a charge of discrimination) and as a result suffered
      the adverse employment action of which he complains.
      If the evidence is uncontradicted, the plaintiff is
      entitled to summary judgment. If it is contradicted, the
      case must be tried unless the defendant presents
      unrebutted evidence that he would have taken the
      adverse employment action against the plaintiff even
      if he had had no retaliatory motive; in that event
      the defendant is entitled to summary judgment be-
      cause he has shown that the plaintiff wasn’t harmed
      by retaliation.
Id. at 644. Stone continued as follows:
      The second route to summary judgment, the adapta-
      tion of McDonnell Douglas to the retaliation context,
      requires the plaintiff to show that after filing the
      charge only he, and not any similarly situated em-
      ployee who did not file a charge, was subjected to an
      adverse employment action even though he was
      performing his job in a satisfactory manner. If the
      defendant presents no evidence in response, the
      plaintiff is entitled to summary judgment. If the
      defendant presents unrebutted evidence of a
      noninvidious reason for the adverse action, he is
      entitled to summary judgment. Otherwise there must
      be a trial.
Id.
  There is no question that Pantoja’s complaints to HR
about perceived discrimination constitute protected activ-
No. 06-1252                                              13

ity, which is the first thing he must show under either
approach. Both approaches also require the employee to
demonstrate an adverse action—under the direct method,
he must show that it was a result of the protected activity,
and under the indirect method he must show that he, and
no one else who did not complain, suffered the adverse
action. Termination is “unquestionably a materially
adverse action.” Burnett v. LFW Inc., 472 F.3d 471, 482
(7th Cir. 2006). It is less clear whether the disciplinary
warnings also amounted to adverse employment actions
on their own.
  In the retaliation context, although the adverse action
does not have to be “related to employment or occur at the
workplace,” it must be “materially adverse to a reasonable
employee.” Burlington N. & Santa Fe Ry. v. White, 126
S. Ct. 2405, 2409 (2006). This means the action would
“dissuade[] a reasonable worker from making or support-
ing a charge of discrimination.” Id. at 2415. This is a
context-driven inquiry, id., and we have declined to rule
categorically that warnings cannot be adverse actions. See
Roney v. Ill. Dep’t of Transp., 474 F.3d 455, 462 (7th Cir.
2007) (assessing two disciplinary actions and concluding
based on the context that they were not adverse). Taking
the facts in the light most favorable to Pantoja, there
is enough in the record here for a factfinder to conclude
that these warnings were materially adverse.
  The more complicated issue is whether a reasonable trier
of fact could find that either the warnings or the termina-
tion were caused by Pantoja’s complaints. Although, as
we observed in Stone, 281 F.3d at 644, mere temporal
proximity is normally not enough to create an issue of fact
on causation in the absence of other evidence, this is not
to say that temporal proximity has zero evidentiary
weight. To the contrary, as we recently observed in
Boumehdi v. Plastag Holdings, LLC, 2007 WL 1583980
14                                             No. 06-1252

(7th Cir. June 4, 2007), “[t]he causal link of a retaliation
claim is frequently established by showing that there
was a suspiciously short period of time between the em-
ployee’s complaint and the adverse employment action.”
Id. at *8.
  The district court thought that Pantoja had failed to
establish the requisite sequence of events because it read
the record as indicating that some of the warnings
issued to Pantoja came “prior to any alleged oral complaint
made by Pantoja to the Human Resources department.” In
our view, however, the record can be read to indicate
otherwise. NTN contends that Pantoja “does not allege
having made any complaint to management about racial
discrimination before April 2001.” Yet Pantoja states that
“[a]t some point shortly before or during 2001, plaintiff
began to complain to upper level management officials,
including Corporate Human Resources (HR) Director,
Stuart Moir, that Cloyd harassed him and that Cusimano
was receiving more favorable treatment.” By August 2001,
Moir was replaced by Peter Datka, and NTN acknowledges
that “Maney was aware that Pantoja spoke to Moir,
[although] he perceived it only as a complaint in the
general sense.” At the very least, the record shows by
NTN’s own admission that Pantoja made complaints by
the summer of 2001. Meanwhile, Pantoja was issued
the first warnings of his career in April 2001, during this
same general time period. Furthermore, Pantoja argues
that NTN should not be entitled to rely on the 2001
warnings, as it is undisputed that they were not pre-
sented to him in accordance with company policy.
  NTN also attacks Pantoja’s testimony that his com-
plaints included allegations of racial discrimination as
insufficient to support a finding about when he began
complaining. We have repeatedly held, however, that
“[o]ral testimony if admissible will normally suffice to
establish a genuine issue of material fact.” Randolph v.
No. 06-1252                                             15

Ind. Reg’l Council of Carpenters, Millwright Local Union
1003, 453 F.3d 413, 416 (7th Cir. 2006). We conclude that
there are disputed issues of material fact about when
Pantoja first complained about discriminatory treatment
and whether the April 2001 warnings came shortly after
his supervisors learned of the complaint.
   Pantoja also testified that at some point in April 2002,
after his unsuccessful bid for promotion in February 2002,
he met with HR official Myles and complained that he
and another Hispanic employee were being treated un-
fairly because of their race. NTN alleges that Pantoja’s
next warning was dated April 17, 2002, and was delivered
orally. Pantoja has no recollection of this warning, and
there is no documentation supporting it other than a
reference to it on another warning dated April 23, 2002.
This later warning was not signed until May 14, 2002, by
anyone other than Cloyd, about whom Pantoja complained
to Myles. It was not presented to and signed by Pantoja
until June. Viewed favorably to Pantoja, the record thus
indicates that the 2002 warnings were not delivered prior
to May 14, shortly after Pantoja formally spoke with HR
about his concerns. In this respect, Myles’s testimony
is helpful to Pantoja. NTN attempts to discredit Myles,
stating that she “hat[ed] her job, chafed at being subordi-
nate to Manager Datka, groused about her job to [Andrea]
Dittman, and merely yearned for the day she would be
fired.” As it undoubtedly knows, however, these are
arguments for a jury, not for a judge deciding a sum-
mary judgment motion.
  We are left with a credibility contest between Maney’s
testimony and the combined testimony offered by Pantoja
and Myles on the subject of Pantoja’s 2001 and 2002
complaints. Taking the view most favorable to Pantoja, the
record shows that his complaint came first, and that it
was followed shortly thereafter by his first warnings,
16                                            No. 06-1252

then came a series of complaints, followed again by a
wave of warnings.
  NTN argues that this factual dispute is beside the point,
because, it argues, the evidence shows that Cloyd and
Maney developed their poor opinion of Pantoja in 2001
after they learned that he had looked through some of
their paperwork and learned that he was paid less than
Cusimano. But that argument more properly relates to
NTN’s effort to show a legitimate, non-discriminatory
reason for its actions against Pantoja. The timing of
Pantoja’s warnings is suspicious enough to suffice to
support his prima facie case. Other circumstantial evi-
dence also supports the inference of retaliation. Pantoja
notes the significant delay between the dates of his
warnings and the dates on which the warnings were
presented to him, the warning he contested and that he
alleges was replaced in his file, and his testimony that he
was given warnings for spills even though Cloyd had
instructed his department to ignore spills.
  Circumstantial evidence also supports Pantoja’s claim
that his termination was a retaliatory measure. At some
point at least several days after the August 10, 2002,
incident, Maney and Datka conferred about whether
Pantoja’s actions warranted some action, including possi-
ble termination. They took no action at that time. Cloyd’s
journal indicates that he learned about Pantoja’s EEOC
complaint on August 28, 2002. On August 29, 2002, the
relevant managers decided to terminate Pantoja, and he
was out the door on August 30, the very next day. This
chain of events is so close, and so clearly tied to Cloyd’s
discovery of the EEOC complaint, that a reasonable
finder of fact could infer the requisite causation from it.
No. 06-1252                                               17

                             B
  All this, of course, is only enough for Pantoja’s prima
facie case of retaliation. Although it technically did not
need to do so, given its rejection of Pantoja’s initial show-
ing, the district court considered whether NTN put forth a
legitimate, non-discriminatory reason for Pantoja’s termi-
nation. The court concluded that NTN “fired Pantoja due
to the several [warnings] that were given to him for poor
job performance, and failure to punch out his time card.”
   That is certainly one of the reasons NTN has given for
Pantoja’s termination, and we assume that this is the way
it would attempt to counter Pantoja’s evidence of timing
at a trial. Pantoja, in turn, might exploit the fact that
NTN as a company has offered numerous reasons for his
termination. In some explanations, NTN, or an NTN
manager, states that Pantoja was fired solely for the
August 10, 2002, incident. At other times, NTN represents
that Pantoja was fired for some combination of his warn-
ings, poor performance, leaving the plant without notify-
ing his supervisor, or his dishonesty. In Schuster v. Lucent
Techs., Inc., 327 F.3d 569, 577 (7th Cir. 2001), this court
held that “[s]hifting and inconsistent explanations can
provide a basis for a finding of pretext . . . [if] the ex-
planations [are sufficiently] shifting and inconsistent to
permit an inference of mendacity.” Id. at 577. Perhaps
NTN has a theory under which these various accounts
are consistent. It might try to prove, for example, that
no one was satisfied with Pantoja, and that each manager
had a different concern. But all this shows only that there
is a disputed issue of fact about the true reason for
Pantoja’s firing. A trier of fact might believe that the
company did not see his previous difficulties as firing
offenses until Pantoja complained. If that is the way it
sees the facts, it would be entitled to conclude that the
real reason for Pantoja’s termination was retaliation.
18                                              No. 06-1252

                            IV
  We have little to say about Pantoja’s last claim, which is
that he was harassed because of his race or national origin.
One of the elements of a harassment theory is that harass-
ment must be severe or pervasive enough to alter the
terms and conditions of employment. Boumehdi, 2007 WL
1583980 at *3. The district court correctly recognized that
Pantoja’s claim of harassment is based on a few isolated
incidents, one involving Cloyd and Maney’s discriminatory
statements to a coworker and one involving a discrimina-
tory comment by Cusimano to Pantoja. This depicts
conduct that is neither severe nor pervasive, and thus the
district court correctly ruled for NTN on this claim.


                             V
  Taking the record, as we must at this stage, in the light
most favorable to Pantoja, we conclude that a trier of
fact could infer that he was the victim of retaliation
prohibited by Title VII. (A trier of fact might well rule the
other way too, of course; nothing we say here should be
understood to imply that Pantoja has already proven his
case.) The district court properly granted summary
judgment to NTN on Pantoja’s discrimination and harass-
ment claims. We AFFIRM the district court’s judgment on
the discrimination and harassment claims, but REVERSE
and REMAND the retaliation claims for further proceed-
ings in accordance with this opinion.
No. 06-1252                                        19

A true Copy:
      Teste:

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




               USCA-02-C-0072—8-6-07
